Encyclopedia Of Genocide And Crimes Against Humanity [PDF]

Download Embed
This document was uploaded by our user. The uploader already confirmed that they had the permission to publish it. If you are author/publisher or own the copyright of this documents, please report to us by using this DMCA report form. Report DMCA

E-Book Overview

This outstanding comprehensive sourcebook of the worst in human behavior throughout history also includes instances of some of the best responses. It is aimed at the adult general reader but will be valuable for both specialists and older students studying the destruction of a people. The editor and contributors are broadly representative of academic experts around the world, and some of them have had extensive involvement with the subject.The 350 signed, well-documented entries, varying from 500 to 5,000 words, as appropriate, are arranged alphabetically. The topics comprise the diverse aspects of crimes against humanity - acts and consequences, cultural memory and representation, international institutions and laws. Each article is well written, balanced (such as the entry on the Sabra and Shatila Palestinian refugee camps), and includes see also references and a bibliography. The set covers judicial decisions and events as recent as mid-2004. There is some overlap (for example, in treating different aspects of the crimes in the Balkans), but each entry is fresh and shows careful editing.

E-Book Content

encyclopedia of


editorial board Editor in Chief Dinah L. Shelton George Washington University Law School

Associate Howard Adelman Editors Princeton University Woodrow Wilson School York University, Canada

Frank Chalk Department of History, Concordia University, Montreal, Canada Montreal Institute for Genocide and Human Rights Studies

Alexandre Kiss French National Centre for Scientific Research

William A. Schabas Irish Centre for Human Rights, National University of Ireland, Galway

encyclopedia of





Encyclopedia of Genocide and Crimes Against Humanity Dinah L. Shelton

© 2005 Thomson Gale, a part of the Thomson Corporation. Thomson and Star Logo are trademarks and Gale and Macmillan Reference USA are registered trademarks used herein under license. For more information, contact 27500 Drake Rd. Farmington Hills, MI 48331-3535 Or you can visit our Internet site at http://www.gale.com

For permission to use material from this product, submit your request via Web at http://www.gale-edit.com/permissions, or you may download our Permissions Request form and submit your request by fax or mail to: Permissions Department Thomson Gale 27500 Drake Rd. Farmington Hills, MI 48331-3535 Permissions Hotline: 248-699-8006 or 800-877-4253 ext. 8006 Fax: 248-699-8074 or 800-762-4058

While every effort has been made to ensure the reliability of the information presented in this publication, Thomson Gale does not guarantee the accuracy of the data contained herein. Thomson Gale accepts no payment for listing; and inclusion in the publication of any organization, agency, institution, publication, service, or individual does not imply endorsement of the editors or publisher. Errors brought to the attention of the publisher and verified to the satisfaction of the publisher will be corrected in future editions.

ALL RIGHTS RESERVED No part of this work covered by the copyright hereon may be reproduced or used in any form or by any means—graphic, electronic, or mechanical, including photocopying, recording, taping, Web distribution, or information storage retrieval systems—without the written permission of the publisher.

Library of Congress Cataloging-in-Publication Data Encyclopedia of genocide and crimes against humanity Dinah L. Shelton, editor in chief. p. cm. Includes bibliographical references and index. ISBN 0-02-865847-7 (set hardcover : alk. paper)— ISBN 0-02-865848-5 (v. 1 : alk. paper)—ISBN 0-02-865849-3 (v. 2 : alk. paper)—ISBN 0-02-865850-7 (v. 3 : alk. paper)— ISBN 0-02-865992-9 (ebook) 1. Genocide—History— Encyclopedias. I. Shelton, Dinah.

HV6322.7.E532 2004 304.66303—dc22


This title is also available as an ebook. ISBN 0-02-865992-9 Contact your Gale sales representative for ordering information. Printed in the United States of America 10 9 8 7 6 5 4 3 2 1

T Taino (Arawak) Indians The Taino, also known as the Arawaks, migrated from the Caribbean coast of South America, moving northward along the island chain of the lesser Antilles to the greater Antilles, around 1200 CE. They were agriculturalists whose basic food crops—corn, manioc, and beans—were supplemented by hunting and fishing. By the time the Europeans first encountered the Taino in 1492, they dominated the islands of Hispaniola, Puerto Rico, most of Cuba, and the Bahamas, but they were coming under pressure from the more warlike Caribs of South America as they too moved northward through the lesser Antilles. The first expedition of Christopher Columbus brought an initial wave of Old World peoples to the Caribbean. Columbus was impressed by the beauty, peaceful nature, and agricultural techniques of the Taino, and often wrote about the richness and productivity of the land. Chieftains, assisted by elders, ruled the land, and groups were linked loosely by confederations. Columbus frequently boasted of large populations that seemed well off and, surprisingly for the Europeans, to have no money. The Taino were more than willing to exchange their small gold objects or cotton for broken mirrors, knives, or copper bells. Modern scholars do not know for certain the total population of the Taino when the Europeans arrived, and there is heated debate about these numbers. Nonetheless, it can be said that the population was substantial, with villages containing up to five thousand people, and that almost immediately such numbers began to decline. Within half a century after 1492 the Aborigi-

nal population of many of the islands was approaching extinction. According to Miguel de Pasamonte, the Taino of Hispaniola numbered 60,000 in 1508. According to Diego Columbus, there were 33,523 in 1510; four years later the population was reported to be 26,334. The total fell to about 18,000 in 1518 and 1519, and only 2,000 Tainos remained on the island in 1542. What were the causes of this demographic collapse? Those making a case for genocide cite the vivid descriptions of Dominican friar Bartolomé de las Casas who arrived in the islands in 1502, a decade after Columbus’s first voyage. In his Brevissima Relación and other writings, he characterizes the Spanish settlers, gold seekers, and warlike conquerors as villains. He, too, had shared in the exploitation of the Taino until his conversion, thanks to a compelling sermon by friar Antonio de Montesinos on Whitsunday of 1512. It influenced him to give up his Indians and dedicate his life to their protection. As an eyewitness, he reported the Spanish to be rapacious, burning captives to secure the source of treasure, and forcing them to travel long distances to work in mines or on settler’s estates. They raped the native women and took pleasure in maiming and brutalizing Amerindians with war dogs and instruments of torture. His compelling descriptions were supported by the writings of others, such as the Italian traveler Girolamo Benzoni. These accounts, reinforced by the gory illustrations of Theodore de Bry later in the century, led to the Black Legend, which depicted the Spanish as the scourge of whomever they encountered. But the account of Las Casas was intentionally and successfully exaggerated in order to secure legal protec-



Taino (Arawak) Indians

tions for Native-American peoples from the Spanish Crown.

also contributed to the high rate of mortality, as normal subsistence patterns were disrupted.

In fact, several factors coincided and led to the destruction of Taino society. It is impossible to deny the role of the shock of violent conquest. Columbus’s first expedition of three small ships engaged in reconnaissance and trade; within months a large-scale expedition of 17 vessels and 1,500 men—and a handful of women—followed. Some of the men had fought in the wars in Italy and the recent conquest of the kingdom of Granada. They brought warhorses, war dogs, and ample military equipment. The group had been influenced by Columbus’s pronouncements on the wealth of the islands, the ease of communication with the Natives, the seemingly friendly nature of the Taino women, and the backward technology of the military.

The impact of culture shock as a technologically more advanced society comes into contact with a less developed one is hard to measure, but evidence exists that this phenomenon did play a role in the collapse of Taino social groups. Las Casas mentions infanticide, which he claimed mothers committed in order to free their infants from the exploitation of the Spanish. Crops were torn up and burned, with starvation as the consequence, but the destruction of crops may have been intentional, carried out by the local population on purpose to deprive the Spaniards of food. Villages became deserted as their residents fled to the countryside. Men and women, too worn out by forced labor, failed to procreate.

The Spaniards arrived expecting to find wealth, and they were ready to take it by force if necessary, especially as the Spaniards discovered that no one remained of a handful of men left behind by Columbus; all had fallen to the Taino. If one accepts the statistic that the Taino population of Hispaniola at the time of the Europeans’ arrival was approximately a halfmillion, then the ratio of Spanish males to Taino males was 1:167. The superior military technology of the Europeans more than made up for the difference in numbers. Further, the Spanish utilized brutality in the early stages of conquest to subdue the enemy as quickly as possible. Some of Las Casas’s descriptions of brutality during the early months of the encounter were likely accurate. Shock led to submission. But mortality for the Europeans was also very high; more than half did not survive their first year on Hispaniola. Taino were soon distributed to the settlers in the form of an encomienda, an Iberian institution that had been used during the reconquest of the peninsula. Simply put, the settler was given a grant of natives, mostly adult married males, who provided tribute (a head tax) to the encomendero, who was then responsible for their conversion and civilization. The Spanish Crown frowned on the direct enslavement of the Indians; Queen Isabella had freed Indians enslaved by Columbus to help defray the costs of his second expedition, arguing that the Indians were her free subjects. The Laws of Burgos (1518) restated the policy against Indian slavery, although exceptions were made for Indians who rebelled, killed missionaries or rejected their efforts, or were cannibals. Although technically not slavery, the early encomienda in the Caribbean permitted the Spaniard to use Indian labor, either in mining or the creation of plantations for exports to Europe, especially sugar. The institution led to the abuse and death of tributary workers. Migration, either forced or voluntary, [1018]

Until recently it was believed that the disappearance of the Taino did not involve Old World disease, so important to the collapse of the Amerindian population elsewhere. But there is new evidence that disease did play a role in the Taino disaster. A wave of disease broke out simultaneously with the arrival of the second Spanish expedition in late 1494. Several observers have suggested the loss of a third to a half of the population within that short period of time. There has been much debate among scholars on which disease triggered the huge loss of life; likely candidates have been typhus, which was present with the fall of Granada and the Italian campaigns, or swine flu, similar to the epidemic that occurred at the end of World War I. More recently smallpox has been suggested. Certainly, the smallpox pandemic of 1518 killed most of the remaining Taino on the islands before it spread to the mainland. Slaving expeditions during the early years of the colony were undertaken to resupply the island’s labor force as the Taino population declined. The brunt of slaving fell early on nearby islands, especially the Bahamas. Mortality for enslaved Indians seems exceptionally high. Slaves purchased in the Old World, largely of African origin and transported to the Carribean, ultimately solved the labor problem for European settlers in the lands of the Taino. The legality of slavery was not questioned because it had been practiced in the Mediterranean region for centuries. The long-term demographic consequence for the Caribbean islands was a population of largely European or African origin, or a mixture thereof, with little remnants of the original Aboriginal population, although the significant cultural legacies of the Taino persist. SEE ALSO Indigenous Peoples; Native Americans




Alchon, Susan Austin (2003). A Pest in the Land: New World Epidemics in a Global Perspective. Albuquerque: University of New Mexico Press. Cook, Noble David (1998). Born to Die: Disease and New World Conquest, 1492–1650. Cambridge: Cambridge University Press. Rouse, Irving (1992). The Tainos, Rise and Decline of the People Who Greeted Columbus. New Haven, Conn.: Yale University Press. Watts, David (1987). The West Indies: Patterns of Development, Culture and Environmental Change since 1492. Cambridge: Cambridge University Press. Noble David Cook

Talaat [SEPTEMBER 1874–MARCH 15, 1921]

Turkish political leader

As its principal author, Turkish leader Mehmet Talaat played a decisive role in the decision-making, organization, and implementation of the World War I Armenian genocide. His authority and power to act derived from a dual-track position: He was minister of the interior and, perhaps more importantly, he was the supreme boss of the ruling Committee of Union and Progress Party (CUP). In July 1908 the leaders of this revolutionary Young Turk movement successfully overthrew the despotic reign of Sultan Abdulhamit (1876–1908) in the name of a new constitutional regime. The spokespersons of this movement claimed to be guided by the ideals of the French Revolution—namely, freedom, equality, and brotherhood. Except for a brief sixmonth period in 1912, CUP remained in near-total control of a succession of Ottoman Turkish governments in the years between 1908 and 1918. Such control was made possible, however, through Talaat’s exceptional skills in political organization and party formation. Due to his innate qualities of leadership, CUP quickly gained inordinate strength not only in Istanbul, then the Ottoman capital, but, more importantly, in the empire’s Asiatic provinces, where the bulk of the empire’s Armenian population lived as an indigenous population. Parallel to this growing strength, CUP increasingly became dictatorial and monolithic in pursuit of a xenophobic nationalism. This ideological push aimed at rescuing and preserving the tottering empire by way of discarding a languishing ideology of a multiethnic and hence inclusive Ottomanism and replacing it by an exclusive Turkism. The targeting and forcible elimination of the Armenians had thus become a byproduct of this new militant ideology. To accomplish this task, Talaat decided to rely on CUP’s clandestine and highly secretive mechanisms

that he himself had created and fostered. As Talaat’s principal biographer, Tevfik Çavdar noted, CUP had a two-tiered structure “just like an iceberg” (Çavdar, 1984, p. 190). Talaat used the submerged invisible parts for “illegal” acts in order to carry out CUP’s covert and lethal objectives, which included mass murder. World War I afforded an invaluable opportunity in this respect. Accordingly, as revealed by Talaat himself, Parliament was temporarily suspended, martial law was declared, and certain constitutional rights were deferred. As a prelude to the impending genocide, the targeted Armenians were thereby stripped of their most basic human rights. Alerted to the situation, on May 24, 1915, when the Armenian genocide was being initiated, the Allies publicly and formally pledged to hold “personally responsible” all the Turkish officials who were implicated in these “new crimes against humanity” (Dadrian, 1989, p. 962). Similar references to crimes of Turkey against humanity in the postwar period were made in the Ottoman Parliament and in some of the verdicts issued by the Turkish Military Tribunal. Prosecuting the authors of the Armenian genocide, that tribunal condemned Talaat, along with some other top CUP leaders, including Ismail Enver (Turkish Minister of War in the Ottoman Empire during World War I), to death in absentia. Talaat’s paramount role in the organization of the Armenian genocide was confirmed during the trial of a young Armenian who had assassinated him in Berlin, where Talaat had taken refuge under the fictitious name Sai. A German jury acquitted the assassin on grounds of temporary insanity brought on by a vision of his murdered mother. Given Germany’s wartime military and political alliance with Turkey, this verdict was as surprising as it was educational. The general public learned with horror the gruesome details of a centrally organized mass murder orchestrated by Talaat himself, whose image was transformed from victim to arch villain. SEE ALSO Armenians in Ottoman Turkey and the

Armenian Genocide; Atatürk, Mustafa Kemal Pasha; Enver, Ismail BIBLIOGRAPHY

Çavdar, Tevfik (1984). Talât Pas¸a: Bir Örgüt Ustasinin Yas¸am Öyküsü (Talât Pasha: The Life Story of a Master Organizer). Ankara, Turkey: Dost Publishers. Dadrian, Vahakn (1986). “The Naim-Andonian Documents on the World War I Destruction of Ottoman Armenians: The Anatomy of a Genocide.” International Journal of Middle East Studies 18:326–328. Dadrian, Vahakn (1989). “Genocide as a Problem of National and International Law: The World War I




Armenian Case and its Contemporary Legal Ramifications.” Yale Journal of International Law 14:221–334. Montgomery, R. G. (1921). “Why Talaat’s Assassin Was Acquitted.” Current History Magazine (July 5):551–555. Vahakn N. Dadrian

Television Limited news coverage of major genocides and crimes against humanity prior to the second half of the twentieth century allowed those events to continue outside the glare of public scrutiny that has become possible. The advent of modern television news networks allows for rapid, even instantaneous visual reporting of international crises. Television news coverage of genocide and crimes against humanity can thus inform and shape world opinion, eliciting responses to such atrocities. The CNN Effect Television news coverage plays a critical role in ensuring that the global public is informed about international events. It is, in fact, the preferred means by which the majority of the Western public receives its news. The existence of Cable News Network (CNN) and other global television news networks dedicated to instantaneous coverage means that concerned nongovernmental groups and the public at large are often exposed to international news events at the same time as governments. This exposure to international news allows the public to formulate opinions and influence government policy. The broad international reach and the speed of modern television news coverage thereby create pressure on governments to respond quickly to international crises. This phenomenon whereby aggressive television news coverage of live events indirectly shapes the course of those events is known as the CNN Effect or the CNN Factor. Television news coverage of genocide and crimes against humanity has the potential to limit the extent and severity of those incidents by motivating timely action and resource allocation by governments and nongovernmental groups like relief agencies. Such coverage may even help to prevent future occurrences; an informed public can encourage governments to monitor potential international crises and take preventative action when necessary. Factors in Television Reporting The television news media is also a business, and as such is limited by practical considerations. News stories themselves are limited in scope; in a given news segment, each story tends to last no more than one to [1020]

three minutes. Likewise, the news media’s attention to any one event is limited in duration, with sustained coverage rarely lasting longer than a period of a few weeks. The television news media generally only cover one such major event at a time, meaning that while one important international crisis may get the attention it deserves, other crises may go under- or unreported. Moreover, the complicated logistics of reporting from remote, undeveloped locations make certain events of humanitarian concern inaccessible to the media and therefore unavailable to the public. Profit considerations similarly influence news coverage. The television news media tend to seek out sensational stories—which are most often highly negative—because those stories gather viewers. The global public has demonstrated a tendency toward voyeurism; that is, the public is more interested in seeing exceptional, negative news than in seeing ordinary and/or positive news. Distortion and Manipulation The television news media’s proclivity to report the sensational can lead the public in developed countries to harbor incomplete and erroneous opinions about the developing world. These misconceptions can lead to frustration and a belief that the situations in the developing world are hopeless and beyond the reach of international aid or intervention. Thus, just as the television media may promote action by news coverage of international crises, the prolonged focus on such negative events may eventually lead to a decline in timely response—or any response—to similar occurrences. This phenomenon is commonly known as “compassion fatigue.” In addition to the editorial and practical decisions made at the studio and executive news media levels, decisions made by reporters in the field may also influence the global public’s knowledge of humanitarian crises. For example, the television news media may often provide the global public with unintentional but ignorant misinformation. Coverage of crisis events may be based primarily upon secondary rather than primary accounts of the situation, and the coverage may lack a basic foundation or recognition of the history and context of the situation, thus likely misinforming the public about those events. Similarly, television reporting of international crises can distort the public’s perception of the crises through the camera eye itself. That is, the way a camera shot is framed or angled, in addition to the editing of shots after they are taken, can misrepresent reality. For example, a camera may portray a shot of a well-armed soldier looming in the foreground over the dead body



[JOURNALISTS AND NEWS REPOR TS IN THE INTERNATIONAL CRIMINAL PROCESS] Journalists are often some of the few nonparticipant, neutral observers in situations of genocide and crimes against humanity and are, therefore, in a unique position to impartially record and report those events. Reporters are by nature, though, also witnesses to events they observe. National and international criminal systems have come to recognize this second nature of journalists; journalists are allowed to present to courts information about what they have observed, and may even be compelled by the courts to testify if their knowledge is of critical importance.

humanity at both the initiation and investigation stages of the criminal process. Furthermore, numerous journalists who reported on the crisis in the former Yugoslavia have voluntarily testified at trials of accused perpetrators.

Article 15 of the Rome Statute of the International Criminal Court (ICC) allows the prosecutor of the Court to initiate investigations based on information about “crimes within the jurisdiction of the Court”—which include genocide and crimes against humanity—and to pursue “reliable sources” of information about those crimes during the investigations. At the International Criminal Tribunal for the Former Yugoslavia (ICTY), where the prosecutor’s investigative powers are essentially the same, journalists have played a significant role in providing information about genocide and crimes against

Under the Statutes and Rules of the ICC and ICTY, the prosecutor can presumably initiate an investigation based solely on news reports of genocide or crimes against humanity. News reports can be used as information during investigations as well. There is no rule or precedent determining whether reports about genocide and crimes against humanity are admissible as trial evidence standing alone (i.e., without testimony from the journalist who made the report that it is a truthful account of events). The trial courts at the ICTY and ICC must decide news report admissibility on a case-by-case basis under their respective rules of evidence.

The ICTY has held that reporters with vital information about genocide or crimes against humanity may even be compelled under certain narrow circumstances to testify regarding their knowledge of those criminal acts. That decision is highly unpopular, however, as journalists and news organizations argue that compelling such testimony harms the perception of those reporters as impartial, and may even endanger them. Should the issue arise in the ICC, however, that court is likely to follow the ICTY’s precedent, which engages journalists in the international criminal process beyond their voluntary participation.

In sum, television reports and reporters help record evidence of criminal offenses like genocide and crimes against humanity. That evidence can be used to help bring perpetrators of such atrocities to justice.

of a child. What the camera eye may not show is that in reality the soldier is standing fearful, surrounded by a large and angry mob of armed youths. The reaction of the public to crisis situations can thus be significantly affected by the distorted picture of reality that the media may intentionally or unintentionally present. Furthermore, television can also be manipulated in closed societies to intentionally misinform the public. Governments can use the television news media to disseminate propaganda, encourage stereotypes, and incite hatred and violence against certain religious, ethnic, or political groups (just as radio was used during the genocide in Rwanda in 1994). Television news coverage of genocide and crimes against humanity may also affect victims of the events. If journalists are not sensitive to the trauma of victims, and are instead imprudent in their investigation and reporting, victims may easily be re-traumatized. On the other hand, thoughtful inquiry and reporting may be quite valuable: Victims often welcome a chance to tell

their stories and explain what happened to them; in doing so, the public learns more about the effects of genocide and crimes against humanity on individuals and groups directly affected by those events. The television news media can be a powerful force in informing and shaping world opinion, and in eliciting responses to international humanitarian crises. While the importance of the CNN effect cannot be understated, the global public should be aware of the limitations that do exist in television news media coverage. By recognizing the practical and editorial decisions behind the images on the TV screen—and by seeking knowledge of international crisis situations through additional sources—the global public will have a fuller, more accurate opinion of world events. Such a better informed public will be more capable of encouraging appropriate and timely responses to threats of genocide or crimes against humanity. SEE ALSO Film as Propaganda; Films,

Dramatizations in; Films, Holocaust



Terrorism, Psychology behind

Documentary; Photography of Victims; Propaganda; Radio BIBLIOGRAPHY

Adelman, Howard, and Astri Suhrke, eds. (1999). The Path of a Genocide: The Rwanda Crisis from Uganda to Zaire. Rutgers, N.J.: Transaction Books. Gradney, Jeff (2000). “Focusing on the Humanity.” In Covering Violence: A Guide to Ethical Reporting about Victims and Trauma, ed. William E. Coté and Roger Simpson. New York: Columbia University Press. McLaughlin, Greg (2002). War Correspondent. London: Pluto Press. Minear, Larry, Colin Scott, and Thomas G. Weiss (1996). The News Media, Civil War, and Humanitarian Action. Boulder, Colo.: L. Rienner. Newman, Edward (1995). “Realpolitk and the CNN Factor of Humanitarian Intervention.” In The United Nations in the New World Order: The World Organization at Fifty, ed. Dimitris Bourantonis and Jarrod Weiner. New York: St. Martin’s Press. “Prosecutor v. Radoslav Brdjanin and Momir Talic: Decision on Motion to Set Aside Confidential Subpoena to Give Evidence.” June 7, 2002. In the International Criminal Tribunal for the Former Yugoslavia website. Available from http://www.un.org/icty/brdjanin/trialc/decision-e/ t020612.htm. “Rome Statute of the International Criminal Court.” International Criminal Court website. Available from http://www.icc-cpi.int/library/basicdocuments/ rome_statute(e).pdf. Rotberg, Robert I., and Thomas G. Weiss, eds. (1996). From Massacres to Genocide: The Media, Public Policy, and Humanitarian Crises. Cambridge, Mass.: The World Peace Foundation. Seib, Philip (2002). The Global Journalist: News and Conscience in a World of Conflict. Oxford, U.K.: Rowman & Littlefield. Shaw, Martin (1996). Civil Society and Media in Global Crises: Representing Distant Violence. New York: Pinter. Kelly Helen Fry

Terrorism, Psychology behind Research concerning the psychology of terrorism has focused primarily in two directions. First, psychology has examined the impact of terrorism on survivors and victims as well as the population under threat. Second, it has studied the psychology behind perpetrators of terrorism. In other words, psychologists have examined the question of what enables an individual or group to commit acts of large scale property destruction and/or mass murder that may even result in the terrorist’s own death for political ends. Perpetrators Terrorists often are portrayed as the personification of evil, or as possessing some underlying measure of ex[1022]

treme psychopathology. Such a characterization may enable individuals to feel safer, for they may believe that if the targeted perpetrator is eliminated, the threat of terrorism will disappear. Unfortunately, this is not an accurate perception. There are a myriad of reasons behind the motivations of terrorists, ranging from self-interest and fanaticism to group social influences. Leaders, while unlikely to commit acts of terrorism themselves, are most often motivated by self-interest or fanatical belief systems. Self-interested leaders may be motivated by a desire for power, recognition, money, land, or other self-directed goal. Thus, the use of terrorism may serve as more of a means to these self-serving ends than as an effort to achieve the espoused goal for their people or group. Ironically, many such leaders will work to create barriers to the expressed goal for their people, as the attainment of the goal would lead to an end of their leadership role within the terrorist organization. Thus, for example, terrorist attacks may increase prior to any movement towards resolution of a conflict or peace, because such a resolution would not be in the self-interest of the terrorist group’s leadership. Fanatics or true believers are particularly dangerous, in that they may perceive their terrorist actions as a means for achieving a greater good. This results in a reversal of morality, whereby the taking of innocent lives may come to be viewed as righteous action to be rewarded both in the present and after one’s death. Certainly, the pairing of religion and hate is an extremely destructive combination. Religious validation of hate and social inequity only serves to fuel enmity. One of the most effective ways to maintain hate and social inequities is to cite religious doctrine. In fact, leaders may selectively use religious doctrine or scripture to dictate that other religious groups be held as inferior, thereby promoting the formation of intra-religious hatred and the potential for terrorism. While leaders are necessary for the coordinated survival of a terrorist organization, the continuation of such a group may depend less on the specific, idiosyncratic leader than on the simple presence of someone in a leadership position who has learned basic group dynamics. The most effective terrorist leaders are in tune to the needs and abilities of their followers and can therefore maximize their manipulation of the group towards the overall goals of the terrorist organization. Most terrorist attacks are committed by followers who are otherwise very ordinary people. Unfortunately, they have been made to feel needed, valued, and efficacious by their involvement in the terrorist organization, and this leads them to develop a high level of loyalty to both the leader and the group.


Terrorism, Psychology behind

Robert Lifton argues that one of the features of highly destructive groups is totalism, which extends beyond an “us-them” dichotomy to an “us against them” philosophy. This belief system, taken to the extreme in terrorist and other destructive groups, pushes individuals to separate from all who are not associated with the group. This isolation of group members from those not associated with the group leads to Lifton’s second feature of highly destructive groups— environmental control. Through environmental control, leaders can manipulate the majority of what is seen, heard, or experienced by the group and the “purity” of the information to which the group is exposed. Group dynamics within a terrorist organization can further entrench individual hatred and greatly increase the likelihood of violence. For example, the organizational structure of most terrorist groups is quasimilitary and necessitates conformity to the group ideal. There are often very severe penalties for not conforming, ranging from ostracism and verbal aggression to physical violence. Thus, group members may initially feel pressure to engage in hatred and violence, knowing only too well the ramifications of nonconformance. Later, after engaging in such acts, cognitive dissonance—the internal pressure to achieve consistency between our thoughts and actions—necessitates that members either internalize a rationale for their hatred of the “other” or leave the terrorist organization. The pressure to internalize the group’s ideology becomes even more salient upon the introduction of a powerful authority figure or leader. Eventually, the adage of “in for a penny, in for a pound” applies, as terrorist recruits are subjected to increasing levels of commitment, are pressured to conform, and are driven to obey their leaders. In an attempt to avoid cognitive dissonance, recruits become increasing committed to the terrorist organization’s ideology and activities, increasingly identify themselves solely as a terrorist group member, and become increasingly loyal to those in positions of authority. Terrorist organizations also tend to foster a sense of anonymity or de-individuation among members. By stripping individuals of their identities through increased anonymity, de-individuation causes people to become less self-aware, feel less responsible for their actions, and become more likely to engage in violence if placed in a provocative situation. The quasi-military structure of many terrorist organizations, with their uniforms and clearly identifiable proscribed rules for behavior, facilitates the processes of de-individuation, conformity, diffusion of responsibility, and ultimately violence if the terrorist group leadership dictates such behavior.

March 11, 2004: A series of coordinated terrorist bombings rocked Madrid’s commuter train system days before Spain’s national election. On their way to work that morning, more than 1,800 people were wounded; 191 died. [ G U I L L E R M O N A V A R R O / COVER/CORBIS]

Finally, to facilitate movement along a path of escalating enmity and potential violence, terrorist group leaders promote increasing levels of dehumanization. The process of dehumanization begins with the increased promotion of stereotypes and negative images of the target of their enmity. This is often a necessary tool, used to reduce the cognitive dissonance that may occur when individuals behave negatively towards other human beings. Propaganda is another vital tool used by the terrorist group leadership to stigmatize and dehumanize the “other,” as well as to present the target of hate as an imminent threat. Therefore, the terrorist group members may come to believe that their family, friends, and communities existence is dependent on the destruction of the “other.” Concomitant with dehumanization is the process of moral exclusion. Over time, terrorist group members begin to view the “other” as a threat and begin to morally disengage. In other words, certain moral principles



Terrorism, Psychology behind

that exist within the terrorist’s own group no longer pertain to those outside of the group. Thus, terrorist acts, including the killing of other human beings, become morally acceptable, as the “enemy” no longer is included in the terrorist’s sphere of morality. Survivors, Victims, and Restorative Justice Survivors and victims of terrorism face a myriad of psychological reactions in response to a terrorist attack. These reactions can range from an acute stress reaction to a long-term cluster of symptoms associated with post-traumatic stress disorder and possible accompanying depression. The closer an individual is to a terrorist attack, the greater the likelihood they will experience either short- or long-term psychological effects. The greatest psychological trauma will occur in those individuals who personally experience a direct threat of death or serious injury, or who witnessed the death or serious injury of another and who also felt horror, fear, and intense helplessness in response to the situation. It is normal for individuals who experience a terrorist attack either directly or indirectly to respond with emotions such as intense grief, anger, detachment, confusion, numbing, and disorientation. Individuals who continue to have such strong emotional and cognitive reactions for more than two days with accompanying recurrent thoughts, flashbacks, and nightmares about the event may be experiencing acute stress disorder. A diagnosis of acute stress disorder is most likely if the individual’s functioning on a day-to-day basis is significantly impaired and there is marked evidence of anxiety symptoms.

very destabilizing and often results in threats to the individual, such as loss of group pride, an escalation of fear, frustration of needs and wants, and confusion regarding personal identity. In addition, crisis usually leads to an increase in prejudice. Following the terrorist attacks of September 11, 2001, a time experienced by most in the United States as crisis, prejudice and hate crimes spiked. For example, anti-Arab hate crimes increased, attacks on Asian-Americans, particularly immigrants, increased dramatically, and anti-Semitism spiked from 12 to 17 percent. Crisis can also draw individuals to a wide variety of organizations such as religious groups, political groups, and cults, as well as hate groups. Unfortunately, groups with destructive agendas and ideologies built on hate may provide the shortest route to an individual’s sense of perceived stability through mechanisms such as scapegoating, just-worldthinking (the belief that people get what they deserve), ingroup-outgroup polarization, hedonic balancing (denigration of the “other” as a means to one’s selfesteem), and other processes. It is also important to remember that there may be incredible pressure on leaders to acquiesce to demands of terrorism, as crisis and the constant threat of additional terrorist attacks further destabilizes a culture. It is therefore imperative that leaders and constructive organizations within a culture impacted by terrorism work constructively to bring an end to terrorism, work together to heal the trauma associated with terrorism, and work towards restorative justice.

Most individuals will recover from the trauma associated with terrorism within a relatively short period of time. However for some individuals, particularly those most directly impacted by the event, the symptoms associated with acute stress may extend beyond three months. If the symptoms persist and continue to impair daily functioning, cognitive processing, or relationships, then the person may be experiencing posttraumatic stress disorder and need additional treatment. Symptoms of post-traumatic stress disorder typically include emotional numbing, detachment from others, hypervigilance, anxiety, depression, and intrusion of memories related to the terrorist attack into the individual’s daily life or dreams. Additionally, the individual will work to avoid cues reminiscent of the attack and may experience extreme panic, fear, or aggression if confronted directly with sudden reminders or recollections of the terrorist attack.

From a psychological perspective, there are three predominant responses towards ending terrorism: reform, deterrence, and backlash. Reform means addressing the concerns of those who are in situations that may lead them to perceive that desperate measures are the only possible solution to their problems. If their problems are realistically addressed, the urge to take terrorist action may be reduced. Second is backlash. Terrorists often hope that these desperate measures will raise awareness of their concerns and support for their cause. In this instance, terrorism and the media operate within the context of a symbiotic relationship. Backlash occurs when the target audience is appalled, offended, and outraged by the terrorist act as opposed to being drawn in and sympathetic. And, finally, there is deterrence. Essentially, deterrence involves the threat of retaliatory action in response to attacks. Such retaliation can range from sanctions to targeted military attacks. Of all the methods discussed above, deterrence in the absence of the other methods is the least effective.

On a broader societal level, terrorist attacks create an immediate crisis for individuals, groups, and communities directly impacted by the attack. Crisis can be

Both deterrence and restorative justice are difficult to achieve, due to the differences in psychological perceptions between victims and perpetrators of any form



Terrorism, Psychology behind

The South Tower of the World Trade Center explodes into flames after being hit by hijacked United Airlines Flight 175. The North Tower smolders following a similar attack some 17 minutes earlier. When both buildings, symbols of U.S. corporate might, collapsed to the ground on September 11, more than 2,000 people had perished. [ R E U T E R S / C O R B I S ]

of harm or attack. First, a difference in perception of harm exists between victims and perpetrators. Victims perceive the extent of the harm as greater than the perpetrator does, and victims tend to view all actions on the part of the perpetrator, including those resulting in accidental outcomes, as being intentional. In addition, victims feel the reverberations of the harm extending over a much longer period of time, including intergenerationally. Ironically, perpetrators tend to perceive themselves as victims in a reversal of morality. Because of these differences in perception, victims’ retaliatory responses tend to be viewed as out of proportion by the original perpetrators, thus enhancing the perpetrators perception that they are in fact being victimized. This may result in further aggression, including terrorist attacks directed towards the original victims, and may unfortunately escalate the cycle of violence. For groups to move beyond this pattern or achieve at least a cessa-

tion of violence, each group must come together to understand the partisan perceptions of the “other.” This, of course, does not excuse the actions taken by terrorists, but rather explains psychologically why retaliatory responses to terrorism may in fact serve to escalate the danger of future terrorist attacks. Ultimately, each group must work to understand the perceptions of the other and acknowledge the harm caused by all involved so as to move towards restorative justice. SEE ALSO Perpetrators; Victims BIBLIOGRAPHY

De Jong, Joop, ed. (2002). Trauma, War, and Violence: Public Mental Health In Socio-Cultural Context. New York: Kluwer Academic. Lifton, Robert J. (1989). Thought Reform and the Psychology of Totalism. Chapel Hill: University of North Carolina Press.




Pyszczynski, Thomas A., Sheldon Solomon, and Jeff Greenberg (2002). In The Wake of 9/11: The Psychology of Terror. Washington, D.C.: American Psychological Association. Staub, Ervin (1989). The Roots of Evil: The Origins of Genocide and Other Group Violence. New York: Cambridge University Press. Stout, Chris E., ed. (2002). The Psychology Of Terrorism. Westport, Conn.: Praeger. Woolf, Linda M., and Michael R. Hulsizer (2002/2003). “Intra- and Inter- Religious Hate and Violence: A Psychosocial Model.” Journal of Hate Studies 2:5–26. Linda M. Woolf

Tibet Tibet has been an independent country throughout the historical period and since time immemorial according to Tibetans’ own myth-based sense of national identity. That independence is supported by the country’s geography, history, language, culture, religion, and race. Tibet’s Rich Culture Geographically, the Tibetan high plateau is a distinctively demarcated region, with boundaries starting at approximately the 10,000-feet altitude line. It can be clearly perceived on any relief map. Historically, Tibetan dynasties often conflicted with Chinese dynasties. The Tibetan Yarlung dynasty (which ruled during the sixth through ninth centuries) conquered the Chinese T’ang dynasty (seventh through tenth centuries) for most of the eighth century. No indigenous Chinese dynasty ever conquered Tibet, though the Mongol Empire (thirteenth through fourteenth centuries) and the Manchu Empire (seventeenth through twentieth centuries) incorporated both China and Tibet under their imperial hegemony. The British Empire invaded Tibet and imposed a trade treaty on it, doing the same with China. However, none of these three empires made any attempt to homogenize China and Tibet into a single national entity, or to colonize Tibet with Mongolian, Manchu, British, or surrogate subject Chinese settlers. Except for a few border regions in the Far East, there was almost no Chinese population in high plateau Tibet until the People’s Republic of China (PRC) invasion between 1949 and 1951. Linguistically, the Tibetan language differs from the Chinese. Tibetan is written in an alphabetic system with noun declension and verb conjugation inflections based on Indic languages, as opposed to an ideographic character system. Formerly, Tibetan was considered a member of the “Tibeto-Burman” language group, a subgroup assimilated into a “Sino-Tibetan” language family. Chinese speakers cannot understand spoken Ti[1026]

betan, and Tibetan speakers cannot understand Chinese, nor can they read each other’s street signs, newspapers, or other texts. Culturally, Chinese people tend not to know the myths, religious symbols, or history of Tibet, nor do Tibetans tend to know those of the Chinese. For example, few Tibetans know the name of any of the Chinese dynasties, nor have they heard of philosophers Confucius or Lao-tzu, and fewer Chinese know of the Yarlung dynasty, or have ever heard of Songzen Gampo (emperor who first imported Buddhism, seventh century), Padma Sambhava (eighth century religious leader), or Tsong Khapa (philosopher 1357–1419). Tibetan and Chinese clothing styles, food habits, family customs, household rituals, and folk beliefs are utterly distinct. The Chinese people traditionally did not herd animals and did not include milk or other dairy products in their diets; in fact, the Chinese people are the only large civilization on the earth that was not based on a symbiosis of upland herding people and lowland agriculturalists. Hence they were the only culture to create a defensive structure, the “Great Wall” in order to keep themselves separate from upland herding peoples such as Tibetans, Turks, and Mongolians. Religiously, Buddhism is common to both Tibetan and Chinese cultures, being the main religion in Tibet and one of the three main religions in China. However, the main Chinese forms of Buddhism are quite different from the Tibetan forms (widely considered by Chinese Buddhists as an outlandish form of Buddhism they call “Lamaism,” or Lama jiao in Chinese). Only in the twentieth century, among overseas Chinese and underground on the mainland, has interest arisen among Chinese in the spiritual leader known as the Dalai Lama and Tibetan Buddhist teachings and rituals. Racially or ethnically, while there is some resemblance in facial features and other physical characteristics among some eastern Tibetan and Chinese individuals, most Chinese and Tibetans are easily distinguishable on sight, and generally do not perceive each other upon meeting as racially or ethnically the same. The Tibetan acclimatization over many centuries to an altitude of two miles or higher has created a pronounced internal physical difference, as Chinese individuals do not acclimatize easily to Tibet, and long years of exposure to the altitude tends to produce various lung disabilities among Chinese settlers. Chinese mothers in wealthy families that settle in Tibet prefer to give birth to their babies in hospitals in neighboring, low-altitude cities such as Hsining or Chengdu. Chinese Invasion and Dominance In 1949 the People’s Republic of China began invading, occupying, and colonizing Tibet. China entered into



Buddhist monks await the recitation of the Kalachakra Readings by the 14th Dalai Lama, Tenzin Gyatso, in Sarnath, India. Gyatso fled Tibet in 1959 when China’s mounting oppression of indigenous groups threatened his safety; he was awarded the Nobel Peace Prize in 1989 for his nonviolent efforts to end Chinese rule there. [ A L I S O N W R I G H T / C O R B I S ]

Tibet immediately after the communist victory over the Chinese Nationalists, imposed a treaty of “liberation” on the Tibetans, militarily occupied Tibet’s territory, and divided that territory into twelve administrative units. It forcibly repressed Tibetan resistance between 1956 and 1959 and annexed Tibet in 1965. Since then it has engaged in massive colonization of all parts of Tibet. For its part, China claims that Tibet has always been a part of China, that a Tibetan person is a type of Chinese person, and that, therefore, all of the above is an internal affair of the Chinese people. The Chinese government has thus sought to overcome the geographical difference with industrial technology, erase and rewrite Tibet’s history, destroy Tibet’s language, suppress the culture, eradicate the religion (a priority of communist ideology in general), and replace the Tibetan people with Chinese people. In China itself, communist leader Mao Zedong’s policies caused the death of as many as 60 million Chinese people by war, famine, class struggle, and forced labor in thought-reform labor camps. As many as 1.2 million deaths in Tibet resulted from the same policies,

as well as lethal agricultural mismanagement, collectivization, class struggle, cultural destruction, and forced sterilization. However, in the case of Tibet, the special long-term imperative of attempting to remove evidence against and provide justification for the Chinese claim of long-term ownership of the land, its resources, and its people gave these policies an additional edge. The process of the Chinese takeover since 1949 unfolded in several stages. The first phase of invasion by military force, from 1949 to 1951, led to the imposition of a seventeen-point agreement for the liberation of Tibet and the military takeover of Lhasa. Second, the Chinese military rulers pretended to show support for the existing “local” Tibetan government and culture, from 1951 through 1959, but with gradual infiltration of greater numbers of troops and communist cadres into Tibet. A third phase from 1959 involved violent suppression of government and culture, mass arrests, and formation of a vast network of labor camps, with outright annexation of the whole country from 1959 through 1966. Fourth, violent cultural revolution, from 1966 through 1976, destroyed the remaining monaste-




ries and monuments, killed those resisting the destruction of the “four olds,” and sought to eradicate all traces of Tibetan Buddhist culture. A fifth phase of temporary liberalization under Hu Yao Bang was quickly reversed by Chinese leader Deng Xiaoping and led to a mass influx of settlers beginning in the early 1980s. Martial law and renewed suppression took place between 1987 and 1993, with intensified population transfer of Chinese settlers. Finally, from 1993, direct orders of the aging Chinese leadership placed Tibet under the control of an aggressive administrator named Chen Kuei Yuan. Chen proclaimed that the Tibetan identity had to be eradicated in order for remaining Tibetans to develop a Chinese identity. Since Tibetan identity was tied up with Tibetan Buddhism, Tibetan Buddhist culture was in itself seditious, or “splittist,” as the Chinese call it. Chen also was able to use China’s growing economic power to invest heavily in internal projects in Tibet, bring in millions more colonists, and he extracted unprecedented amounts of timber, herbs, and minerals from the land. He also toughened up the policies of the People’s Liberation Army and the Public Security Bureau. In 1960 the nongovernmental International Commission of Jurists (ICJ) gave a report titled Tibet and the Chinese People’s Republic to the United Nations. The report was prepared by the ICJ’s Legal Inquiry Committee, composed of eleven international lawyers from around the world. This report accused the Chinese of the crime of genocide in Tibet, after nine years of full occupation, six years before the devastation of the cultural revolution began. The Commission was careful to state that the “genocide” was directed against the Tibetans as a religious group, rather than a racial, “ethnical,” or national group. The report’s conclusions reflect the uncertainty felt at that time about Tibetans being a distinct race, ethnicity, or nation. The Commission did state that it considered Tibet a de facto independent state at least from 1913 until 1950. However, the Chinese themselves perceive the Tibetans in terms of race, ethnicity, and even nation. In the Chinese constitution, “national minorities” have certain protections on paper, and smaller minorities living in areas where ethnic Chinese constitute the vast majority of the population receive some of these protections. In the 2000s, many view the Chinese genocide in Tibet as the result of the territorial ambitions of the PRC leadership. It is seen as stemming from their systematic attempt to expand the traditional territory of China by annexing permanently the vast, approximately 900,000-square-mile territory of traditional Tibet. Tibet represents about 30 percent of China’s land sur[1028]

face, while the Tibetans represent .004 percent of China’s population. Tibetans were not a minority but an absolute majority in their own historical environment. Chinese government efforts can be seen as aiming at securing permanent control of the Tibetans’ land. For this reason, some observers see genocide in Tibet as not merely referring to the matter of religion, that is, of destroying Tibetan Buddhism. Chinese policies have involved the extermination of more than 1 million Tibetans, the forced relocation of millions of Tibetan villagers and nomads, the population transfer of millions of Chinese settlers, and systematic assimilation. The Dalai Lama A Tibetan government in exile exists under the leadership of the Dalai Lama in India and Nepal. During the cold war years, the Dalai Lama avoided politics, but tried to work with the Chinese occupiers from 1951 until 1959. He left Tibet to bring the Tibetan genocide to the world’s attention. In the early 1980s, he tried to negotiate with Deng Xiaoping and succeeded in sending several fact-finding missions to Tibet. In the meantime, the exile government has worked to preserve the seeds of Tibetan culture and society. In 1989 the Dalai Lama received the Nobel Peace Prize for his travels around the world to spread the Buddhist message of peace and reconciliation. He has informed the general public of many countries about the Tibetan struggle. His overall policy of nonviolence has been followed by most Tibetans. Despite the historical record, the Dalai Lama calls for dialogue and reconciliation. He has publicly offered to Beijing to lead a plebiscite and campaign to persuade his people to join the Chinese union in a voluntary and legal manner, under a “one country, two systems” formula, as in the cases of Hong Kong and Macao under the following circumstances: (1) all the high-plateau provinces are reunited in a natural Tibet Autonomous Region; (2) Tibet is allowed to govern itself democratically with true autonomy over internal matters; (3) Tibet is demilitarized except for essential border garrisons; and (4) the environment is respected and economic development controlled by the Tibetans themselves. There were renewed discussions over Tibet starting in 2002 and several delegations made visits to the region. SEE ALSO China; Mao Zedong; Religion BIBLIOGRAPHY

Avedon, John (1986). In Exile from the Land of Snows. New York: Vintage Books. International Commission of Jurists (1960). Tibet and the Chinese People’s Republic: A Report to the International


Tokyo Trial

Commission of Jurists by its Legal Inquiry Committee on Tibet. Geneva: Author. International Commission of Jurists (1997). Tibet: Human Rights and the Rule of Law. Geneva: Author. Shakabpa, W. D. (1984). Tibet: A Political History. New York: Potala Publications. Smith, Warren W. (1996). Tibetan Nation: A History of Tibetan Nationalism and Sino-Tibetan Relations. Boulder, Colo.: Westview Press. Snellgrove, David, and Hugh Richardson (1968). A Cultural History of Tibet. Boston: Shambhala, 1995. Van Walt, Michael C. (1987). The Status of Tibet. Boulder, Colo.: Westview Press. Robert A. F. Thurman

Tokyo Trial The International Military Tribunal for the Far East (IMTFE), commonly known as the Tokyo War Crimes Trial, or simply the Tokyo Trial, lasted three times longer than the Trial of the Major German War Criminals, commonly called the Nuremberg Trial. At one point the president of the IMTFE was informed that the trial was utilizing about one-quarter of all the paper consumed by the Allied occupation forces in Japan. The transcripts of the proceedings in open session and in chambers, taken together with the separate opinions, consist of approximately 57,000 pages and, with the even longer full text of the Trial Exhibits and other documentation assembled for use during the trial, the English-language text represents by far the largest collection of material that exists in any European language on Japan and on Japanese relations with the outside world during the critical period between 1927 and 1945. The IMTFE Charter The charter of the IMTFE was issued as an order together with a Special Proclamation by General Douglas MacArthur on January 19, 1946, in accordance with orders sent to him in October 1945 by the Joint Chiefs of Staff of the United States, afterward circulated to the Far Eastern Advisory Commission consisting of representatives of the Allied powers. MacArthur’s Special Proclamation said that he established an international military tribunal for the Far East, approved its constitution, jurisdiction, and functions as set out in its charter, and indicated that these steps were without prejudice to any other proceedings that might be established in Japan or within the domains of the countries with which Japan had been at war. He stated that he did this by powers the Allies entrusted to him as supreme commander with responsibility “to carry into effect the general surrender of the

Japanese armed forces,” and with the authority bestowed upon him by the governments of the United States, Great Britain, and the Soviet Union at the Moscow Conference of December 1945 and with China’s concurrence. The Charter was strongly influenced by its Nuremberg counterpart but redrafted in compliance with the guidelines given to General MacArthur by the American Joint Chiefs of Staff to suit the different conditions that prevailed in occupied Japan. The Charter established that the supreme commander would select members of the tribunal from names submitted to him by any of the signatories of the Instrument of Surrender. The supreme commander would appoint one of the members to serve as president of the tribunal. The supreme commander would also appoint a general secretary of the tribunal and provide for clerical services and other duties required by the tribunal. The charter set out the jurisdiction of the tribunal and established the individual responsibility of the accused for acts of state and for acts taken in compliance with superior orders. The supreme commander would designate the chief of counsel. Any of the United Nations engaged in the recent war against Japan might appoint an associate counsel to assist the chief of counsel. Proceedings of the tribunal would be conducted in English and in Japanese. The use of other languages in court later became a contentious matter. It was clear to the Allied powers that the supreme commander and the United States government were determined to go ahead with the tribunal on American terms. Accordingly the Allied powers moved quickly to select their own associate counsel. The Americans assembled a huge team of more than one thousand lawyers and support staff. In Tokyo as at Nuremberg, the manpower and financial resources committed by the Americans made a huge impact on the collection and processing of documentary evidence collected from German and Japanese archives, offices, and private individuals. At Nuremberg that impact was felt immediately and was continuous throughout the proceedings. At Tokyo, the Americans faced far greater difficulties in extracting documentary evidence from the Japanese government, which continued to function and frequently obstructed them, and so the Americans were less successful in controlling the flow of information to the other national delegations and to the tribunal. The Indictment The indictment, mainly the work of the British associate prosecutor, Arthur S. Comyns-Carr, was lodged with the Court during a brief preliminary hearing on



Tokyo Trial

April 29, 1946. Two weeks before, the indictment had been recast following the arrival of the Soviet prosecution team in Tokyo. Other delegations took even longer to arrive (several of the judges did not arrive until the trial had already begun). Each contingent had its own agenda and priorities. Last-minute changes meant that the basic law of the tribunal and its remit were transformed only days before the accused were arraigned. In addition, many of the accused had been subjected to lengthy pre-trial Allied interrogations by teams deployed by the United States Strategic Bombing Survey, by military, naval and air, intelligence, by Civil Affairs analysts, by prosecutors, and by Japanese government investigators (who, with initial encouragement from the Americans, began and soon ended a series of their own war crimes trials in the months before the IMTFE took shape). These interviews were conducted without the protection of any legal counsel. The Proceedings Begin For all these reasons, the proceedings began inauspiciously for both sides but were particularly detrimental to the accused who were dependent upon a defense panel that was seriously weak in the provisions made for qualified legal advisers, translators, clerical staff, and financial resources. The defense was also handicapped by express provisions in the charter that obliged the accused to make written applications in advance before seeking to produce any witness or document in evidence. The prosecution section at Tokyo labored under no such impediments regarding prior disclosure. The court consisted of eleven members, each representing one of the eleven nations involved in the prosecution. The countries taking part in the prosecution and judgment were: five member states of the British Commonwealth and Empire (Australia, Canada, New Zealand, Great Britain, and India), who, together with the United States and its former Commonwealth of the Philippines, constituted a built-in majority for the Anglo-American common law legal system; China; the Soviet Union; and two Continental European imperial powers, France and the Netherlands. Evidence relating to Korea, Manchuria, the People’s Republic of Mongolia, Thailand, Cambodia, Burma, and Portuguese possessions in East Asia was also received by the tribunal, but for legal as well as for political ones those countries or territories were not formally joined in the proceedings. The legitimacy of the Tokyo Trial depended upon the number and variety of the states that took part in the trial, but more crucially upon the express consent [1030]

of the Japanese state to submit to its jurisdiction, relinquishing or at least sharing some sovereignty in the process. This is a more modern conception of legality than was applied at Nuremberg. The difference arose because Japan did not, strictly speaking, surrender unconditionally. The Special Proclamation that brought the IMTFE into existence claimed that by the Instrument of Surrender “the authority of the Emperor and the Japanese Government to rule the state of Japan is made subject to the Supreme Commander for the Allied Powers,” but in fact those provisions were restricted to measures intended to implement “the unconditional surrender . . . of the Japanese Imperial General Headquarters and of all Japanese Armed forces and all armed forces under Japanese control wherever situated.” Thus, Japan surrendered in words that protected the Japanese emperor. On a number of occasions the thrust of questions put to witnesses came perilously close to implicating Emperor Hirohito personally, but the trial also provided powerful support for the viewpoint that he was a benign constitutional monarch who wanted a durable peace and prosperity for his people. It was a matter of pivotal importance during the trial that the Japanese “sovereignty” was not extinguished with the end of hostilities. The defense made much of the limited nature of the Japanese surrender in framing successive challenges to the powers of the supreme commander, to his promulgation of the tribunal, to the charter, to the nomination of its members and of its president, and to the jurisdiction of the tribunal. These arguments created consternation in court. The Tokyo Trial indictment did mimic elements that were present in the Nuremberg indictment, but on an altogether grander scale. The same ideas of conspiracy, crimes against peace (the planning, preparation, initiating and waging of wars of aggression), individual criminal responsibility for conventional war crimes, and crimes against humanity appeared in the indictments at Tokyo and at Nuremberg. Thus the conceptual framework was quite similar. But the ways these crimes were dealt with inevitably differed, and there were fifty-five counts on the indictment at Tokyo compared to four at Nuremberg. The Tokyo Trial looked at events as far back as 1927, because the prosecution argued that a document prepared that year and known as the Tanaka Memorial showed that a “Common Plan or Conspiracy” to commit “Crimes against Peace” bound the accused together. The conspiracy thus began in 1927 and continued through to the end of the Asia and Pacific War in 1945. The Tanaka Memorial was, in fact, a skillful Chinese forgery, but it was not regarded as such by most observers at the time and it was consistent with the private


Tokyo Trial

The International Military Tribunal of the Far East, April 1947. Presiding over the tribunal for the prosecution of Japanese war criminals was a panel of eleven judges—one from each of the Allied powers. [ A P / W O R L D W I D E P H O T O S ]

thinking of key individuals within the Japanese government of its time. The breadth of the supposed conspiracy took in virtually every facet of Japan’s domestic and foreign affairs over a period of nearly two decades, half again longer than the period covered by the Nuremberg Major War Crimes Trial. At the time of the Tokyo Trial, the concept of criminal conspiracy was frequently employed in the battle against organized crime in the United States. It was held in far less esteem as a weapon in the arsenal of public prosecutors elsewhere. The U.S. Department of Justice gave this matter a great deal of thought and produced a treatise on the subject for the benefit of Allied prosecutors in Tokyo. Later, copies of this brief were handed out to individual members of the tribunal. The prosecution’s conspiracy case was summed up later by an American assistant prosecutor at the trial, “The Prosecution Case is a sturdy structure built upon

a deep and firm and solid foundation of fact. To its destruction the Defense have brought as tools a microscope and a toothpick.” What generally was at issue were not the facts, but the different constructions which the two sides placed on those facts, and this, by its very nature, meant that a great deal of detailed evidence was required to buttress the positions taken by the two opposing sides. The defense in Tokyo retraced much of the ground covered by the prosecution and went on to explore virtually the whole history of Japan’s twentieth-century constitutional, social, political, and international history up to the end of World War II. Evidence directly linking the individual defendants to what is a far broader historical record of domestic and world history became hard to see and, for most of the trial, comparatively little attention was paid to any indisputably criminal activity on the part of the accused. Defense counsel tried in vain to force the prosecution to define the essential elements and to present a Bill of Particulars indi-



Tokyo Trial

cating details of the specific crimes that their individual clients were supposed to have committed. To some extent the emphasis on criminal masked the fact that the charges on the indictment at Tokyo were framed before the prosecution determined who was to be tried. As a result the prosecution experienced real difficulties in finding a sufficiency of evidence to make a truly convincing case against most of the accused. The twenty-eight defendants charged at the Tokyo Trial were selected following international deliberations and the final decisions were taken by an executive committee of the International Prosecution Section, chaired by Sir Arthur Comyns Carr, K.C. Pretrial briefs were prepared following investigations and interviews with individual suspects, most of whom had been arrested and held in Sugamo Prison because their names appeared on the UN War Crimes Commission’s lists of major war crimes suspects. Others were still free when questioned. The defendants were by and large “establishment” figures who had achieved prominence in the leadership of Japan and had won the confidence and approbation of their fellow citizens through their own administrative competence, intellectual excellence, or distinguished military service. Baron Hiranuma Kiichirô, for instance, had become a judge as far back as 1890, rose by virtue of his talent to become vice-minister of justice in 1911, chief justice of the Supreme Court of Japan in 1921, minister of justice in 1923, vice-president of the Privy Council for a period of twelve years and afterward its president in a career interspersed posts as minister for home affairs and prime minister of Japan. The Tribunal ignored Hiranuma’s prewar reputation as a strong admirer of the Western democracies and as a man who held the European totalitarian states in low regard. Others among the defendants, in their own ways were equally distinguished, and the voices which are heard in their affidavits, testimony, and the documentary records introduced on their behalf show them generally to have been thoughtful, well-meaning, and deeply conscious of their duty to uphold the honor and integrity of Japan. The Japanese public, Western opinion, and a majority of the court, however, were of a different mind. The Court began hearing the prosecution’s case on May 4, 1946. The prosecution presented its evidence in fifteen phases, and the presentation of its Evidence-inChief closed on January 24, 1947. The Tokyo Trial, like the Nuremberg Trial, refused to admit evidence favorable to the defense that might appear to bring the wartime conduct of the Allied pow[1032]

ers into disrepute: The Court simply ruled that its jurisdiction was strictly confined to an examination of the conduct of the Japanese side. The court’s powers were limited strictly by the terms of the charter and rules of procedure of the Tokyo Trial. There was, arguably, no legal basis on which the tribunal could have gone beyond the intentions of those who had convened the trial and given it authority. This was fully acknowledged in its judgment. The Defense Panel As early as February 21, 1946, the Judge Advocate General’s (JAG) Department in Washington, D.C., was asked to obtain fifteen or twenty suitable American attorneys to form a defense panel “from which might be drawn by selection or by Court appointment counsel for Defendants charged.” On March 19, 1946, General MacArthur informed Justice Northcroft of these developments and indicated that he had that day asked the JAG to increase the number of American defense lawyers from fifteen to twenty-five and to take care that they had the proper experience and qualifications that would allow the Japanese defendants a fair trial and adequate defense. For each defendant a Japanese defense counsel was found to take charge of his particular case and an American co-counsel assumed what was nominally a junior role. The working relationships between individual American attorneys and their Japanese counterparts were not always easy. At first, not all of the defendants welcomed the Americans who were offered to them, but eventually all came to the conclusion that it was advisable to engage one or other of them. The defense counsel of both nationalities varied enormously in talent, energy, age, and experience. The Japanese defense counsel labored under immense handicaps. As George Ware revealed years later, when the defense case opened, the chief of defense counsel, Uzawa Sômei, broadcast a nationwide radio appeal for “funds, communications, lodgings and food” (Ware, 1979, p. 145). The outcome was exceedingly disappointing. The attorneys hired by the accused finally had to resort to the expedient of donating $1,000 per head and each of the defendants paid $10,000 into a central pool to provide for translators, clerical staff, and witness expenses. Some of those difficulties were surmounted with the arrival of American associate counsel provided to bolster the defense. Defense motions to dismiss the charges against the accused were denied, following which the defense presentation of its case began on February 3, 1947, and continued until January 12, 1948. The defense did not attempt to match the structure imposed by the prosecution’s case and instead offered its case in six divisions.


Tokyo Trial

In due course, the prosecution and then the defense presented further evidence in rebuttal until February 10, 1948, at which time the defense filed further motions to dismiss, which were rejected. The summations and other closing arguments continued from February 11 to April 16, 1948, when the proceedings were adjourned while the court considered its findings. By the close of evidence, the court had met in 818 public sessions and heard from 416 witnesses in court, in addition to reading unsubstantiated affidavits and depositions from some 779 others whose evidence the court accepted for whatever probative value they might have had. The deeds recounted in the latter papers had so weakened many of these potential witnesses that it lay beyond their physical or mental capacity to travel to the Japanese capital in order to submit to a crossexamination. In other instances, individual Allied governments put obstacles in the way of potential witnesses for the defense who were prepared to testify on behalf of one or more of the accused or in the general divisions of the defense case. In a number of cases these potential witnesses had been diplomats, senior civil servants, or government ministers before or during the war. The Allied powers also refused to permit the defense counsel any access to its own official documents (other than published records). All of this was prejudicial to the fairness of the proceedings. Judgment and Sentencing The 1,781-page judgment of the tribunal took months to prepare. The court president, Sir William Webb of Australia, required nine days to read it in court (November 4–12, 1948). Before the judgment, Admiral Nagano Osami and the former diplomat-cum-railway administrator Matsuoka Yôsuke died of natural causes (a heart attack and pneumonia) brought about or exacerbated by the strain of their circumstances and the poor conditions in which they were kept at Sugamo Prison. Another of the accused, Ôkawa Shûmei, had been found unfit to stand trial after a theatrical episode lasting only a few minutes before he so much as entered a plea of “not guilty,” and after protracted inquiries his case had been adjourned sine die. All twenty-five of the surviving defendants at the Tokyo Major War Crimes Trial were convicted, and all but two of them were found guilty on at least two charges. Seven were condemned to death by hanging. Six of the condemned men had been leading military and naval figures. The seventh was a former prime minister, foreign minister, and professional diplomat, Hirota Kôki. All but two of the remaining defendants were sentenced to life imprisonment. The two exceptions, both professional diplomats who served successive

terms as foreign ministers in Tôjô Hideki’s wartime cabinet, were sentenced to twenty years (Tôgô Shigenori) and seven years Shigemitsu Mamoru). The Tribunal did not convict any organizations, but General MacArthur’s occupying forces were carrying out sweeping political purges of individuals and groups within Japan, blacklisting some 210,288 people, mostly on account of their previous membership in banned organizations. The judgment and sentences of the tribunal were confirmed by General MacArthur on November 24, 1948, two days after a perfunctory meeting at his office with members of the Allied Control Commission for Japan, who acted as the local representatives of the nations of the Far Eastern Commission set up by their governments. Six of those representatives made no recommendations for clemency. Australia, Canada, India, and the Netherlands were willing to see the general make some reductions in sentences. He chose not to do so. The issue of clemency was thereafter to disturb Japanese relations with the Allied powers until the late 1950s when a majority of the Allied powers agreed to release the last of the convicted major war criminals from captivity. In neither the Tokyo nor the Nuremberg Trials was it deemed sufficient for the defense to show that the acts of responsible officers or of government ministers and officials were protected as “acts of state.” The twin principles of individual criminal responsibility and of universal jurisdiction in the prosecution and punishment of war criminals were firmly established. Both courts ruled decisively that international law is superior to national law, and added that nothing that national courts or administrations might say could overturn that basic principle, which in times to come should be regarded as binding upon the victor as well as the vanquished. These judgments, by themselves, were not binding upon the domestic practices of states; yet, as all of the great powers and most of the lesser ones of the world at the time did sign the San Francisco Peace Treaty (which provided for all parties to accept the judgment of the Tokyo Tribunal in its entirety), there is a valid line of argument that it does indeed impose obligations upon each of those states (subject to any differences that may exist within their respective constitutions). To its credit the IMTFE exercised a cathartic function of surpassing importance for the people of Japan and for their former enemies and, to the extent that its judgment was accepted and formally endorsed under the terms of the San Francisco Peace Treaty, it relegitimated, as intended, the Allied occupation of Japan itself.



Tokyo Trial

On March 7, 1950, the supreme commander issued a directive that reduced the sentences by one-third for good behavior and authorized the parole of those who had received life sentences after fifteen years. Several of those who were imprisoned were released earlier on parole due to ill-health. Hashimoto Kingorô, Hata Shunroku, Minami Jirô, and Oka Takazumi were all released on parole in 1954. Araki Sadao, Hiranuma Kiichirô, Hoshino Naoki, Kaya Okinori, Kido Kôichi, Ôshima Hiroshi, Shimada Shigetarô, and Suzuki Teiichi were released on parole in 1955. Satô Kenryô, whom many, including Judge B. V. A. Röling regarded as one of the convicted war criminals least deserving of imprisonment, was not granted parole until March 1956, the last of the Class A Japanese war criminals to be released. On April 7, 1957, the Japanese government announced that, with the concurrence of a majority of the powers represented on the tribunal, the last ten parolee major Japanese war criminals were granted clemency and were to be regarded henceforth as unconditionally free from the terms of their parole. The Aftermath The initial intention of the Allied powers was to hold further international military tribunals in both Germany and Japan once the first major war crimes trials concluded. The defendants selected for the first trials were not regarded as the only major war criminals but as clearly representative members of the groups held responsible for the outbreak of World War II. A large number of persons were held in custody with the intention of bringing them to justice as Class A war criminals. The British and Americans, however, soon lost their appetite for such proceedings (and their expense), and by December 1946 it was clear that no further major international war crimes trials would take place. In the end, however, it was not until Christmas Eve, 1948, that a formal announcement was issued that the last of the nineteen individuals who might have been expected to figure in further proceedings before the IMTFE were to be released rather than face trial. The decision to release these men was taken as a purely political act and had nothing much to do with the merits of their individual cases. However, it is worth noting that most of these potential accused gave evidence during the Tokyo Major War Crimes Trial and, even when they did not, the nature of their involvement in events described in that trial is evident in the transcripts and other documentation of its proceedings. An imperial rescript granting an amnesty by general pardon for war crimes committed by members of the [1034]

Japanese Armed Forces during World War II was issued on November 3, 1946. It had no effect upon the Allied trials, and the news of it attracted little if any interest abroad at the time. However, one can say with a degree of certainty that no Japanese war criminal will ever again be tried on indictment in a Japanese court for crimes related to the period before and during World War II. Foreign governments have long since ceased to reveal any interest in continuing to pursue Japanese war criminals through national courts, and without regard to the dwindling number of people still interested in the apprehension and prosecution of such perpetrators through international institutions, the new permanent International Criminal Court has been denied any jurisdiction at all over crimes committed prior to its own creation. In discussing the Tokyo trial, matters that have not been explored sufficiently include the political context of the Tokyo Trial proceedings, its charter and limited jurisdiction, the evidence presented in court, the disturbance in the power balance between the two opposing sides, the tables of legal authorities on which the respective sides relied, the one-sided exclusion of evidence to the detriment of the defense, the forensic skills or inadequacies of counsel or members of the tribunal, the differing structures of the prosecution and defense cases, the soundness or otherwise of rulings made by the tribunal during the course of the Tokyo Trial, and the closing arguments found in the summations, rebuttal and sur-rebuttal stages of the proceedings. The judgments of the international tribunals at Nuremberg and Tokyo, arguably the least satisfactory parts of all of the postwar proceedings, are read more frequently but seldom examined by scholars within the historical context of their trial processes. SEE ALSO Japan; Nuremberg Trials; War Crimes BIBLIOGRAPHY

Appleman, John Alan (1954). Military Tribunals and International Crimes. Indianapolis, Ind: Bobbs-Merrill. Asahi Shinbun-sha Chôsa Kenkyûshitsu (Asahi Shinbun Company Research Office) (1953). Kyokutô Kokusai Gunji Saiban Mokuroku oyobi Sakuin (Records of the international military tribunal for the Far East: Catalogue with index). Tokyo: Asahi Shinbun-sha Chôsa Kenkyûshitsu. Asahi Shinbun Tôkyô Saiban Kishadan (Asahi Shinbun Tokyo Trial Press Corps) (1983). Benron-Hanketsu Hen (The Oral Proceedings and the Judgment), 2 volumes. Tokyo: Kodansha. Blewett, George F. (1950). “Victor’s Injustice: The Tokyo War Crimes Trial.” American Perspective 4(3):282–292. Brackman, Arnold C. (1987). The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials. New York: William Morrow.


Tokyo Trial

Brown, Allan Robert (1957). “The Role of the Emperor in Japan’s Decision to Go to War: The Record of the International Military Tribunal for the Far East.” Master’s thesis. Palo Alto, Calif.: Stanford University.

Nitta Mitsuo, ed. (1968). Kyokutô Kokusai Gunji Saiban Hôhan Sokkiroku (Stenographic report of the record of the proceedings of the international military tribunal for the Far East), 10 volumes. Tokyo: O-matsu-dô Shoten.

Chaen, Yoshio (1984–1993). BC-Kyû Senpan Saiban Kankei Shiryô Shûsei (Collected materials on BC-Class war crimes proceedings), 10 volumes. Tokyo: Fuji Shuppan.

Parks, William H. (1973). “Command Responsibility for War Crimes.” Military Law Review 62:1–104.

Dower, John (1999). Embracing Defeat: Japan in the Wake of World War II. New York: Norton. Far Eastern Commission (1947). Activities of the Far Eastern Commission. Washington, D.C.: USGPO. Ginn, John L. (1992). Sugamo Prison, Tokyo: An Account of the Trial and Sentencing of Japanese War Criminals in 1948, by a U.S. Participant. Jefferson, N.C.: McFarland. Hankey, Lord (1950). Politics, Trials, and Errors. Oxford: Pen-in-Hand. Harries, Meirion, and Suzie Meirion (1987). Sheathing the Sword: The Demilitarisation of Japan. London: Hamish Hamilton. Horwitz, Solis (1950). “The Tokyo Trial.” International Conciliation 465:473–584. New York: Carnegie Endowment for International Peace. Hosoya, Chihiro, Andô Nisuke, Ônuma Yasuaki, and Richard Minear, eds. (1983). The Tokyo War Crimes Trial: An International Symposium. Tokyo: Kodansha International. Ienaga, Saburô (1977). “Bias in the Guise of Objectivity.” Japan Interpreter 11(3)271–288. Ireland, Gordon (1950). “Uncommon Law in Martial Tokyo.” Year Book of World Affairs. London: Times Books. Japan Judicial Affairs Board (1952). Jissô no Saiban Senpan (The Facts of the War Crimes Trials). Tokyo: Sugamo Homuiin-kai. Johnson, Galen Irvin (1998). “Defending the Japanese Warlords: American Attorneys at the Tokyo War Crimes Trial, 1946–1948 (International Military Tribunal for the Far East).” Ph.D. diss. Lawrence: University of Kansas. Keenan, Joseph B., and Brendan F. Brown (1950). Crimes against International Law. Washington, D.C: Public Affairs Press. Kobayashi, Masaki (1983). Tokyo Saiban. Feature film. Tokyo: Kodansha International. Kôjima, Noboru (1971). Tôkyô Saiban, 2 volumes. Tokyo: Chuo Koron. Lewis, John R. (1979). Uncertain Judgment: A Bibliography of War Crimes Trials. Santa Barbara, Calif: ABC-Clio. Minear, Richard H. (1977). “In Defense of Radabinod Pal.” Japan Interpreter 11(3):263–271. Minear, Richard H. (1972). Victors’ Justice: The Tokyo War Crimes Trial. Ann Arbor: Center for Japanese Studies, University of Michigan Press, 2001. Nandy, Ashis (1995). The Savage Freud and Other Essays on Possible and Retrievable Selves. Princeton, N.J.: Princeton University Press.

Piccigallo, Philip R. (1979). The Japanese on Trial: Allied War Crimes Operations in the East, 1945–1951. Austin: University of Texas Press. Poelgeest, Bart van (1989). Nederland en het Tribunaal van Tokio. Arnheim, Netherlands: Gouda Quint. Pritchard, R. John (1996). “The Gift of Clemency following British War Crimes Trials in the Far East, 1946–1948.” Criminal Law Forum 7(1):15–50. Pritchard, R. John (1998). “International Military Tribunal for the Far East and the Allied National War Crimes Trials in Asia.” In International Criminal Law, vol. 3: Enforcement, ed. M. Cherif Bassiouni. Ardsley, N.Y.: Transnational Publishers. Pritchard, R. John, and Sonia M. Zaide, eds. (1981–1987). The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal, 22 vols. New York: Garland Publishing in association with the London School of Economics and Political Science. Pritchard, R. John, and Sonia M. Zaide, eds. (1981–1987). The Tokyo War Crimes Trial: The Comprehensive Index and Guide, 5 vols. New York: Garland Publishing in association with the London School of Economics and Political Science. Reel, A. Frank (1949). The Case of General Yamashita. Chicago: University of Chicago Press. Tanaka Toshiyuki (1996). Hidden Horrors: Japanese War Crimes in World War II. Boulder, Colo: Westview Press. Taylor, Lawrence (1981). A Trial of Generals: Homma, Yamashita, MacArthur. South Bend, Ind.: Icarus. Trotter, Ann (1989). “New Zealanders and the International Military Tribunal for the Far East.” New Zealand Journal of History 23(2):142–156. United Nations War Crimes Commission (1948). History of the United Nations War Crimes Commission and the Development of the Laws of War, ed. George Brand. London: Her Majesty’s Stationery Office. United Nations War Crimes Commission (1947–1949). Law Reports of Trials of War Criminals, 15 volumes. London: Her Majesty’s Stationery Office. Ushimura, Kei (2003). Beyond the “Judgment of Civilization”: The Intellectual Legacy of the Japanese War Crimes Trials, 1946–1949, trans. Steven J. Ericson. Tokyo: LTCB International Library Trust/International House of Japan. Whitney, Courtney (1950). The Case of General Yamashita: A Memorandum. Tokyo: Supreme Commander for the Allied Powers.


R. John Pritchard



In Sierra Leone, rebels of the Revolutionary United Front frequently amputated the limbs of their victims, including the very young, like this three-year-old girl. [ T E U N V O E T E N ]

Torture Torture—the infliction of severe physical or mental suffering—is frequently a component of systematic policies and attacks against individuals or groups, in peacetime or in time of war. Torture is used variously as a weapon of war, as a means of soliciting information or confession, as a technique to humiliate or punish, as a tool of repression or intimidation, and as a form of sexual violence. Its typical victims include political opponents; particular national, racial, ethnic, religious or other groups; women; prisoners of war; detainees; and ordinary criminal suspects. In response, international law has prohibited torture and other cruel, inhuman or degrading treatment in absolute terms. The prohibition of torture and other forms of ill treatment ranks among the most firmly entrenched principles of international law regarding human rights and of international humanitarian law. The right not to be tortured is based on the principles of human dignity and integrity of the person that underlie these bodies of law. [1036]

Torture is also considered a crime under international law. It is one of a small number of acts considered so heinous that all countries must play their part in pursuing the perpetrators. As a U.S. court ruled in the landmark case of Filartiga v. Peña-Irala, “the torturer has become—like the pirate and slave trader before him—hostis humani generic, an enemy of all mankind.” International and National Norms Prohibiting Torture and Other Ill-Treatment International legal norms prohibiting torture and other forms of ill-treatment have developed, largely since 1945, as central components of the international law of human rights, international humanitarian law, and international criminal law. The Universal Declaration on Human Rights (UDHR) of 1948 includes freedom from torture as one of the fundamental rights belonging to all human beings. Article 5 of the declaration provides that “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” Subsequently, identical or similarly worded prohibitions were included in human rights treaties adopted at international and regional levels, and these set legal stan-



dards for individual governments to follow. These include Article 7 of the International Covenant on Civil and Political Rights (ICCPR) of 1966, Article 3 of the European Convention on Human Rights of 1950, Article 5 of the American Convention on Human Rights of 1969, and Article 5 of the African Charter on Human and Peoples’ Rights of 1981. These treaties oblige states to refrain from torture or other prohibited treatment, and establish mechanisms for making states accountable if their officials commit such abuses. The prohibition on torture is absolute, and allows for no exceptions. In human rights treaties, torture is invariably listed as a “non-derogable” right. States must never deviate from the prohibition on torture, even, according to Article 4 of the ICCPR, “in time of public emergency which threatens the life of the nation.” A major landmark was the 1984 conclusion of a treaty aimed specifically at stamping out torture: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (otherwise known as the Torture Convention). By March 2004, this convention had 134 state signatories. The Torture Convention set out specific measures that governments must take to prevent and punish torture, and established its Committee Against Torture to monitor states’ compliance and to receive individual complaints. Regional torture-specific instruments followed. In 1985, the Inter-American Convention to Prevent and Punish Torture came into effect. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment passed into law in 1987, followed by the Robben Island Guidelines on the prevention of torture and ill treatment in Africa in 2002. Under UN auspices, sets of guidelines were developed that aimed at preventing torture. Among these were the UN Code of Conduct for Law Enforcement Officials of 1979 and the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment of 1988. In parallel to these developments in the sphere of human rights, norms prohibiting torture and other illtreatment also developed in the spheres of international humanitarian law, and the laws of war. The four Geneva Conventions of 1949 list torture and inhuman treatment committed during international armed conflict that are considered grave breaches of the Geneva Conventions (war crimes). Article 3, common to all four of the Geneva Conventions, as well as the second Additional Protocol II to those conventions hold torture and cruel, humiliating. and degrading treatment as prohibited by the law applying to internal armed conflicts.

As the concept of crimes against humanity developed in the wake of World War II atrocities, torture was considered to be covered, although not listed explicitly, in early definitions. The Nuremberg and Tokyo Charters of 1945 and 1946, on which trials of German and Japanese World War II leaders were based, included within their definitions of prosecutable crimes against humanity “other inhumane acts committed against any civilian population.” The Control Council Law No. 10 of 1945, used as the basis for prosecuting second-tier Nazis, specifically listed torture as one of the inhumane acts constituting a crime against humanity. When the International Criminal Tribunal for Former Yugoslavia (ICTY) was established by the UN in 1993, its statute listed torture as among the crimes against humanity that the tribunal could prosecute. The 1994 statute of the International Criminal Tribunal for Rwanda (ICTR) followed suit. The Rome Statute for the International Criminal Court (ICC), which was concluded in 1998, codified crimes against humanity in greater detail. Article 7 of that statute includes the widespread or systematic practice of torture as a crime against humanity, when such practices are committed as part of an attack directed against a civilian population. Also listed are “[o]ther inhumane acts of a similar character internationally causing great suffering or serious injury to body or to mental or physical health.” Torture is also one of the acts that can constitute the crime of genocide. The definition adopted in the Genocide Convention of 1948 included, at Article II(b), “causing serious bodily or mental harm.” This definition was intended to cover a range of acts of physical violence falling short of actual killing, as well as acts causing serious mental harm. The ICTR helped to clarify the meaning of this phrase in 1998 in the Akayesu case, finding that the definition of serious bodily or mental harm, includes acts of torture, be they bodily or mental, and inhumane or degrading treatment and persecution, and could include rape and other acts of sexual violence or death threats. The Rome Statute included a document that set out the physical and mental elements of each crime that needed to be proved in any given case brought before the ICC. This document, titled “Elements of Crimes” contains the following footnote to the crime of genocide by causing serious bodily or mental harm: “This conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.” The absolute prohibition on torture is has been generally accepted as a part of customary international law, and is therefore binding on all states, not only




those that become party to treaties prohibiting torture. This view has been upheld by international courts and tribunals, as well as by national courts. The prohibition has also been recognized as a norm of jus cogens, which is an overriding or superior principle of international law. Torture and other ill-treatment are also specifically prohibited in many national constitutions. Even where a prohibition on torture is not specifically included in the constitution, it has been made into other provisions. For instance, by giving a wide interpretation to the right to life and personal liberty, the Indian Supreme Court has incorporated freedom from torture among its schedule of constitutionally protected rights. Many states have made torture a specific criminal offence under their penal codes. Torture is also commonly criminalized in military codes and through legislation incorporating the war crimes provisions of the Geneva Conventions. After becoming party to the Rome Statute for the ICC, states have also incorporated torture as a crime against humanity, as genocide, and as a war crime in their domestic law. The international norms in this array of treaties and customary international law impose a range of obligations on states. For instance, states must not only refrain from using torture, they must also take strong positive measures to prevent and punish torture. Article 2.1 of the Torture Convention obliges states to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” Such measures include training law enforcement personnel and other public officials and reviewing rules and practices relating to the interrogation and custody of prisoners and detainees. States must also ensure that statements taken as a result of torture may not be used in court as evidence, except against a person accused of torture as evidence that the statement was made. States also have an obligation to investigate and prosecute individuals responsible for torture. Under Article 4 of the Torture Convention, states are obliged to ensure that all acts of torture are criminal offences under domestic criminal law, and to impose penalties that reflect their grave nature. States are obliged to carry out a prompt and impartial investigation whenever torture or ill-treatment is alleged, to identify those responsible, and to impose an appropriate punishment, as illustrated in the case of Velasquez Rodriguez v. Honduras, tried before the Inter American Court of Human Rights in 1988. The duty of states to ensure that torturers are brought to justice is not limited to policing what happens within their own borders, since torture is also a [1038]

crime under international law. According to Articles 5.2 and 7 of the Torture Convention, when an alleged torturer is present within its jurisdiction, regardless of where the torture was committed, a state must either prosecute the person, or extradite them elsewhere to face trial. This exceptional jurisdiction—based only on the nature of the crime itself, regardless of where the crime was committed or by whom—is recognized in international law and is known as universal jurisdiction. The “extradite or prosecute” formula exists also in the Geneva Conventions in relation to grave breaches, thus applying to those who commit torture in the course of an international armed conflict. Even outside the scope of these treaties, states have the right, and may be obliged, under international law to prosecute torture on the basis of universal jurisdiction. There is increasing authority for the proposition that customary international law requires states to prosecute all crimes against humanity, genocide, and war crimes, and that this extends to war crimes committed in internal armed conflict, to individual acts of official torture, and possibly also to cruel or inhuman treatment. The duty to prosecute torture, and its status as a crime under international law, has a number of important implications. There is increasing consensus that amnesties should not be granted for torture, nor should the normal rules on statutes of limitations or immunities be applied in cases of torture. For instance, the British House of Lords ruled in March 1999 that Augusto Pinochet was not entitled to head-of-state immunity for torture from the time that the Torture Convention applied. According to Article 13 of the Torture Convention, states must provide access to adequate remedies for victims when torture occurs. Any individual who alleges they have been tortured must have the right to complain to competent authorities, and to have the allegation promptly and impartially examined. Further, victims have a right to reparation, including compensation, restitution, rehabilitation, “satisfaction” (which may include bringing to account those responsible and symbolic measures such as commemorations), and guarantees that torture will not recur. These victim’s rights are laid out in a UN draft document regarding the basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights law and violations of international humanitarian law, as revised October 2003. Finally, the duty to protect people from torture and other ill treatment extends to the duty not to hand them over to be tortured elsewhere. Article 3 of the Torture Convention prohibits states from expelling, returning, or extraditing a person to another state where there are



substantial grounds for believing they could be subjected to torture or other prohibited treatment there. Definitions of Torture Torture is absolutely prohibited in all circumstances. But what is it? A common element that appears consistently in definitions is that torture is the intentional infliction of severe pain or suffering, whether physical or mental, on a person. Decisions of international human rights courts and monitoring bodies have been very influential in establishing the basic elements of the definition. International criminal tribunals have relied heavily on these decisions to interpret what constitutes torture when it is being prosecuted as a crime against humanity or as a genocidal act, although they have also departed from the international human rights law interpretations in significant aspects. The severity or intensity of pain or suffering caused is one factor that will determine whether behavior amounts to torture. An act has to cause “very serious and cruel suffering” to constitute torture, as the European Court of Human Rights decided when called upon to consider whether certain techniques used by U.K. security forces while interrogating IRA suspects in Northern Ireland were lawful (Ireland v. U.K.). The court concluded, in its judgment of 1978, that the techniques (hooding; being made to stand against a wall for many hours; subjection to constant noise; and deprivation of sleep, food and drink) were not severe enough to constitute torture, but did constitute inhuman treatment, which is also prohibited under the Torture Convention. The ICTY also followed this approach, finding that the severity of pain or suffering is what sets torture apart from other crimes. Subjective as well as objective factors may be considered in assessing severity. The European Court of Human Rights takes into account all the circumstances, including the duration of the treatment; its physical and mental effects; and the sex, age, and state of health of the victim. The ICTY has also said that subjective as well as objective criteria may be relevant in assessing the gravity of the harm. As for the definition of mental torture, once again international cases have helped to clarify how to assess whether mental suffering caused by a certain act is severe enough to amount to torture. In the case of Estrella v. Uruguay, in 1980, the Human Rights Committee found that mock amputation of the hands of a wellknown guitarist was psychological torture. Another factor that distinguishes torture from other ill-treatment in the international law of human rights is the purpose for which the particular suffering is inflicted. In human rights law, exemplified in Article 1 of the Torture Convention, in order for conduct to

amount to torture, it must be inflicted for specific purposes such as obtaining information or a confession, punishment, intimidation, coercion, or discrimination. The European Commission of Human Rights had already established the need for such a purpose in its 1969 decision in a case concerning the conduct of Greek security forces following the military coup. This legal decision, following what came to be known as the “Greek case,” confirmed that without such a purpose, the same act would be classified as ill treatment but not torture. The European Court of Human Rights has continued to look for specific purposes before it will categorize an act as torture, for example, in the 1996 case of Aksoy v. Turkey. The Israeli Supreme Court, when considering methods used by Israeli security services in interrogating Palestinian suspects in 1999, distinguished between a situation in which sleep deprivation is a side effect inherent in interrogation, which would not be unlawful, and a situation where prolonged sleep deprivation is used as an end in itself, for the purpose of tiring or breaking the prisoner, in which case it would not be lawful. In international criminal law, however, the requirement of a particular purpose appears to be losing ground. In cases concerning torture as a crime against humanity, although the ICTY and ICTR have held that the act or omission must aim at purposes such as those outlined in Article 1 of the Torture Convention, (e.g., the ICTR in the Akayesu case, 1998), they have also said that this is not to be viewed as an exhaustive list, and that the prohibited purpose need not be the predominating or sole purpose. In a further departure, in the Rome Statute’s “Elements of Crimes,” a footnote to the elements of the crime against humanity of torture states that: “It is understood that no specific purpose need be proved for this crime.” Another difference has opened up between human rights law and international criminal law as regards the state-actor requirement. The Torture Convention requires an act of torture to have been “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The rule reflects the traditional purpose of human rights protection, which is to place limits on abuses by states rather than to regulate behavior between private individuals. This approach has shown signs of breaking down in some respects, however. For instance, states are increasingly required to regulate private individuals’ behavior in order to protect vulnerable people from ill treatment. In the sphere of international criminal law, non-state actors can be held responsible for torture. The ICTY decided that the definition of torture in the context of crimes against




humanity is not identical to the definition in the Torture Convention, and that outside the framework of the Torture Convention, customary international law does not impose a public official requirement in relation to criminal responsibility for torture. Special elements are added to the crime of torture if it is prosecuted as a crime against humanity, an act of genocide, or a war crime. For example, as a crime against humanity under the Rome Statute, torture must be carried out as part of a widespread or systematic attack against a civilian population, accompanied by the knowledge or intention to further such an attack, and it must be inflicted upon a person in the custody or under the control of the accused. When prosecuted as an act of genocide, the serious bodily or mental harm must be caused to persons belonging to a particular national, ethnical, racial or religious group, and the perpetrator must have intended to destroy that group, in whole or in part. The conduct must either be part of a “manifest pattern of similar conduct” against such a group, or be itself capable of causing such destruction of the group. The international criminal tribunals have been instrumental in expanding understandings of the definition of torture, for instance, by prosecuting rape and other forms of sexual violence under the heading of torture as a crime against humanity. The ICTY Appeals Chamber has said that, since sexual violence necessarily gives rise to severe pain or suffering, the crime of torture has been established once rape has been proved. Definitions of Inhuman and Degrading Treatment or Punishment Again, interpretations of these terms have developed in the law of human rights. Treatment causing less severe suffering, or not for one of the requisite purposes, may nonetheless constitute inhuman or degrading treatment. Solitary confinement, incommunicado detention, and poor prison conditions are examples of behavior that may amount to inhuman treatment, depending on the circumstances. For example, in Ôcalan v. Turkey, the European Court of Human Rights found in 2003 that complete sensory isolation, coupled with total social isolation, can destroy the personality and would constitute inhuman treatment. On the other hand, it held that merely prohibiting contact with other prisoners for legitimate reasons such as security does not in itself amount to a violation. In the Greek case, treatment was found to be degrading if it grossly humiliates a person before others, or if it drives a person to act against his or her will or conscience. International criminal tribunals have generally followed these interpretations. In the ICTY and ICTR, using persons as [1040]

human shields is an example of behavior that has been found to constitute inhuman or cruel treatment. The definitions of torture and other forms of prohibited treatment, and the boundaries between such various forms of treatment, tend to be somewhat fluid and to change over time. According to the European Court of Human Rights, in its findings in Ireland v. U.K., the distinction between torture and other forms of prohibited treatment was embodied in the Torture Convention in order to allow the special stigma of torture to attach only to deliberate inhuman treatment causing very serious and cruel suffering. The European Court has also consciously amended its standards over the years, classifying as torture acts which it had previously viewed as inhuman treatment in the past. An example of this shift in classification can be seen in the 1999 case of Selmouni v. France. Sanctions How does the prohibition on torture and other illtreatment affect what forms of punishment states may impose, given that the Torture Convention says that torture “does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions”? The same exclusion appears as part of the definition of torture as a crime against humanity applying in the ICTY, ICTR, and ICC. The main reason for the exclusion is to make clear that punishments such as imprisonment, which might otherwise be challenged on the basis they cause severe suffering, do not constitute torture. The question is to what extent this leaves open the door for other punishments that would otherwise fall foul of the definition but are permitted under national law. Some argue that the phrase rightly leaves what constitutes cruel, inhuman, or degrading treatment or punishment to be determined by the moral and legal standards in each society. Under Islamic shari’a law, theft is punishable by amputation of the right hand, and in certain countries, corporal punishments are administered by the courts. Some national courts have ruled that corporal punishments such as whipping and flogging violate the prohibition on torture or illtreatment. Examples are Botswana, Zimbabwe, Namibia, South Africa, and St. Vincent and the Grenadines. In Tyrer v. U.K., the European Court of Human Rights found that the punishment of birching (a type of flogging) ordered by a juvenile court was a degrading punishment. The UN Special Rapporteur on Torture reported to the Commission on Human Rights in 1997 that, in his view, corporal punishment violates the prohibition on torture or cruel, inhuman, or degrading treatment or punishment. Further, punishments are subject to scrutiny according to international standards. Subsequently, the commission adopted a Reso-



lution 1997/38, which stated that corporal punishment can amount to cruel, inhuman, or degrading punishment or even to torture. Corporal punishment is prohibited in the Geneva Conventions in relation to prisoners of war or protected civilians in international armed conflict. The courts of several countries, including Tanzania, Canada, Hungary, and South Africa, have held that the death penalty violates constitutional prohibitions on torture and other forms of ill-treatment. In the Ôcalan case, the European Court of Human Rights in 2003 declined to reach a firm conclusion on whether the death penalty was inhuman and degrading in all circumstances, but found that its imposition following an unfair trial did amount to inhuman treatment. The prohibition on torture also places limitations on how the death penalty is implemented. In 1994, the Judicial Committee of the Privy Council, the highest court of appeal for Jamaica, ruled that to carry out executions after 14 years of delay would violate the Jamaican constitution, and that after five years on death row, a prisoner would have suffered inhuman punishment (Pratt and Morgan v. Attorney General for Jamaica). Psychological Impact of Torture Both physical and mental torture can have lasting psychological effects. In serious cases, post-traumatic stress disorder (PTSD) can be diagnosed. Criteria for PTSD include re-experiencing aspects of a traumatic event in nightmares or flashbacks, avoidance of reminders of the event, sleep problems, memory and concentration problems, anger, and low mood. However, the concept of PTSD is somewhat controversial among mental health experts, and some (such as Derek Summerfield) do not accept that there is a psychiatric illness that is specific of trauma or torture. Such dissenting experts view the reframing of distress as a psychological disturbance to be a distortion, and prefer to look for solutions in a broader social recovery. Because of the widespread use of torture and the particular needs of those who survive it, specialized torture rehabilitation centers have sprung up all around the world that provide physical and psychological treatment for survivors of torture. Some of these are in the countries where torture is taking place, and others cater primarily for refugee communities. The UN in 1981 established the UN Voluntary Fund for Victims of Torture to provide humanitarian assistance through medical, legal, and other forms of support to torture victims and their families. International law has increasingly recognized that the psychological impact of torture calls for particular legal remedies. In international standards that are de-

veloping on the right to reparation, rehabilitation— including medical and psychological care as well as legal and social services—is specifically identified as one of the forms of reparation to which victims of violations will be entitled. This perspective is explicitly embodied in the UN Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation. Action of International Institutions and International Jurisdictions against Torture Monitoring states’ records on torture and holding them accountable is the function of international human rights treaty bodies. Among these bodies is the UN Committee Against Torture, established under the Torture Convention, which requires member states to submit regular reports on what they are doing to comply with the treaty, and issues observations and recommendations in response. Although the Committee Against Torture lacks enforcement powers and is frequently frustrated by states’ late reporting, most states that are party to the Torture Convention do submit reports and appear before the committee to defend their records. The UN Commission on Human Rights has also taken steps specifically targeting torture. Its Special Rapporteur on Torture takes up cases of alleged torture with governments, carries out country visits, and reports annually to the Human Rights Commission. These mechanisms are designed to respond both to individual or isolated acts and to systematic torture. Procedures have also been developed specifically to address situations where torture is committed as part of a widespread or systematic pattern of violations. Under Article 20 of the Torture Convention, there is established a confidential inquiry mechanism that allows the committee to look into information that torture is being systematically practiced in a member state. The UN Commission on Human Rights also has a confidential procedure (known as the 1503 Procedure) for considering information pointing toward a consistent pattern of gross and systematic violations. If, after examining the situation, a special working group believes further steps are needed, it can turn the matter over for more public consideration by the commission. This procedure was revised following a review in 2000, in response to the widely held view that it was ineffective. Individual complaint mechanisms established at regional and international levels have been important in revealing places where systematic torture is taking place, as well as in providing redress for individual victims. United Nations’ treaty bodies, including the Committee Against Torture, receive complaints from individuals, but only against states that have agreed to




such complaints being referred. The treaty bodies also issue non-binding decisions on whether a violation has taken place. Regional human rights courts, such as the European and Inter-American Courts of Human Rights, have played a leading role in defining torture and other forms of ill-treatment, and have issued many judgments declaring that a violation has occurred and ordering compensation to individual torture victims. However since the remedies they order are directed at the individuals whose cases are before them, these courts have not been able to deal directly with the underlying causes of widespread or systematic torture. Nevertheless, their findings can help to reveal the problem, and may help bring about international pressure for change. International inspection mechanisms have been established that aim to prevent torture by addressing the conditions it which it occurs. The European Committee for the Protection of Torture and Inhuman or Degrading Treatment or Punishment (the ECPT) operates within Europe and is designed to bring about improvements in conditions in which prisoners and detainees are held. This committee conducts regular inspections of places of detention within its member states, and also makes ad hoc, unscheduled visits in response to specific concerns. After a visit, the committee reports its findings to the state in which the detentions are occurring, and gives that state an opportunity to respond. Normally, the state allows the report to be made public. In 2002, a new Optional Protocol to the UN Convention against Torture was adopted by the UN General Assembly, establishing a similar system of international inspection of places of detention for states that are party to the Convention and that have signed up for participation in the inspection program. The international community has also taken collective action to hold individuals criminally accountable for torture, along with other crimes under international law. Since the Nuremberg trials, international law has recognized torture in its occurrence as a crime against humanity, but there have been relatively few prosecutions either at the international or national level until the establishment of the ICTY and the ICTR in the 1990s. Torture and ill treatment were prosecuted in some of the post–World War II trials. One example was the “High Command Case” brought by the U.S. against fourteen Nazi defendants in Germany in the 1940s. Torture was singled out by the international commissions of experts that convinced the UN Security Council to establish the ICTY, the ICTR, and, in 2000, the Special Panels in East Timor. It was also one of the violations that spurred the UN to agree to work together with the government of Sierra Leone to establish the [1042]

Special Court there in 2002. Numerous indictments for torture have been handed down by these judicial institutions. There are also examples of countries prosecuting torture as part of an attempt to deal with atrocities in their own past. Klaus Barbie, head of the Gestapo in Paris during the Nazi occupation of France in World War II, was tried in a French criminal court in 1987 for crimes against humanity committed in France during the war, in which acts of torture featured prominently. He was sentenced to life imprisonment. Truth-seeking mechanisms, such as national truth commissions, have also investigated widespread torture. In its report of 2003, the Peruvian Truth Commission concluded that during the period 1983 to 1997 there was a widespread practice of torture by state officials that amounted to crimes against humanity, and recommended that criminal charges be brought against those responsible. The 1990s saw a significant increase in action by individual states to pursue alleged torturers for acts committed outside their territory, relying either on universal jurisdiction or other permissible bases of jurisdiction, such as the nationality of the victim. The number of states that had amended their law to provide a jurisdictional basis for their courts to prosecute torture committed elsewhere, and the number of actual prosecutions, steadily increased. In 1994 a Danish court convicted Refik Saric under the Geneva Conventions for torturing detainees in a Croat-run prison camp in Bosnia in 1993, and sentenced him to eight years imprisonment. A Spanish court charged former Chilean President Augusto Pinochet with committing torture in Chile, and sought his extradition from the U.K. in 1998. That process was stopped, not due to any jurisdictional impediment, but because Pinochet was found to be unfit to stand trial. Complaints including torture have also been pursued in the courts of several European countries, including Belgium, France, the Netherlands, and Senegal, involving alleged torture in Chad, Mauritania, Rwanda, Algeria, Tunisia, Suriname, Chile, and Argentina. SEE ALSO Conventions Against Torture and Other

Cruel, Inhuman, and Degrading Treatment; Prosecution; Psychology of Perpetrators; Psychology of Victims; Reparations BIBLIOGRAPHY

Amnesty International (2003). Combating Torture: A Manual for Action. Amnesty International Burgers, J. H., and H. Danelius (1988). The United Nations Convention against Torture. Dordrecht, Netherlands: Martinus Nijhoff Publishers.


Trail of Tears

Burnett, A. (2002). Guide to Health Workers Providing Care for Asylum Seekers and Refugees. London: Medical Foundation for the Care of Victims of Torture. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. GA res. 39/46, Annex, December 10, 1984. Elements of Crimes of the Rome Statute, Official Record of the First Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, doc. ICCASP/1/3. Evans, M., and R. Morgan (1998). Preventing Torture. Oxford: Oxford University Press. Harris, D. J., M. O’Boyle, and C. Warbrick (1995). Law of the European Convention on Human Rights. London: Butterworths. Rodley, Nigel S. (1999). The Treatment of Prisoners under International Law, 2nd edition. Oxford: Oxford University Press. Schabas, Willaim A. (2000). Genocide in International Law. Cambridge: Cambridge University Press. United Nations Commission on Human Rights (2003). Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of [Gross] Violations of International Human Rights Law and [Serious] Violations of International Humanitarian Law. Revised Draft of October 2003. UN Commission on Human Rights document E/CN.4/2004/57. New York: United Nations Commission on Human Rights. Fiona McKay

Trail of Tears At the time of European entry into North America, the Cherokee Nation included a large portion of the southern United States. Over the years, however, treaties and military actions reduced the Cherokee lands to an area comprised of western North Carolina, southeastern Tennessee, northern Georgia, and northeastern Alabama. Even here, the Cherokee, a number of whom were educated and literate, lived under the legislative control of whites without recourse to personal legal protection. As early as 1810 a group known as the Western Cherokee had migrated to Arkansas Territory. Over the years others followed, including the illustrious Sequoyah, inventor of the world-famous Cherokee Syllabary (or Cherokee alphabet). During 1828 these Cherokee traded their Arkansas lands for others in Indian Territory (now Oklahoma). Two events in 1828 exacerbated the situation for the Cherokee Nation: the election of Andrew Jackson as president of the United States and the discovery of gold on the Cherokee lands of northern Georgia, spawning state laws that annexed the lands for goldmining and stripped the Cherokee of legal redress from

whites. Despite the determined opposition of Cherokee chief John Ross, in 1830 Jackson was able to push through Congress an Indian Removal Bill that would remove, on a so-called voluntary basis, all Eastern Indian tribes to west of the Mississippi River. His administration further supported the power of the states, in defiance of the U.S. Supreme Court, to usurp solemn treaties made with the Cherokee and other tribes. During the winter of 1831–1832 Chief Justice John Marshall ruled that U.S. treaties overrode the laws of the state of Georgia. Jackson supposedly replied, “John Marshall has rendered his decision; now let him enforce it” (Woodward, 1963, p. 171). When Ross, backed by the Cherokee full-blood majority, stubbornly refused to accede to Jackson’s demands, Jackson subverted the accepted Cherokee form of governance and conspired with a group of Cherokee intellectuals who were amenable to removal. Through his representative, the Reverend John F. Schermerhorn, Jackson was able to negotiate the 1835 Treaty of New Echota with the ad hoc group. By this treaty the Cherokee Nation ceded all its lands east of the Mississippi to the United States for a sum of $3.25 million and agreed to relocate to new lands in Indian Territory. A U.S. officer who witnessed the treaty signing opined that if placed before the Cherokee people, the treaty would have been rejected by nine-tenths of them. Former president John Quincy Adams called the treaty “an eternal disgrace upon the country” (Eaton, 1914, p. 55). Once the Treaty of New Echota was ratified by Congress, Jackson issued a proclamation decreeing that the United States no longer recognized the existing Cherokee governance. U.S. troops commenced rounding up Cherokee and herding them to collection camps at U.S. military posts during 1837 and 1838. Without prior notice terrified families were forced from their homes and driven off their lands, leaving behind all they owned. At times wives, husbands, and children were separated from one another. Often they were abused and degraded by the troops (Jones, 1838, p. 236). During 1837 and the spring of 1838 over two thousand Cherokee were rounded up by the army and removed forcibly to the West. Traveling both by river and overland, some of these parties suffered cholera and other illnesses, many dying en route. Another twentythree hundred of the Pro-Treaty Party departed voluntarily, taking an overland wagon route by way of Memphis. A number of Cherokee escaped troops by hiding out in the mountains of western North Carolina. With a severe drought delaying removal through the summer and fall of 1838, some twelve thousand



Trail of Tears

A map of Georgia and Alabama, 1823. As part of its Indian removal policy, the U.S. government forcibly moved Native Americans, during the 1830s, from their homelands in the southeastern United States to lands far west of the Mississippi River. [ C O R B I S ]

Cherokee remained imprisoned in the cramped, disease-ridden stockade pens without bedding, cooking utensils, spare clothing, sanitation facilities, fresh drinking water, adequate food, medical attention, or shelter from the blazing sun. Official records indicate that 353 Cherokee died in the camps, but most historians believe the number was much larger. Eventually, the surviving Cherokee were moved to collection points for their forced march to Indian Territory. Fort Payne, Alabama, served as one point of debarkation for a party that, lacking tents, blankets, and even shoes, took a middle route through northern Arkansas. Another group was formed at Ross’s Landing near Chattanooga. By far the greatest number of Cherokee were herded into camps at Calhoun Agency’s Rattlesnake Springs near present-day Charleston, Tennessee. Here, principally, began the infamous Cherokee Trail of Tears, which followed a winter-imperiled, 800[1044]

mile route through Kentucky, Illinois, and Missouri. Detachments of overland wagon caravans organized and departed through October and November 1838 on their fateful three-month journey. Each of these was under the control of Cherokee Nation captains and light-horse police, Ross having convinced General Winfield Scott that the Cherokee themselves could best manage their own removal. As the first dazed contingent pushed off from Rattlesnake Springs on October 1, the mixed-blood scholar William Shorey Coodey expressed his deep pathos. “Pangs of parting,” he observed, “are tearing the hearts of our bravest men at this forced abandonment of their dear lov’d country” (Hoig, 1996, p. 3). Even at the start of the foreboding three months on the trail, there were problems. Children, the elderly, and those weak with illnesses contracted in the camps were loaded into the few wagons available. Many others were forced to walk and carry whatever goods they pos-


Transitional Justice

sessed. Once on the move, they suffered from billowing trail dust or, when the rains came, wheel-clogging mud that once dried, left deep, travel-impeding ruts. But worse problems developed when severe weather arrived. By the time the lead caravans reached Kentucky, an early blizzard struck, bringing punishing temperatures along with blowing snow and icy roads that made travel even more difficult. Canvas wagon covers provided scant protection at night. Members of the caravan had already begun to die, among them proud elderly Chief White Path, who in 1827 led a rebellion against white influence on his people. He was buried along the trail near Hopkinsville, Kentucky; his grave is marked by a long pole and linen flag. A traveler from Maine, who encountered the Cherokee exodus in early December, observed the wagons loaded with the sick, feeble, and dying as the majority of the Cherokee struggled forth against the fleshnumbing winds. One young Cherokee mother “could only carry her dying child a few miles further, and then she must stop in a stranger land and consign her much loved babe to the cold ground and pass on with the multitude” (New York Observer, 1839). The Cherokee agony grew even worse upon reaching the ice-clogged Ohio River and beyond. Blasts of snow and freezing rain plagued the march; dysentery, whooping cough, and other diseases decimated the doctorless caravans. Funerals were conducted at almost every camping place, leaving a pathetic line of gravesites to mark the route across southern Illinois and Missouri. “For what crime,” missionary David Butrick moaned, “was this whole nation doomed?” (Kutsche, 1986). The death toll for the Cherokee removal and Trail of Tears has been estimated to be as high as four thousand. This does not include fatalities that occurred during the tribe’s painful resettlement in the wilds of Indian Territory. Nor was even the loss of homes and property in their former Nation as disastrous as the intense rancor and divisiveness that the removal had caused among the Cherokee themselves. It would wrench their Nation apart and lead to years of factional bloodshed. SEE ALSO Forcible Transfer; Indigenous Peoples;

Native Americans BIBLIOGRAPHY

Eaton, Rachel Caroline (1914). John Ross and the Cherokee Indians. Menasha, Wis.: George Banta Publishing. Hoig, Stanley W. (1998). The Cherokees and Their Chiefs: In the Wake of Empire. Fayetteville: University of Arkansas Press.

Hoig, Stan (1996). Night of the Cruel Moon: Cherokee Removal and the Trail of Tears. New York: Facts on File. Jones, Evans (1838). Baptist Missionary Magazine (September)18:236. Kutsche, Paul (1986). “Butrick Journal.” In ABC Documents 4519, 18.3.3, vol. 4, dating to October 1838. New York Observer, January 26, 1839. Woodward, Grace Steele (1963). The Cherokees. Norman: University of Oklahoma Press Stan Hoig

Transitional Justice Transitional justice refers to a field of activity and inquiry focused on how societies address legacies of past human rights abuses, mass atrocity, or other forms of severe social trauma, including genocide or civil war, in order to build a more democratic, just, or peaceful future. The concept is commonly understood as a framework for confronting past abuse as a component of a major political transformation. This generally involves a combination of complementary judicial and nonjudicial strategies, such as prosecuting perpetrators; establishing truth commissions and other forms of investigation about the past; forging efforts toward reconciliation in fractured societies; developing reparations packages for those most affected by the violence or abuse; memorializing and remembering victims; and reforming a wide spectrum of abusive state institutions (such as security services, police, or military) in an attempt to prevent future violations. Transitional justice draws on two primary sources to make a normative argument in favor of confronting the past (if one assumes that local conditions support doing so). First, the human rights movement has strongly influenced the development of the field, making it self-consciously victim-centric. Transitional justice practitioners tend to pursue strategies that they believe are consistent with the rights and concerns of victims, survivors, and victims’ families. An additional source of legitimacy derives from international human rights and humanitarian law. Transitional justice relies on international law to make the case that states undergoing transitions are faced with certain legal obligations, including halting ongoing human rights abuses, investigating past crimes, identifying those responsible for human rights violations, imposing sanctions on those responsible, providing reparations to victims, preventing future abuses, preserving and enhancing peace, and fostering individual and national reconciliation.



Transitional Justice

Defining Transitional Justice At its core, transitional justice is a link between the two concepts of transition and justice. The etymology of the phrase is unclear, but it had already become a term by the 1992 publication of the three-part volume Transitional Justice: How Emerging Democracies Reckon with Former Regimes edited by Neil Kritz, which brings together the early and significant texts of the field. The term itself is misleading, as it more commonly refers to “justice during transition” than to any form of modified or altered justice. Transitional justice has certain defining characteristics. First, it includes the concept of justice. Although the field depends on international legal principles that require the prosecution of perpetrators, this context also includes broader forms of justice, such as reparations programs and truth-seeking mechanisms. The second key concept is transitional, which refers to a major political transformation, such as regime change from authoritarian or repressive rule to democratic or electoral rule or a transition from conflict to peace or stability. Although transitions are understood as long processes, there is also an emphasis on key historical moments such as those that occurred in Chile (1990), East Timor (2001), Guatemala (1994), Poland (1997), Sierra Leone (1999), and South Africa (1994). When a society “turns over a new leaf” or “gets a fresh start,” mechanisms of transitional justice can help strengthen this process. The transitional justice framework recognizes that transitions are complex and often characterized by both impediments and opportunities for new and creative democratic strategies. For example, the transition might be a negotiated settlement resulting in a tenuous peace or fragile democracy. The existing judicial system might be weak, corrupt, or ineffective. Justice during a transition may be limited by barriers such as a large number of perpetrators that is far beyond the capacity of the legal system to prosecute. Similarly, there might be an abundance of victims and survivors, many of whom would like the opportunity to tell their stories or receive financial compensation. Legal or constitutional limitations to accountability, such as amnesties for perpetrators associated with the former regime, may result from negotiations, thereby limiting prosecutorial capabilities. Nascent democratic institutions might suffer from authoritarian enclaves or the lasting influence of former power brokers. In these contexts transitional justice requires an awareness of multiple imperatives during a political transition, suggesting that comprehensive justice must be sought in a context in which other values are also important, including democracy, stability, equity, and fairness to victims and their families. [1046]

Development of a Field The origins of the field can be traced back to the post–World War II setting in Europe (e.g., the International Military Tribunal at Nuremberg and denazification programs in Germany). However, the transitional justice framework gained coherence in the last two-and-a-half decades of the twentieth century, especially beginning with the trials of the former members of the military juntas in Greece (1975) and Argentina (1983), in which domestic judicial systems successfully tried the intellectual authors of past abuses for their crimes. The truth-seeking efforts in Latin America’s Southern Cone—such as the Argentine National Commission on the Disappearance of People (1983), the Uruguayan nongovernmental effort that resulted in a bestselling report entitled Uruguay: Never Again, and the Chilean Truth and Reconciliation Commission (1990)— further expanded the possibilities of comprehensive justice during transition, relying on the idea of truth as an “absolute, unrenounceable value” (Zalaquett, 1993, p. xxxi). Argentina’s and Chile’s additional efforts to provide different forms of reparation to victims also made important contributions to establishing justice for victims of human rights abuses. These developments emerged because democratic activists and their allies in government sought to find new and creative ways to address the past. To accomplish this, they began to develop the nascent transitional justice framework as a way to strengthen new democracies and comply with the moral and legal obligations that the human rights movement was articulating, both domestically and internationally. Eastern European endeavors to deal with past violations by opening up the files of former security agencies (e.g., the Stasi Records Act in Germany in 1991) or banning past human rights offenders from positions of power through disqualification (e.g., what occurred in Czechoslovakia in 1991) also contributed to debates on how to achieve justice during transition. In 1995, drawing on experiences from Latin America and Eastern Europe (Boraine, Levy, and Scheffer, 1997), South Africa established a Truth and Reconciliation Commission to address past human rights crimes. Since then truth commissions have become widely recognized instruments of transitional justice, and commissions have been formed in many parts of the world, including East Timor, Ghana, Peru, and Sierra Leone. All differ from previous models, and many demonstrate important innovations. The creation of ad hoc tribunals for the former Yugoslavia and Rwanda, while not specifically designed to


Truth Commissions

strengthen democratic transitions, have enhanced jurisprudence in transitional justice and achieved some visible victories for accountability. The ratification of the International Criminal Court (ICC) also represents an extremely important moment in the history of transitional justice. Efforts to prosecute perpetrators of human rights abuses in Chile and Guatemala in the late 1990s and early 2000s have arguably strengthened movements for criminal accountability on the national level and been influential on an international scale in demonstrating the potential of this approach. Comprehensive Approach to Past Abuse By the first decade of the twenty-first century there was increasing consensus among scholars and practitioners about the basic contents of the transitional justice framework, which accepts the general premise that national strategies to confront past human rights abuses, depending on the specifics of the local context, can contribute to accountability, an end to impunity, the reconstruction of state-citizen relationships, and the creation of democratic institutions. It then proposes that such a national strategy consider the following complementary approaches in an effort to contribute to comprehensive justice at a critical political juncture. These include: • Prosecution of perpetrators, whether on the domestic level, in a hybrid internationalized court (i.e., the Special Court for Sierra Leone), or in an international court, such as the ICC. • Establishing the truth about the past through the creation of truth commissions or other national efforts, such as engaging in major historical research, compiling victims’ testimonials or oral histories, supporting the work of forensic anthropologists in determining the exact nature of victims’ deaths, or exhuming the bodies of those killed. • Establishing reparations policies that take into account the requirements of, or moral obligations to, the victims. These policies can include economic compensation as well as a variety of health (physical and mental) and education benefits, and symbolic measures, such as a state apology. • Remembering and honoring victims through a series of measures, including consulting with victims to develop memorials and museums of memory, converting public spaces such as former detention camps into memorial parks and interpretive sites, and catalyzing constructive social dialogue about the past. • Developing reconciliation initiatives, such as working with victims to determine what they re-

quire in order to experience healing and closure, and forging peaceful coexistence among former adversaries without sacrificing justice and accountability for perpetrators. • Reforming institutions that have a history of abusive behavior, including, for example, security forces or the police, in order to prevent future patterns of abuse and establish state-society relationships based on functioning and fair institutions. SEE ALSO Chile; East Timor; El Salvador;

International Criminal Tribunal for the Former Yugoslavia; Reparations; Sierra Leone; Truth Commissions BIBLIOGRAPHY

Bassiouni, M. Cherif, ed. (2002). Post-Conflict Justice. New York: Transnational Publishers. Boraine, Alex, Janet Levy, and Ronel Scheffer, eds. (1997). Dealing with the Past. Cape Town, South Africa: Institute for Democracy in South Africa. Crocker, D. A. (1999). “Reckoning with Past Wrongs: A Normative Framework.” Ethics & International Affairs 13:43–61. Hayner, Priscilla (2002). Unspeakable Truths: Facing the Challenge of Truth Commissions. New York: Routledge. Kritz, Neil, ed. (1995). Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vols. I–III. Washington, D.C.: U.S. Institute of Peace Press. Mendez, Juan E. (1997). “Accountability for Past Abuses.” Human Rights Quarterly 19:255. Nino, Carlos S. (1996). Radical Evil on Trial. New Haven, Conn.: Yale University Press. Zalaquett, Jose (1993). “Introduction to the English Edition.” In Chilean National Commission on Truth and Reconciliation: Report of the Chilean National Commission on Truth and Reconciliation, trans. Phillip E. Berryman. South Bend, Ind.: University of Notre Dame Press. Louis Bickford

Truth Commissions A truth commission is an official, temporary body set up to investigate a period of past human rights violations or violations of human rights law. After taking statements from victims, witnesses, and others, a truth commission produces a final report that is usually made public and serves as an official acknowledgment of what was often before either widely denied or little understood. The 1990s showed a sharp increase in the global interest in such unofficial truth-seeking for countries emerging from repressive rule or armed conflict, and this interest has continued in the decade of the 2000s. By 2004 there were over thirty examples of truth commissions that had existed in all regions of the world.



Truth Commissions

The initial meeting of South Africa’s Truth and Reconciliation Commission, in East London, South Africa, April 15, 1996. The commission hears the first-hand accounts of victims of the apartheid regime. [ A P / W O R L D W I D E P H O T O S ]

A truth commission is officially sanctioned, either by the government or the armed opposition, where relevant, sometimes also with the backing of the international community such as the United Nations. A truth commission can thus be distinguished from the efforts undertaken by nongovernmental organizations to document abuses, as important as those also may be, as such official commissions generally have better access to information and will receive much greater attention to their work. Goals of Truth Commissions A truth commission may be established with a number of aims. In addition to discovering or more publicly revealing the extent of past abuses, such a commission can look into the causes as well as the consequences of what took place, identifying patterns of wrongdoing and broader institutional responsibility, that cannot always be done through the courts. In addition, a truth commission is usually focused primarily on victims’ experiences, providing victims and survivors with a supportive context in which to recount their story. Some [1048]

victims find the process of telling their story to an official and credible body an important part of their healing process, although many still find it painful to remember and describe such traumatic memories in great detail. Another important aim of a truth commission is to learn from the past in order to put forward recommended reforms that will help prevent such abuses in the future. Truth commissions are understood to be part of the broader field of transitional justice, and are best instituted when done in a manner that complements other initiatives to obtain accountability. While truth commissions themselves do not have the power to put someone in jail for their past deeds, they may still make publicly known that certain named individuals were responsible for past crimes, which can have other subsequent effects. Indeed, the late twentieth century has shown that the relationship between truth commissions and other forms of accountability, especially that of prosecution and vetting, can be quite positive. Often there is a clear interrelationship between truth commissions and other measures that address victims, as well


Truth Commissions

as broader societal needs, such as reparations programs and institutional reform. Truth commissions are usually set up through national legislation, or sometimes by way of presidential decree. In some cases, such as in El Salvador and Sierra Leone, a truth commission was first agreed to in a national peace accord. Their terms of reference can be quite broad, typically covering more than a decade of violence or abuses, sometimes going back even as far as thirty-five or forty years. The founding legislation or decree may leave some flexibility for the commission to determine its precise scope, but generally a truth commission is directed to try to determine the causes as well as consequences of the abuses that took place, through speaking with victims, undertaking research and investigations, holding public hearings, if appropriate, and completing a final report with recommendations. The first truth commissions were established in the 1970s, but the first well-known truth commission was established in Argentina in 1983, at the end of a sevenyear period of military rule. This National Commission on the Disappeared found that close to eight thousand persons had been forcibly “disappeared” by government forces during the period of military rule. Years later, the findings from this commission were used to implement a reparations program for families of the victims. Since then, prominent truth commissions have been established throughout Latin America, Africa, and Asia, and there has been at least one example in eastern Europe. For example, the early- to mid-1990s saw such commissions established in Chile, El Salvador, Haiti, Guatemala, and South Africa, and by the early 2000s, such bodies were created in Peru, East Timor, Ghana, and Sierra Leone. By that time, it was widely accepted in the international community that transitions from authoritarianism or armed conflict were likely to at least consider establishing an official, nonjudicial truth-seeking mechanism as part of a transitional accountability package. Despite the increasing support for and understanding of these investigative bodies on the international level, it remains important that the decision to establish a truth commission—including the precise form that it might take and powers and mandate that it is given— remain a national one. One of the primary purposes of a truth commission, that of assisting a process of national reflecting and acknowledgment of the wrongs committed in the past, is unlikely to result from an internationally imposed or internationally determined process. However, there may be an important role for the international community in providing funding and

technical assistance, and in some cases some of the members of a truth commission have been internationals. How Truth Commissions Operate Typically operating for one to two years, a truth commission generally takes statements from thousands of victims, its staff traveling throughout the country and perhaps even overseas to collect information from survivors of the past violence. A few of the truth commissions that have existed have been given quite strong investigatory powers, including powers to subpoena and the powers of search and seizure, allowing them to enter into premises without prior notice. These powers have been used to obtain documents and other information from prisons and government offices, for example. The South African Truth and Reconciliation Commission received a great amount of international attention, in part because it was given unique powers to grant amnesty to individuals who confessed and fully described their crimes, if those individuals could demonstrate that the crimes were committed for political rather than personal motivation. This arrangement set out in the Commissions founding legislation, contributed to hundreds of perpetrators describing the details of their crimes in public hearings, aired live on radio and broadcast on television, making it impossible for the public to deny the level of abuse that had taken place under apartheid. The South African commission is the only truth commission that has been given amnesty-granting powers. Others can either request or subpoena perpetrators to come forward, but without offering an amnesty in exchange. The question of how these nonjudicial investigatory bodies relate to or have an impact on prosecutions of human rights abusers in the courts has been of great interest over the years. Initially, especially in the early to mid-1990s, there was fear that the creation of truth commissions would somehow displace or reduce the possibility of prosecutions taking place for the crimes covered by the commission. In some cases, an existing amnesty, or a new agreement to grant amnesty in the context of a peace accord, has spurred the establishment of a truth commission. But there is rarely an explicit link between the two. There often is an overlap in the substantive focus of a truth commission and any domestic or international investigations that may be underway for the purposes of prosecuting accused perpetrators. However, time has shown that these commissions can in fact strengthen the possibility of successful prosecutions, by sharing information with the courts during or after the commission’s investigations are



Truth Commissions

completed. The Truth and Reconciliation Commission in Peru, for example, established a judicialization unit within the commission and prepared cases that it recommended for prosecution by the appropriate authorities. Some truth commissions also contribute to individual accountability by naming the names of persons that they find to be responsible for abuses in the past. The El Salvador Commission on the Truth, for example, named over forty persons, identifying their direct involvement in planning or carrying out some of the most egregious acts that took place during the country’s civil war from 1980 to 1991. The minister of defense was named for his direct involvement in major atrocities committed years earlier, for example, and the president of the Supreme Court was named for prejudicial and politically motivated attempts to block investigations into a 1981 massacre. Some persons named by the Salvadoran commission were removed from their posts, but the government quickly passed a broad amnesty that prevented prosecutions. Truth commissions are generally established where widespread abuses took place and where they were unaccounted for or officially denied at the time. However, some countries that have suffered some of the more infamous histories of genocide or intense violence in the decades of the late twentieth century, such as Rwanda or Cambodia, have chosen not to put a truth commission in place. This may be due to a lack of popular interest in delving into the past, or perhaps insufficient political interest in investigating and revealing the full nature, extent, and institutional or personal involvement in past crimes. There can be political and personal risks as well as traumas associated with digging into such a fraught and painful period, and thus some countries choose not to institute such an inquiry during a political transition. While all truth commissions as of the early 2000s have found and reported on unspeakable violence, few have concluded that the violence constituted genocide, per se. The truth commission in Guatemala, called the Commission for Historical Clarification, was under pressure from victims and survivor groups to include such an explicit finding it its final report, in recognition of the tens of thousands of indigenous Mayan people who were targeted and killed in the course of the war. After close legal analysis of the nature and extent of the violence, the commission did conclude that government forces committed “acts of genocide” as part of its counterinsurgency strategy early in the civil war. This finding, along with the commission’s other strong conclusions, received an emotional response from a popu[1050]

lation whose suffering had very rarely been acknowledged by the state. Over time, new truth commissions have been formed with more creative and far-reaching mandates. Some have been designed to work very closely with indigenous or nationally rooted and community-based mechanisms. In East Timor, for example, a truth commission facilitated perpetrator confessions and negotiated agreement for low-level perpetrators to undertake community service or provide a symbolic payment, thus allowing the perpetrator to be reintegrated fully into his or her community. In Sierra Leone, some truth commission hearings ended with indigenously based cleansing ceremonies, with Sierra Leonean paramount chiefs overseeing a process of accepting back into the community those wrongdoers who had confessed. More of these kinds of creative approaches may well be incorporated into new truth commissions in the future. Because truth commissions are generally instituted after a period of repression or violence has come to an end, their main focus is to learn from that past and to make specific recommendations to help prevent the reoccurrence of such abuses in the future. These recommendations often include institutional reforms, such as strengthening the judicial system or legal framework so that proper and independent oversight of the actions of government and armed forces will take place when complaints are made. In some contexts, recommendations also address social, educational, and even cultural aspects of society and the need to make changes, addressed not only to the government but sometimes to society at large. In addition to reforms that may take place on an official level, advocates hope that an honest understanding and recognition of the extent of past abuses will help to strengthen societal resistance to allowing such events to take place again. But few truth commissions have had the power to adopt conclusions that are mandatory. Such conclusions are often considered as recommendations, and some well-formulated proposals have not been followed up by the government and implemented as policy. The commission itself generally ceases to exist with the submission of its report, leaving the lobbying around policy implementation to civil society organizations. A few truth commissions, however—in El Salvador and Sierra Leone—have been given the power to address resolutions to the government that are agreed in advance to be obligatory. In addition, the legislation that set up the Sierra Leone commission allows for the creation of a follow-up committee at end of the commission’s work. The goal of that commission is to track and publicly report on the progress of implementation


Tudjman, Franjo

of the original commission’s recommendations. These and other examples show society’s increasing concern to strengthen the long-term impact of truth commissions. SEE ALSO Argentina; Chile; El Salvador; Guatemala;


Chapman, Audrey R., and Patrick Ball (2001). “The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa, and Guatemala.” Human Rights Quarterly 23:1. Chilean National Commission on Truth and Reconciliation (1993). Report of the Chilean National Commission on Truth and Reconciliation, trans. Phillip E. Berryman. Notre Dame, Ind.: Notre Dame University Press. Goldstone, Richard J. (1996). “Justice as a Tool for PeaceKeeping: Truth Commissions and International Criminal Tribunals.” New York University Journal of International Law and Politics 28:485. Hayner, Priscilla B. (2001). Unspeakable Truths: Confronting State Terror and Atrocity. New York: Routledge. Parleviet, Michelle (1998). “Considering Truth: Dealing with a Legacy of Gross Human Rights Violations.” Netherlands Quarterly of Human Rights 16:141. Posel, Deborah, and Graeme Simpson, eds. (2002). Commissioning the Past: Understanding South Africa’s Truth and Reconciliation Commission. Johannesburg, South Africa: Witwatersrand University Press. Rotberg, Robert I., and Dennis Thompson, eds. (2000). Truth v. Justice: The Morality of Truth Commissions. Princeton, N.J.: Princeton University Press. Truth and Reconciliation Commission of South Africa (1999). Truth and Reconciliation Commission of South Africa Report. New York: Grove’s Dictionaries. Villa-Vicencio, Charles, and Wilhelm Verwoerd, eds. (2000). Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa. London: Zed Books. Priscilla B. Hayner

Tudjman, Franjo [MAY 14, 1922–DECEMBER 10, 1999]

First Croatian president

Franjo Tudjman was born in Veliko Trgovisce, a village in the Hrvatsko Zagorje region in northern Croatia. He was the first president of Croatia, following its creation as an independent state in 1991. During World War II Tudjman fought alongside his father and brothers as an officer in the partisan forces of communist leader Joseph Broz Tito (Marshal Tito) against Croatia’s pro-Nazi Ustache regime, founded on April 10, 1941, as the so-called Indepen-

dent State of Croatia (Nezavisna Drzava Hrvatska, NDH). After the war Tudjman served in the Ministry of Defense and was a member of the general staff of the Yugoslav National Army (JNA) in Belgrade, attaining the rank of major general. In 1961 Tudjman left the JNA to pursue an academic career in Croatia. From 1961 to 1967 he was the director of the Institute for the History of the Workers Movement located in Zagreb. In 1967 Tudjman resigned from the institute after Croatian communist authorities sharply criticized the Declaration on the Croatian Language that he had signed. The same year Tudjman was expelled from the Croatian Communist Party and thus began a new period in his life as a dissident and nationalist. In 1972 he was jailed for two years as a result of his activities in support of the “Croatian Spring” (the Croatian movement which advocated greater political autonomy in former Yugoslavia); he was jailed again in 1981 for three years for his writings on Yugoslav history. As a historian, Tudjman was accused of being a Holocaust revisionist because of his controversial 1989 book, Bespuca povijesne zbiljnosti (Wastelands: Historical Truth, translated also as The Horrors of War), in which he attempted to minimize the number of Jews who had perished in the Holocaust. In 1989 Tudjman established a political party called the Croatian Democratic Union (HDZ) and became its chairman. The HDZ won the first free elections in Croatia in 1990. As its presidential candidate, Tudjman declared that NDH, the puppet state of Nazi Germany, “had not simply been a quisling creation, but was also an expression of the historical aspirations of the Croatian people to have their own state.” During the same campaign he also declared, “Thank God, my wife is neither a Serb nor a Jew.” In 1990 Tudjman became the first democratically elected president of the newly proclaimed state of Croatia. In the elections of 1992 and 1997, he was reelected as president. After the declaration of Croatia’s independence in 1991, which coincided with open aggression by Serbia and the federal army against the newly founded state, Tudjman’s policy, which combined military and diplomatic means, secured the existence of Croatia as a sovereign state. In 1995 Croatia’s military forces in their Operations Flash and Storm liberated about 25 percent of the territory that had been occupied by Serbian paramilitary forces since 1990. These military operations resulted in the mass exodus of the Serbian population as approximately 200,000 fled to Serbia and Bosnia and Herzegovina, or more precisely the Serb Republic (Republika Srpska).




In regard to Bosnia and Herzegovina, Tudjman’s policy was both ambiguous and controversial. He engaged in secret negotiations with the Serbian leader Slobodan Milosevic to partition this state.


Following Operation Storm, Tudjman became the subject of an investigation by the International Criminal Tribunal for the Former Yugoslavia (ICTY) but he was never formally charged for the war crimes that occurred during and after this campaign in August 1995. Tudjman’s name, however, appeared in the ICTY’s indictment of the Croatian General, Ante Gotovina, for war crimes. In it the Chief Prosecutor of the ICTY, Carla del Ponte, accused Gotovina and President Tudjman of participating “in a joint criminal enterprise, the common purpose of which was the forcible and permanent removal of the Serb population from the Krajina region.”

International Criminal Tribunal for the Former Yugoslavia. “Amended Indictment of Ante Gotovina.” Available from http://www.un.org/icty/indictment/english/gotai040224e.htm.

SEE ALSO Croatia, Independent State of; Karadzic,

Radovan; Mladic, Ratko


“Franjo Tudjman, Ex-Communist General Who Led Croatia’s Secession, Is Dead at 77” (1999). The New York Times. (December 11).

Lukic, Reneo (2003). L’agonie yougoslave, 1986–2003. Les États-Unis et l’Europe face aux guerres balkaniques (The Agony of Yugoslavia: The United States, Europe and the Wars in the Balkans, 1986–2003). Quebec, Canada: Les Presses de l’Université Laval. Lukic, Reneo, and Allen Lynch (1996). Europe from the Balkans to the Urals, the Disintegration of Yugoslavia and the Soviet Union. Oxford University Press: Oxford. Reneo Lukic

Tuzla see Yugoslavia.


U Uganda Since 1962, Ugandans have suffered gross violation of human rights, including genocide, governmentsponsored violence, acts of elimination of elites, forced exiles and expulsions, imprisonment without trial, and denial of the other basic human rights. More than 2 million people have been killed, maimed, imprisoned, or forced into exile. Various political elites have sought power to control and to distribute resources at the expense of human rights. Ugandans have not yet developed mechanisms to change government leaders by peaceful means. Political change has been effected through violence, and this has invariably led to other forms of violence. The distribution of resources along ethnic and racial lines was a legacy of British colonialism. During the colonial period, the Europeans and Asians received the highest incomes because they controlled the state and business, respectively. Among the African population, the Baganda were the richest because they produced cash crops—cotton and coffee— and played the role of colonial subimperialists. Western Uganda became a reservoir of labor for the colonial state as well as the managers of the cash crop economy in Buganda. The armed forces of the colonial era were recruited mainly from the Luo and Sudanic speakers of the northern region. This specialization along racial and ethnic lines became the source of instability and violence in postcolonial Uganda. Unsophisticated leaders like Obote and Amin exploited the politics of ethnicity and historical imbalances to entrench themselves. They branded whole populations guilty for the inequities of

British colonialism and imposed collective punishment regardless of class or political association and sympathies. Genocide Thousands of Ugandans have suffered from acts of genocidal massacre. Since independence in 1962, Uganda has witnessed massacres directed against certain ethnic and consolidated social groups. Between 1966 and 1971, the first Obote regime targeted the Baganda, and 400 to 1,000 people were reported to have been killed. The Amin Regime (1971–1979) targeted the Acholi and Langi, particularly those in the armed forces, and thousands were eliminated. During the Tanzania-led war to oust Amin, groups of people suspected of supporting or sympathizing with Amin or even those who only came from the ethnic groups in his home region were killed. These included Muslims in the Ankole–Masaka areas, the people of West Nile, and Nubians scattered in the urban centers. In the second Obote administration (1980–1985), the Baganda were again targets for killings. The activities of both the government and the guerrilla armies in the Luwero Triangle caused the deaths of more than 300,000 people and the flight of many more from the area. From 1986 to 2003, the people of the Acholi region in northern Uganda were indiscriminately terrorized. More than 100,000 people were killed and more than 20,000 children abducted. These killings were managed by individuals trying to destabilize the political machinery of the Uganda state.




Resistance Movement (NRM) government. The impact of these eliminations has been the reduction of the number of individuals capable of offering alternative leadership to this unfortunate country. Exiles and Expulsions Since 1969, Uganda has lost thousands of people through exile and expulsions. During the Amin regime, more than 80,000 people were forced to leave Uganda. By 1984, about a quarter of a million Ugandans were living in exile as refugees. In the period from 1980 to 1983, almost the whole of the West Nile district population was forced into exile by the atrocities committed by the Uganda National Liberation Army.

The fall of Kampala on April 11, 1979. A Tanzanian soldier uncovers mutilated bodies at the State Research Bureau, headquarters of Idi Amin’s dreaded secret police. [ B E T T M A N N / CORBIS]

The Elimination of Political and Commercial Elites The violent struggle to control the state has led those in power to eliminate their political rivals. In the period from 1962 to 1971, many political opponents of the first Obote regime were either imprisoned (including Grace Ibingira, George Magezi, Balaki Kirya, Lumu, Ben Kiwanuka, and some members of the Buganda royal family, such as Prince Badru Kakungulu) or forced into exile (Sir Edward Mutesa II). When Amin came to power, he eliminated political and commercial elites who seemed to be a threat to his grip on Uganda. Those killed in the Amin period have been listed elsewhere, but they included prominent individuals such as Chief Justice Ben Kiwanuka, the Anglican Archbishop Janan Luwum, writers such as Byron Kawaddwa, Father Clement Kigggundu, and prominent business people. The elimination of prominent individuals continued throughout the Uganda National Liberation Front (UNLF) governments (1979–1980), the second Obote administration (1980–1985), the Okello junta years (1985–1986), and the early part of the National [1054]

Whole ethnic and social groups have been expelled from Uganda. In October and November 1969, Obote’s government expelled about 30,000 Kenyan workers, most of them Luos. Their brutal expulsion did not make headlines in the international news because no strong international economic interests were involved. In 1972, Idi Amin expelled some 75,000 Asians of Indo-Pakistani origin and appropriated their properties. Although they have been compensated and some have returned, the action was a brutal one. In 1982–1983, functionaries of the official ruling party, the Uganda People’s Congress (UPC), caused the expulsion of some 75,000 Banyarwanda who had over the years settled in western Uganda (Ankole, Rakai, and parts of Masaka). In the same period, the UPC government fanned primordial forces within Karamoja that led to internal conflicts in that region. Some 20,000 to 40,000 Karamajog were killed, and many were displaced in the same period. Denial of Basic Human Rights Between 1966 and 1986, Ugandans were denied basic human rights. The right to freedom of opinion was denied, as was the right of association. The media was state controlled, and political parties, trade unions, student organizations, and later, some religious organizations were proscribed. There was, particularly in the period after 1971 to 1985, complete absence of the rule of law. Court verdicts were not respected by the security forces. The security forces could arrest people without warrant and detain them for as long as they wished. But these forces were immune from prosecution. When the Museveni government came to power in 1986, it instituted a commission of inquiry into past human rights abuses and the creation of the Human Rights Commission. The situation dramatically changed for the better. Conclusion The 1995 Constitution put in place mechanisms facilitating conflict resolution, including separation of pow-


Ukraine (Famine)

ers among the executive, legislative, and judicial branches of government. However, permanent peace and security can only be viable when Ugandans accept, in word and deed, the mechanisms for changing the guard without violence as embedded in the 1995 Constitution. Any rash action to change the Constitution to suit personal arrangements could cast Uganda back twenty years. The positive achievements of the last seventeen years would be thrown into the dust bin. SEE ALSO Death Squads BIBLIOGRAPHY

Amnesty International. (1978). Human Rights in Uganda: Report. London: Author. Clay, Jason (1984). The Eviction of the Banyarwanda: The Story behind the Refugee Crisis in Western Uganda. Cambridge, Mass.: Cultural Survival. Harrell-Bond, B. E. (1986). Imposing Aid: Emergency Assistance to Refugees. New York: Oxford University Press. Human Rights Watch/Africa (1997). The Scars of Death: Children Abducted by the Lord’s Resistance Army in Uganda. Washington, D.C.: Human Rights Watch. International Commission of Jurists (1977). Uganda and Human Rights: Report of the UN Commission on Human Rights. Geneva: Author. Kasozi, A. B. K. (1994). The Social Origins of Violence in Uganda, 1964-1985. Montreal: McGill-Queen’s University Press. Mamdani, Mahmood (1973). From Citizen to Refugee: Uganda Asians Come to Britain. London: Frances Printer. Mamdani, Mahmood (1976). Politics and Class Formation in Uganda. New York: Monthly Review Press. Melvern, Linda (2000). A People Betrayed: The Role of the West in Rwanda’s Genocide. London: Zed. Ryan, S. D. (1971). “Uganda: A Balance Sheet of the Revolution.” Mawazo 3:37–64. A. B. Kasozi

Ukraine (Famine) In the Ukrainian language, the famine of 1932 and 1933 famine is called “holodomor,” which means extermination by starvation. It is also referred to as the “artificial famine,” “terror famine,” and “terrorgenocide.” Until the end of the 1980s, however, the Soviet Union dismissed all references to the famine as anti-Soviet propaganda. Denial of the famine declined after the Communist Party lost power and the Soviet empire disintegrated. With the declassification and publication of Western and Soviet historical documents, it became impossible to continue to deny the occurrence of the now well-attested catastrophe. The con-

troversy did not abate, however, despite newly uncovered evidence. Instead, new disputes arose over whether the famine was Ukrainian or Soviet, whether its victims should be regarded primarily as Ukrainians or as peasants, and if it was appropriate to call the famine genocidal. The Surge of Recurrent Famines During the first three decades of communist rule, Ukraine experienced a series of food crises. The first widespread famine began in the summer of 1921, and lasted two years. It affected one-third of the Ukrainian population, and killed approximately one million people. Possibly three or four times more people died in Russia, which also suffered a famine during that time. Little information and no mortality data are available for the shorter starvation periods, which occurred from 1924 to 1925 and from 1928 to 1929. The most costly in human lives was the great famine of 1932 and 1933. It is also this famine for which the classification of genocide is claimed. Later, fatal food shortages were experienced during World War II, but they occurred mainly in the cities and thus form a separate category. After the war, Ukrainians again faced famine conditions in 1946 and 1947, notably in the central and southern regions of the country. Victims numbered in the hundreds of thousands. In each instance, food shortages were not exclusive to Ukraine. Concomitant famines took place in Russia and other parts of the sprawling Soviet empire. Peasants constituted the majority of victims in all the famines, except during the war. The common features of all the famines were adverse climatic conditions, poor crop yields, mismanagement, corruption, and waste. The main cause of starvation, however, was excessive grain procurements ordered by the government. The state extracted exorbitant amounts of foodstuffs from the peasants, with the full knowledge that it was condemning them to annihilation. The readiness of the allegedly proletarian state to sacrifice the interests of the peasantry, which comprised three-quarters of its population, was evident throughout the whole of the Soviet Union, but the origin and handling of food shortages in Ukraine had specific features that distinguished them from the situation elsewhere in the USSR. This is because the Russocentric government was mistrustful of Ukrainians, many of who resented the loss of their bid for national independence after the Revolution. Moscow responded to the 1921 drought and ensuing famine that swept the Volga valley and Northern Caucasus in Russia and the southern steppe lands of Ukraine with two very different policies. Food taxation



Ukraine (Famine)

was suspended in the famished provinces of Russia, famine relief was organized, and requests were sent for Western aid. Meanwhile, however, Ukraine’s dire situation was ignored; in fact, the country was obliged to send some of its own meager crop to help Russia. Western aid began arriving in September 1921, and by the end of the year the American Relief Administration (ARA) was providing meals for one million people. The Ukrainian famine was finally acknowledged and the country opened to foreign aid only at the beginning of 1922. Even that only occurred after the ARA put pressure on Moscow at the behest of the American Jewish Joint Distribution Committee (JDC), which had received alarming news about Jews starving in southern Ukraine. At the height of its operations in 1922, the ARA fed over eight million people in Russia, with funds provided by the U.S. Congress, and nearly one million people in Ukraine, with the aid of funds supplied mainly by the JDC. Both famines received wide publicity in the Western media, and photographs and films were made for the purpose of raising funds. Even after recognition of the famine situation in Ukraine, starving Ukrainian provinces continued to be taxed and food trains continued to be sent not only from northern Ukraine, which were blessed with a reasonably good harvest, but also from the starving southern provinces. As late as May 1922, Western observers were baffled and scandalized to see southern Ukraine sending foodstuffs to Russia. In addition, Ukraine was obliged to give refuge to hundreds of thousands of Russian refugees, and to numerous Red Army units. Drought and poor harvests occurred again in 1922, but this time Moscow decided to export grain rather than retain its crop to feed its own people. Shocked, Western relief organizations protested, but to no avail. To counter bad publicity, on October 15, 1922, Moscow declared that the famine had ended. Trapped by their own humanitarian convictions, Western relief agencies kept their soup kitchens open for another year, even though the Soviet government continued to export grain. Strikes by port workers and even the burning of grain elevators in the Ukrainian port of Mykolaiv had no effect on Soviet export policy. The Soviet authorities did not engineer mass starvation in 1921, but once the famine broke out, the government quickly recognized its utility as a tool of state policy. In Ukraine, in other words, the famine was seen as an effective way to physically weaken nationalist and anarchist elements, which had challenged Moscow’s rule over Ukraine until the autumn of 1921. After the famine, while Party leaders fought over Lenin’s mantle in Moscow, Ukraine acquired a certain [1056]

amount of autonomy. To make their rule more palatable, and to placate Ukrainian national feelings, the victorious Bolsheviks began their rule by promoting policies of “indigenization” and “Ukrainization.” The party and the state recruited native Ukrainians, even former members of defunct Ukrainian national parties. The use of Ukrainian language was promoted in the republic’s schools and administration. The main beneficiaries of these new policies were Ukrainian intellectuals and farmers. The former began to create nationally conscious socio-economic and political elites, whereas the latter took advantage of the liberal “New Economic Policy” (NEP) to recover from the famines of previous years. An influx of rural populations into the urban centers helped to Ukrainianize the previously Russified towns and cities. The country was undergoing a wideranging national renaissance. Such a national revival rekindled old fears in the Kremlin, however, and Ukraine was once again perceived as presenting a challenge to the hegemony of the government and a threat to the integrity of the multinational empire. Stalin’s Revolution from Above Ten years after the Bolshevik seizure of power, Stalin’s ascendancy over the USSR was complete. As the party’s chief theoretician and decision maker, Stalin could now take up Lenin’s unfinished job of eliminating the last vestiges of capitalism and pursue his personal ambition of transforming the rich but backward empire into a powerful socialist state. In order to become a fatherland for the world proletariat and a vanguard of world revolution, the USSR had to undergo an industrial revolution, for which agriculture was the only available source of capital. The party’s left wing had long advocated agricultural collectivization as a way of bringing socialism to the countryside and giving the state direct control over farm production. Stalin took the leftist platform and pushed it to the extreme. The collectivization of agriculture was approved in December 1927, and was made part of the latest Five Year Plan, the cornerstone of the NEP. Five months later, Stalin rationalized his abandoning the NEP. He argued that, with almost equal yields, Russia nonetheless produced twice as much market grain in 1913 as the Soviet Union did in 1926. Large-scale farming, run by rich landlords in 1913, and by sovkhozes (state farms employing agricultural workers) and kolkhozes (collective farms organized as cooperatives) in 1926, sent 47 percent of their produce to the market, while kulaks (rich farmers) sold 34 percent of theirs before the revolution and only 20 percent after it. But while the first two categories of farm enterprises accounted for half of all grain production in 1916, their share in 1926 was only 15 percent. The seredniaks (“middle,” or subsis-


Ukraine (Famine)

tence farmers) and the bedniaks (poor farmers) increased their share of crop production from 50 to 85 percent, but reduced their sales from 15 to 11 percent in 1926. The problem was clear: the middle and poor peasants had become the main grain producers, but they consumed most of their crop. The solution to grain shortages, Stalin argued, lay in the “transition from individual peasant farming to collective farming.” Large-scale farming was also supposed to increase production by taking advantage of “modern machinery and scientific knowledge,” but above all, Stalin insisted, it was a system that was “capable of producing a maximum of grain for the market.” Collectivization was expected to meet with stiff opposition from the kulaks—because they had the most to lose—and Ukrainian peasants, who were not familiar with the Russian tradition of obshchina (commune). Stalin launched his struggle against these hostile elements with the call to “liquidate the kulaks as a class.” The drive for “dekulakization” was launched in December 1929, and, like collectivization, was subordinated to state planning. The most intense period of dekulakization was from January to March 1930, and coincided with the main push for collectivization. As a result of dekulakization, deportation, and other upheavals connected with collectivization, 282,000 peasant households disappeared in Ukraine between 1930 and 1931. By the end of that period there were no real kulaks left in the region. In theory, kolkhozes were voluntary organizations. Many bedniaks and batraks (landless farm workers) freely signed up, expecting a better life. Most peasants, however, preferred to stick to individual farming. The scope and tempo of collectivization were regulated. To meet their monthly quotas, peasants were coerced to join collectives by the levy of exorbitant taxes on individual farm incomes, false accusations, administrative intimidation, and physical violence. The peasants resisted, however, and by June 1929 only 5.6 percent of households had joined kolkhozes in the Ukraine. Grain producing regions in Ukraine and the Northern Caucasus, especially the rich and predominantly Ukrainian Kuban’ region, were specially targeted for rapid collectivization. In October, 10.6 percent of Ukrainian peasant households were in kolkhozes. In the steppe region, the figure was 16 percent. Mismanagement, insufficient farm machinery and draught power (horses and tractors), and other woes continued to undermine the institution. Peasants fled and the kolkhozes collapsed. Undaunted, on November 7, 1929, Stalin declared the collectivization movement a great success and bolstered his claim by ordering 25,000 specially selected industrial workers to be sent to the coun-

tryside to continue to help with the organization and management of kolkhozes. Additional cadres were periodically dispatched, and by the spring of 1930, the Ukraine had 50,000 activists with special powers to organize, punish and intimidate, and terrorize the peasants. Reinforced state violence produced the desired results. By the end of February 1930, more than half of all individual households in the USSR had been collectivized, and in Ukraine the number reached 68.5 percent. The government’s success was achieved with unbridled violence and at the cost of many peasant lives. Terror reigned in the villages. To protect their men, women often took over their role in opposing the formation of kolkhozes and in their dismantling. Resistance peaked in the early spring of 1930, when the OGPU (state police) recorded 6,528 mass peasant uprisings, with 2,945, or 45 percent, taking place in Ukraine. As kolkhozes collapsed in Ukraine and the North Caucasus, Stalin was forced to sound a temporary retreat. On March 2, 1930, the newspaper Pravda published Stalin’s essay “Dizzy with Success,” in which collectivization was once again declared a success, with certain excesses being blamed on overzealous activists. Stalin once more reaffirmed the principle of voluntary adhesion to the kolkhozes. The peasants took him at his word and began to leave the collectives. By September, only 21 percent of peasant households remained collectivized in the USSR; 34 percent in Ukraine. If this was a new NEP, as some had hoped or feared, it was of short duration. Renewed collectivization began in October 1930. By August 1931 the Ukrainian steppe was wholly collectivized, and by the following year, three-quarters of Ukrainian peasants were working in kolkhozes. Collectivization was at the heart of a revolution aimed at solving several other problems besides economic ones. In ideological terms, the termination of the NEP meant the triumph of socialism, although the kolkhozniks called it the return of serfdom. Politically, it meant the extension of party control over the countryside by means of reliable personnel in newly established Machine and Tractor Stations that were created to service the kolkhozes with machinery and to supervise them politically. The principal loser was to be the peasant, demoted from independent producer to agricultural worker, akin to the city worker but bound to the more primitive conditions of country life. The Ukrainian Famine of 1932–1933 Dekulakization and deportation deprived Soviet agriculture of its ablest and most conscientious farmers.



Ukraine (Famine)

In Kiev, Ukrainian Orthodox priests hold a commemorative service in 2003 to mark the seventieth anniversary of the Soviet-imposed Ukrainian famine/genocide (1932–1933). The death toll from the famine has been estimated at between six and seven million. [ A P / WORLD WIDE PHOTOS]

Productivity declined while wastage increased. It has been claimed that three million tons of grain were lost in Ukraine during the 1931 harvest. This is probably an exaggeration, but together with unfavorable weather conditions, it helps to explain why Ukrainian harvests of 1931 and 1932 were lower than the official figures used by Moscow to set its procurement plans. The Kremlin, insisting on high quotas, had great success. It took in 7.5 million tons of grain in 1930 and more than 7 million tons in 1931, and planned to match the latter figure in 1932. State procurement claimed a very high proportion of Ukrainian production: 30 percent in 1930 and 41 percent in 1931. By the summer of 1932, however, Ukrainian leadership realized that it would not be able to deliver the exorbitant amount it had originally agreed to provide. Ukrainian party leaders pleaded with Stalin for a reduction in the quota. In June 1932 Vlas Chubar and Hryhorii Petrovsky, members of the Ukrainian party’s Central Committee, wrote the Kremlin about the menace [1058]

of wide-scale starvation. In the fall of 1932, the boss of the Kharkiv region, informed Stalin of the famine in his province, only to be ridiculed for telling “fairy-tales.” The original plan for grain procurement for the 1932 harvest was ultimately reduced three times, but the state still managed to extract 4,270,000 tons of grain, enough to feed at least 12 million people for an entire year. Workers and other citizens of Ukraine, whose food needs at that time were supposed to be met by the government, numbered about eight million. It was not only the confiscation of foodstuffs, but also the way the confiscation was carried out that created hardships for Ukrainian peasants. In theory, the land worked by the kolkhoz belonged to the state, whereas the harvest belonged to the kolkhoz. But the kolkhoz could divide the crops among its members only after the state took its share and reserves were set aside for the next sowing. In the meantime, kolkhozniks were supposed to fend for themselves. Many tried to take an “advance” for their work by cutting a few


Ukraine (Famine)

sheaves of unripened wheat or competing with mice for the gleanings that the harvesters left behind. On August 7, 1932, however, Stalin imposed a new law that made the “plunder of state property” a crime punishable by death or, in extenuating circumstances, ten years’ imprisonment. Fifty-five thousand people were soon arrested for pilfering grain that they themselves had cultivated, and 2,000 individuals were condemned to death. In November, a blacklist was introduced to punish kolkhozes that failed to meet their monthly grain deliveries. A blacklisted collective lost the right to all commercial transactions, including the sale of such basic necessities as salt, matches, and kerosene, and the kolkhoz administration that harbored such criminals was usually purged. In early 1933, 200,000 kolkhoz employees were inspected, and one-fourth of them were dismissed or otherwise purged. Included in these numbers were 11,420 kolkhoz chairmen, of whom 6,089 were purged. Individual peasants who were in arrears in meeting their quotas were subjected to food fines and confiscations, which often meant the confiscation of everything edible, including the bread or vegetables found on their kitchen tables. Groups of activists, comprised of city workers or members of local “committees of poor peasants,” went from house to house, prodding the earthen floors with metallic spikes to uncover hidden food reserves. To prevent peasants from fleeing the village or even merely seeking provisions outside their village, a passport system was introduced on December 27, 1932. Only city dwellers were entitled to passports. The peasants were thus confined to the village. As they had been in the days of serfdom, the peasants were once more bound to the soil. Peasants wandering in the cities were rounded up: the luckier ones were sent home, while others were punished for the crime of speculation. Left with insufficient food, the peasant population starved. Famine broke out in the winter of 1931 and 1932, and reached a high point that spring. Hundreds of thousands of people died before the new harvest brought some relief. A new phase of food shortages began in the fall of 1932 and peaked the following spring. Foreign eyewitnesses and native survivors, who either escaped or outlived the Soviet regime, have described the horrors of this famine in contemporary accounts. Starving peasants consumed domestic animals, including dogs and cats, together with various food surrogates like tree buds, weeds, and herbs. Some resorted to cannibalism, and dug up human corpses and the carcasses of dead animals. A nearby forest or river saved many an amateur hunter or fisherman. People died by the hundreds and thousands. Just how many died from starvation in Ukraine will never be known.

Deaths due to malnutrition were not recorded. Deductions made from the official censuses of 1926 and 1939, and the suppressed census of 1937, have given rise to various interpretations and conclusions. Estimates for Ukraine vary from four to ten million. Six million was the figure a Kharkiv official gave an American newspaper editor in 1933—it still seems the most plausible. Was the Ukrainian Famine Genocide? By the end of the 1980s, British, Italian, and German diplomatic archives provided the definitive evidence necessary to establish the historicity of the great Ukrainian famine. It is more complex to resolve the question of the genocidal nature of the catastrophe. Scholars have had reservations in judging Stalin’s intent, as required by the United Nations Convention on Genocide. A conclusive assessment of the Soviet leader’s motivations had to await the opening of Soviet archives. Over time, however, four approaches to the problem were developed. Some scholars flatly rejected the notion that the famine was genocide, others avoided the problem of classification by using descriptive terms such as “great famine,” “artificial famine,” or “man-made famine.” Still others accepted the idea of genocide, but saw its victims primarily as the kulaks, or peasants; and, finally, some scholars recognized the famine as a genocide that was specifically directed against the Ukrainian nation. Russian and Ukrainian scholars use the term holod (golod in Russian, meaning hunger, starvation, or famine) or holodomor (golodomor), which is emotionally close to the notion of genocide, but without the legalistic overtone. Stalin was not only well informed about the famine, he was its chief architect and overseer. He sent Molotov and Kaganovich to the Ukraine and the Northern Caucasus to organize and enforce the grain procurement that made the tragedy inevitable. The word famine was banned from the media and official documents, but it was used openly in high party circles. The SecretaryGeneral himself used the word in a letter to Molotov, sent in June 1932, in which he blamed local mismanagement for a “state of ruin and famine” in a number of Ukrainian regions. If the party leadership had made a mistake in planning the grain procurement, it could have corrected its errors once it realized the magnitude of the famine. There were more than three million tons of grain reserves in the USSR in January 1933, enough to feed well over ten million people. The government could have organized famine relief and accepted help from outside, as it did in 1921. Instead Moscow rejected foreign aid, denounced those who offered it, and exported its own foodstuffs abroad. More than a million and a half tons of grain were sold abroad in 1932 and again in 1933, enough to feed five million people dur-



Ukraine (Famine)

ing both years. Such behavior is more than callous; it shows a direct intent on the part of the perpetrators to destroy a part of the population by starvation.

could eliminate the first danger, and just as in 1921 and 1923, food could be used to transform revolting peasants into an obedient rural proletariat.

The “peasantist” interpretation of the Ukrainian famine either accepts or rejects the idea of genocide, but emphasizes that the victims were peasants, rejecting the association of victimhood with Ukrainian ethnicity. In his Black Book of Communism, Stephane Courtois insists on the similarity between the Stalin regime’s deliberate starvation of a child of a Ukrainian kulak, and the Nazi regime’s starvation of a Jewish child. In this literary construct, there is no clash between the Ukrainian peasant’s two identities, even if the reference to his kulak class gives the false impression of the victims of the famine, for by that time there were no kulaks left in Ukraine. Nicolas Werth, whose long study of the Soviet Union is included in Courtois’s Black Book, openly poses this question, but after presenting arguments for the “ethnicist” and “peasantist” interpretations, Werth settles on an explanation that embraces the ethnicist approach, blaming the deaths on an ethnically oriented policy of, if not genocide, than certainly willful extermination. For Mark Tauger, this ethnic orientation is unacceptable. He argues that there was no Ukrainian famine, only a Soviet famine in which peasants in Ukraine were also victims.

Despite the passport system, Ukrainian peasants left their villages and went to Belarus and Russia, where the food situation was much better than in Ukraine. On January 22, 1933, Molotov and Stalin signed a secret directive to stop this practice. Railways were forbidden to sell tickets to Ukrainian peasants, and the OGPU was ordered to be more vigilant. The directive referred to a mass movement to undermine the Soviet state by the agents of Pilsudski and other enemies. The ban on travel also applied to the Kuban okrug in the North Caucasus. A primary grain producing region, Kuban had also been ruthlessly dekulakized and exorbitantly taxed, and had fallen behind the procurement schedule. With 61 percent of its 1.5 million population Ukrainian, Kuban became a prime target of Skrypnyk’s efforts to Ukrainianize the 3 million Ukrainians living in North Caucasus. Individuals promoting Ukrainization were called counterrevolutionary agents and directly blamed for the local sabotage of grain deliveries. Ukrainization in the North Caucasus was brought to an end.

Of Georgian background, Stalin had a keen awareness of the “nationality question” in the multiethnic Russian and then Soviet empire. On August 11, 1932, he intimated to an associate that, unless proper measures were taken, Ukraine could be lost. The halfmillion-strong Communist Party of Ukraine, he complained, was full of “conscious and unwitting Petliurists,” “agents of Pilsudski,” and other “rotten elements.” Stalin argued that the Polish dictator, Pilsudski, was not dozing. His associate, Kaganovich, concurred, adding that local Ukrainian activists had become convinced that their grain procurement quota could not be met, and that Ukrainians were being punished unjustly. Kaganovich detected a sense of “solidarity and rotten mutual guarantee,” not only in the middle echelons but even in the top levels of the administration. Stalin was also irritated that, when Chubar and Petrovsky had pleaded to have Ukraine’s quotas lowered, Kossior did not react. This exchange between Stalin and Kaganovich suggests that they were aware that the imposition of unreasonably high procurement targets was creating a dangerous situation in Ukraine, where peasant and national factors intermingled. The Polish dictator, Pilsudski, could become a threat only if he could find allies in the disgruntled Ukrainian political apparatus and a disaffected Ukrainian peasantry. Political purges [1060]

The vast majority of famine victims during 1932 and 1933 were Ukrainians, primarily living in the Ukrainian SSR, but also in adjacent regions of Russia. The high number of Ukrainian deaths stands in sharp contrast to the low number of Russian deaths, both in absolute terms and in relation to their populations. The correlation between the ethnic and social identities of the group forming the vast majority of famine victims is inescapable. The peasantry had been the raison d’être of the Ukrainization policy and the mainstay of the Ukrainian national revival. Now both were linked by the authorities to peasant sabotage, and they were attacked. Ukrainian cultural elites were decimated, and by 1933 Ukrainization ground to a halt and was replaced by a new policy of Russification. SEE ALSO Kulaks; Lenin, Vladimir; Stalin, Joseph;

Union of Soviet Socialist Republics BIBLIOGRAPHY

Ammende, Ewald (1936). Human Life in Russia. Cleveland: John T. Zubal, 1984. Bilinsky, Yaroslav (1999). “Was the Ukrainian Famine of 1932–1933 Genocide?” Journal of Genocide Research vol. 37(2):147–156. Conquest, Robert (1986). The Harvest of Sorrow: Soviet Collectivization and the Terror-Famine. London: Hutchinson. Courtois, Stéphane, et al. (1999). The Black Book of Communism: Crimes, Terror, Repression. Cambridge, Mass.: Harvard University Press.


Union of Soviet Socialist Republics

Dolot, Miron (1985). Execution by Hunger: The Hidden Holocaust. New York: W.W. Norton. Englerman, David C. (2003). Modernization from the Other Shore. American Intellectuals and the Romance of the Russian Development. Cambridge, Mass.: Harvard University Press. Graziosi, Andrea (1997). The Great Soviet Peasant War: Bolsheviks and Peasants, 1917–1933. Cambridge, Mass.: Ukrainian Research of Institute Harvard University. Green, Barbara (1996). “Stalinist Terror and the Question of Genocide: The Great Famine.” In Is the Holocaust Unique: Perspectives on Comparative Genocide, ed. Israel W. Charny. Boulder, Colo.: Westview Press. Hryshko, Wasyl (1983). The Ukrainian Holocaust of 1933, ed. and tran. Marco Carynnyk. Toronto: Bahrianyy Foundation. Isajiw, Wsevolod W., ed. (2003). Famine-Genocide in Ukraine, 1932–1933: Western Archives, Testimonies and New Research. Toronto: Ukrainian Research and Documentation Center. Luciuk, Lubomyr, ed. (2004). Not Worthy: Walter Duranty’s Pulitzer Prize and The New York Times. Kingston, Ont.: Kashtan Press. Madden, Cheryl, ed. (2003). Holodomor: The Ukrainian Genocide 1932–1933. Special issue of Canadian American Slavic Studies 37, no. 3. Martin, Terry (2001). The Affirmative Action Empire. Nations and Nationalism in the Soviet Union, 1923-1939. Ithaca, N.Y.: Cornell University Press. Serbyn, Roman, and Gohdan Krawchenko, eds. (1986). Famine in Ukraine: 1932–1933. Edmonton: Canadian Institute of Ukrainian Studies. Sysyn, Frank (1999). “The Ukrainian Famine of 1932–1933: The Role of the Ukrainian Diaspora in Research and Public Discussion.” In Studies in Comparative Genocide, ed. Levon Chorbajan and George Shirinian. New York: St.Martin’s Press. Tauger, Mark B. (2001). Natural Disaster and Human Action in the Soviet Famine of 1931–1933. The Carl Beck Papers in Russian & East European Studies, Number 1506, June. Tauger, Mark B. (1955). The Black Deeds of the Kremlin: A White Book. Vol. 2: The Great Famine in Ukraine in 1932–1933. Detroit, Mich.: Dobrus. Roman Serbyn

Union of Soviet Socialist Republics The Union of Soviet Socialist Republics (USSR) was the official name of communist Russia from December 1922 until its collapse in late 1991. This selfproclaimed Marxist state was created out of the ruins of the Tszarist Empire following the Bolshevik Revolution of October 1917 and the ensuing civil war in Rus-

sia. In the view of many scholars, the USSR under Vladimir Lenin (1870–1924) and Joseph Stalin (1878–1953) evolved into a totalitarian dictatorship directly responsible for the deaths of millions of Soviet citizens. Here the nature and scale of the crimes against humanity perpetrated by the Soviet state from the October Revolution to the death of Stalin will be examined, along with differing perspectives on Leninist and Stalinist terror. Historical Context Before World War I the Russian Empire had been an autocratic monarchy presided over by Tsar Nicholas II, who formally claimed the divine right to rule singlehandedly. Russian political culture lacked liberal or democratic roots and institutions, and for many centuries the state had dominated society, often using repressive methods carried out by a prototype secret police force. As a consequence of this police state and emergent modernization during the course of the late nineteenth century, social tensions ran deep in tsarist Russia. For various political and socioeconomic reasons, these tensions between peasants and landlords, urban industrial workers and their bosses, and alienated middle-class intellectuals and the anachronistic tsarist state grew in the decades before 1914. Indeed, in 1905 and 1906 a full-scale, but ultimately abortive, revolution had occurred that threatened to overthrow monarchical rule. The nail in tsarism’s coffin came during World War I. Russia’s largely unsuccessful efforts to conduct the war against Germany and Austria added significantly to internal discontent. The result was the February Revolution of 1917, which forced Nicholas II to abdicate in favor of a centrist provisional government. Despite meaningful democratic reforms the provisional government was unable to win mass support and it was, in turn, removed from power by the 1917 Bolshevik October Revolution. The Bolsheviks, led by Lenin, were a small urbanized Marxist party whose political mentality and revolutionary goals are critical for an understanding of the later communist crimes against humanity. It would not be an exaggeration to argue that the Bolsheviks were utopian revolutionaries (some might say megalomaniac fanatics) who were utterly convinced that capitalism, liberalism, and parliamentarianism were dead, that socialism, and ultimately communism, represented the inevitable wave of the future, and that human society and individuals were perfectible by state engineering. They were deeply contemptuous of dissenting views and, more than any other Russian political movement, were prepared to countenance class-based violence in a society that was itself highly prone to violent confrontation. In short, the Bolsheviks’ revolutionary “ends”—the destruction



Union of Soviet Socialist Republics

Lubyanka Prison and a portion of Revolution Square (Moscow) in the 1940s. Revolution Square (Ploshchad Revolutsii) gets its name from the bitter fighting that occurred at this spot in October 1917. The notorious Lubyanka Prison is still a government building, but no longer a prison. [ H U L T O N - D E U T S C H C O L L E C T I O N / C O R B I S ]

of capitalist exploitation, the emancipation of the working class, the transformation of “bourgeois” values, and the creation of a socialist state and society— justified any means of achieving these ends, including class discrimination, illegal arrest and incarceration, even mass executions. The origins of Leninist and Stalinist terror can thus be traced to this intransigent ideological orthodoxy. After the Bolsheviks seized power, their many opponents rallied to contest the Marxist vision of Russia’s future. A truly bitter and tragic civil war ensued, one that pitted the so-called Reds, the Bolsheviks and their extreme left-wing socialist allies, against the Whites, mainly ex-tsarist forces backed, half-heartedly, by several foreign states, the United States and Great Britain among them. The barbarity of the Russian Civil War, the class and ethnic hatreds exacerbated by the conflict, the arbitrary nature of both Red and White terror, and [1062]

the sheer scale of violence must surely have brutalized Russian political culture, coming as they did on top of four years of world war and revolutionary upheaval. The civil war certainly engendered a siege mentality among the Bolshevik victors, who from that point on tended to see enemies everywhere, at home and abroad; a veritable “capitalist encirclement.” Red terror under Lenin has thus been rationalized as a desperate lastditch method of survival foisted onto an isolated and inward-looking band of revolutionaries in conditions of profound social, economic, and military turmoil. Taking a position less sympathetic to the Bolsheviks, one may argue that state-sponsored class repression was inherent in Leninist ideology, predated the civil war, and was therefore not a consequence of the objective circumstances of the time. Indeed, Lenin almost welcomed the prospect of civil war as a means of purifying Russian society, purging it of “class enemies”


Union of Soviet Socialist Republics

and “traitors”—the landed gentry, capitalists, Orthodox priests, tsarist officials, bourgeois intellectuals, even kulaks (better-off peasants). The Bolsheviks’ total belief in Marxism, which they regarded as scientific, assured them that they alone were right and everyone else was wrong, and their penchant for class discrimination transformed minor acts of nonconformity into “counterrevolutionary sabotage.” Accordingly, the use of state terror became a conscious and deliberate instrument of governance under Lenin, arguably the principal method of maintaining and consolidating Bolshevik rule. Hence, it was Lenin who established the basis for later Stalinist atrocities. Leninist Crimes One of the first decrees of the Bolshevik regime in December 1917 was the creation of the Cheka, the original Soviet secret police force and forerunner of the much-vaunted KGB. The job of the Cheka was to root out all counterrevolutionary and antistate activities to bolster the fragile Leninist government. By June 1918 as the civil war got under way, reports of Cheka “excesses” began to reach Moscow. According to official statistics, the Cheka killed 12,733 prisoners between 1918 and 1920; unofficial calculations suggest a figure closer to 300,000. Lenin himself actively contributed to the wave of Red Terror. On August 11, 1918, shortly before an attempt was made to assassinate him, Lenin sent a now infamous telegram to local Bolsheviks, insisting that they “hang (hang without fail, so that the people see) no fewer than one hundred known kulaks, rich men, bloodsuckers. . . . Do it in such a way that for hundreds of versts [kilometres] around, the people will see, tremble, know, shout: they are strangling and will strangle . . . the bloodsucker kulaks” (Pipes, 1996, p. 50). One month earlier the tsar and his family had been murdered by local Bolsheviks in Ekaterinburg. The spiral of terror and counterterror was growing. The arrest of large numbers of alleged counterrevolutionaries meant that they had to be detained somewhere. Decrees in September 1918 and April 1919 sanctioned the establishment of the first concentration and labor camps, the latter originally conceived as sites for rehabilitating petty criminals through physical work. The most notorious of these early Soviet camps was the prison on the Solovetskii Islands in the White Sea in the far north of Russia. The camp population there grew from 3,000 in 1923 to approximately 50,000 in 1930. Between 1931 and 1933 around 25,000 convicts perished building the White Sea Canal, one of Stalin’s pet schemes involving forced labor. From these relatively humble origins emerged the vast system of Soviet labor camps, widely known as the Gulag Archipelago (Gulag being, in Russian, the acronym for Main

Administration of Camps). These camps housed not only political prisoners, but also ordinary criminals. Generally, they lived in appalling conditions, often in the most remote and inhospitable locations of the USSR. Inmates were in essence slave labor, whose contribution to the Soviet economy, especially from the 1930s, should not be overlooked. The communist state also launched attacks on organized religion in the USSR. In March 1922, for instance, Lenin ordered the confiscation “with the most savage and merciless energy” of valuables belonging to the Orthodox Church. According to Richard Pipes, the aim was twofold: to secure vital assets for the cashstrapped Soviet government and to smash the power of the Orthodox Church and its hold over the peasantry. Even at a time of relative liberalization under the New Economic Policy (1921–1929), Lenin advocated the execution of large numbers of “reactionary clergy . . . so that they will not dare even to think of any resistance for several decades” (Pipes, 1996, p. 153–54). Lenin, also in 1922, insisted on the death penalty for the arrested leaders of the Socialist Revolutionary Party, but he was overruled and finally relented, with the leaders instead given lengthy prison terms. Nevertheless, Lenin’s implacable attitude toward political and ideological adversaries undoubtedly contributed to the formation of a one-party state in Soviet Russia, a major step on the road to which was the forcible dissolution of the Constitutent Assembly (the multiparty national parliament) as early as January 1918. Lenin may have been the initiator of many of the repressive measures undertaken between 1918 and 1923, but all leading Bolsheviks, to a greater or lesser degree, shared his intolerance of opposition and fundamental belief in a state-sponsored transformation of human society. Lev Trotsky, Grigorii Zinoviev, Nikolai Bukharin, and Stalin all supported harsh policies against real and perceived opponents of the regime. However, serious disagreements emerged among the Bolshevik hierarchy, especially as Lenin’s failing health from 1922 on led to an internal party power struggle. Lenin was acutely aware of the dangers of internal party disunity and attempted, rather ineffectually, to paper over the cracks in leadership. A year before his death in January 1924 he dictated a document that became known as “Lenin’s Testament,” in which he evaluated the strengths and weaknesses of six top Bolsheviks. The most notable comments, given subsequent developments, related to Stalin. In April 1922 Stalin had been appointed General Secretary of the Communist Party (the Bolshevik Party had been renamed the Communist Party in 1918) partly as a result of his close cooperation with Lenin, who valued the Georgian as a tough, practi-



Union of Soviet Socialist Republics

cal activist who got things done. However, relations between the two men soured in 1922 and 1923, and in his testament Lenin warned that Stalin was “too crude” to serve as General Secretary. He advised the Party to find a way of removing Stalin from his post. Portentously, Lenin’s strictures were ignored. In the course of the ugly internecine power struggles that transformed the Party during the 1920s, Stalin was able to build up majority support in his position as General Secretary. His successive rivals, first Trotsky, then Zinoviev and Lev Kamenev, and finally Bukharin, were all out-voted and out-manuevered; by 1929 Stalin had emerged as the clear leader of the Communist Party. His reliance on behind-the-scenes machinations, outright slander, and administrative measures against his opponents concealed another of his characteristics: He was a workaholic who intervened in, and had practical solutions for, all the major and often secondary problems that confronted the Soviet state. What is more, he appeared to be a true Marxist dedicated to the construction of socialism in the USSR. Stalin was thus a very capable, not unintelligent, leader who commanded the respect of his followers. He was also, or at least became by the 1930s, a morbidly suspicious, capricious, and volatile man, who was possibly driven by an insatiable lust for power. Stalinist Crimes Stalin’s regime was arguably the most repressive in modern history. As a result of his so-called revolution launched in 1928 and 1929—the forced collectivization and “dekulakization” of the countryside and the intensely rapid tempos of industrialization—millions of Soviet citizens, particularly peasants, endured dire living conditions and often direct persecution at the hands of Stalinist leaders whose overriding priority was to make the USSR economically and militarily secure. As many as eight million peasants, the majority Ukrainian, starved to death in the Great Famine of 1932 and 1933, which Robert Conquest has insisted was a manmade catastrophe deliberately engineered by Stalin in order to smash Ukrainian nationalism. Whether this controversial interpretation is correct or not, the scale of human suffering endured in the early 1930s beggars belief. There was hope that the relatively moderate policies of the years 1934 to 1936 would curtail the suffering, but by 1937 mass arrests and executions became the norm. Archival figures made public shortly before the demise of Soviet communism indicate that approximately 800,000 people were shot between 1921 and 1953, a staggering 681,692 of whom were executed during the Great Terror of 1937 and 1938. Official statistics suggest that around 3.5 million people were detained in labor camps and internal exile during the Ter[1064]

ror, the number rising to 5.5 million at the time of Stalin’s death in 1953. On both counts many scholars have speculated that the actual totals were significantly higher. In the absence of definitive data, however, it seems prudent to accept the archival figures as essentially accurate. Horrendous as they are, the bald statistics cited above obscure the unimaginable depths of human misery, the families ripped apart, the countless orphaned children, the mental and physical torture of prisoners, the uprooting of entire peoples from their homelands, the trampling on human integrity and dignity. How can all this be explained? Was the Terror simply a product of the deranged mind of a power-hungry tyrant? Or was there a larger purpose behind the seemingly arbitrary mass arrests and executions? Scholars have debated these and related issues for many decades. Research conducted in the 1990s and early 2000s demonstrates that rather than being a unitary phenomenon possessing a single aim, the Great Terror was a multifaceted process composed of separate but related political, social, and “national” (ethnic) dimensions, the origins and goals of which were different, but which coalesced during the events of 1937 and 1938. There is no doubt that Stalin was the prime perpetrator of the Terror, even if historians disagree on whether he had a long-term blueprint to eliminate his opponents. It is generally accepted, however, that the process of mass repression was set in motion by the December 1934 assassination of Sergei Kirov, the popular Leningrad Communist Party chief and, so it was rumored at the time, rival to Stalin. Although the jury is still out on Stalin’s precise role in this assassination, it is clear that he used Kirov’s murder to attack various opponents of the regime, including former Party leaders Zinoviev and Kamenev who were placed under arrest. Beginning in the summer of 1936, and more conclusively during the spring of 1937, Stalin extended these repressive measures, seeking, it appears, to eliminate any real or potential political opposition to his rule. In so doing, he broke an unwritten Leninist principle: never arrest Communist Party members and officials. The list of actions to which Stalin provided direct input is long: The Soviet leader initiated and orchestrated the three great Show Trials of August 1936, January 1937, and March 1938, as a result of which his former Bolshevik rivals Zinoviev, Kamenev, and Bukharin, among others, were executed. In September 1936 Stalin appointed Nikolai Ezhov, a known hardline adversary of “anti-Party elements,” as head of the NKVD (secret police). He oversaw the decimation of the Red Army command from May through June 1937. He signed nu-


Union of Soviet Socialist Republics

merous death warrants and ratified numerous executions, thousands of the condemned being loyal Party and state officials; he even ordered the arrest of several members of his own extended family and close relatives of his colleagues, presumably in an attempt to test the latter’s loyalty. Together with his propagandists, he set the overall tone and atmosphere of the Terror: the xenophobic suspicion of foreign spies and agents; the all-pervasive fear of wreckers, saboteurs, and doubledealers; and the endless exhortations to uphold Bolshevik vigilance in the face of these “enemies of the people.” In short, as one expert has written, Stalin’s “name is all over the horrible documents authorizing the terror” (Getty and Naumov, 1999, p. 451). Aside from these politically motivated aspects, another fundamental characteristic of the Great Terror was the social component. Studies conducted in the late 1990s document the interrelationship between, on the one hand, social disorder and evolving secret police strategies to contain it in the early to mid-1930s and, on the other, the onset of mass arrests in the summer of 1937. According to one historian, the Great Terror represented “the culmination of a decade-long radicalization of policing practice against ‘recidivist’ criminals, social marginals, and all manner of lower-class individuals” (Hagenloh, 2000, p. 286). The threat of social instability posed by criminals, hooligans, other “socially harmful elements,” and even armed gangs of bandits was taken seriously by secret police chiefs. By 1937 the lethal triumvirate of political opposition, social disorder, and ethnic subversion had raised fears among the increasingly xenophobic Stalinist elite of a broadly based anti-Soviet “fifth column” linked to foreign agents and spies. In response, on July 31, 1937, Stalin and his co-leaders sanctioned the notorious NKVD Order No. 00447, which specified by region the number of people to be sentenced either to death (approximately 73,000) or eight to ten years in the Gulag camps (approximately 186,500). The decree remained in force until November 1938. The intent of this massive purge of socially harmful elements was to destroy what appeared to the Stalinists to be the social base for an armed overthrow of the Soviet government. Thus, one of the most interesting conclusions of new research is that, contrary to conventional wisdom about the elite status of the Great Terror’s victims, in strictly numerical terms the bulk of those repressed were ordinary noncommunist citizens, kulaks, workers, and various “social marginals”: recidivist criminals, the homeless, the unemployed, all those suspected of deviating from the social norms of the emerging Stalinist system.

It is also now recognized that beginning in the summer of 1937 the NKVD launched national sweeps of specific categories of foreigners and Soviet citizens of foreign extraction. Central and East Europeans were particularly targeted, but so were Koreans, Chinese, Afghans, and many other minorities who were deported from their homelands or arrested en masse. The socalled Polish Operation, ratified by the Politburo on August 7, 1937, resulted in the arrest of approximately 140,000 people, a staggering 111,000 of whom were executed. Similar campaigns were directed against Germans, Finns, Balts, and numerous others who were perceived to be real or potential spies and agents of foreign anti-Soviet intelligence agencies, although the percentages of those killed were generally lower than in the Polish Operation. A significant proportion of the victims were Jews and members of national communist parties. Whether the former were targeted specifically because of their ethnic origin is unclear. Stalin’s antiSemitic tendencies appear to have been far more pronounced in the postwar period. Such was the scale of the “national operations” that from about February 1938 on they became the prime function of secret police activity, more pervasive than the campaigns associated with Order 00447. Indeed, ethnically based repression did not end in the late 1930s. Although the number of arrests and executions decreased significantly after November 1938, during World War II entire populations (Volga Germans, Chechens, Ingushi, Kalmyks, Crimean Tartars, and others) were deported from their homelands to Central Asia and Siberia, accused of subversive tactics, espionage, and collaboration with the occupying Nazi forces. Inevitably, these examples of Soviet ethnic cleansing have compelled some scholars to compare Stalinist and Nazi policies of extermination. The term Stalinist genocide employed by several specialists suggests a close relationship and moral equivalence between Nazi and Soviet terror. If one views the latter in an intentional versus functional framework, it appears that both elements of motivation were applicable: The intended victims were the traditional suspects (peasants, political opponents, and supporters of the tsarist regime) and the functional victims were those invented within the specific context of developments in the late 1930s, consisting of replaceable elites and alien nationals. Although it is important to recognize the enormity of Stalinist repression, it is critical, as many historians do, to emphasize the uniqueness of the Holocaust “the only example which history offers to date of a deliberate policy aimed at the total physical destruction of every member of an ethnic group. There was no equivalent of this under Stalinism” (Kershaw and Lewin, 1997, p. 8).



Union of Soviet Socialist Republics

The key issue of motive remains. Why did Stalin order the mass arrest of loyal Party and state bureaucrats? Why was the terror extended to include socially harmful elements? Why did the vicious assault on ethnic minorities escalate in late 1937 and continue well into 1938? Traditional explanations for the strictly political aspects of the Great Terror stress Stalin’s lust for power and his determination to liquidate all real and perceived rivals in a paranoiac drive for autocratic rule. Large numbers of “Old Bolsheviks,” former opponents, and a host of unreliable double dealers, wreckers, and saboteurs were targeted in what became an arbitrary frenzy of bloodletting. By eliminating these undesirables and replacing them with devoted “yes men,” Stalin’s power base was mightily strengthened. However, beginning in the 1980s so-called revisionist historians challenged this Stalin-oriented approach, arguing that one man could not, and did not, decide everything. Moreover, to these historians a certain systemic rationale existed for the apparently irrational waves of repression, one linked to center-periphery conflicts, interelite rivalries, and the chaotic and dysfunctional elements of the highly bureaucratized regime.

short of atrocious. Famine, epidemics, overcrowding, summary shootings, and inhuman exploitation for the war effort were commonplace. For instance, in 1942 the Gulag Administration registered 249,000 deaths (18 % of the camp population) and in 1943 it registered 167,000 deaths (17%). The “myth” of the Battle of Stalingrad and the euphoria of total victory in May 1945 have tended to obscure the horrendous suffering perpetrated by the regime on millions of Soviet citizens during World War II. It was not about to end.

Although Stalin’s motives remain, and will continue to remain, obscure, it appears that the decision to launch the mass operations in the summer of 1937 was related to reverses in the European and Asian arenas. In particular, the lessons of the Spanish Civil War induced an atmosphere of panic in the Kremlin and incited the Stalinists to seek “enemies” at home and abroad. The Soviet leadership’s fears of a fifth column among Party, state, and military elites, who in the event of war could rely on broad support from socially harmful elements and hostile national minorities in the USSR, seem to account for the dramatic rise in arrests and executions. To this extent the threat of war and a potential fifth column represent the crucial link between the three dimensions of the Great Terror: political, social, and national. Only in the context of the Stalinists’ grave fears for the security and integrity of the Soviet state can the mass repressions of 1937 and 1938 be understood.

One of the more reprehensible features of Stalin’s rule after World War II was his increasing antiSemitism. Indeed, at the time of his death in March 1953 it appears that he was planning another vast general purge of Soviet society based on the fictitious antiJewish Doctors’ Plot that broke in January of the same year. Already in 1948 and 1949 hundreds of Jewish intellectuals had been arrested, at least one of whom, the world-renowned actor and theater director Solomon Mikhoels, was murdered. As a leading scholar has written: “Jews were systematically removed from all positions of authority in the arts and the media, in journalism and publishing, and in medicine and many other professions” (Werth, 1999, p. 245). The campaign reached a peak in the summer of 1952 with the secret trial of the members of the Jewish Anti-Fascist Committee, thirteen of whom were executed. There is some evidence that the aging and ill Stalin was at this time preparing to expose a wide-scale “Judeo-Zionist conspiracy,” which was to conclude with the mass deportation of Soviet Jews to Birobidzhan, a barren region in Eastern Siberia. A major part of this final Stalinist plot was the arrest of several high-ranking Jewish doctors accused, among other things, of complicity in the deaths of two Soviet luminaries. Their trial, it seems, was set for mid-March 1953. Stalin’s timely demise on March 5 put an end to their suffering and brought to a close the era of mass repression in the USSR. His successors, notably Nikita Khrushchev, renounced terror, released large numbers of Gulag prisoners, and attempted, not altogether successfully, to “de-Stalinize” Soviet politics and society.

Although mass arrests and executions abated after November 1938, repression continued in the USSR throughout World War II. Portrayed in the Soviet media as a heroic war of patriotism, there were many grim sides to this life-and-death struggle between the two totalitarian giants. Internally, Stalin used the conflict to target and deport entire peoples accused of collaborating with the Nazis. The number of Gulag inmates may have decreased in these years as many were released to fight the Germans, but the living and working conditions of those who remained were nothing

The historical legacy of Stalin has often been framed in the following way: he was a cruel, but necessary, leader who after 1928 industrialized and modernized the USSR and thus established the economic, social, and military basis for victory over the Nazis in World War II. Given Soviet Russia’s “backwardness,” this could only have been accomplished rapidly by means of state coercion and pressure. Few, if any, contemporary scholars would subscribe to such an apologist interpretation of the Stalinist regime. There can be no justification—political, economic, military, and cer-



United Nations

tainly not moral—for the crimes against humanity perpetrated from 1928 to 1953. However, this does not mean no connection exists between Stalin’s revolution from above and the mass repressions. Indeed, a convincing consensus is emerging that stresses the interrelatedness of the two phenomena. The terror, it is argued, was inextricably linked to the massive campaigns of industrialization and the forced collectivization and dekulakization of Soviet agriculture from 1928 and 1929 on. The intense social flux and dislocation, the rising crime levels, the peasant resistance to collectivization, the urban tensions resulting from rapid industrialization, the limited success of the initiatives on the “nationality question,” and the contradictory pressures on the bureaucracies and other elites, which engendered insubordination, deceit, and local and regional cliques and networks, all these outcomes of Stalin’s revolution from above created conditions that were propitious for the hunt for “enemies”. Add to this equation Stalin’s considerable goals for personal power and his paranoias, and the built-in need for scapegoats to explain the dire state of Soviet material consumption, and the origins of mass repression become more explicable. Conclusion Leninist and Stalinist crimes against humanity are not easily elucidated. A multiplicity of factors—internal and external, ideological and practical, personal and systemic—must be carefully weighed. It is not enough to simply point the finger at two “evil,” power-hungry men, highly relevant though they are to the entire process of Soviet mass repression. What motivated them? What were their fears? In what concrete political, economic, and military contexts did they make their decisions? What role did other actors play in fanning the flames of state violence? To what extent did elite attitudes reflect and magnify broader social mentalities, such as anti-Semitism and chauvinism? Here it is suggested that the roots of Soviet terror lay not only in the personal ambitions and whims of Lenin and Stalin, but also equally in the ideologically driven utopian mission of creating the perfect communist society purged of the politically and socially unfit in circumstances of international isolation and perceived foreign threats. SEE ALSO Chechens; Cossacks; Gulag; Kalmyks;

Katyn; Lenin, Vladimir; Memory; Stalin, Joseph; Statistical Analysis; Ukraine (Famine); Utopian Ideologies as Motives for Genocide BIBLIOGRAPHY

Applebaum, Anne (2003). Gulag. A History of the Soviet Camps. London: Allen Lane. Conquest, Robert (1971). The Great Terror: A Reassessment. London: Pimlico Press, revised edition of The Great

Terror: Stalin’s Purge of the Thirties. Harmondsworth, U.K.: Penguin, 1990. Getty, J. Arch, and Oleg V. Naumov, eds. (1999). The Road to Terror: Stalin and the Self-Destruction of the Bolsheviks, 1932–1939. New Haven, Conn.: Yale University Press. Hagenloh, Paul (2000). “‘Socially Harmful Elements’ and the Great Terror.” In Stalinism: New Directions, ed. S. Fitzpatrick. London: Routledge. Holquist, Peter (2003). “State Violence as Technique: The Logic of Violence in Soviet Totalitarianism.” In Stalinism: The Essential Readings, ed. D. L. Hoffmann. Oxford: Blackwell Publishing. Kershaw, Ian, and Moshe Lewin, eds. (1997). Stalinism and Nazism: Dictatorships in Comparison. Cambridge: Cambridge University Press. McLoughlin, Barry, and Kevin McDermott, eds. (2003). Stalin’s Terror: High Politics and Mass Repression in the Soviet Union. Basingstoke, U.K.: Palgrave Macmillan. Pipes, Richard, ed. (1996). The Unknown Lenin. From the Secret Archive. New Haven, Conn.: Yale University Press. Sebag Montefiore, Simon (2003). Stalin. The Court of the Red Tsar. London: Weidenfeld and Nicolson. Service, Robert (2003). A History of Russia from Nicholas II to Putin. Harmondsworth, U.K.: Penguin. Solzhenitsyn, Alexander (1974–1978). The Gulag Archipelago, 1918–1956. 3 volumes. London: Collins/ Harvill Press. Suny, Ronald G. (1998). The Soviet Experiment: Russia, the Soviet Union and the Successor States. New York: Oxford University Press. Tucker, Robert C. (1990). Stalin in Power: The Revolution from Above, 1928–1941. New York: Norton. Werth, Nicolas (1999). “A State Against Its People: Violence, Repression, and Terror in the Soviet Union.” In The Black Book of Communism. Crimes, Terror, Repression, ed. S. Courtois et al. Cambridge, Mass.: Harvard University Press. Yakovlev, Alexander N. (2002). A Century of Violence in Soviet Russia. New Haven, Conn.: Yale University Press. Kevin McDermott

United Nations The United Nations was created during and in the wake of World War II, which was a global cataclysm that brought death to millions of civilians. Most of those civilians were primary targets, and often not even enemy targets. The genocide of the Jews, Gypsies, Slavs and others by Nazi Germany, and the brutal repression and discrimination that preceded it, lent weight to the argument that peace and justice were inseparable, the other side of the coin from war and oppression. As stated in September 1944 by the Commission to Study the Orga-



United Nations

nization of Peace, an influential United States nongovernmental organization: “it has become clear that a regime of violence and repression within any nation of the civilized world is a matter of concern for all the rest.” Human Rights in the Charter of the United Nations On August 14, 1941, the Atlantic Charter was agreed to by U.S. president Franklin D. Roosevelt and U.K. prime minister Winston S. Churchill, along with fortyseven other nations. These charter signatories envisaged a world that would enjoy “freedom from want and fear.” Some five months later, the Declaration of the United Nations of January 1, 1942, advocated complete victory over the enemies of the Allied powers, declaring that this was “essential to defend life, liberty, independence, and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands.” This declaration was signed by twenty-six nations, which were later joined by twenty-one others. The eloquent language of the documents to which these nations had pledged themselves doubtless played an important role in mobilizing the Allies’ total commitment to victory over the Axis powers, but it was not a guarantee that the values espoused in the document would be seriously embraced in the postwar world. By the time of the second phase of the Dumbarton Oaks Conversations between the United States, the Soviet Union, Great Britain, and China (September 29 through October 7, 1944), divisions among these nations were already apparent. The Chinese delegation fought to insert a condemnation of racism into the draft UN Charter and to prevent human rights being given only the most minimal acknowledgment in the text. The United States, Great Britain, and the Soviet Union were opposed. The Dumbarton Oaks Conversations ultimately yielded proposals that included only one somewhat marginal provision on human rights. In the words of the proposals, the new organization would “facilitate solutions of international economic, social, and other humanitarian problems and promote respect for human rights and fundamental freedoms.” The politics of the Dumbarton Oaks negotiations made it unlikely that any more forceful statement could ever achieve acceptance. The Soviet Union under Stalin was no defender of human rights, Churchill wanted nothing that would threaten Great Britain’s colonial empire, and the United States had to cater to its substantial constituencies favoring isolationism and its strict notion of state sovereignty. The United States was also concerned about the human rights implications of legal racial segregation that still held sway in its south[1068]

ern states. The shock and disappointment of less powerful allies, especially Latin American and British Commonwealth states (Canada, Australia and New Zealand), and of American nongovernmental organizations, led to a confrontation on these issues at the San Francisco Conference which ultimately adopted the United Nations Charter. The accumulating evidence of the scope and depravity of the crimes against humanity perpetrated by Nazi Germany lent weight to the cause of those states who wished greater attention be paid to human rights issues. In the words of Paul Gordon Lauren, as more and more details about the shocking extent of the Holocaust began to seep their way out from under the earth of unmarked mass graves in occupied territories, and from under the barbed wire enclosures of the extermination camps into the world, it became nearly impossible to ignore the connection between racial and religious discrimination, especially as revealed by the recent extremes of Nazi philosophy, on the one hand, and genocidal war on the other (Lauren, 1998, p. 183).

As a result of these currents, several references to human rights were inserted into the UN Charter’s preamble, and six articles (Articles 1, 13, 55, 62, 68, and 76) were added. Of special note is Article 1, paragraph 3, which includes among the purposes of the United Nations: “To achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion.” The establishment of a Commission on human rights was also explicitly envisaged, in Article 68. On the other hand, traditional notions of sovereignty were acknowledged in Article 2, paragraph 7: “Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any State.” Much of the subsequent history of the UN’s involvement in the field of human rights has been devoted to resolving the tension between protecting the sovereignty and jurisdictional discretion of individual states and creating an international body that could play a credible role in preventing or punishing humanrights violations. Studies of Human Rights Topics The UN’s member states put up no real resistance to allowing the UN to sponsor studies of human rights problems in general, as long as they did not involve passing judgment on the behavior of individual states. The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (now the SubCommission on Promotion and Protection of Human


United Nations

Under UN guard, Tutsis, carrying little more than food and a change of clothing, flee the Rwandan capital of Kigali. [ T E U N

Rights), a group of individual experts elected by the Commission on Human Rights, has over decades produced many such studies on a variety of topics. These reports are frequently published under the imprimature of the United Nations. Two of the SubCommission’s studies dealt with the subject of genocide, one by Nicodème Ruhashyankiko (1978), and one by Benjamin Whitaker (1983). Even in the case of these studies, political issues could cause problems. For example, the Ruhashyankiko study was published by the UN, but the Whitaker report was not, because it included as an example of genocide the Turkish massacre of Armenians in the second decade of the twentieth century. This massacre was denied by the Turkish government, which lobbied successfully to block the publication of Whitaker’s work. Human Rights Standard-Setting and Treaties Another area of UN human-rights activity involved the setting of legal standards and definitions. This endeavor was generally not controversial. The first major text adopted outside of the bodies specifically concerned with human rights issues was the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN General Assembly December 9,


1948. This was an instrument that criminalized the type of human rights violation that the Nazi government had committed against millions of its citizens and conquered subjects. On the following day, December 10, 1948, the General Assembly adopted the Universal Declaration of Human Rights. Although the declaration had only the force of a recommendation, it quickly became the standard of the international human rights movement. It had been drafted by the UN’s intergovernmental Commission on Human Rights, which had its foundation in UN Charter Article 68. The Declaration became the first element of an International Bill of Human Rights that would eventually be completed by a series of binding treaties, including the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), both of which were adopted on December 16, 1966, and came into force in 1976. Specialized treaties have also been adopted on racial discrimination, torture, discrimination against women, children’s rights, and migrant workers’ rights. In addition, numerous soft-law instruments (that is, documents containing normative standards that may reflect but do not of themselves constitute legally binding texts) have been adopted by the



United Nations

United Nations Headquarters in New York City, framed by the flags of its 191 member nations. Founded in 1945, the United Nations is an international organization committed to maintaining peace and promoting economic development worldwide. [ J O S E P H SOHM; CHROMOSOHM INC./CORBIS]

General Assembly, the Economic and Social Council (ECOSOC: an intergovernmental body, described in the Charter as a principal organ of the UN but reporting and effectively subordinate to the General Assembly), and other UN bodies that codify best practice in such fields as the treatment of prisoners. Many of these instruments have been invoked by UN treaty bodies and regional human rights courts, as guidance to the interpretation of rules of international human-rights law. Monitoring Human Rights Norms by Treaty Bodies The principal mode of resolving the tension between the UN Charter’s human rights clauses and the domestic jurisdiction clause during the first two decades of the organization’s existence was to favor domestic jurisdiction, or at least to give preference to a narrow view of what amounted to improper intervention. The UN’s human rights bodies adopted a hands-off approach to allegations of human rights violations. These simply could not be discussed, much less become the subject of resolutions that involved making judgments about a state’s human rights behavior. Instead, the UN relied upon so-called treaty bodies, that is, special committees tasked with the responsibility of supervising the extent of states’ compliance with the human rights treaties. By definition, states can waive their sovereign rights of immunity from scrutiny if they accepted a treaty obligation explicitly permitting scrutiny. Even then, however, the main form of supervision consists of a review of periodic reports submitted by the states themselves—a system of supervision whose intrusiveness was perceived to be minimal. Five of the treaties now have provisions whereby states may [1070]

officially accept that the committee in question may consider complaints from individuals within their jurisdiction: the ICCPR, Race Convention, Torture Convention, Women’s Convention, and Migrant Workers’ Convention. Four of these also provide for the consideration of possible interstate disputes (ICCPR, Race Convention, Torture Convention, and Migrant Workers’ Convention), although this faculty has yet to be employed. Two envisage the possibility of the committee studying a practice of violation (Torture Convention, automatically, under Article 20; and Women’s Convention, on the basis of its Optional Protocol). The Torture, Women’s, and Migrant Workers’ Conventions envisage the compulsory adjudication of disputes between states that are party to the treaties. This procedure has not yet been used. The review of periodic reports proved to be a more effective process than might have been expected. While the states’ reports (often self-serving) were the only official basis for such reviews, committee members found that nongovernmental organizations would brief them informally, so that they were in a position to ask probing questions of the delegations. During the cold war, the opposition of the Soviet Union and its allies to any kind of outside judgment of their domestic practices meant that the committees would refrain from formulating conclusions resulting from the review. However, the early 1990s saw a relaxation of this inhibition, with the committees’ adopting findings on the extent of state compliance and making recommendations on measures that could address the problems they found. These amounted to judgments, even though they were not formally binding. The early inability of the committees to make country-specific observations led them to develop statements by way of what was called General Comments. General Comments serve as an authoritative aid to interpretating of the nature and scope of the obligations contained in the treaties, as the normative language is often couched in very general terms. The practice continued even after the country-specific comments began to be produced. Another basis of guidance to the appropriate interpretation of treaties lies in the consideration of individual cases by the committees entrusted with that function. The most evolved jurisprudence is that of the Human Rights Committee under the ICCPR. Nevertheless, the committees’ conclusions on individual cases are not legally binding on the state concerned. Unlike the European and inter-American regions, the broader, global community has not yet been willing to accept an international human rights court.


United Nations

Monitoring Human Rights Norms by Special Procedures The last three decades of the twentieth century saw a radical evolution in the attitude of the UN, especially of the Commission on Human Rights. The Commission, building on two resolutions of ECOSOC (Resolutions 1235 [XLII], 1967; and 1503 [XLVII], 1970), developed what came to be called its special procedures. These were designed to address member-states’ unwillingness to deal with individual violations, but were primarily concerned with violations of extreme gravity, or on a massive scale, such as would be associated with crimes against humanity. In the words of ECOSOC Resolution 1503, what was to be studied or investigated were “situations appearing to reveal a consistent patterns of gross . . . violations of human rights.” The effect of ECOSOC Resolution 1235 was to pave the way for the Sub-Commission or the Commission to decide that a specific country situation could be discussed, made the subject of a resolution and even, if agreed by the Commission, put under investigation by an ad hoc group or a special rapporteur. To achieve this, the situation had to be introduced by a member of the Sub-Commission or the Commission, and a vote had to be taken to authorize the drafting of a resolution. By Resolution 1503, information submitted by nongovernmental organizations or individuals was to be treated confidentially in a protracted procedure involving both the Sub-Commission and the Commission. The (expert) Sub-Commission tended to unearth situations for consideration by the Commission, whereas the (intergovernmental) Commission tended either to drop consideration of the situations or, at best, keep them under review. Only rarely did they become the object of sustained study. For historical reasons, the names of countries whose situations are kept under consideration are announced by the chair of the Commission, although such announcements were not originally contemplated by Resolution 1503. It is generally thought that some situations have been dealt with under Resolution 1503 when there would not have been the political will to deal with them in public session, and that the procedure, including the public announcement of reviewed situations, provided at least some pressure on the states whose practices were impugned. Yet some situations are so appalling that even being taken up under Resolution 1503 would be an inadequate response. This was the case with Argentina in the latter half of the 1970s, where the alleged violations consisted, notoriously, of thousands of enforced disappearances of perceived political opponents of the mili-

tary regime. There was insufficient political will in the UN to adopt a resolution that would permit a formal, public investigation of the situation. Frustrated with this inability to act, some member states began to a search for an alternative approach to the existing country-specific special procedures. What emerged was the first of the thematic special procedures. In 1980, the Commission established the Working Group on Enforced or Involuntary Disappearances. The notion was that the group would consider the problem not just in one country, but in all countries. The basic mandate seemed anodyne enough—it was to study the general phenomenon of enforced disappearance. But the working group was also intended to take effective action. On this basis, the group, composed of five individual delegation members (one from each of the UN’s five regions), began transmitting allegations of enforced disappearances to the member state in which the disappearances occurred. The allegations came overwhelmingly from nongovernmental sources. The working group would then report to the Commission, country by county, on the allegations received during the previous year, and on any responses received from the governments in question. Thus, although the group dealt with the general phenomenon of enforced disappearance, the procedure was also country-specific. Furthermore, individual cases were taken up with a view to seeking clarification of the fate of alleged victims. Indeed, when individuals were detained in circumstances suggesting that they might “disappear,” the group developed the technique of making urgent appeals to the governments responsible for such detentions. These appeals were telexed (later faxed) messages addressed directly to the foreign minister of the state in question. Meanwhile, in countries where there appeared to be a problem of enforced disappearance involving more than just isolated cases, the group sought permission from the state to visit and explore the matter on the spot. Slowly other themes or categories of human rights violation were accepted as deserving similar attention. In 1982, the Commission created the position of special rapporteur on summary or arbitrary executions, and in 1985 it established a special rapporteur on torture, a development long sought by nongovernmental organizations campaigning against torture, such as Amnesty International. By 2004 there were more than twenty special rapporteurs on a broad range of human rights issues, including such civil and political rights as religious intolerance, the independence of judges and lawyers, and human rights defenders. The creation in 1991 of the Working Group on Arbitrary Detention is of special interest. Given a mandate not just to study the phe-



United Nations Commission on Human Rights

nomenon, but to investigate cases of alleged arbitrary detention, the group not only comments on countryspecific alleged violations, it also has a specific function of assessing whether or not, in its view, a particular detention should be characterized as arbitrary. On the other hand, more recently the Commission has created special rapporteurs to deal with issues in the area of economic and social rights, such as the right to education, to adequate housing and to health, which do not so readily lend themselves to taking action on individual cases.


Human Rights and International Criminal Law The evolution of machinery to scrutinize states’ performance in the field of human rights has far exceeded what might have been expected of international law and organizations by earlier generations, or even at the founding of the UN. Nevertheless, it has still failed to stop repressions that amount to crimes against humanity or even genocide. Nor is it likely that the establishment of an international human rights court could have provided a bulwark against outbreaks of mass atrocity.

Dormenval, Agnes (1991). Procedures onusiennes de mise en oeuvre des droits de l’homme: Limites ou defauts? Paris: Presses Universitaires de France.

In the 1990s, increasing awareness of the problem of impunity for the individual perpetrators of criminal human rights violations gave impetus to almost dormant early UN concern with international criminal law. After the General Assembly’s early endorsement of the International Law Commission’s draft of the Principles of Nuremberg, it took that Commission till the mid1990s to complete decades of work on the Code of Crimes against the Peace and Security of Mankind (1996) and to draft a statute for an international criminal court (1994). Meanwhile, having failed to act effectively to prevent atrocities—including acts of genocide in the former Yugoslavia in the early 1990s, and the wholesale genocide in Rwanda in 1994—the Security Council established the first ad hoc courts (the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda) to bring the perpetrators and organizers of those atrocities to justice, regardless of rank or political status. This development can be seen as a political expedient as much as a means for the imposition of justice. Nonetheless, it gave new impetus to the movement toward establishing a standing international criminal court. The time was ripe to embark on the project, and the UN’s 1998 diplomatic conference in Rome adopted the Rome Statute of the International Criminal Court.

Lempinen, Miko (2001). Challenges Facing the System of Special Procedures of the United Nations Commission on Human Rights. Turku/Abo: Institute for Human Rights, Abo Akademi University.

SEE ALSO United Nations Commission on Human

Rights; United Nations General Assembly; United Nations Security Council; United Nations SubCommission on Human Rights [1072]

Alston, Philip, ed. (1992). The United Nations and Human Rights: A Critical Appraisal. Oxford: Oxford University Press. Alston, Philip, and James Crawford, eds. (2000). The Future of UN Human Rights Treaty Monitoring. Cambridge: Cambridge University Press. Bassiouni, M. Cherif (1998). The Statute of the International Criminal Court: A Documentary History. Ardsley, N.Y.: Transnational Publishers. Cassese, Antonio, Paola Gaeta, and John R.W.D. Jones (2002). The Rome Statute of the International Criminal Court: A Commentary. Oxford: Oxford University Press.

Kuper, Leo (1985). The Prevention of Genocide. New Haven, Conn.: Yale University Press. Lauren, Paul Gordon (1998). The Evolution of International Human Rights: Visions Seen. Philadelphia: University of Pennsylvania Press. Lee, Roy S., ed. (1999). The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results. The Hague: Kluwer.

Russell, Ruth B., and Jeannette E. Muther (1958). A History of the United Nations Charter: The Role of the United States 1940–1945. Washington, D.C.: The Brookings Institution. Schabas, William A. (2000). Genocide in International Law. Cambridge: Cambridge University Press. Schabas, William A. (2003). An Introduction to the International Criminal Court. Cambridge: Cambridge University Press. Tolley, Howard (1987). The U.N. Commission on Human Rights. Boulder, Colo.: Westview Press. Nigel S. Rodley

United Nations Commission on Human Rights The United Nations Commission on Human Rights is the first, and remains the only, body operating within the framework of an international organization that is devoted exclusively to promoting universal respect for human rights throughout the world. The Commission was envisaged as part of the United Nations (UN) when it was founded after World War II. The first words of the UN Charter state: We the peoples of the United Nations are determined to save succeeding generations from the


United Nations Commission on Human Rights

As chair of the United Nations Commission on Human Rights (shown here in its 1947 composition in Geneva, Switzerland), Eleanor Roosevelt spearheaded the drive to draft the Universal Declaration of Human Rights. [ B E T T M A N N / C O R B I S ]

scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person. . . (Preamble, Sect. 1 and 2)

It was within this context, following the atrocities of a war that dramatically illustrated what would come to be known as crimes of genocide and crimes against humanity, that the UN Commission on Human Rights was created. It was a time when reaffirming the fundamental values of dignity and respect for human life was vital. Origin and Creation The Commission on Human Rights benefits from the fact that it is the only “technical commission” mandated by the UN Charter (Article 68), signed in San Francisco on June 26, 1945. It is thus a statutory body of the UN and had been planned for from the organization’s inception. It was formally created on February

16, 1946, by the Economic and Social Council (ECOSOC), one of the principal bodies of the UN. Inclusion of the Commission in the UN Charter did not occur without considerable discussion at the San Francisco conference, which was responsible for drafting the Charter. In fact, the four “sponsoring powers” at the San Francisco conference (China, the United States, the United Kingdom, and the former Soviet Union), whose role was essential in preparing the Charter, viewed the creation of a human rights commission with apprehension. They recognized the risk of its limiting or interfering with national sovereignty in a highly sensitive area, one where the state was traditionally tied to its prerogatives. It was only at the eleventh hour, just prior to the expiration of the allotted deadline (May 4, 1945), that the four countries filed joint amendments, one of which provided for a commission for “the development of human rights.” The principal terms of its creation



United Nations Commission on Human Rights

may be found in Article 68 of the UN Charter. It is important to note, however, that the efforts of nongovernmental organizations (NGOs) alone ensured the commission’s creation at the San Francisco conference. In particular, it was the representatives of private organizations recognized by the U.S. States delegation who, through their perseverance, succeeded in influencing member states to include in the UN’s projected amendments a provision for a special commission on human rights, even though it was initially agreed that the Charter itself would not specifically mention a technical commission. This episode illustrates the essential role that NGOs and civil society can play in advancing human rights and promoting their respect throughout the world, by their intervention on an international scale. Such activist groups have grown in strength and diversity throughout the decades of the Commission’s existence, but the Commission itself has been inconsistent in its recognition of these participants, and often it has attempted to limit their involvement. Status and Functions Prior to the final establishment of the Commission (in 1946), debate turned to the subject of its composition, namely, whether it would be made up of independent experts or representatives of the member states. The latter proposal was eventually adopted, with the Commission officially composed of representatives from eighteen member states. Its composition has been expanded several times over the years and as of 2004 there are fifty-three members, designated by the ECOSOC on the basis of regional geographic representation. Some believe a Commission of independent experts known for their competence and impartiality would ensure a more objective approach to human rights and, in particular, the question of violations; others see the direct involvement of national governments in the Commission’s work as increasing the effectiveness of its proposals and ensuring the application of its recommendations. The risk of the first approach, a truly independent Commission, is that it would become isolated, without any grasp of the realities and changes that primarily stem from existing governments. In the second approach, that adopted by the UN, states serve as both judges and parties (since they are the principal entities implicated in any violations), and the Commission risks finding its work impeded whenever the interests of a powerful state or group of states are involved. In hindsight one may posit that in its actions to the present, the Commission might have been better able to fulfill its human rights mission if its activities had been based on the work of independent bodies and ex[1074]

perts, such as its Sub-Commission on the Promotion and Protection of Human Rights and working groups, or its special rapporteurs (individuals responsible for examining specific violations or human rights situations within a country). This would not, of course, eliminate the specter of negative pressure from some states, especially when the Commission is being pressured from within for various reasons associated with an international situation. It remains the case, however, that arrangements could be made to limit such negative effects and prevent states that demonstrate little respect for human rights from sitting on the Commission or presiding during a session. To achieve this end, certain criteria have been proposed, such as a state’s ratification of the major human rights conventions or a state’s permanent agreement to allow special rapporteurs on its territory. The Commission’s mandate and responsibilities as originally defined in its statutes (ECOSOC Resolution 5(I) of February 16, 1946, and Resolution 9(II) of June 21, 1946, both of which are still applicable) are extensive and highly diverse. The Commission, which meets in an annual session, is responsible for presenting proposals, recommendations, and reports related to an international declaration of human rights and other declarations and conventions in this area; the protection of minorities; and the abolition of distinctions based on race, sex, language, or religion. It is also responsible for research activities and formulates recommendations when requested by ECOSOC. In addition, the Commission can look into “any other problem involving human rights” that is not otherwise stipulated, which opens up a nearly unlimited field of activity. In short, one may view the Commission as a specialized body within the UN responsible for implementing the fundamental terms of the UN Charter designed to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction” (Article 55), and basing its activities on commitments formally made by member states for that purpose (Article 56). In the decades following its somewhat tentative initial phase, the Commission made increasingly greater use of the mechanisms granted at its inception, primarily for investigating human rights violations around the world. The Commission has evolved through three successive phases: a standard-setting phase, a promotional phase, and a protectionist phase. Here the first and last of those phases will be addressed. Standard-Setting Phase: Development of the Fundamental Instruments of Human Rights Although the Charter clearly indicates that one of the principal objectives of the UN is to encourage respect for human rights, it does not define the substance of


United Nations Commission on Human Rights

those rights or the specific steps for ensuring their application. During the first years of its existence (1947–1954), the Commission overcame this void by devoting itself almost exclusively to drafting the instruments that would define those rights and ensure their international adoption: the Universal Declaration of Human Rights (adopted December 10, 1948), and the two international covenants, one on civil and political rights, the other on economic, social, and cultural rights (both were adopted in 1966). The Universal Declaration is the “foundational” instrument; it establishes basic principles and defines rights by specifying their scope. Although the crime of genocide and crimes against humanity are not expressly mentioned in the text, the Declaration contains terms that can be directly related to such crimes. In its preamble the Declaration states that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind,” and the Declaration itself is advanced as “a common standard of achievement for all peoples and all nations to the end that every individual and every organ of society shall strive to promote respect for these rights.” As for the recognition of those principles and rights, the Declaration incorporates the following: the principle of equality in dignity and rights (Article 1); the prohibition of any discrimination, especially through race, color, sex, language, religion, political or any other opinion, national or social origin, property, birth, or any other status (Article 2); the right to life, liberty, and personal security (Article 3); and the prohibition of slavery and torture (Articles 4 and 5). Corresponding clauses have been included in the International Covenant on Civil and Political Rights later drafted by the Commission, which identifies a specific mechanism for inspection and is legally binding on the states that have ratified it. Coincident with the Universal Declaration, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948. This marked an important step in the definition and identification of genocide and the pursuit and punishment of its perpetrators. The Commission on Human Rights, preoccupied with the preparation of the Universal Declaration, did not participate significantly in drafting the Genocide Convention. This task was entrusted to a special committee—the Ad Hoc Committee on Genocide—created by ECOSOC. The Commission did however contribute some twenty years later to the preparation of the draft Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. In 1965, in light of the requirement for legal action sched-

uled to begin at that time, as mandated by the laws of certain states, the Commission began studying the legal procedures that could be used to establish the nonapplicability of statutory limitations for such crimes. It proposed that a specific convention be formulated after the study ended; the General Assembly finally adopted such a convention in 1968. The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity stipulates the crimes that are not subject to statutory limitations, identifies the individuals responsible for those crimes (in particular, any government officials), and indicates the commitments and steps states must make and follow in matters of extradition and statutory limitations. In the years subsequent to the Convention’s adoption, the Commission regularly studied the “question of punishing war criminals and individuals guilty of crimes against humanity” and the necessity of international cooperation for such purposes. Concerning this last point, the Commission examined a set of draft principles adopted by the General Assembly in 1973 entitled Principles of International Co-operation in the Detection, Arrest, and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity. The Commission’s work on standard-setting continued beyond this initial period as it drafted other special instruments (declarations and conventions): primarily the International Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984), and the Convention on the Rights of the Child (1989). The Convention Against Torture, in particular, should be considered in light of acts that may be classified as crimes against humanity, for it contains a precise definition of the term torture and also institutes a specific control mechanism through its Committee Against Torture (composed of experts and empowered to examine documents or complaints related to violations of the Convention). Protectionist Phase: Examination of Human Rights Violations During the first two decades of its existence, the Commission did not follow up on the many complaints of human rights violations it had received since the UN’s founding, claiming a lack of jurisdiction even though its mandate in no way prohibited investigation. Its primary focus was standard-setting, studies on specific rights, and promotional efforts with various states (e.g., technical cooperation, consulting services, a system of periodic reports).



United Nations Commission on Human Rights

Beginning in the late 1960s, under pressure from countries newly admitted to the UN following their independence, the Commission began to concretely address violations. It instituted procedures for examining documents and attempted to identify “situations of flagrant and systematic human rights violations” (on the basis of ECOSOC Resolution 1235 (XLII) of June 6, 1967, and Resolution 1503 (XLVIII) of May 27, 1970). Simultaneously, the Commission created special groups of experts responsible for investigating a region or country. The first, formed in 1967, was the ad hoc group of experts to investigate human rights in South Africa; it initially investigated torture and the improper treatment of prisoners arrested by the police in the Republic of South Africa. New ad hoc groups of experts were later created to investigate alleged human rights violations in other countries or territories, but since the 1980s the Commission has frequently assigned the study of a human rights situation in a specific country to a single expert known as a “special rapporteur.” In the same period the Commission also regularly appointed special rapporteurs with so called thematic mandates (in other words, mandates not restricted to a specific country), who became responsible for examining a specific type of violation that could be found throughout the world (such as extrajudicial, summary, or arbitrary execution; forced or involuntary disappearance; torture). In their publicly available reports submitted annually to the Commission, special rapporteurs identify, and establish the facts of, various cases and situations, which in certain circumstances involve crimes against humanity and/or genocide. During the past few decades, based on reports and other sources of information at its disposal, the Commission has examined and identified situations that revealed the existence of such crimes. It has adopted resolutions condemning those acts, demanding that the responsible parties be judged and that all available steps be taken to eliminate such actions and prevent their reoccurrence in the future. Situations That Constitute Crimes of Genocide and Crimes Against Humanity During a single ten-year period, from 1990 through 2000, the Commission examined two large-scale occurrences of human rights violations involving the crime of genocide and crimes against humanity in the former Yugoslavia and in Rwanda. This led to protective actions in both situations. The extreme gravity of the events that transpired and the urgency of confronting them prompted the Commission to convene special sessions, the first held since its inception. [1076]

Former Yugoslavia Serious human rights violations in Bosnia and Herzegovina, Croatia, and the Federal Republic of Yugoslavia (Serbia and Montenegro) resulted in the first of the Commission’s responses. In 1992 it held its first two special sessions to discuss these issues (August 13–14 and November 30–December 1), organized at the request of the required majority of its members. During the first session a special rapporteur was appointed and a new special session convened to examine the rapporteur’s reports. On this basis, in its Resolution 1992/ S-2/1 of December 1, 1992, the Commission categorically condemned the ethnic cleansing ongoing in Bosnia and Herzegovina, acknowledging that Serbian leaders in the territories under their control in Bosnia and Herzegovina, the Yugoslav army, and the political leaders of the Serb Republic bore primary responsibility for the practice. The Commission demanded that ethnic cleansing be discontinued immediately. The Resolution also forcefully restated the following: Anyone perpetrating or authorizing such crimes against humanity is individually responsible for those violations and the international community will spare no effort to bring them to justice. Additionally, all states were invited to examine the extent to which the acts committed in Bosnia and Herzegovina and Croatia constituted genocide as defined by the Convention on the Prevention and Punishment of the Crime of Genocide. On this point, on December 18, 1992, the General Assembly itself declared that “the abhorrent policy of ethnic cleansing was a form of genocide” (General Assembly Resolution 47/121); the Commission would reaffirm the term genocide in its later resolutions. During the years that followed the special rapporteur––whose mandate was regularly renewed–– submitted new reports to the Commission, which, in response, adopted resolutions at each of its sessions, denouncing and condemning the substantiated crimes, and demanding that any violations be discontinued and those responsible be brought to justice. After 1993 the situation in Kosovo also deteriorated, especially in terms of ethnic cleansing, and this led to grave concerns on the Commission’s part. Simultaneously, the systematic use of rape as a weapon of war and an instrument of ethnic cleansing, particularly in Bosnia and Herzegovina, was forcefully denounced and qualified as a “war crime” by the Commission. On May 25, 1993, the Security Council, in its Resolution 827, created the International Criminal Tribunal for the Former Yugoslavia (ICTY). The Commission requested that all the states cooperate and support this body. In line with the general agreement for peace in Bosnia and Herzegovina (the Dayton Accord of November


United Nations Commission on Human Rights

21, 1995, signed in Paris on December 14), the Commission demanded an end to human rights violations in the Federal Republic of Yugoslavia (Serbia and Montenegro), in Bosnia and Herzegovina, and in Croatia. It also recommended that steps be taken to assist in the return of refugees and displaced persons, that the states involved provide information on the fate of those who had disappeared, and that an effort be made to promote democratic institutions. The special rapporteur, with an extended mandate, was asked to carry out these missions in the three states, especially in Kosovo. At each of its following sessions, the Commission reviewed the findings of the rapporteur and adopted resolutions concerning the human rights situation in those countries. On April 13, 1999, in the face of continued violations and the massacres carried out against the Kosovars after Serb authorities had revoked their autonomy, the Commission adopted a special resolution devoted exclusively to the human rights situation in Kosovo (Resolution 1999/2). This resolution strongly condemned the widespread and systematic practice of ethnic cleansing, demanded the immediate discontinuation of all repressive actions that might worsen the situation, and asked the international community and the ICTY “to bring to justice the perpetrators of international war crimes and crimes against humanity, in particular those responsible for acts of ethnic cleansing and identity elimination in Kosovo.” Following the retreat of Serb forces from Kosovo on June 10, 1999, new developments in the region (primarily the establishment of the UN Interim Administration Mission and the International Security Force in Kosovo) led to the Commission’s modifying its approach. However, it continued to regularly examine, at each of its sessions, the human rights situation in the countries in question on the basis of reports prepared by the special rapporteur and by the “special representative” of the Commission who was appointed in 2001.

Rwanda During the 1990s the Commission also examined the situation in Rwanda, and its investigation revealed that acts of genocide had been committed there, with serious and extensive human rights violations occurring after April 1994. This led to the Commission’s convening a third special session on May 24 and 25. In its Resolution (S-3/1), the Commission “believing that genocidal acts may have occurred in Rwanda,” condemned all violations of international humanitarian law and human rights committed in the country and asked all parties to put an end to the situation at once. It further affirmed that any individual who commits or authorizes violations of human rights or international humanitarian law is personally responsible and must ac-

count for his or her actions in a court of law. To further its inquiry, the Commission appointed a special rapporteur to investigate the human rights situation in Rwanda by traveling there. It also asked that given the urgency of the situation, all existing mechanisms available to the Commission be utilized: primarily the special rapporteur on extrajudicial, summary, or arbitrary executions; the special rapporteur on torture; the Secretary General’s special representative on internally displaced persons; the working group on forced or involuntary disappearances; and the working group on arbitrary detention; as well as the monitoring organizations instituted by international human rights conventions. In particular, the special rapporteur becames responsible for gathering information on “acts which may constitute breaches of international humanitarian law and crimes against humanity, including acts of genocide in Rwanda.” In his report dated June 28, 1994, the special rapporteur issued the following findings: “The charges are threefold: genocide through the massacre of the Tutsi, political assassinations of a number of Hutu and various violations of human rights.” On the basis of information appearing in this report and another prepared by an expert commission created on July 1, 1994, by the Security Council, the Human Rights Commission, during its next regular session held in the spring of 1995, strongly condemned the acts of genocide, the violations of international humanitarian law, and all human rights violations committed during the conflict in Rwanda following the tragic events of April 6, 1994 (attacks on the aircraft which cost the lives of the president of Rwanda and the president of Burundi). After reaffirming the personal responsibility of all individuals who commit such crimes and other serious violations, and the need to bring them to justice, the Commission asked that all states cooperate fully with the International Criminal Tribunal for Rwanda (ICTR), which the Security Council created through Resolution 955 on November 8, 1994. During the sessions that followed, the Commission continued to examine the human rights situation in Rwanda, paying particular attention to the information supplied by the special rapporteur, whose mandate was regularly renewed. In its successive resolutions, the commission repeatedly condemned the crime of genocide, crimes against humanity, and all other human rights violations in Rwanda, insisting on the individual responsibility and prosecution of all their perpetrators, and the full cooperation of all member states with the ICTR. The Commission has also begun to address the situation of survivors of genocide and massacres, in par-



United Nations Commission on Human Rights

ticular the large number of traumatized children and female victims of rape and sexual abuse. In this context it has emphasized the importance of human rights observers and the Human Rights Field Operation in Rwanda, initiated by the UN High Commissioner on Human Rights in cooperation with the Rwandan government. The field operation is responsible for investigating violations of human rights and humanitarian law, including acts of genocide and crimes against humanity, and monitoring the evolving human rights situation by preventing the occurrence of new violations. In 1997 the special rapporteur was succeeded by a “special representative,” authorized by the Commission to recommend ways to improve the human rights situation and provide technical assistance. The special representative’s mandate ended in 2001, concluding the Commission’s specific examination of the human rights situation in Rwanda.

Commission Response In the face of two serious situations involving massive and systematic violations of human rights, in the former Yugoslavia and Rwanda, the Commission responded decisively and quickly: convening for the first time in special session and utilizing special rapporteurs who were able to investigate violations already committed or in progress, and whose mandate lasted for several years. The Commission also made use of monitoring committees to track the application of human rights conventions and the existing “resources” available to special rapporteurs and working groups responsible for examining such issues as extrajudicial or summary executions, torture, arbitrary detention, and involuntary disappearances. The Commission’s activities and decisions have also been coordinated with those of other competent UN agencies, especially the Security Council and the two international ad hoc tribunals that were created to bring those responsible for the acts in question to trial. In this context the Commission has contributed to fact-finding and been particularly helpful inidentifying the acts that constitute crimes of genocide or crimes against humanity. Nonetheless, it is unfortunate that the Commission was unable to intervene earlier to prevent such situations or, at least, to limit the violations, whether in Rwanda or the former Yugoslavia. However, “early warning” procedures are now in effect that will allow the Commission to remain better informed about potentially serious human rights violations, although its ability to respond in concrete ways is still too limited. The prevention of violations remains a critical issue; it can be strengthened by the presence of human rights observers in the field before a situation deteriorates significantly and becomes totally uncontrollable. [1078]

Struggle against Impunity Starting in the 1990s, the Commission began to regularly examine the issue of impunity, which, while intended to ensure that those guilty of violations do not escape justice, is also part of a system of prevention and dissuasion. In 1993 it formed a subcommission to study the impunity of human rights violators. Previously, several special rapporteurs and working groups of the Commission had raised the question within the context of their respective mandates (e.g., extrajudicial execution, torture, involuntary disappearance). Determining that the practice was increasingly widespread and that it encouraged violations and served as a fundamental obstacle to the respect of human rights, the Commission, through various resolutions, insisted the phenomenon be countered. It asked member states to take the steps necessary to prevent impunity while supplying possibly relevant information on it. For the Commission, denouncing the violations, holding perpetrators individually responsible for their acts, and obtaining justice for the victims are essential to promoting human rights and preventing future violations. Similarly, releasing information about the suffering of the victims and establishing the truth about the perpetrators of human rights violations are vital for the rehabilitation of victims and any subsequent reconciliation. As part of its study, the subcommission drafted a document entitled, “Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity” (divided into three sections: the right to know, the right to justice, and the right to reparation). It was sent to the Commission in 1998 and then distributed to various states. While emphasizing the importance of the ICTY and ICTR, the Commission also strongly insisted on the need to establish a permanent criminal court as an important component of the struggle against impunity. When the Rome Statute of the International Criminal Court (ICC) was adopted on July 17, 1998, the Commission encouraged member states to join and collaborate. Similarly, in its resolutions, it has regularly stressed the importance of the Convention on the Preparation and Punishment of the Crime of Genocide by asking those states that have not yet ratified it to do so. In its resolutions the Commission has also incorporated the mechanisms established by certain states in which serious violations have occurred, primarily investigative commissions and truth and reconciliation commissions, and it has additionally encouraged other states in a similar situation to institute their own mechanisms for redress. In its 2003 session the Commission asked that an independent study be prepared and recommendations provided on the most effective practices to help states combat all aspects of impunity.


United Nations General Assembly

The role of the United Nations Commission on Human Rights in preventing genocide and crimes against humanity falls within the scope of its overall activities and is one of the many functions it has developed since its creation: the drafting of norms and principles, the use of special studies and technical assistance to promote human rights, the use of special procedures and field missions to help provide protection. The complementary nature of, and interaction among, these different approaches and methods highlight the specific contributions of the Commission and its huge potential. It is this potential that should be further explored to encourage prevention and, in particular, those activities that will discourage the most serious human rights violations, namely genocide and crimes against humanity. SEE ALSO Impunity; Roosevelt, Eleanor; Rwanda;

United Nations; United Nations General Assembly; United Nations Security Council; United Nations Sub-Commission on Human Rights; Yugoslavia BIBLIOGRAPHY

Alston, Philip (1992). “The Commission on Human Rights.” In The United Nations and Human Rights, ed. Philip Alston. Oxford: Clarendon Press. Degni-Ségui, René, Special Rapporteur of the Commission on Human Rights (1994). Reports on the Situation of Human Rights in Rwanda. UN documents E/CN.4/1995/7 and E/CN.4 1995/12. First Special Session: Situation of Human Rights in the Territories of the Former Yugoslavia, August 13–14, 1992. UN document E/CN.4/1992/84/Add.1/Rev.1. Human Rights Monitor, International Service for Human Rights. “Geneva: Quarterly Analytical Review of UN Human Rights Meetings Including Sessions of the UN Commission on Human Rights (since 1988).” Available from http://www.ishr.ch. Lempinen, Miko (2001). Challenges Facing the System of Special Procedures of the United Nations Commission on Human Rights. Turku/Abo: Institute for Human Rights, Abo Akademi University. Marie, Jean-Bernard (1975). La Commission des droits de l’homme de l’ONU. Paris: Editions Pedone. Second Special Session: Situation of Human Rights in the Territories of the Former Yugoslavia, November 30–December 1,1992. UN document E/CN.4/1992/S-2/6. Tolley, Howard (1987). The UN Commission on Human Rights. Boulder, Colo.: Westview Press. Third Special Session: Situation of Human Rights in Rwanda, May 24–25, 1994. UN document ECN.4/S-3/4. Jean-Bernard Marie

United Nations General Assembly To achieve the declared purposes of the United Nations (UN), the UN Charter of 1945 provided for the establishment of a number of organs, including the General Assembly and Security Council. The Assembly is empowered to discuss any question or matters within the scope of the Charter. For this reason it can be described as the world’s most important forum for political discussion. Also, owing to its various functions under the Charter, it holds a prominent position among the organs of the UN. Committees and other bodies established by the Assembly to study and report on specific issues carry out much of its work. The Assembly is the only principal organ of the UN in which all member states are represented; it was conceived to closely resemble, in both function and structure, a representative legislative assembly. President Franklin D. Roosevelt often referred to the Security Council as the body with the power, while the Assembly was the place for small countries to “let off steam.” Composition The Assembly’s composition and role under the Charter give it a legitimacy that few other international organs possess. It is made up of representatives of the member states of the UN. These individuals act on the instructions of their governments. In this way the Assembly is a conference of states, not a world parliament of representatives for all peoples of the world. Nearly every state in the world is a member of the UN and represented in the Assembly. An issue that arises from time to time is that of representation at the Assembly. Each member state has one vote in the Assembly. However, only one delegation is entitled to be admitted from each member state. This may seem straightforward at first, but the Assembly sometimes must deal with rival claimants from the same state. Such a scenario arises as a result of armed conflicts and civil wars around the globe. The Assembly has the right and responsibility to decide between rival claimants, but in so doing, it can be described as determining which faction is the rightful government of a particular state. A number of important controversies developed over representation, most notably those involving China between 1949 and 1971, the Congo in 1960, Yemen in 1962, and Kampuchea (Cambodia) from 1970 to 1991. Several political and legal issues surface in deciding between rival claimants, but it is difficult to discern any definite criteria for recognition apart from a general leaning toward the principle of effectiveness. This



United Nations General Assembly

means that a government will be regarded as the legitimate representative of a state as long as it has not been replaced by a rival claimant independent of the support of a foreign power. This can be seen in the Assembly’s decision in 1971 to recognize the government in Beijing, and not that in Taiwan, as the legitimate representative of China. More significant was the policy regarding the Pol Pot regime in Kampuchea (Cambodia) after it lost power to the Heng Samrin government in 1979. Many states believed that the new government owed its position to the support of foreign powers, in particular Vietnam. The regime thus lacked legitimacy in the eyes of the international community, despite the fact that it had replaced one of the most despotic governments of the twentieth century. The Assembly continued to recognize the representatives of Pol Pot, in spite of the appalling human rights record of that government. The UN decision was very controversial, especially because the scale and extent of the killings, and persecution of Cambodians by the regime, were well known at the time. Many historians referred to these events as genocide. However, owing to the fact that the perpetrators and victims belonged to the same national group, they were not accepted as constituting genocide according to the narrow definition of the crime under international law. The issue posed the serious question of whether a regime that perpetrated such crimes against its own people should remain its legitimate state representative in the Assembly. There are no easy answers. The UN is dedicated primarily to the maintenance of international peace and security by protecting the territorial integrity, political independence, and national sovereignty of its members. But the overwhelming majority of today’s conflicts are internal, not interstate. Moreover, the proportion of civilians killed in such conflicts has dramatically increased from about one in ten at the start of the twentieth century to around nine out of ten at its close. This has forced the Assembly and other organs to seek to reconcile the foundational principle of member states’ sovereignty and the mandate to maintain international peace and security with the equally compelling mission to promote human rights and the general welfare of people within those states. The Secretary-General has addressed the dilemma within the conceptual framework of two notions of sovereignty: one vested in the state, the second in peoples and individuals. This is reflected in the 2001 Report of the International Commission on Intervention and State Sovereignty, which advances the argument that state sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state. However, when a population begins to suffer seri[1080]

ous harm, as a result of internal war, insurgency, repression, or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of nonintervention yields to the international responsibility to protect. Functions and Powers of the General Assembly Under the UN Charter, the functions and powers of the Assembly are wide-ranging but ill-defined. This stands in direct contrast to the unambiguous primacy given to the Security Council in relation to the maintenance of international peace and security. It is important to bear in mind that the UN by its very nature does not infringe on the independence and sovereign powers of member states. Article 2(7) of the Charter expressly prohibits interference in matters that essentially fall within the domestic jurisdiction of states. The nonintervention clause is a fundamental principle of the organization. In practice, deciding whether a matter is within the domestic jurisdiction of a state or not is more a political than legal question. Furthermore, human rights and related issues may be deemed matters of concern to the international community if they pose a threat to international peace and security. The Assembly’s powers are described in Chapter IV of the Charter. Although Articles 10 and 14 grant generous powers to the Assembly, Articles 11 and 12 appear to restrict these. Decisions on important questions (peace and security, new members, budgetary issues) require a two-thirds majority. A simple majority may reach decisions on other issues. The powers of the Assembly may be summarized as follows: • To make recommendations on cooperation in the maintenance of international peace and security • To discuss any question relating to international peace and security, and to make recommendations, except when a dispute or situation is under discussion by the Security Council • To discuss and, with the same exception as above, make recommendations on any question within the scope of the Charter or affecting the powers and functions of any organ of the UN • To initiate studies and make recommendations to promote international political cooperation; the development and codification of international law; the recognition of human rights and fundamental freedoms for all; and international collaboration in economic, social, cultural, educational, and health fields • To make recommendations for the peaceful settlement of any situation, regardless of origin, that might impair friendly relations among nations


United Nations General Assembly

• To consider reports from the Security Council and other UN organs • To approve the UN budget and divide contributions among members • To elect the nonpermanent members of the Security Council, the members of the Economic and Social Council, and those members of the Trusteeship Council that are elected • To elect, jointly with the Security Council, the Judges of the International Court of Justice (ICJ) • To appoint on the recommendation of the Security Council, the Secretary-General Procedures and Voting According to Article 18 of the Charter, each member of the Assembly shall have one vote, allowing equal participation in decisions. This is intended to reflect the sovereign equality of member states. The Assembly is required to meet in regular sessions, and these usually begin each year in September. At the start of each regular session, the Assembly elects a new president, twenty-one vice-presidents, and the chairpersons of the Assembly’s six main committees. To ensure equitable geographical representation, the presidency of the Assembly rotates each year among five groups of states: African, Asian, Eastern European, Latin American and Caribbean, and Western European and other states. In addition to its regular sessions, the Assembly may meet in special sessions at the request of the Security Council, a majority of member states, or one member if the majority of members concurs. At the beginning of each regular session, the Assembly holds a general debate, with heads of state and government often addressing the body, and member states express their views on issues of international concern. Most questions are discussed in the Assembly’s six main committees, where voting occurs by simple majority: 1. First Committee: Disarmament and International Security Committee 2. Second Committee: Economic and Financial Committee 3. Third Committee: Social, Humanitarian and Cultural Committee 4. Fourth Committee: Special Political and Decolonisation Committee 5. Fifth Committee: Administrative and Budgetary Committee 6. Sixth Committee: Legal Committee The majority of the Assembly’s decisions are made through the affirmative vote of two-thirds or more of

its members. Proposals representing a decision of the Assembly have frequently been adopted without a formal vote taken in plenary meetings. Resolutions may be adopted by acclamation, without objection or without a vote, or the vote may be recorded or taken by roll call. This consensus approach has played a significant role in the practice of the Assembly. Although the decisions of the Assembly are not legally binding on governments, they carry significant moral and persuasive authority. No proposals have been made to change the voting system at the Assembly. However, the large number of smaller states admitted as members does raise legitimate questions given the disparity in size, population, and other characteristics of member states. Expansion of Powers through Practice Article 10 of the Charter is its most significant; it defines the Assembly’s powers of discussion and recommendation in their broadest form: The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12 may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.

It is evident from this Article, and the practice of the Assembly, that the range of questions or matters which the Assembly is authorized to discuss is as wide as the scope of the Charter itself. Since adoption, its broad terms have been the principal basis for an expansion of its role beyond that envisaged by the Charter’s drafters. When this Article was being drafted, it provoked a serious crisis that was resolved only after highlevel consultation between the former Soviet Union and the United States. The original proposal put forward would have given the Assembly no real power in the political field. Although most of the differences of opinion concerned the issue of the maintenance of international peace and security in relation to those of the Security Council, the matter of the Assembly’s freedom of discussion was also crucial. The general scope of this Article and the breadth of powers it confers have been referred to many times in plenary and committee meetings by representatives who wished to stress the overall responsibility of the Assembly as a world forum for considering international problems. However, the vagueness and sweeping extent of Article 10 also reflect the Assembly’s lack of power to make a binding decision. Although such decisions or recommendations may carry significant weight and authority, it is because they are not binding that they too often are imprecise and general in nature.



United Nations General Assembly

Articles 11 and 12 circumscribe the role of the Assembly. However, it is clear from these and other articles that while the Security Council has primary responsibility for the maintenance of international peace and security, it does not have exclusive competence, especially as far as the Assembly is concerned. The smaller and middle power states were opposed to any restriction on the jurisdiction of the Assembly, whereas the major powers stressed the need to avoid disputes between the Assembly and Security Council on vital matters. Nevertheless, the extent of the limitation imposed on the Assembly should not be exaggerated. It applies only to the Assembly’s recommendatory, not deliberative, powers. The right of the Assembly to discuss, consider, and debate any issues, including those relating to the maintenance of international peace, remains. The reason for such a rule arises from the different role and functions of the Assembly. An international crisis does not automatically guarantee an agreed upon response, and the differences in the composition of the Security Council and Assembly could lead to conflicting responses from both. A major step in the development of the Assembly’s role was the adoption of the Uniting for Peace resolution on November 3, 1950 (passed in connection with the crisis in Korea). Under this resolution the Assembly may take action if the Security Council, because of a lack of unanimity among its permanent members, fails to act in a case where there appears to be a threat to peace, breach of peace, or act of aggression. The Assembly is empowered to consider the matter immediately and make recommendations to members for collective measures. This includes, in the case of a breach of peace or act of aggression, the use of armed force when necessary to maintain or restore international peace and security. Acting under Uniting for Peace Resolution 377(V) of November 5, 1950, the Assembly established the United Nations Emergency Force to secure and supervise the cessation of hostilities between Egypt and Israel. The resolution has been utilized additional times, most notably in 1956, after Egypt nationalized the Suez Canal and, in response, Britain, France, and Israel attacked Egypt. Both Britain and France vetoed ceasefire resolutions in the Security Council. The United States appealed to the General Assembly, calling for a ceasefire and withdrawal of forces. An emergency session was called under the Uniting for Peace resolution. In this case the Assembly’s intervention did facilitate the resolution of the crisis. However, the willingness of the states concerned to comply with the Assembly’s demands was due to a complex set of circumstances surrounding the military intervention. [1082]

Uniting for Peace was next used by the United States to pressure the Soviet Union into ceasing its intervention in Hungary in 1956. Again, an emergency session of the General Assembly was held and the Soviet Union was ordered to end its intervention. No visible evidence exists that the action influenced Soviet policy to any significant extent at the time. However, two years later the procedure was used to facilitate the resolution of another crisis, that existing in Lebanon. The cold war and activities of the Asian-African group of states, in particular the support given to various independence movements, led to a new role, not earlier envisaged, for the Assembly. The repeated use of the veto on the Security Council meant that the Assembly was being called on to perform functions originally regarded as the special province of the Security Council. Thus in 1950, when it became apparent that the Security Council could no longer effectively address the mounting hostilities in Korea, the Assembly, on the initiative of the United States, assumed residual responsibility for taking measures necessary to maintain international peace in case of a threat or breach of peace. Often during the cold war all sides used the Assembly as a forum to pursue a war of words. The smaller and middle powers did not oppose the incremental growth in the influence of the Assembly; they now possessed equal say. In this way, political developments combined with a liberal interpretation of the provisions of the Charter to permit the Assembly to assume significant responsibilities for the maintenance of international peace and security. It is important to note that the Assembly does not possess any formal mandatory powers along the lines of the Security Council. It can only make recommendations on matters of international peace and security. However, the resolutions it adopts may have a binding effect if they reflect established principles of international law. There is a clear difference between declaring that an existing law calls for a certain response and creating new law. Convention on the Prevention and Punishment of the Crime of Genocide As the International Military Tribunal (IMT) at Nuremberg (established to try Nazi war criminals in the aftermath of World War II) drew to a close, the first session of the Assembly was getting underway. The judgment handed down at the Nuremberg Tribunal was controversial in several respects. The limited scope given to “crimes against humanity” at the time was one of the main reasons why it was considered necessary to draft a convention that specifically addressed the crime of genocide.


United Nations General Assembly

A crime against humanity referred to a rather wide range of atrocities, but it also had a narrow aspect, in that the prevailing view was that crimes against humanity could only be committed in association with an international armed conflict or war. The Allies had insisted at Nuremberg that crimes against humanity could only be committed if they were associated with one of the other crimes within the IMT’s jurisdiction, that is, war crimes and crimes against peace. In effect, they imposed a connection or “nexus,” as it became known, between crimes against humanity and international armed conflict. The Assembly wanted to bridge the gap which many perceived to exist in international law as a result by recognizing that one atrocity, namely genocide, would constitute an international crime even if it were committed in time of peace. The price to pay for this, according to William Schabas, was an exceedingly narrow definition of the mental and material elements of the crime. The distinction between genocide and crimes against humanity is less significant today, because the recognized definition of crimes against humanity has evolved and now unquestionably refers to atrocities committed against civilians in both peacetime and wartime. After the IMT handed down its judgment between September 30, and October 1, 1946, Cuba, India, and Panama asked that the subject of genocide be put on the agenda of the General Assembly’s first session. These states were concerned that international law did not seem to govern atrocities committed in peacetime (as opposed to those perpetrated during a time of armed conflict or war). The draft resolution submitted referred to the fact that the punishment of the very serious crime of genocide when committed in time of peace lies within the exclusive territorial jurisdiction of individual states concerned, while crimes of relatively lesser importance are declared as international crimes and have been made matters of international concern. In requesting a report on the possibilities of declaring genocide an international crime and ensuring international cooperation for its prevention and punishment, the Assembly acknowledged that it was not a legislative body and therefore could not make law as such. Nonetheless, any measure it took was vested with incontestable authority. The final version of Resolution 96(I), adopted by the Assembly on December 11, 1946, called for the preparation of a draft convention. It also affirmed that genocide was a crime under international law. Even though Resolution 96(I) was adopted unanimously and without debate, it is not legally binding. However, the ICJ has acknowledged that such resolutions may have normative value. They can provide evidence of the exis-

tence of a customary rule, and the emergence of a legally binding provision. The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the Assembly on December 9, 1948, and entered into force two years later on January 11, 1951, after ratification by twenty member states. During the drafting process, significant disagreement arose among states regarding the nature and extent of the crime of genocide. Article I creates an obligation on states to prevent and punish genocide. This was added by the Legal Committee based on proposals from Belgium and Iran. However, there was nothing in the related debates that clarified what the scope and implications of the obligation were. This stood in marked contrast to the provisions in the Convention dealing with punishment. The Legal Committee completed its review of the draft convention on December 2, 1948. The draft resolution and convention were adopted by thirty votes to none, with eight abstentions. The interventions by states provide some insights into their concerns at the Committee stage. The United Kingdom abstained, as it believed governments, not individuals, should be the focus of the Convention. Poland and Yugoslavia were critical of the Convention’s failure to prohibit hate propaganda and measures aimed against a nation’s art and culture. Czechoslovakia felt the Convention as adopted would do little to prevent genocide. Article II of the Convention defines genocide as: any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious mental or bodily harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measure intended to prevent births within the group; forcibly transferring children of the group to another group.

Under the Convention, the crime of genocide has both a physical element (certain actions, such as killing members of a racial group) and a mental element (the acts must be committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group “as such”). Although earlier drafts had included “political groups,” this wording was dropped during the final drafting stages. Also excluded was the concept of cultural genocide—destroying a group by forcible assimilation into a dominant culture. The drafting history makes clear that the Convention was intended to cover the physical destruction of a people and that some governments feared they could become vulnerable to a charge of genocide for certain actions.



United Nations General Assembly

When the Convention was adopted, two associated resolutions were passed. The first raised the issue of trying individuals charged with genocide before a competent international tribunal. It invited the International Law Commission to study the desirability of establishing an international criminal court. A second resolution concerned the application of the Convention to dependent territories. The International Law Commission, a subsidiary body of the Assembly, is a body of experts responsible for the codification and progressive development of international law. The Commission has examined the issue of genocide on a number of occasions during the course of its work on draft codes and statutes. In 1954 it concluded that the definition of genocide set forth in the Convention should be modified, but later decided that the original text ought to be retained as this definition was widely accepted by the international community. Hence, the original definition of genocide in the Convention is essentially repeated in Article 6 of the Rome Statute of the International Criminal Court (ICC), which was agreed to in 1998, and in the relevant statues of the ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR). Sabra and Shatila Refugee Camps in Lebanon The Assembly formally addressed the issue of genocide for the first time in 1982, when it debated the massacre of Palestinians at the Sabra and Shatila refugee camps in Beirut, Lebanon. Although the term had been mentioned in previous debates, on this occasion the Assembly qualified the massacre as genocide, while the Security Council, following the lead of the SecretaryGeneral’s report, condemned the “criminal massacre of Palestinian civilians in Beirut.” Cuba proposed a resolution declaring the massacres to be an “act of genocide.” In the ensuing debate little attention was paid to the actual scope and meaning of genocide under international law. The Singapore delegation accused the Assembly of using “loose and casual language when referring to issues with a precise legal definition.” Such sentiments were echoed by a number of other delegations. Finland probably best reflected the view of those states not supporting the use of the term genocide, in declaring that its use had prevented the Assembly from giving unanimous expression “to the universal outrage and condemnation” with regard to the massacre. In spite of the heated debate, the Assembly adopted Resolution 37/123(D) on December 16, 1982, paragraph 2 of which resolved that “the massacre was an act of genocide.” It is by no means clear under the 1948 Convention on Genocide that the Assembly, in fact, had the author[1084]

ity to make such a determination. However, it is inevitable that a body of this nature will be dominated by political rather than legal arguments, especially when considering the tragic fate of Palestinian civilians left behind in Beirut after the agreed upon departure of Palestinian fighters. The Former Yugoslavia and Rwanda In December 1992 the General Assembly adopted Resolution A/RES/47/147 on the general situation in the former Yugoslavia and cited the Genocide Convention in its preamble. It also endorsed a resolution of the Commission on Human Rights adopted at that body’s special session in August 1992, “in particular its call for all States to consider the extent to which the acts committed in Bosnia and Herzegovina and in Croatia constitute genocide.” On December 20, 1993, the Assembly reaffirmed in Resolution A/RES/48/88 its determination to prevent acts of genocide and crimes against humanity and noted that the ICJ in its order of September 13, 1993, in the case Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), had called on the government of Yugoslavia to immediately take all measures within its power to prevent the commission of the crime of genocide. Another resolution, A/RES/47/121, described ethnic cleansing as “a form of genocide,” but this finding was not consistent with later resolutions on ethnic cleansing that made no reference to genocide. Resolutions equating ethnic cleansing with genocide are problematic. Although there is no generally recognized text defining ethnic cleansing, there is a consensus among scholars and others that it is aimed at displacing a population, whereas genocide is intended to destroy it. Such descriptions ultimately do not serve the best interests of victims of either crime, or further the credibility of the Assembly. Since 1992 the Assembly has referred to genocide on a number of occasions when adopting resolutions in relation to the crisis. In December 1995 the Assembly elaborated on the issue of genocide in Bosnia and declared that rape, in certain circumstances, could constitute an act of genocide (Resolution A/RES/50/192). The 1999 Report of the Secretary-General on the fall of Srebrenica (made pursuant to Assembly Resolution 53/ 35) was very critical of the Security Council’s failure to take decisive action and referred to the attempted genocide in Bosnia. Given the event’s scale, it is surprising that just one of the Assembly’s resolutions on the crisis in Rwanda referred to genocide. On December 23, 1994, Resolution 49/206 expressed deep concern at the reports issued by the Special Rapporteur and Commission of Experts indicating that genocide and crimes against


United Nations General Assembly

humanity were committed, and condemned the acts of genocide that had taken place in Rwanda. Apartheid and Forced Disappearances The Assembly has also adopted resolutions dealing with various other crimes against humanity, including apartheid and forced disappearances. One of the best illustrations of the limitations of the Assembly and UN, as well as their potential, is the policy with regard to apartheid. On June 22, 1946, India requested that the treatment of Indians in the Union of South Africa be included in the agenda of the Assembly’s first session. The General Committee did not support South Africa’s request that the Indian matter be removed from the agenda on the grounds that it was essentially within the domestic jurisdiction of South Africa. Following a debate in the Assembly, Resolution 44(I) was adopted on December 8, 1946, which declared that the treatment of Indians in South Africa should conform with the international obligations under the agreements concluded between the two governments and the corresponding provisions of the UN Charter. A year later, in November 1947, the Assembly was unable to adopt any resolution on the Indian complaint for lack of a twothirds majority. The Assembly did adopt numerous resolutions on the issue over the next five decades, but a turning point was Resolution 1761 of November 6, 1962. The resolution, sponsored by a number of African states, urged member states to impose economic and other sanctions against South Africa and established a Special Committee (which later became the Committee on Apartheid) to monitor the situation. The debates increasingly focused on demands that the situation in South Africa be recognized as a threat to international peace and security and that universal sanctions be imposed against South Africa. During the cold war Western nations believed that the Security Council alone should make the determination that a denial of human rights posed a threat to international peace. In this context there was bound to be natural antagonism between the Assembly and the Council. On November 30, 1973, the Assembly adopted the International Convention on the Suppression and Punishment of the Crime of Apartheid. It declared, among other things, that apartheid is a crime against humanity. Furthermore, apartheid was found to include the “[d]eliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part.” It is noteworthy that the South African government was excluded from the Assembly in 1974 when its delegation’s credentials were rejected. At the same time UN bodies granted the

liberation movements of South Africa Observer status and the Assembly recognized them in 1975 as the authentic representatives of the overwhelming majority of people in that country. On December 18, 2002, the Assembly adopted by consensus two resolutions related to disappearances and missing persons. Resolution A/RES/57/215 on enforced or involuntary disappearances expressed concern at the growing number of enforced disappearances in various regions of the world. It affirmed that any act of enforced disappearance is an offense to human dignity and a flagrant violation of human rights. It urged governments to take steps to prevent and suppress the practice. It encouraged all states to abide by the principles outlined in the Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the Assembly on December 18, 1992 (Resolution A/RES/ 47/133). Resolution A/RES/57/207 on missing persons noted the issue of persons reported missing in connection with international conflicts and urged states to respect international humanitarian law. In both cases the Assembly used language such as “urges,” “requests,” “calls upon,” or “appeals” to exhort members to comply, reflecting the fact that an Assembly resolution or declaration alone cannot impose legal obligations on states. Conclusion There have been many instances in which the Assembly has acted within its area of competence when addressing issues of international peace. If a conflict is characterized by questions of fundamental human rights, then it is arguable that the Assembly should assume the primary role in protecting those rights. When the grave risk of genocide or some other serious violation of human rights exists, then it is best that the consideration of any military intervention be first brought before the Security Council. However, if the Security Council rejects a proposal for intervention when significant humanitarian or human rights issues are at stake, or the Council fails to decide on such a proposal within a reasonable period of time, then responsibility falls to the Assembly to take appropriate action. Although the Assembly lacks the authority to take direct action, a decision in favor of action, if supported by a large majority of states, would largely legitimize any subsequent intervention. The ability to achieve the overall two-thirds majority within the Assembly to invoke the Uniting for Peace process is very unlikely when political realities are taken into account. Political realities play an even larger role when the Security Council fails to act because



United Nations Security Council

of the threat of veto. As a result, vital time can be lost before decisive action is taken to remedy a situation on the ground. In the case of genocide and crimes against humanity, such action will often be too late for victims. When a resolution targets a specific violation or country, it is difficult to evaluate its effectiveness over time. It seems that formal resolutions may send important signals, but these too are almost impossible to measure. Political matters still tend to dominate debates, but these should not overshadow the accomplishments in the promotion of human rights across the full spectrum of UN activities. SEE ALSO Convention on the Prevention and

Punishment of Genocide; United Nations; United Nations Commission on Human Rights; United Nations Security Council; United Nations SubCommission on Human Rights; United Nations War Crimes Commission BIBLIOGRAPHY

Chesterman, Simon, ed. (2001). Civilians in War. London: Lynne Rienner. Claude, Inis, Jr. (1956). Swords into Plowshares. New York: Random House. Commission of Inquiry into the Events at the Refugee Camps in Beirut (February 9, 1983). Final Report (authorized translation). The Jerusalem Post. Goodrich, Leyland M. (1960). The United Nations. London: Stevens. Goodrich, Leyland M., Edward Hambro, and Ann P. Simons (1969). Charter of the United Nations, 3rd edition. New York: Columbia University Press. Gutman, Roy, and David Rieff (1999). Crimes of War. New York: Norton. Holzgrefe, J. L., and Robert O. Keohane, eds. (2003). Humanitarian Intervention—Ethical, Legal and Political Dilemmas. Cambridge, U.K.: Cambridge University Press. Report of the International Commission on Intervention and State Sovereignty: The Responsibility to Protect (2001). Ottawa: International Development Research Centre. Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda (1999). UN Document S/99/1257. Report of the Secretary General Pursuant to General Assembly Resolution 53/3: The Fall of Srebrenica (1999). UN Document A/54/549. Schabas, William A. (2000). Genocide in International Law. Cambridge, U.K.: Cambridge University Press. Schabas, William A. (2001). An Introduction to the International Criminal Court. Cambridge, U.K.: Cambridge University Press. Simma, Bruno (2002). The Charter of the United Nations—A Commentary, 2nd edition. Oxford: Oxford University Press. [1086]

White, Nigel D. (1997). Keeping the Peace, 2nd edition. Manchester, U.K.: Manchester University Press. Ray Murphy

United Nations Security Council The United Nations was created at the end of World War II. That war cost the lives of millions of people, some in battle, many others as a result of systematic and organized annihilation. When it was over, people everywhere longed for the creation of a better world and an end to all war. Out of this desire, the United Nations came into being. Fifty-one governments agreed to sign the UN Charter, an international treaty that bound its signatories to a commitment to eliminate war and promote peace. The UN Charter begins with a promise to prevent the “untold sorrow” of war, after which it lists the rights and duties of each member government. Since its creation in 1945 the UN has grown to include 192 member nations. While the UN has not, so far, come close to fulfilling all the hopes and dreams of its founders, it remains the world’s principal organization for the promotion of international peace and security. The most powerful division of the UN is the Security Council, which all member states are bound by the UN Charter to obey. The Council comprises the representatives of fifteen member governments. Five of these are permanent members: China, the United States, the United Kingdom, France, and Russia. Each of these five states has a veto in the Council, which means any one of them can stop any decision they do not like. Ten other states, elected by the General Assembly, sit in the Council for a period of two years, after which ten different states are chosen. When disagreements between states occur, it is the job of the Security Council to mediate between them before disputes escalate to war. The United Nations and Human Rights Since the UN was created, its members have tried to set basic standards of behavior for the world to follow. In 1948 the UN General Assembly, which comprises every UN member, agreed to a document called the Universal Declaration of Human Rights. This outlined the rights that the members believed belonged to everyone in the world. The declaration recognized that the most fundamental of all human rights is the right to life. The Universal Declaration of Human Rights determines that people have the right to freedom and security, that they should be free from slavery, they should have the right to a fair trial, to marry, to own property, and to believe in whatever religion they choose. The UN tries to monitor any country which is breaking these rules through a special organization


United Nations Security Council

called the UN Commission on Human Rights. Through such monitoring, the UN makes sure that the rest of the world is aware of each country’s human rights record. This was the beginning of an historic effort to build an edifice of treaty law on behalf of human rights. The UN set itself the task of defining human rights standards and measuring the performance of individual states against the principles embodied in the UN Charter. In these early years, the organization recognized human rights violations vary both in degree and in nature, and therefore needed to be carefully categorized. The 1948 Genocide Convention Although the crime of genocide has been perpetrated throughout human history, little was done to prevent or punish it until the end of World War II. That war was the occasion during which the most comprehensive genocide of the twentieth century was committed: the systematic extermination of the Jews. To address this terrible crime, the UN drafted the 1948 Convention on the Prevention and Punishment of Genocide— the world’s first truly universal, comprehensive, and codified protection of human rights. The Genocide Convention, which preceded the Universal Declaration of Human Rights by twenty-four hours, confirmed one of the great ideals of the UN Charter: a respect for human rights and fundamental freedoms for all. The Genocide Convention stood for a fundamental and important principle; that whatever evil may befall any group, nation, or people, it was a matter of concern not just for that group but for the entire human family. The crime of genocide is the denial of the right of existence of entire human groups, just as homicide is the denial of the right to live of individual human beings. The Genocide Convention defines genocide to mean certain acts, enumerated in Article II, committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group. The Genocide Convention provides that conspiracy, direct and public incitement to commit genocide, and complicity in genocide shall be punishable by international law, and that there can be no defense of sovereign immunity. In dealing with the crime of genocide on a multinational basis, the world governments, through the United Nations, appreciated that genocide was a matter of concern to all states. Before 1945, efforts to legislate internationally were very limited. Since 1945, however, multinational treaties have become the prime legal mechanism by which states entered into mutual commitments for common purposes. Under such treaties, states agree to act in accordance with rules agreed upon among their fellow nations. At the heart of the Genocide Convention is the recognition of the principle that preventing and punishing

United Nations peacekeepers from Bangladesh arrive in Liberia in October of 2003. [ A P / W I D E W O R L D P H O T O S ]

of genocide requires international cooperation. The convention relies on the procedures and institutions of the United Nations to prevent genocide. It clearly recognized that the commission of certain extraordinary crimes anywhere in the world had an effect on the peace and security of all nations, and that it was usually associated with breaches of international peace and security. It noted that the most flagrant examples of genocide had historically occurred during major wars, and steps to curb genocide were thus considered part of the attempt to preserve peace. The first recognition of genocide as a crime under international law was officially agreed unanimously by the United Nations General Assembly on December 11, 1946. After two years of consideration by committees at the United Nations, on December 9, 1948, the General Assembly adopted the Genocide Convention to outlaw genocide. The UN Security Council assumed a central role in the application of the Genocide Convention—it provides the measure of international enforcement outlined in the treaty. Article VIII of the convention recognizes that “any contracting party may call upon the competent organs of the UN to take such action under the Charter of the UN as they consider appropriate for the prevention and suppression of acts of genocide or any other acts enumerated in Article III.” This article, although it adds nothing new to the UN Charter, is important in that it states explicitly the right of states to call upon the UN



United Nations Security Council

with a view to preventing and suppressing genocide. It is the only article in the Genocide Convention that deals with prevention. For the most part, however, the Genocide Convention emphasizes punishment. It was intended as a warning that those who supported or executed a policy of genocide would not be tolerated or excused. Rather, they would have to answer for their sins to the world community of states. The Genocide Convention, despite its title, concentrates almost exclusively on the punishment of the offender rather than prevention of the offense. Since the enactment of the Genocide Convention there have been major international disputes justified by claims of ethnic, racial, and religious hatreds. The use of genocide during conflict seems to have increased over the years, some experts have said that genocide occurs so often in some regions that it has come to be considered normal. It is estimated that genocide and politicide—state sponsored massacres—have claimed more than twice as many victims as war and natural disasters since 1945. Yet the Genocide Convention is a weak instrument with which to deal with the modern occurrence of genocide. It has become important only for its symbolic value because there has been no Security Council action taken to punish any of the numerous genocides that have taken place since 1945. Complaints of genocide have been brought to the United Nations since the end of World War II, but even so, the UN has never formally applied the Genocide Convention to any of them. The complaints have not been wholly ignored. Too often, however, they have been redefined as disasters requiring humanitarian assistance. In the absence of internationally sanctioned intervention, such humanitarian aid is often all that is available for genocide victims. Recurring debates on the Genocide Convention have taken place in the SubCommission for the Prevention of Discrimination and Protection of Minorities, a part of the Commission on Human Rights, but there does not yet exist a committee charged with ensuring that the Genocide Convention is implemented. The Genocide Convention is only as effective if the UN member states are willing and determined to employ their power and influence to implement it. It is up to the Security Council to decide when force should be deployed to prevent and suppress it. In the last years, however, the Security Council has allowed a respect for state sovereignty and territorial integrity to take precedence over the concern for protection against genocide. Without stern and timely action by the Security Council, the Genocide Convention has been mostly meaningless in deterring this and other gross violations of human rights. It was not until the creation of two tribu[1088]

nals—the International Criminal Tribunals for the Former Yugoslavia in May 1993, and the International Criminal Tribunal For Rwanda in November 1994— that redress was provided for the crime of genocide. These represent the first legal mechanisms created to punish the crime of genocide. In July 1998, the international legal venue for the punishment of such crimes, promised by the 1948 Genocide Convention, was finally created, with the UN adoption of the Rome Statute and the formation of the International Criminal Court. Peacekeeping During the cold war, the UN was unable to do the job for which it was created and international co-operation proved to be a difficult goal to attain. During these years, a more modest and realistic role for the UN was devised. As a neutral organization, it could help mediate conflict, monitor ceasefires, and aid in the separation of hostile armed forces. Two novel missions were undertaken through the Security Council at this time. In 1947 a mission of unarmed military observers—the UN Truce Supervision Organization (UNTSO)—was created, first used in the Balkans and then in Palestine. In 1956 an armed peacekeeping force was established in the Sinai to monitor a buffer zone between Egypt and Israel. Both these missions continue today. Over the years there have been a total of fifty-two peacekeeping missions. UN peacekeepers rely on minimal force to defuse tension and prevent fighting. The soldiers for UN missions are provided by member governments, who loan troops from their national armies. With the effective use of the peacekeeping forces, the UN has contributed to the containment or resolution of conflicts. The achievements of UN peacekeeping were recognized in 1988 with a Nobel Peace Prize. A New World Order It was widely accepted during the cold war that the unilateral use of force to save victims of gross human rights abuses was a violation of the UN Charter, which restricted the right to use force on the part of individual states to purposes of self-defense. The Security Council is empowered under Chapter VII of the UN Charter to authorize the use of force to maintain international peace and security. However, there has always been controversy about how far this allows the council to authorize intervention to stop gross human rights violations that occur inside state borders. To enforce the global humanitarian norms that evolved in the wake of the Holocaust challenges, however, the Security Council must confront a very strongly held principle—that of non-intervention in the domestic affairs of states. In 1990, with the end of the cold war, it suddenly seemed possible to aspire to the creation of a New


United Nations Security Council

World Order—an international community based on the rule of law and collective security. At the first summit meeting of the Security Council in January 1992, the UN was given ambitious new goals of nation building and peacemaking. It was a hope that the close of the twentieth century would witness the civilized evolution of the global community and the gradual eradication of endless, regional bloodletting throughout the world. As cold war tensions eased, there was enhanced cooperation in the Security Council. Opportunities were provided to resolve long-standing conflicts, but the end of the cold war also saw new conflicts erupt into violence, many couched in nationalist terms, with hostilities based on ethnic, religious, cultural, and linguistic differences. Responding to this new world disorder the Council turned to the UN Security Council’s peacekeeping force, which grew rapidly in size and scope. The complexity of the situations facing the peacekeepers increased, as well. The end of the cold war led to the hope that the UN could move beyond peacekeeping and into peace enforcement. Unfortunately, the financial, organizational, and operational resources that such a change required were never provided by the Security Council or other UN members. The demand for peacekeeping outstripped the supply of troops and political will. There was a failure by member nations to recognize that the UN could only do as much or as little as its members were willing to agree and pay for. The last decade of the twentieth century saw a series of tragedies, in Rwanda, Somalia, Liberia, and the former Yugoslavia. Crimes against humanity were committed and documented, including genocide, mass killings, and massive refugee flows. Civilians in these countries were the main targets of armies and militia. The UN missions sent to cope with these disasters were as much engaged in nation building as in performing their military function, and they required civilian experts and relief specialists to work in parallel with soldiers. In Mozambique and El Salvador, the UN peacekeeping missions helped to demobilize combatants, destroy weapons, coordinate massive humanitarian assistance programs, and monitor human rights. Missions in Haiti, Somalia, and Cambodia were tasked with rebuilding state infrastructures, creating or reinstating judicial systems and organizing and observing elections. In these years, maintaining neutrality proved difficult. Many UN peacekeepers had to confront situations in which civilians were victimized, or when they themselves were attacked or killed. Where governmental authority broke down, there was a limit to the effectiveness of UN actions.

Security Council Resolution 688 In 1991 the debate in the Security Council focused on the question of whether the Council could legitimately address humanitarian concerns raised by Iraq’s repression of the Kurdish people without violating the ban on UN Charter’s ban on intervention in the domestic jurisdiction of sovereign states. At first, the Western nations argued that force was not an option. Soon, however, a flood of press coverage showed the suffering of the people of northern Iraq who had been forced to flee into the mountains and were now dying from hypothermia, exhaustion, and disease. These images went a long way to reverse the noninterventionist policy. On April 5, 1991, Security Council Resolution 688 was passed, authorizing the use of force against Iraq to protect the Kurdish minority from atrocities. In the Council, the United States argued that Iraq’s treatment of its civilian population threatened regional stability. Great Britain and France were the only two countries to argue that the domestic jurisdiction did not apply to human rights because such rights were not essentially domestic. After all, it was argued, the Council had invoked Chapter VII, the enforcement powers of the UN Charter, to enforce a mandatory arms embargo against the apartheid state, South Africa. It should therefore be possible to do so again in this new context. Although Resolution 688 did not authorize military action to enforce human rights, it was only the second time that the Security Council had collectively demanded an improvement the protection of human rights as a contribution to the promotion of international security. (The first time was when the Security Council imposed a mandatory embargo on apartheid South Africa.) Resolution 688 enumerated the consequences of Iraq’s repression as a threat to international security, and is believed to provide a justification for military action aimed at enforcing human rights for Iraq’s Kurds. This argument was later deemed flimsy, but the Western powers that relied upon it as legal cover for taking military action nonetheless used it to publicly justified their intervention in humanitarian terms. The operation to save the Kurds in northern Iraq in 1991 depended upon meeting three objectives. First, humanitarian aid had to be brought to the refugees who were dying on the mountains. Second, the people had to be rescued and provided with safe haven. Third, a secure political environment had to be created in order for the Kurds to return to their homes. There is no doubt that thousands of people were saved by the intervention of Western-led forces, but the underlying political reasons for the distress of the Kurds remained to be addressed. It had been the Iraqi government’s op-



United Nations Security Council

pression of the Kurds that had caused the humanitarian crisis, and that government did not restrict its oppression to the Kurds. Western humanitarian intervention in northern Iraq did nothing to assist the equally persecuted Shi’ite people in the south of the country. The intervention on behalf of Iraq’s Kurds was, nonetheless, an example of the reconfigured role adopted by the UN Security Council of the post–cold war era. In the latter part of the twentieth century, the Security Council played a decisive role in legitimizing the threat or use of force in defense of humanitarian values. How much of a change in international behavior could be attributed to the Security Council’s new stance is still debated. Somalia In the case of Somalia, the Security Council broke new ground by authorizing armed intervention on humanitarian grounds. Council Resolution 794, which authorized U.S. intervention in Somalia in December 1992, suggested that humanitarian intervention was securing a significant status in a new world order. The intervention was given milestone status, because it seemed as though Western armies would now be used for greater protective effect throughout the world. It was the first time that the UN Security Council invoked the enforcement powers of the UN Charter against sovereign government without seeking that government’s consent and for a purely humanitarian reason. Somalia would also mark a turning point of a different sort, however, for it was a military failure that reduced the UN peacekeeping force to chaos. In 1991 Somalia had been gripped by famine due to the collapse of the state, a civil war, and the failure of humanitarian agencies to supply assistance. Within a year, there were hundreds of thousands of people dying of malnutrition. A humanitarian disaster of catastrophic proportions developed. On December 3, 1992, the UN Security Council passed Resolution 794 to allow the U.S. military to enter Somalia to protect the food and medical supplies that were being shipped to the starving but were being looted by armed gangs. The resolution determined that the humanitarian crisis in Somalia was a threat to international peace and security, but what was most extraordinary was that it permitted intervention even though the sovereign power (the Somalian government) was incapable of giving its consent, having collapsed with the onset of the civil war. In March 1993 the U.S. operation was transferred to the UN, and the mission immediately became more ambitious. Now the goal was to restore law and order and compel the Somali militia to disarm. UN Security Council Resolution 814, another landmark document, [1090]

gave the UN troops a mandate to restore law and order. The new mission, called the United Nations Operation in Somalia (UNOSOM II) got under way, but by this time the security situation in Somalia had deteriorated badly. Warlords vied for power, particularly around the capital city of Mogadishu, and they tested the Security Council’s resolve. It was in Mogadishu that the pitfalls of combining force with peacekeeping were tragically exposed. In June 1993, twenty-three Pakistani peacekeepers were murdered by rampaging mobs while trying to inspect weapons that were under UN supervision. After that, the Security Council passed Resolution, 837, mandating its troops to arrest the warlord deemed responsible for the murders. Meanwhile, elite U.S. forces also mounted a series of raids in an effort to capture the warlord, and an untold number of Somalians were killed in consequence of these raids. Although these U.S. operations were outside the command and control of the UN Security Council, the UN was widely blamed for the violence. There were objections from other troop-contributing countries about the United States’ insistence on working outside the control of UN mission’s command and control structure. On October 3, 1993, a total of eighteen U.S. servicemen lost their lives in a badly bungled arrest attempt. To the jubilation of the Somalian warlords, the United States immediately announced that it was pulling out its troops and urged all western nations to do likewise. The Security Council commissioned a report on what had happened in Somalia. It recommended that the UN return to peacekeeping, to the principles of consent, neutrality, and impartiality. The report recommended that the UN should never again try to mount an enforcement action. Another result of failure in Somalia was quickly evident in Washington, D.C., where both the U.S. administration and Congress evinced a sudden and dramatic reduction in support for UN endeavors. It was an ignominious end to the United Nation’s first attempt at rebuilding a failed state, resulting in a dramatic loss of UN credibility and prestige. Bosnia The question of humanitarian intervention in former Yugoslavia was another Security Council preoccupation during the 1990s. In spring 1992 Serbia, having laid waste to parts of Croatia, turned its attention to Bosnia and Herzegovina. Witnesses provided graphic, indisputable evidence of the ethnic cleansing of whole regions, the demolition of entire villages and murder of their inhabitants, the bombardment of civilian populations, and the creation of camps where thousands of men were starved and tortured and women were systematically raped.


United Nations Security Council

The Council passed numerous resolutions condemning Serb aggression and authorizing the use of “all necessary measures” to halt it. However, none of the UN member nations were willing to provide the means to enforce the measures, so the resolutions remained moribund. The UN Protection Force, (UNPROFOR), as a strictly peacekeeping mission, provided armed escorts for relief convoys, but there was a general failure to defend and demilitarize the UN-established “safehavens,” for which an estimated thirty thousand peacekeeping troops were considered necessary. The failure of states to volunteer adequate numbers of troops led to these supposedly safe areas being over run. UN peacekeepers were forced to stand by as helpless observers of the massacres in Bosnia. International respect for the United Nations as a credible presence sank to the lowest point in its history. The UN mission for former Yugoslavia, the largest and most expensive in UN history, turned out to be barely capable of protecting itself. In 1995, the North Atlantic Treaty Organization (NATO), with authorization from the Security Council, initiated widespread air strikes against the Bosnian Serbs. Some observers believe that this action persuaded Slobodan Milosevic, then President of the rump Yugoslavian state, to enter peace negotiations. The NATO action was the first time a group of states justified force against another on humanitarian grounds without an explicit Security Council resolution to provide legitimacy for the action. The success of the 1995 NATO air strikes led some nations to believe that the threat and use of bombing could achieve quick results. This meant that in March 1999, when evidence of Serbian ethnic cleansing in Kosovo led to a new intervention by Western states. The Western states were not prepared to bear the burden of potentially negative public opinion should there be troops casualties, which would be inevitable in a ground-based war. Through a combination of bombing and the threat of a ground force, Milosevic was forced to accede to demands that Kosovar refugees be allowed to return to their homes and for a UN civil administration to help build a multiethnic society based on the rule of law. Rwanda The genocide in Rwanda in 1994 is one of the most blatant examples of the ineffectiveness of the Genocide Convention. The genocide began in April 1994, when the war in Bosnia and Herzegovina had been under way for more than two years, and little had been done by the UN Security Council to stop it. The lack of action in Bosnia and Herzegovina is thought to have encour-

aged the Rwandan perpetrators that they could act with impunity. For three months, between April and July 1994, genocide was central to the task of Hutu rebels who had seized power and claimed to constitute an interim government. Up to one million people were killed. The genocide in Rwanda was a planned political campaign that made effective use of racist propaganda to incite hatred and violence against a minority. The widespread participation in genocide and the brutality of the killings have no parallels in modern history. Making the situation worse was the brazenness of the perpetrators, who made no attempt to conceal what was happening. The killings took place in broad daylight, in full view of the international media. There was ample evidence of the extensive preparation and planning for the genocide went on for months in advance of the first killings. Nonetheless, the UN Security Council did not make any move to implement the Genocide Convention, either to prevent its occurrence or to stop it once it began. This raises the fundamental question: Why? In October 1993, the UN Security Council decided to create the UN Assistance Mission for Rwanda (UNAMIR), comprising a small force of peacekeepers. The UNAMIR force was duly shipped to Rwanda, and was kept there even as the environment grew increasingly hostile. The mission had a weak mandate and minimal force capacity. Some have argued that this feeble effort actually encouraged the Hutu genocide conspirators, signaling they could continue with their plans without fear of intervention. The failed Somalia intervention was still fresh in the Security Council’s memory. When it came to Rwanda, the most important consideration was to devise a mission that was as small and as cheap as possible and that would avoid any effort at peace enforcement, even after the genocidal killings were ended. In order to comply with these considerations the Council altered the terms of Rwanda’s peace agreement. Under the terms of the agreement, a neutral force was to ensure security throughout Rwanda but the Security Council decided instead that the peacekeepers should only assist in ensuring the security of the capital city of Kigali. Although the original peace accords called for peacekeepers to confiscate arms and neutralize the armed gangs throughout the country, the UN Security Council refused. There would be no “peace enforcement” and no “mission creep,” whereby increasingly difficult mandates might be given to the UN mission. Instead, the UN Security Council devised a peacekeeping mission that was extremely limited in its



United Nations Security Council

engagement within Rwanda. No attention seems to have been focussed on Rwanda’s serious human rights abuses, even though they had been clearly outlined in the publication of two landmark human rights reports to the UN Commission on Human Rights. The author of one of these reports, Bacre Waly Ndiaye, was the Special Rapporteur for the Commission on Human Rights for Extrajudicial Summary, or Arbitrary Executions. He provided evidence that, in Rwanda, the Hutu political leadership was desperate to cling to power and was fueling ethnic hatred with a well-orchestrated propaganda campaign. The massacre of Rwanda’s Tutsis was intentional and well organized. Ndiaye recommended that the militia should be disbanded, the distribution of arms should cease, and anti-Tutsi propaganda silenced. There could be no impunity for the killers. Finally, Ndiaye called for communal policing and immediate and effective measures to protect civilians at risk. In spite of this report, the ten nonpermanent members of the Security Council insisted on viewing the Rwanda debacle as a small civil war. From the very beginning of the Rwanda disaster, in December 1993, it was clear that the UNAMIR mission confronted enormous problems. In the weeks immediately preceding the genocide, it received detailed information about militia training, arms dumps, political murders, hate propaganda, and death lists. The rising level of ethnic extremism in Rwanda was also of great concern to the Belgian government, which provided the troops for the Rwanda mission. In February 1994 the Belgian ambassador to the UN, Paul Noterdaeme, attempted to warn everyone that the peacekeepers of UNAMIR were in grave danger and in need of immediate reinforcements and a stronger mandate—no one listened. When the genocide began, two permanent Security Council member states—the United States and the United Kingdom—insisted on referring to the Rwandan violence as a civil war, and focused Security Council discussion on obtaining a ceasefire. In the first weeks of genocide, no one paid attention to civilian mass killings, even though the massacres were taking place nowhere near the actual fighting. Another permanent member of the Security Council, France, was intimate with the affairs of Rwanda, but kept silent about the realities of what was happening, even during council meetings. Some of the non-permanent members of the council, notably New Zealand, Spain, Nigeria, and the Czech Republic tried to convince the United States and the Great Britain to pay attention to the daily murder of thousands upon thousands of civilians. However, none of the permanent members were willing to discuss sta[1092]

bilizing, reinforcing, or even re-supplying the UNAMIR peacekeepers, who were still trying to carry out rescue missions in Kigali. At the end of April 1994, the United States, Great Britain, and France refused to publish a Presidential Statement, drafted on the initiative of New Zealand Ambassador Colin Keating, that officially acknowledged the genocide that was now in full swing in Rwanda. The Force Commander of UNAMIR, MajorGeneral Dallaire, was later openly critical of the permanent member states in the Security Council who had the means to help, but refused. He bemoaned the lack of political will in Great Britain, and the United States that permitted the spread of the genocide and the slaughter of thousands of people trapped inside schools, churches, and clinics. SEE ALSO Convention on the Prevention and

Punishment of Genocide; Humanitarian Intervention; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; Peacekeeping; Rwanda; United Nations; United Nations Commission on Human Rights; United Nations General Assembly BIBLIOGRAPHY

Bellamy, Alex J., Paul Williams, and Stuart Griffin (2004). Understanding Peacekeeping. Cambridge, U.K.: Polity Press. Carnegie Commission on Preventing Deadly Conflict (1997). Preventing Deadly Conflict: Final Report. Washington, D.C.: Carnegie Commission on Preventing Deadly Conflict. Dallaire, Romeo A. (1996). “The Changing Role of UN Peacekeeping Forces: The Relationship between UN Peacekeepers and NGOs in Rwanda.” In After Rwanda: The Co-Ordination of United Nations Humanitarian Assistance, ed. Jim Whitman and David Pocock. London: Macmillan Press. Durch, William, ed. (1996). UN Peacekeeping, American Politics, and the Uncivil Wars of the 1990s. New York: St. Martin’s Press. Fein, Helen (1993). “Accounting for Genocide after 1945: Theories and Some Findings.” International Journal on Group Rights 1:79–106. Joint Evaluation of Emergency Assistance to Rwanda (1996). The International Response to Conflict and Genocide: Lessons from the Rwanda Experience: Synthesis Report. Copenhagen: DANIDA. Prunier, Gérard. (1995). The Rwandan Crisis: History of a Genocide. New York: Columbia University Press. Wheeler, Nicholas J. (2000). Saving Strangers: Humanitarian Intervention in International Society. Oxford: Oxford University Press. Linda Melvern


United Nations Sub-Commission on Human Rights

United Nations SubCommission on Human Rights The United Nations Sub-Commission on the Promotion and Protection of Human Rights was created by the Economic and Social Council (ECOSOC) in 1947 as the main expert body to advise the Commission on Human Rights. It has become a permanent advisory body for the Commission on all human rights issues, better described as a scientific advisory body or “think tank” for the Commission. In contrast to the Commission, which is comprised of state representatives, the Sub-Commission consists of twenty-six independent experts. Its annual three-week sessions in Geneva are attended by its members and alternates, government observers, United Nations bodies and specialized agencies, other intergovernmental organizations, and nongovernmental organizations in consultative status with the Economic and Social Council. Indeed, the SubCommission has become an important link between intergovernmental institutions and the public through representation by nongovernmental organizations. Consequently, its relations with its parent bodies have not always been harmonious. The Sub-Commission has achieved many notable results, including the elaboration of draft conventions, declarations, and general principles on subjects as diverse as racial discrimination, the death penalty, the rights of indigenous peoples, the rights of minorities, the independence of the judiciary, and the human rights responsibilities of transnational corporations. Its in-depth studies have resulted in the creation of new special rapporteurs and working groups of the Commission on Human Rights addressing topics such as the independence of the judiciary, freedom of opinion, arbitrary detention, religious intolerance, toxic waste, the right to food, the right to adequate housing, human rights, and terrorism. Its debates, resolutions, and studies dealing with the issue of genocide have served to refine the definition and understanding of genocide contained in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, to review the historical development and legal implications of the convention’s provisions, to apply its template to various historical events, and to recommend ways in which the international community can improve its response to genocide. The original functions of the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities (as it was known from 1947 to 1999) were to undertake studies, particularly in the light of the Universal Declaration of Human Rights, and to make recommendations to the larger Commission on Human

Rights concerning the prevention of discrimination of any kind relating to human rights and fundamental freedoms and the protection of racial, national, religious and linguistic minorities. In addition, the SubCommission was charged with the duty to perform any other functions, which may be entrusted to it by the council or the Commission. The Sub-Commission’s mandate and activities have substantially evolved over the last half century to include considering specific questions in public and private, examining petitions from alleged victims and NGOs, sending communications to governments, and adopting resolutions on particular situations. Consideration of Country Situations When the Commission on Human Rights requested in 1966 to be empowered by the Economic and Social Council to make recommendations about specific human rights violations brought to its attention, ECOSOC Resolution 1235 (XLII) of 1967 was adopted authorizing both the Commission and the SubCommission “to examine information relevant to gross violations of human rights and fundamental freedoms.” Three years later, ECOSOC Resolution 1503 (XLVII) provided for a confidential procedure to handle communications revealing a consistent pattern of gross and reliably attested violations of human rights. In practice, Resolution 1235 has served as the basis for annual public debate in the Commission and SubCommission on human rights violations in various countries. Allegations ranging from disappearances to torture to genocide have been discussed during these debates, on the basis of which both the Commission and Sub-Commission began the practice of adopting resolutions expressing concern about the situation in specific countries. Through resolutions and the SubCommission chairman’s statements, as well as the strategic withdrawal of draft resolutions on certain conditions, the Sub-Commission has been able to achieve dialogue with governments and furthered the adoption of measures to improve human rights. Further, the SubCommission has played an important role regarding countries not dealt with by the Commission by originating resolutions and initiatives that were later adopted by the Commission. Several of the Sub-Commission’s resolutions have called attention to situations involving genocide. With regard to the former Yuglosavia, the Sub-Commission noted in Resolution 1993/17 that the “abhorrent policy of ethnic cleansing was a form of genocide.” Its resolution on the same subject one year later went further, declaring that the Sub-Commission was appalled by the acts of genocide carried out by the rebel Pale Serbs in Bosnia and Herzegovina,



United Nations Sub-Commission on Human Rights

including the evidence indicating that large-scale massacres of the Muslim population have taken place after the occupation of the safe areas of Zepa and Srebrenica.

courts. The Sub-Commission expressed further concern that “persons responsible for acts of genocide were infiltrating Rwanda with the purpose of eliminating the witnesses of the genocide.”

The resolution emphasized that any peace plan should not contain provision for impunity for acts of genocide, ethnic cleansing, or other serious war crimes. In a 1995 resolution expressing solidarity with the special rapporteur on the former Yugoslavia for his decision to resign from his position following the Srebrenica massacres, the Sub-Commission noted, “a veritable genocide is being committed massively and in a systematic manner against the civilian population in Bosnia and Herzegovina, often in the presence of United Nations forces.”

With regard to the situation in Burundi, the SubCommission adopted Resolution 1996/4 drawing attention to the findings of the special rapporteur on the situation of human rights in Burundi regarding “genocide by attrition.” Further, it appealed to the Burundian authorities to spare no effort in “banishing the specter of genocide.” It called upon them or the authorities to create mutual trust among ethnic groups, encourage peaceful coexistence, and return quickly to the rule of law.

With regard to the situation in Rwanda, a SubCommission resolution of August 1994 expressed deep concern “at the convincing and appalling evidence of the genocide resulting from the massacres of the Tutsis, the political assassinations of the Hutus and the various attacks on human rights in Rwanda.” It further deplored the tardy and insufficiently effective intervention of the international community (including the UN and the OAU), making it impossible to prevent the genocide. It recommended effective follow-up to the report of the special rapporteur on the situation of human rights in Rwanda, giving an account of political assassinations and genocide. At the same session, the Sub-Commission adopted a thematic resolution on the strengthening and punishment of the crime of genocide, in which it claimed that the atrocities being committed in Rwanda and the former Yugoslavia highlighted the deficiencies of the Genocide Convention. It recommended improving the convention by adding a clause concerning universal jurisdiction and considering extending its application to political genocide. Again in 1995, the Sub-Commission expressed concern at the “convincing and appalling evidence of the genocide resulting from the massacres of the Tutsis, the political assassinations of the Hutus and the various attacks on human rights in Rwanda.” That same year, the Sub-Commission adopted a resolution on the prevention of incitement to hatred and genocide, particularly by the media. This resolution referred to the situations in Rwanda, the former Yugoslavia, Zaire, and Burundi, categorically condemning the role played with increasing frequency by printed or audiovisual media in inciting genocidal hatred. Finally, the SubCommission’s 1996 resolution on Rwanda noted with dismay that more than two years after genocide on an enormous scale, no judgment condemning those guilty had been delivered either by the International Criminal Tribunal for Rwanda (ICTR) or by national or foreign [1094]

Although it held discussions on the situation in Cambodia, the Sub-Commission was unable to pass a resolution on the country. In 1991 the SubCommission considered and dropped from its agenda a draft resolution that referred to “the atrocities reaching the level of genocide committed in particular during the period of Khmer Rouge rule.” In 1978 the governments of Canada, Norway, and the U.K. had submitted statements concerning the continuation of violations of human rights in Democratic Kampuchea, along with voluminous evidence containing the factual basis for a charge of genocide. Democratic Kampuchea rejected the Sub-Commission’s decision to appoint a member to analyze the materials submitted “as an impudent interference in internal affairs” and denied all allegations in the years hence. Indeed, it was the political sensitivities inherent in country resolutions that gradually eroded the SubCommission’s role in condemning human rights violations in particular countries. In 1990, to protect the independence of its members, the Sub-Commission introduced secret voting on any resolution relating to an individual country. In 1999 the Commission on Human Rights decided through its inter-sessional Working Group on Enhancing the Effectiveness of the Commission on Human Rights that the SubCommission should not make any pronouncements on the human rights situation in any country already under consideration by the Commission (it also reduced its session time from four to three weeks). Most drastically of all, in its decision 2000/109, the Commission withdrew the Sub-Commission’s right to adopt country-specific resolutions or even to refer to countryspecific situations in thematic resolutions. Three years later, in Resolution 2003/59, the Commission prohibited the Sub-Commission chairpersons from issuing country-specific statements. Nongovernmental organizations (NGOs) have been highly critical of this fundamental role change.


United Nations Sub-Commission on Human Rights

Despite the fact that the Sub-Commission may still consider country situations during its debates, NGOs point to a decline in the quality and quantity of such debates and poor or nonexistent reporting. For example, revisiting the issue of the Rwandan genocide at its 2002 session, Sub-Commission member El-Hadji Guissé criticized the UN for failing to intervene during the genocide and suggested it might have done otherwise had the victims been of another race. Nothing further was stated for the record and no action was taken. Such scant consideration of an issue that had received considerable attention in earlier sessions would seem to support the contention coming from within the SubCommission itself that the experts increasingly saw little point in addressing the protection of human rights in individual countries. Confidential Procedure The 1503 (Confidential) Procedure arose out of the Economic and Social Council Resolution 1503 (XLVIII) of 1970. It authorized the Commission on Human Rights to establish a process for the examination of communications (a UN euphemism for complaints) pertaining to “situations which appear to reveal a consistent pattern of gross and reliably attested violations of human rights requiring consideration by the Commission.” It constitutes the oldest human rights complaint mechanism in the United Nations. NGOs and others hailed its establishment as a significant success because it opened up new ways for complaints to receive a formal examination, even when they involved states that had not ratified the relevant human rights treaties. Previous to the adoption of this procedure, the Commission had employed communications only as a means of identifying general trends, without responding to the violations at issue. The resolution, and the confidential procedure it established, originated in the dramatic change in the composition of the major UN organs that had occurred by the mid-1960s. This was a time when the many newly independent African and Asian states gained membership in the UN, and total membership of the Commission on Human Rights went from 18 in 1960 to 21 in 1967. Developing countries were eager to press for additional means by which to pursue the struggle against racist and colonialist policies. The Confidential Procedure involves a process by which complaints are examined in order to identify the existence of a consistent pattern of gross violations of human rights. First, the Sub-Commission would undertake a review of thousands of complaints received by the United Nations Secretariat. (After the year 2000, a Working Group on Communications, rather than the

entire Sub-Commission, was tasked with this responsibility.) Those cases considered that appeared to indicate “a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms” are passed along to the Commission on Human Rights. A separate Working Group on Situations would then undertake a pre-examination of the evidence and, finally, the full Commission would meet in private session to discuss each situation. Resolution 2000/3 provided the Commission with a repertoire of responses to these situations, including appointing an independent expert to make direct contacts with the government and the people concerned, keeping the case under consideration, transferring the case to the public procedures, or dismissing the situation. Perhaps the most effective of these, in terms of applying pressure on states against which complaints have been lodged, is the possibility that the situation will be transferred to a public procedure. When the Commission returns to public session, the chairperson announces the list of countries that have been examined under the 1503 process, the violations at issue, and any action taken to date. More than 80 states have been examined by the Commission under the 1503 Procedure since 1972. The majority of these countries were responsible for a large number of human rights violations, including torture, arbitrary detention, summary or arbitrary executions, and disappearances. The 1503 procedure has never been formally employed to deal with specific allegations of genocide. On the other hand, complaints against several countries have alleged situations of gross violations of human rights that might have amounted to genocide. These include Rwanda (considered from 1993 to 1995), Burundi (considered from 1974 to 1975) and Cambodia (considered in 1979). The 1503 Confidential Procedure has been criticized for its secrecy, slowness, complexity, and vulnerability to political influence. Reform was initiated in July 2000 by ECOSOC Resolution 2000/3 to streamline the process, but the procedure’s importance has nevertheless diminished, due to the rapid development over the years of the public procedures and the system of individual complaints before treaty bodies. At the same time, the procedure provides a useful, incremental technique for placing increasing pressure on offending governments, while encouraging them to engage in a constructive exchange of views to improve the situation. At the minimum, the 1503 procedure affords a mechanism for complaints to be received through official UN channels and for governments to respond.



United Nations Sub-Commission on Human Rights

Studies The loss of its ability to respond to human rights violations within particular countries has increased the relative importance of the Sub-Commission’s studies program, which was established in 1952. Studies are indepth reports on particular human rights issues carried out by Sub-Commission members who are designated as special rapporteurs for the preparation of a report on a particular issue. Upon completion, studies are submitted to the Sub-Commission for discussion. The level of interest in any given report varies; the experts may take a keen interest, or they may make only general, noncommittal remarks. Unless the Sub-Commission members have significant concerns about the report, it will usually be submitted to the Commission for broad dissemination. With the proliferation of studies over the years, the Sub-Commission established criteria in 1997 for selecting new subjects for study. It determined that priority should be given to subjects for study recommended by the Commission on Human Rights. After these, priority should be given to subjects suggested by the working groups of the Sub-Commission. Special attention should be given to subjects proposed by treaty bodies, and economic, social, and cultural rights should be considered as a priority area in the selection of new studies. Finally, the Sub-Commission determined that proposals for isolated studies that lacked the necessary background and framework should be discouraged. The Sub-Commission has made key contributions to the definition and understanding of genocide through its studies. The two most notable in this regard are those of Nicomède Ruhashyankiko and Benjamin Whitaker, both entitled “Study on the Question of the Prevention and Punishment of the Crime of Genocide.” The Ruhashyankiko report originated in a 1967 decision of the Sub-Commission to undertake a study of the question. Ruhashyankiko was a member of the SubCommission and a Rwandan national. He presented a preliminary report and three progress reports to the Sub-Commission before the presentation of his final study in 1978. The Ruhashyankiko study was largely devoted to a history of the adoption of various articles of the 1948 Genocide Convention and an examination of controversies concerning the interpretation, value, and scope of those provisions. The report concluded that the 1948 convention should only be considered a “point of departure” in the adoption of effective international measures to prevent and punish genocide; but argued against interpreting the convention in broader terms than those envisaged by the signatories. According to Ruhashyankiko, it was preferable to adhere to the con[1096]

vention’s spirit and letter, and then prepare new instruments whenever appropriate. The report acknowledged that a number of allegations of genocide had been made since the adoption of the convention, but noted that these allegations were not promptly investigated by an impartial body, making it impossible to determine whether they were well-founded. Ruhashyankiko recommended the establishment of an ad hoc committee to inquire into all allegations of genocide brought to the attention of the Commission on Human Rights. He also recommended that serious consideration be given to the establishment of an international criminal court to try allegations of genocide. Ruhashyankiko’s report was generally wellreceived, although some argued with the exception of his omission of the Armenian massacres that occurred in the Ottoman Empire from 1915 to 1918. While reference to the Armenian genocide had been included in the preliminary study, Ruhashyankiko removed it from the final report. This deletion prompted impassioned critiques by Sub-Commission members and by NGOs who felt that the event deserved mention. They cited the significant size of the genocide, its comparatively recent occurrence, the ample documentary evidence establishing its existence (including a predetermined plan to exterminate the Armenian nation), the disturbing growth of movements challenging the veracity of the Holocaust, the need to analyze causation in past cases to contribute to future prevention, and perhaps most importantly, the overall moral obligation of the United Nations to adhere to historical truth and objectivity. In an attempt to address the political pressures that influenced Ruhashyankiko’s decision to delete the reference, several members drew attention to the fact that the international law of state succession absolved the modern Republic of Turkey of responsibility for crimes committed by the Ottoman Empire. This did not prevent the observer from the Turkish government from taking the floor on several occasions to strongly deny the occurrence of the Armenian genocide. Partially in an attempt to resolve this issue, the Sub-Commission and the Economic and Social Council requested a revision and updating of the Ruhashyankiko report. Benjamin Whitaker was appointed to undertake this task. During the Sub-Commission’s discussions of the scope of the report, Whitaker observed that the first study was excellent, but there were “some omissions due to political pressure exerted on the Special Rapporteur who had prepared it . . . [that] resulted in the flagrant omission of the genocide of the Armenians.” According to Whitaker, “rectifying such omissions was a matter of integrity and independence for the Sub-Commission.”


United Nations Sub-Commission on Human Rights

Whitaker’s final report cited nine instances of genocide in the twentieth century, including the Ottoman massacre of Armenians, that he claimed resulted in the killing or death-marching of “at least one million, and possibly well over half the Armenian population.” The Turkish government intervened to advocate deletion of the mention of genocide. These debates resulted in a resolution that simply took note of Whitaker’s report, but stopped short of endorsing it. Another important study with regard to genocide was prepared in 1998 by Gay J. McDougall, entitled “Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict.” Commissioned in response to revelations concerning the more than 200,000 women enslaved by the Japanese military in so-called comfort stations during World War II, the report was cited by the International Criminal Tribunal for the former Yugoslavia (ICTY) as an authoritative statement of international criminal law in a landmark sexual violence case involving the detention, torture, and killing of civilians in a prison camp in Bosnia and Herzegovina. McDougall’s study provided a description of the legal framework for crimes against humanity, slavery, genocide, torture, and war crimes, and it outlined individual criminal liability for both perpetrators and those complicit in such crimes. It called for an effective response to sexual violence committed during armed conflict; emphasized that rape and other forms of sexual abuse are crimes of violence which may constitute slavery, crimes against humanity, genocide, grave breaches of the Geneva Conventions, war crimes, and torture; and reinforced the existing legal framework for the prosecution of these crimes, with a view to achieving a more consistent and gender-responsive application of human rights and humanitarian and international criminal law. The report concluded that systematic rape, sexual slavery and slavery-like practices during armed conflict constitute violations of human rights, and of humanitarian and international criminal law, and as such must be properly documented, the perpetrators brought to justice, and the victims provided with full criminal and civil redress. McDougall claimed that even in the absence of armed conflict, sexual slavery and other forms of sexual violence, including rape, may be prosecuted under existing legal norms as slavery, crimes against humanity, genocide, or torture. While women per se are not listed as a protected group under the Genocide Convention, the report argued that targeting a protected group “through attacks against its female members is sufficient to establish the crime of genocide.” McDougall further contended that the prosecution need not establish intent

to destroy the entire group on a national or an international basis, but “the intent to destroy a substantial portion or an important subsection of a protected group or the existence of a protected group within a limited region of a country is sufficient grounds for prosecution for genocide.” This report received important endorsement and follow-up by both the Sub-Commission and the Commission. In Decision 1999/105, the Commission on Human Rights approved the request of the SubCommission to extend the mandate of the special rapporteur for a year, to enable her to submit an update on developments to the next Sub-Commission session. Her updated report considered developments and actions at the international and national levels to end the cycle of impunity for sexual violence committed during armed conflict. The Sub-Commission also asked the High Commissioner for Human Rights to prepare a report on the subject, which built upon McDougall’s conclusions and recommendations. High Commissioner Mary Robinson’s report noted not only that the statutes of the international criminal tribunals restated the definition of genocide found in the 1948 convention, but that genocide had been interpreted and developed in international case law—including ICTR’s first judicial interpretation of the Genocide Convention in the Akayesu case, where the trial chamber adopted a broad interpretation of genocide, including rape and sexual violence when committed with the intent to destroy, in whole or in part, a protected group. Following the first McDougall report, the SubCommission began the annual adoption of resolutions on systematic rape, sexual slavery, and slavery-like practices. In Resolution 2003/26, the Sub-Commission underlined as significant the latest verdicts of the ICTY, the ICTR, and the Special Court for Sierra Leone, which acknowledged that rape and sexual enslavement are crimes against humanity. It also noted with approval the Rome Statute of the International Criminal Court’s special recognition that sexual violence and sexual slavery committed in the context of either an internal or an international armed conflict may constitute crimes against humanity, war crimes, and genocide, thus falling within the jurisdiction of the Court. Another issue with clear relevance to genocide that became the subject of a Sub-Commission study is that of population transfers. The first report on the human rights dimensions of population transfer, including the implantation of settlers and settlements, was submitted in 1993 by Awn Shawkat Al-Khasawneh and Ribot Hatano. It found that population transfer is, prima facie, unlawful and violates a number of rights affirmed in human rights and humanitarian law for both trans-



United Nations Sub-Commission on Human Rights

ferred and receiving populations. In Resolution 1993/ 34, the Sub-Commission endorsed the conclusions and recommendations of the preliminary report and requested Al-Khasawneh to continue the study on the human rights dimensions of population transfer and to submit a progress report on the question to next SubCommission session. It also recommended that a multidisciplinary expert seminar provide input for the final report. Al-Khasawneh’s final report, submitted in 1997, recommended that the Sub-Commission consider the possibility of preparing an international instrument to codify international standards regarding population transfer and the implantation of settlers. Such an instrument would expressly reaffirm the unlawfulness of population transfer and the implantation of settlers and define national responsibility in the matter of unlawful population transfer, including the implantation of settlers. It would also establish the criminal responsibility of individuals involved in population transfer, whether such individuals be private or officials of the state and provide a means for adjudicating claims presented by the individuals or populations involved. The report also recommended that the Commission on Human Rights adopt an instrument that embodied the principles of international law recognized by states as being applicable to population transfer and the implantation of settlers. To this end, it included in its annex a Draft Declaration on Population Transfer and the Implantation of Settlers. Working Groups Since the 1970s, substantial parts of the SubCommission’s deliberations have focused on the work of its inter- or pre-sessional working groups: the Working Group on Contemporary Forms of Slavery (established in 1974); the Working Group on Indigenous Populations (created in 1982) and the Working Group on Minorities (established in 1995). Composed of five members each, working groups devote their attention to the in-depth analysis of specific issues, the study of cases, and the drafting of new international standards. Working groups have constituted a unique platform for witnesses and victims, since they permit oral and written statements by NGOs who need not have ECOSOC consultative status or be recognized by their respective governments (they need only be directly concerned with the subject at hand). Year after year, the working groups have provided an opportunity to receive and publicly discuss allegations of specific human rights violations. The Sub-Commission also establishes sessional working groups, which meet during its annual sessions [1098]

to consider particular agenda items. Examples include the Working Group on Transnational Corporations, the Working Group on the Administration of Justice, and the Working Group on the Encouragement of Universal Acceptance of Human Rights Instruments. Each working group submits its reports to the SubCommission for consideration. On some questions, the Sub-Commission adopts its own resolutions and decisions. On others, it formulates draft resolutions and decisions for consideration by the Commission on Human Rights and the Economic and Social Council. The Working Group on Indigenous Populations has dealt with the issue of genocide by examining the effectiveness of the standards contained in national, regional, and international instruments in providing adequate protection to indigenous persons. On several occasions, its discussions included alleged genocide or ethnocide in countries such as Guatemala, El Salvador, and Bangladesh. The Permanent Forum on Indigenous Issues, a body created in 2000 to advise the Economic and Social Council, recommended in 2003 that the Working Group on Indigenous Populations “undertake a study on genocidal and ethnocidal practices perpetrated on indigenous peoples, including programs for sterilization of indigenous women and girls, the use of indigenous communities as subjects for nuclear testing or storage of radioactive waste, and the testing of unapproved drugs on indigenous children and peoples.” The Working Group on the Administration of Justice dealt in depth with genocide through a working paper prepared by Louis Joinet on measures to be taken to give full effect to the Convention on the Prevention and Punishment of the Crime of Genocide. Indeed, the events in Rwanda and the former Yugoslavia prompted this working group’s inclusion of an agenda item on genocide. This, in turn, led to Joinet’s paper, which was intended more as a pragmatic study than an update of the Ruhashyankiko or Whitaker studies. Joinet noted that, although the convention was the first such instrument in the history of the United Nations, it had never been implemented. In order to remedy the convention’s deficiencies, he proposed a number of measures. Chief among these was the inclusion of a quantitative criterion in the definition of genocide and the extension of the scope of the convention to cover various categories of genocide. At the criminal level, Joinet believed it was desirable to encourage proposals concerning genocide by omission or by complicity and rejection of the doctrine of owed obedience. He believed that states should be made responsible for instituting a juridical basis and establishing an obligation of compensation. Joinet further recommended that technical assistance be provided to states that had not yet


United Nations Sub-Commission on Human Rights

ratified the convention or had not yet taken the legislative steps necessary for its implementation. Joinet recommended giving priority to measures for encouraging prevention of the crime of genocide. In his view, this could be accomplished by defining two methodological approaches: repressive measures and incentives designed to combat incitement to and provocation of genocide; and the establishment of a working group on prevention of genocide. Such a body would be distinct from any international criminal court and would have both a preventive and a repressive role to play. The purpose would be to facilitate the task of future international jurisdiction. In discussing Joinet’s proposals, some SubCommission members advocated a more cautious approach. They argued that a clear enforcement mechanism already existed within Article 9 of the Genocide Convention, which outlined the compulsory jurisdiction of the International Court of Justice over cases of genocide. They suggested that this mechanism would not necessarily need revising, but an additional protocol to the convention could be used to expand the definition of the crime of genocide. Other members argued that it was necessary to expand the definition of genocide by including in it the concepts of cultural, political, and economic genocide. Although genocide was considered a crime against humanity not subject to prescription, that definition had never been given effect. Joinet countered that making too many changes to improve the convention might hamper progress in combating genocide. The pragmatic approach would be to avoid any reform of the convention and to consider only one or two specific proposals that were based on existing initiatives. Unfortunately, none of the suggestions made by Joinet were taken up by bodies in a position to implement such measures. SEE ALSO Geneva Conventions on the Protection of

Victims of War; Impunity; United Nations; United Nations General Assembly; United Nations Security Council; United Nations War Crimes Commission; Whitaker, Benjamin BIBLIOGRAPHY

Alfredsson, Gudmundur, Jonas Grimheden, Bertrand G. Ramcharan, and Alfred de Zayas, eds. (2001). International Human Rights Monitoring Mechanisms. The Hague: Martinus Hijhoff Publishers. Al-Khasawneh, Awn Shawkat (1997). Human Rights and Population Transfer. Sub-Commission on the Promotion and Protection of Human Rights. UN Docs (E/CN.4/ Sub.2/1993/17 and Corr.1, E/CN.4/Sub.2/1994/18 and Corr. 1, E/CN.4/Sub.2/1997/23; E/CN.4/Sub.2/1997/23.

Alston, Philip, and Henry J. Steiner (2000). International Human Rights in Context: Law, Politics, Morals, Second Edition. Oxford: Oxford University Press. Bossuyt, Marc (1985). “The Development of Special Procedures of the United Nations Commission on Human Rights.” Human Rights Law Journal 6:19–47. Brownlie, Ian, ed. (2002). Basic Documents in International Law, 5th edition New York: Oxford University Press. Eide, Asbjorn (1992). “The Sub-Commission on Prevention of Discrimination and Protection of Minorities.” In The United Nations and Human Rights: A Critical Appraisal, Philip Alston, ed. Oxford: Clarendon Press. Kleine-Ahlbrandt, William Laird (2001). Bitter Prerequisites: A Faculty For Survival From Nazi Terror. W. Lafayette, Ind.: Purdue University Press. McDougall, Gay (1998, 2000). “Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict.” Geneva: UN Sub-Commission on the Promotion and Protection of Human, Rights: Doc. E/ CN.4/Sub.2/1998/13, Doc. E/CN.4/Sub.2/2000/21. Newmann, Frank, and David Weissbrodt (2001). International Human Rights: Law, Policy and Process, Ottawa: Anderson Publishing. Nowack, Manfred (1991). “Country-Oriented Human Rights Protection by the UN Commission on Human Rights and its Sub-Commission.” Netherlands Yearbook of International Law 22:39–90. Nowack, Manfred, ed. (2003). Introduction to the International Human Rights Regime. The Hague: Marinus Nijhoff Publishers. Rodley, Nigel S. (2003). “United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights: Complementarity or Competition?” Human Rights Quarterly, 25, no. 4:882–908. Ruhashyankiko, Nicomède, “Study on the Question of the Prevention and Punishment of the Crime of Genocide.” Sub-Commission on the Promotion and Protection of Human Rights. Doc E/CN.4/Sub.2/416 of 1978. Tolley, Howard (1984). “The Concealed Crack in the Citadel: The United Nations Commission on Human Rights Response to Confidential Communications.” Human Rights Quarterly 6(4):420–462. Tolley, Howard (1987). The UN Commission on Human Rights. Boulder, Colo: Westview Press. Whitaker, Benjamin (1985). “Study on the Question of the Prevention and Punishment of the Crime of Genocide.” Sub-Commission on the Promotion and Protection of Human Rights: Doc E/CN.4/Sub.2/1985/6. United Nations Economic and Social Council (1967). “ECOSOC Resolution 1235 (XLII).” U.N. Doc. E/4393. United Nations Economic and Social Council (1970). “Procedure for Dealing with Communications Relating to Violations of Human Rights and Fundamental Freedoms.” ECOSOC Resolution 1503(XLVIII) of 27 May 1970.


Stephanie Kleine-Ahlbrandt The views expressed herein are those of the author alone and do not necessarily reflect the views of the United Nations.


United Nations War Crimes Commission

John Allsebrook Simon, the first Viscount Simon, was Churchill’s Lord Chancellor and the Chair of the British Cabinet Committee on the Treatment of War Criminals. In 1942 he introduced to the House of Lords the British government’s proposal of a multinational committee to investigate war crimes. [ H U L T O N - D E U T S C H C O L L E C T I O N / C O R B I S ]

United Nations War Crimes Commission The United Nations War Crimes Commission (UNWCC) was inaugurated on October 20, 1943, by representatives of the seventeen Allied nations. It was the only international framework that dealt with the issue of war crimes and war criminals during World War II. The commission continued to operate until March 31, 1948, and in the course of its four-and-a-half years of existence had created a total of 8,178 files (representing 36,810 individuals and groups). Significantly, some of the most important notions elaborated by the UNWCC found their way into the Nuremberg Charter. The idea of establishing a United Nations (UN) “commission on atrocities” was first advanced by British prime minister Winston S. Churchill in June 1942 during his visit to the United States. Churchill was in [1100]

part responding to intense pressure coming from the exiled Polish and Czech governments in London, who envisioned the threat of reprisals against Germany by the Allied nations as a deterrent against further atrocities by the Nazis. However, both Britain and the United States ascribed low priority to the war crimes problem at the time and wanted to postpone dealing with the issue of punishing war criminals for as long as possible. On September 7, 1942, John Viscount Simon, the Lord Chancellor and Chair of the British Cabinet Committee on the Treatment of War Criminals (CCTWC) introduced to the House of Lords the British government’s proposal to set up a UN Commission for the Investigation of War Crimes. Its task would be “to collect material, supported wherever possible by depositions or by other documents, to establish such crimes, especially where they are systematically perpetrated, and to name and identify those responsible for their perpetration.” Simon asserted that the proposal had the support


United Nations War Crimes Commission

of the United States and of the European allies, though he acknowledged that replies from the Soviet Union, China, the British Dominions, and India were still forthcoming. The Soviet Union put up the greatest obstacles to the establishment of the UNWCC. Moscow had been piqued by the fact that London had ignored the Soviet Union during the preliminary stages of the establishment of the Commission and had appealed to the Soviet Union for support only at the last moment. In January 1943 Moscow responded in a positive manner, but then prompted further delay by opposing London’s intention to include participation by the Dominions in the work of the Commission. On July 27, 1943, Moscow announced that it was prepared to meet British wishes regarding the participation of the Dominions, India, and Burma on the condition that the Federated Republics of the USSR—Ukraine, Belorussia, Moldavia, Lithuania, Latvia, Estonia, and Karelo-Finska—would also be allowed to participate. This move by the Soviet Union was clearly designed to gain political capital: recognition of its annexation of the Baltic States, would set a precedent that would help the Soviet Union claim the right to enlarge its representation in future international organizations. When London declined, Moscow decided not to respond to Britain’s invitation to the Allied meeting to establish the UNWCC, scheduled for October 20, 1943. The meeting was chaired by Viscount Simon, who set out the two principal aims of the Commission: first, to investigate allegations of war crimes and, where possible, to record evidence of the crimes and identify the individuals responsible; and second, to report those cases in which it appeared that adequate evidence of such crimes might be forthcoming to the appropriate governments. A clear distinction was made between investigation, which would be the work of the Commission, and the task of trying war criminals. The latter, Simon told the delegations, would represent a later stage requiring decisions by the relevant governments, not the Commission. Finally, according to Simon, British policy held that the fates of those judged to be major war criminals was a political question that remained to be answered. The participants agreed to locate the UNWCC’s headquarters in London, and appointed Mackinon Wood, a British citizen, secretarygeneral. In part because the Soviets were absent, the appointment of a chairman was left to the Commission’s plenum. British officials did not assign a high priority to the UNWCC, despite the fact that Britain had been the driving force behind its establishment. One reason was fear of acts of revenge by Germans against British pris-

oners of war. Another was trepidation over the possibility that the Commission, under pressure from the various governments-in-exile in London, might act in ways that were not consonant with British interests. In fact, officials of the British Foreign Office succeeded in limiting the Commission’s mandate to investigating war crimes committed against Allied nationals. For them the Commission was largely a means to neutralize the insistent calls for acts of retribution against the Germans that were being made by the governments-inexile, and to create an impression that the war criminals issue was being handled. There had also been footdragging in the U.S. State Department. The United States wanted to maintain as low a profile as possible vis-à-vis the punishment of war criminals out of fear for the fates of its own captives in German hands, and until the final months of the war, never delved deeply into this complex question. Almost as soon as the UNWCC had begun to function, the fears of both the British Foreign Office and the U.S. State Department materialized. Although British and U.S. officials expected the UNWCC to confine itself to the investigation of alleged war crimes and criminals, leading members of the Commission refused to accept this narrow mandate and urged the UNWCC to come up with a comprehensive plan for trying war criminals, and to devise ways and means to track and apprehend individuals charged with war crimes. The chairman of the Commission, Sir Cecil Hurst, and, to an even greater extent, Herbert C. Pell, the U.S. representative, failed to be faithful to the Foreign Office’s and State Department’s objectives, but prompted the Commission to formulate its own proposals for policy and action. Hurst had served as the Foreign Office’s Legal Adviser (1928–1929), and subsequently became a panel judge for the Permanent Court of International Justice (and was its president from 1934 to 1936). Pell, a former U.S. congressman from New York and a friend of U.S. president Franklin D. Roosevelt, had served as U.S. minister to Portugal from May 1937 to 1941 when he was posted to Hungary, where he stayed throughout most of the year. Many of the UNWCC representatives (who were legal scholars of sterling reputation), agreed that the work of the Commission should not be limited to an examination of dossiers and the compilation of lists of criminals, and decided that the Commission should tackle arguments of a legal nature, as well. The Commission’s activities developed along three lines: the investigation of allegations and evidence in relation to war crimes; law enforcement and the punishment of war crimes; and the formulation of legal principles having to do with war crimes and the liability of perpetra-



United Nations War Crimes Commission

tors. Accordingly, the Commission appointed three committees. Committees The Committee on Facts and Evidence (Committee I) was charged with the review of complaints (to be submitted by the various governments), the compilation of lists of alleged war criminals for consideration by the Commission, and the formulation of recommendations with respect to the investigation of war crimes. The Belgian representative, General Marcel de Baer, a lawyer and judge in the city of Antwerp, was elected its chairman. It was the responsibility of Committee I to determine whether material that had been submitted to the Commission was legally sufficient to establish a case. As the UNWCC possessed no detective or investigative powers, it had to wait until charges were submitted by the various governments, and then had to hope for the best with regard to the accuracy of the information it received, and the diligence and good faith of the providers of this information. A name was entered on a list, not in the aftermath of judicial proceedings, but consequent to the statement of a single party. The person charged was not summoned to answer questions, and evidence was obtained, not from persons under oath, but from written statements. In addition to its designation of persons as “accused,” the Commission introduced lists of “suspects,” and “witnesses.” The Committee on Means and Methods of Enforcement (Committee II) would recommend to the Commission the methods and policies it should adopt in regard to the apprehension, surrender, detention, investigation, and prosecution of alleged war criminals. The recommendations, if adopted by the Commission’s plenum, were then to be transmitted to the member governments for their consideration. The chief efforts of Committee II were to be directed toward the incorporation of clauses providing for the apprehension of war criminals into the anticipated armistice with Germany; the composition of draft conventions that would provide for the establishment of courts to prosecute the war criminals who could not be tried or were not likely to be tried before national courts; and the creation of war crimes offices or agencies in defeated enemy countries that would carry out the identification and arrest of war criminals. Pell was chairman of Committee II. The Committee on Legal Questions (Committee III), chaired by Professor of Criminal Law Stephan Glaser of Poland, was the advisory board of the Commission. It strove to articulate the more theoretical aspects of the arguments that centered on: the concept of war crimes, the putative criminal nature of aggressive war, [1102]

collective responsibility, individual responsibility vis-ávis orders by superiors, gaps in national legislation, and the putative criminal nature of specific acts resembling (but technically not classifiable as such) the notion of war crimes. At the same time the committee was called on to make determinations on the criminal nature of alleged criminal acts or the liability of accused persons in cases in which there were multiple sources of ambiguity. The committee’s counsel was also sought in regard to what should be, in the context of changing international laws and customs of war, the scope of the retributive actions of the UN. On November 29, 1944, the UNWCC established a branch in Chungking, China (at the time the provisional capital of China), which it named the Far Eastern Sub-Commission. Its mission was to undertake a study of the alleged criminal acts perpetrated by the Japanese. Wang Chung Hui, Secretary-General of the Supreme National Defense Council of China was elected its first chairman. Until March 1947 (when it was dissolved), the Far Eastern Sub-Commission held thirty-eight meetings—each of them attended by UNWCC representatives from the United States, Britain, China, and the Netherlands. About 90 percent of the allegations of crimes presented to the Sub-Commission came out of the Chinese National Office. In addition, the UNWCC created a small subcommittee of in London, under the chair of Wellington Koo, the Chinese UNWCC representative. Commission Proceedings Guidelines for the operation of the UNWCC took shape during its initial meetings. Fears for the safety of persons who participated in any way in the work of the Commission led to a press ban and a ban on the taking of photographs of UNWCC members. It was also agreed that the Commission needed to work in closed sessions; only those Commission proceedings that centered on select matters of special interest would make their way into written communiqués. To encourage members of the Commission to express their views, it was decided that debates that were part of Commission proceedings would not be recorded. The Commission was scheduled to meet every week, but much of its actual work was conducted within the three committees. Not surprisingly, the Commission was furnished with limited resources and inadequate facilities. Its secretariat consisted of only a secretary-general, a liaison officer, and three clerks. The Commission was given no lawyers, investigators, technical assistants, or other specialists. Except for clerical tasks, all work was performed by the representatives and their deputies. Furthermore, Commission representatives, with the excep-


United Nations War Crimes Commission

tion of those from the United States and the United Kingdom, held other positions and could devote only part of their time to Commission affairs. Legal Issues The first question on which the Commission had to determinations was: What is a war crime? No agreedupon definition existed, nor did there exist a binding list of war crimes. In early December 1943 the UNWCC, instead of compiling an extensive and binding list of war crimes, decided to adopt the list of war crimes that had been prepared by the 1919 Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties established by the preliminary peace conference of Paris in January 1919. Not only did this measure reduce the risk of being criticized for inventing new war crimes after the acts had been perpetrated, but Italy and Japan had been parties to the preparation of the 1919 document and Germany had never objected to it. Commission members recognized, however, that this list could be neither final nor definitive, and saw it as a starting point and a practical foundation for their work. Accordingly, there was no steadfast definition of the term war crime until the end of the war. Another point of debate that the Commission failed to reach agreement on until the end of the war was the question of whether a war of aggression amounted to a war crime. There were two competing schools of thought. One school of thought held that acts committed by individuals for the purpose of launching an aggressive war were, strictly speaking, lega lata, not war crimes; the other maintained that international law had developed in such a way as to almost guarantee that aggressive war amounted to a war crime that entailed individual liability. All agreed, however, that the launching and waging of a war of aggression was illegal. Only after the London Conference (June 26, 1945–August 8, 1945), where delegates of the United States, Great Britain, the Soviet Union, and France negotiated the guiding principles for prosecuting war criminals at the insistance of the United States, had incorporated the notion of aggressive war into the Charter of the International Military Tribunal and identified aggressive war as a war crime did the War Crimes Commission include this high crime as being within its purview. International law did not recognize war crimes as any offenses committed by an enemy nation against its own nationals or those of other enemy countries. The initiative to limit the War Crimes Commission’s jurisdiction to investigating crimes committed against nationals of the Allied nations came from the British. Ac-

cording to this notion, German atrocities perpetrated against, for example, Polish citizens were considered war crimes, whereas atrocities perpetrated against Hungarian, Romanian, or, of course, German nationals were not. The latter were deemed to appertain to the domestic policy of sovereign states, and were therefore to be prosecuted by the successor governments of former enemy countries, Germany included. This reasoning would of course have bearing on Hitler’s principal victims—European Jews, but also on populations such as the nationals of neutral countries, stateless persons, and non-Jewish nationals of the Axis. Several UNWCC members, however, objected to such an asymmetrical interpretation of the term war crime, and the ensuing discord developed into a severe crisis of confidence between, on the one hand, the American and British representatives on the Commission and, on the other, their respective foreign ministries. Shortly after the UNWCC began its work, Pell raised the question of crimes perpetrated by Germans against citizens of the Third Reich and insisted on allowing the Commission to investigate such offenses. He wanted all such atrocities committed after January 30, 1933—the day Hitler became Germany’s Chancellor—to be classified as war crimes. In addition, he recommended that the term crimes against humanity (which was hardly common at that time) should refer to, among other things, crimes committed against stateless persons or against any persons by reason of their ethnicity or religion. The members of Committee III, having been appointed to make determinations on the kinds of crimes that would make up the Commission’s scope of work, proposed as one category of crime: “. . . crimes committed against any person without regard to nationality, stateless persons included, [as well as crimes committed] because of race, nationality, religious, or political belief, irrespective of where they have been committed.” Accordingly, Hurst notified the British government of the Commission’s readiness to investigate atrocities that had been committed on racist, political, or religious grounds. Any decision in this regard, however, depended on the concurrence of the British and U.S. governments. As late as mid-November 1944 (after the United States had been consulted), Hurst was notified by officials of the British government that the crimes that Committee III was putting forward were not to be considered war crimes. He was also notified that the Commission could collect evidence with respect to the German campaign of mass murder— though the British government thought that it would be a mistake for the Commission to undertake this additional and heavy burden.



United Nations War Crimes Commission

Pell was no more successful with U.S. government officials, who continued to endow the term war crime with a narrow interpretation. But through his repeated appeals (some made directly to Roosevelt), Pell prevented the U.S. administration from pushing the issue asside. The United States reversed its position when it realized that the American public would not accept distinctions made among the victims of Axis nation atrocities according to whether they were Allied or Axis nationals—particularly after the massacre of European Jewry had been publicly revealed. The altered U.S. position led to the incorporation of the notion of crimes against humanity into the Nuremberg Charter of August 8, 1945 (admittedly in its narrow form), and so into international law. When Pell was discharged from the Commission in January 1945, it would take until January 1946 for the Commission to agree that crimes against humanity as described in the London Charter were war crimes within its jurisdiction. Evidence and Cases The Commission’s prime task was, as stated previously, to investigate allegations of war crimes, and (where possible) to record evidence of the crimes and identify the perpetrators. In December 1943 each of the member governments of the UNWCC was asked to establish its own National War Crimes Office for the purpose of investigating war crimes that had caused detriment to it or its nationals, preparing charges against the alleged war criminals, and transmitting the charges, along with the relevant information and material, to the Commission for examination. The National War Crimes Offices were also encouraged to transmit to other governments information pertaining to war crimes that might be of value to those governments. In other words, the responsibility for field investigations and the preparation and transmission of charges fell to the individual National Offices. The War Crimes Commission had to examine the charges in the presence of representatives of the National Office that had made the allegations. Whenever the Commission then determined that there appeared to be sufficient evidence that a war crime had been committed, it placed the names of the alleged war criminals on its list. Until the end of the war the number of charges that had been transmitted to the Commission by the National Offices remained small, relative to the enormous number of crimes that had been perpetrated. In an effort to overcome this difficulty, Committee I adopted the practice of listing the names of persons belonging to an entire military unit when it appeared that war crimes had been committed on such a scale that all members of that unit could be presumed to have taken part in them. The Commission also wanted the govern[1104]

ments of enemy-occupied countries to submit to the Commission lists of all enemy personnel in authority, military and civilian, in each occupied district since 1939. Moreover, the Commission suggested that all members and former members of the SS and the Gestapo be apprehended and interned. It was anticipated that there would be difficulties with regard to identifying, investigating, and convicting members of these notorious organizations, and the arrest of these persons was meant to assure that they would be available on request. The Commission, in fact, had adopted the view that these organizations were, by definition, criminal, and that membership in them, by itself, was sufficient evidence against to warrant the accused for the purpose of both his being listed by the Commission and put on trial. In this instance also, the Commission made a final decision only after the Americans had incorporated the concept of criminal organizations into their memorandum, “The Trial and Punishment of Nazi War Criminals,” which would become the core of the Nuremberg Charter. The UNWCC completed its first list of German and Italian war criminals in December 1944. It contained 712 names, all of them submitted by European governments. Among those named were forty-nine highranking Nazi officials. In addition to Adolf Hitler, Hermann Göring, Joseph Goebbels, Heinrich Himmler, and Hans Frank, the group of forty-nine consisted of generals, administrators of occupied regions, and political appointees such as Joachim von Ribbentrop, Konstantin von Neurath, Hjalmar Schacht, and Arthur Seyss-Inquart. The Commission was of the opinion that the proper course for bringing these high-ranking war criminals to justice was to try them in a court of law— not to impose penalties by political fiat. Furthermore it rejected as irrelevant the doctrine of the immunity of heads of state or members of government. An International Court Still another complex issue, one that had preoccupied the UNWCC from its earliest meetings, centered on the type of court that should be used to try persons accused of war crimes. Although legal proceedings were beyond the Commission’s jurisdiction, its members insisted on examining the issue. On February 25, 1944, Committee II, under Pell’s chairmanship, began to examine prospects for the creation of an international court. No consensus was reached as to whether such a court would be a body composed exclusively of jurists or some sort of military tribunal. Most Committee members seemed to prefer a combination of the two. For his part, Pell preferred a judicial body that would be composed of jurists, military officers, and lay persons. He wanted the prospective court’s trial judges to recognize that a


United Nations War Crimes Commission

major part of their endeavor would be to make the outbreak of future wars less probable.

tary commanders—as complementary, not as competitors.

The creation of an international court quickly became a focal point of discord between the UNWCC and the British government. The increasing disposition of the Commission members to delve into questions such as the type of court or code of law to be used greatly troubled the British Foreign Office, which objected to the creation of a court or any other judicial machinery. The Foreign Office wanted persons accused of war crimes to be tried by military courts or, in some countries, civil courts that would apply existing laws and principles. Each Allied government was to be entrusted with trying all cases that arose from allegations of offenses that had been committed on its own territory or against its own nationals.

Strongly opposed to the UNWCC proposal of a treaty court, the British government tried to enlist Washington’s support in its effort to have the proposal withdrawn, and meanwhile held back its response to the UNWCC. Frustrated, Hurst reached the conclusion that the Foreign Office was once again disregarding Commission proposals. Similarly, Pell was extremely disappointed when he found that neither the President nor Secretary of State of the United States had reacted in a positive way to what he regarded as his major achievement—convincing the Commission to propose the establishment of a military court. When the two governments finally adopted the military tribunal proposal, both Pell and Hurst were no longer the respective American and British representatives to the UNWCC.

Nevertheless, in September 1944, the Commission approved a final draft of the Convention for the Establishment of a UN Joint Court. It contained twenty-nine Articles, but did not include a detailed list of war crimes. Instead, the court would handle allegations of offenses committed against the laws and customs of war. The Commission wished to endow the Court with the latitude of action to carry out the intentions of the Allied governments—such as they had been expressed in numerous public statements and in general international treaties or conventions pertaining to the laws of war. Although it proposed that the court be given the power to impose the death penalty, the draft convention made sure to protect the rights of defendants. Yet members of the Commission realized that setting up such a court would be a long process, and that therefore interim courts would be needed. Moreover, Pell, who was aware that both the President and the U.S. State Department of favored military courts, had put much effort into convincing Commission members to support the idea of interim military courts. According to the draft convention, “mixed military tribunals” would have the jurisdiction to try nationals of enemy countries accused of having committed war crimes. The judges were to be nationals of Allied countries, and each tribunal would consist of no less than five members. The rules of procedure were to be consistent with practices that were habitual in the Allied nations and to be framed by the tribunals’ appointing authorities. Prosecution was to be left to the relevant nation, and the tribunals would have the power to subpoena persons and documents. Trial in a mixed military tribunal would not bar proceedings before an international tribunal. The Commission regarded both types of courts—an eventual UN Court (to be created by treaty) and mixed military tribunals to be appointed by mili-

Hurst felt he had been put in an impossible position being unable to decipher the views of the British government, and therefore unable to relay them to Commission members. As chairman, he found it increasingly difficult to contend with the repeated complaints within the Commission about the scarcity of attention or guidance coming from London, and he resigned in early January 1945—ostensibly for medical reasons. The British government quickly appointed William Viscount Finlay to replace him, who had been a judge in England since 1924 and during World War II served as Chairman of the Blockade Committee at the Ministry of Economic Warfare. It was calculated that the appointment of this prominent figure was done to dispel accusations of Britain’s indifference to the Commission. When Finlay died a few months later, on July 4, 1945, Sir Robert Craigie replaced him. The British government was extremely fearful that Pell would become UNWCC chairman. In the end, Lord Robert Alderson Wright, a senior British judge who was the Commission’s nominal Australian representative, was elected chairman, on January 17, 1945. The British were not alone in opposing Pell. Relations between Pell and the U.S. State Department, tense from the outset, had grown worse. The State Department, motivated in part by animosity toward Pell, had worked to constrain whatever actions he wished to take, to reject most of his initiatives, and to undermine his position in the eyes of the British. State Department officials could not abide Pell’s independence of judgment and action. Perhaps the best explanation for the clash between Pell and the U.S. government lay in the U.S. government’s lack of an established policy or even principles vis-à-vis the treatment of suspected war criminals, and in the State Department’s predilection for postpon-



United Nations War Crimes Commission

ing decisions on the issue. Pell, who regarded himself as a statesman and not a bureaucrat, had believed (erroneously) that he could influence overall U.S. policy toward Germany. His limited legal knowledge had naturally prompted him to focus on policy matters. When, shortly after his appointment, Pell realized that the State Department did not regard the question of the treatment of suspected war criminals as a serious matter and that no one in the State Department actually cared much about the UNWCC, he decided that he had better act on his own initiative to further the development of a policy toward war criminals. Taking advantage of the fact that he had been Roosevelt’s appointee, Pell did not hesitate to bypass the State Department and attempt to enlist Roosevelt’s support for his proposals directly. Inevitably, the poor relations between the State Department and Pell influenced the State Department’s overall attitude toward the UNWCC. In the end, the State Department maneuvered to have Pell replaced (as the Commission’s U.S. representative) by his deputy, Colonel Joseph V. Hodgson. With the conclusion of the war, Wright was determined to prevent the Commission from being pushed to the sidelines. He even sought to have the scope of the Commission’s mandate expanded and to have the Commission play an active part in the gathering of evidence on war crimes. However, when he proposed to set up a War Crimes Investigation Team at the Supreme Headquarters of the Allied Expeditionary Force (SHAEF, the command headquarters of the commander of Allied forces in Europe), the British government ruled out the possibility because of its longstanding low appreciation of the UNWCC and its interest in transferring responsibility for dealing with war criminals to the individual countries. Wright had more success in furthering the goals of the Commission when he convened a conference of representatives of the various National War Crimes Offices, which took place in London on May 31, 1945. At the conference he spoke about the importance that the UNWCC had ascribed to the work of the National War Crimes Offices, and explained that the Commission’s primary function had been to act as a sort of central clearing house for the written statements in which war crimes were alleged. The Commission had promulgated its conviction that justice and not revenge should be the aim of those working to prosecute alleged war criminals. With this in mind, Wright wanted the Commission to act as a central advisory bureau and liaison that could coordinate the activities of the National War Crimes Offices and military authorities in Germany and Austria. The Commission’s wish to cooperate with military authorities was partially fulfilled when the Allied the[1106]

ater commanders in Germany and Austria were authorized to accept lists of war criminals directly from the Commission, and to apprehend and detain those listed in the absence of further proof of their having committed war crimes. An officer of SHAEF, furthermore, had been attending the Commission’s meetings regularly, starting in May 1945. Wright also succeeded in coming to an agreement with U.S. Supreme Court Justice Robert J. Jackson, who had been appointed Chief of Counsel for the Prosecution of Axis Criminality by president Harry S. Truman on May 2. Jackson regarded the Commission as a supporting body, and expected it to provide him with evidence that would help him to acquire an overview of the war crimes that had been perpetrated by the highest-ranking Axis authorities. Following Jackson’s appointment, there were close contacts between the Commission and the staffs of the Chief Prosecutors of the United States, Great Britain, and France, prior to and during the trial of the major war criminals at Nuremberg—as well as between the Commission and the attorneys preparing the subsequent proceedings. The UNWCC furnished the prosecution with first-hand information and evidence of crimes committed in the occupied countries. In the final analysis, despite the obstacles put up mainly by the British Foreign Office and U.S. State Department, the UNWCC was successful in its undertaking to formulate a policy on the handling of war criminals, and had prompted individual governments to grapple with the question of which policies they would adopt. The most important of the UNWCC proposals that made their way into the U.S. ground plan for punishing war criminals and, thereafter, into the Charter of the International Military Tribunal, were the concepts of aggressive war, criminal organizations, mixed military courts, and crimes committed by an enemy against its own nationals. Summing up the importance of the Commission’s activities for the year 1944 and the beginning of 1945, Wright would declare, in the official history of the UNWCC, that “[T]he United Nations had ready to their hands when the time came, a more or less practical scheme for the prosecution and punishment of war criminals, which was capable of being completed and put into effect when the Nazi resistance collapsed.” The UNWCC ultimately presented 80 lists that contained the names of 36,529 suspected war criminals (of whom 34,270, were German and 1,286 Italian). SEE ALSO Jackson, Robert; London Charter;

Morgenthau, Henry; Nuremberg Trials; War Crimes


United States Foreign Policies Toward Genocide and Crimes Against Humanity


Blayney, Michael S. (1976). “Herbert C. Pell, War Crimes and the Jews.” American Jewish Historical Quarterly 65 (June):335–352. Bloxham, Donald (2001). Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory. Oxford, U.K.: Oxford University Press. Ginsburgs, George, and V.N. Kudriavtsev, eds. (1990). The Nuremberg Trial and International Law. Dordrecht, Netherlands: Martinus Nijhoff Publishers. Jones, Priscillia Dale (1991). “British Policy towards German Crimes against the Jews, 1939–1945.” Leo Baeck Institute Year Book 36:339–366. Kochavi, Arieh J. (1998). Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment. Chapel Hill: University of North Carolina Press. Overy, Richard (2001). Interrogators: The Nazi Elite in Allied Hands, 1945. London: Allen Lane/The Penguin Press. Smith, Bradley F. (1981). The Road to Nuremberg. New York: Basic Books. United Nations War Crimes Commission, ed. (1948). History of the United Nations War Crimes Commission and the Development of the Laws of War. London: His Majesty’s Stationary Office.

supporting the application of, a treaty like the Genocide Convention comes to mind. The United States could also actively support the creation of international bodies such as courts to conduct trials of people accused of committing genocide. Alternatively, and perhaps in conjunction with the development of norms and rules, the United States could take concrete measures in cases of genocide, or when allegations of genocide are made. These could involve taking timely measures to prevent genocide before it occurs, especially in cases where there is advance warning. Or, they could involve proposing and supporting the application of sanctions—political, economic, and military—in order to bring an end to the atrocities and to bring the perpetrators to justice. The United States’ experience in dealing with the issue of genocide involves its participation in the development and advancement of international norms and rules on genocide and its official reaction to various instances of genocide. It is possible to assess how and how well United States foreign policymakers have taken concrete measures to deal with the atrocities that were committed in those cases.

Arieh J. Kochavi

United States Foreign Policies Toward Genocide and Crimes Against Humanity Since World War II, many instances of genocide have been alleged to have occurred in all regions of the world. They have presented serious challenges to foreign policymakers in many countries including the United States. The United States has, historically, projected itself as a democratic state that champions respect for human rights and fundamental freedoms. American officials and diplomats have repeatedly reaffirmed these principles at international conferences and forums. Presidents have enshrined them in doctrines that underpin the course of United States foreign policy at different times in American history. Given the heinous nature of the crime of genocide, it is unsurprising that the United States would at least take action, if not exercise leadership, in dealing with the crime whenever it occurs. In principle, there are at least two ways in which the United States could react to genocide, or allegations of genocide. One is at the level of norms and principles. In other words, the United States could work to promote the development and acceptance of international norms and rules regarding genocide. In this connection, playing an active role in drafting, and vigorously

The United States and the Development of Norms and Rules on Genocide United States policymakers had their first opportunity to contribute to the elaboration of international norms and rules regarding the crime of genocide in the period immediately following World War II. The genocide of World War II was on the agenda of the first session of the United Nations General Assembly in 1946. Diplomats as well as activists, including Raphael Lemkin, had lobbied the General Assembly to take the issue up and to consider what measures could be taken to deal with any future cases of genocide. With U.S. support, the General Assembly adopted a resolution that branded genocide a crime under international law and called for the adoption of an international treaty on the subject. The treaty, the Genocide Convention, was completed two years later, in December 1948. The most important negotiations on the Genocide Convention took place in the Sixth (Legal) Committee of the General Assembly, although at various stages during the negotiation process, the United Nations Secretariat and the Economic and Social Council (ECOSOC) made proposals that influenced the final product. United States diplomats were actively involved, making constructive contributions throughout the drafting process, especially in the ECOSOC and the Sixth Committee. They negotiated significant compromises on contentious issues related to the definition of the crime of genocide. They also advanced and successfully de-



United States Foreign Policies Toward Genocide and Crimes Against Humanity

genocide. After all, the United States was the major ally during World War II in the defeat the Nazi regime, whose practices had led to the adoption of the Convention in the first place. The United States had also championed the creation of the Nuremberg Tribunal, and been a major participant in it. And it had been successful in the negotiations on the convention itself. Thus, one might have expected that the United States Senate, the only chamber of the Congress that must give advice and consent to the ratification of treaties, would have quickly given its approval to the convention. However, this was not to be. In June 1949 president Harry Truman formally requested the Senate’s advice and consent to ratification; but it was not until almost forty years later, in February 1986, that the Senate actually did so, and even then it imposed a number of conditions that seriously undermined the main object and purpose of the Convention. Further, it was not until October 1988 that the Congress adopted the legislation needed to implement the Convention, finally opening the way for president Reagan to deposit the United States instrument of ratification at the United Nations. The Convention formally became binding on the United States in February 1989. First Lady Eleanor Roosevelt addresses a meeting of the American Red Cross on April 11, 1934, in Washington, D.C. She had joined the American Red Cross as a private citizen in 1912. [ A P / W O R L D WIDE PHOTOS]

fended the inclusion of an article in the Convention that contemplated the creation of a permanent international court to try those accused of committing genocide; and defended a role for the International Court of Justice in dealing with issues of state responsibility for genocide. The compromises that the United States delegates worked out on these issues were not easy to reach. The issues were important to many states, some of which, especially the Soviet Union and its supporters, were determined to preserve maximum discretion for individual states in dealing with the genocide of the recent past as well as any future cases that may occur. In brief, the Soviet Union and its supporters were concerned about the impact that the Convention could have on their freedom of action and their exercise of national sovereignty. In the end, however, the United States representatives carried the day on all the issues that were important to them. When the work on the Genocide Convention was completed, one would have expected that the United States would have moved quickly to ratify it, accepting it as the cornerstone international legal document on [1108]

During the intervening forty years, between the time when president Truman requested advice and consent to ratification and the time when the Senate agreed to do so, the Senate Committee on Foreign Relations held several hearings on the Convention. During the 1970s, the committee at times seemed poised to recommend ratification to the Senate as a whole, but every time, the hopes of the Convention’s most ardent supporters were dashed. The arguments that were advanced against ratification of the convention by its most vociferous critics changed very little over those forty years. They criticized specific aspects of the definition of the crime, quibbling over the groups that were the object of protection of the convention (Article II) and over the specific acts that could be considered genocidal (Article III). They also expressed grave concern about the creation of an international criminal court to try anyone accused of committing genocide (Article VI), fearing that Americans, especially members of the U.S. armed forces, would be dragged into such a court on trumped up charges of genocide. In addition, they opposed the role of the International Court of Justice (in Article IX) in resolving disputes among states regarding the interpretation or application of the Convention. The critics of the convention in the United States used essentially the same arguments as those used by the Soviet Union’s representatives during the negotiations on the Convention: they were concerned about the possible negative


United States Foreign Policies Toward Genocide and Crimes Against Humanity

impact that the Convention could have on the freedom of action of the United States and its exercise of national sovereignty. The executive branch was generally supportive of ratification through all the years the Genocide Convention was under consideration in the Senate. Presidents Truman, Nixon, and Carter were especially supportive. President Reagan endorsed ratification shortly before his re-election bid in 1984, although he had not supported ratification earlier in his first term. Diplomats and other government officials were also often supportive, and testified before Senate committees. In general, the Convention’s supporters argued that ratification was important from the standpoint of the image of the United States as a champion of freedom and human rights throughout the world. Indeed, some supporters, especially diplomats, made a point of noting that the United States was often taken to task in international forums for not having ratified the Convention, and that its failure to do so had undermined its effort to exercise leadership in dealing with genocide and other serious human rights abuses. Most of the opposition to ratification came from extremely conservative members of the Senate, mainly Republicans, who were supported by extreme rightwing nongovernmental organizations like the Liberty Lobby. However, representatives of the prestigious American Bar Association also criticized the convention relentlessly at the 1950 Senate hearings. The association changed its position to support the ratification effort in the 1970s, but many of its earlier criticisms continued to haunt the debate, undermining efforts to secure ratification. In the end, while those who favored ratification won the battle—after all, the Senate eventually gave its advice and consent to ratification—the opponents of ratification effectively won the war. They were able to impose conditions on the ratification—a package of understandings and reservations collectively known as the Lugar-Helms-Hatch Sovereignty Package—that effectively gutted the main object and purpose of the treaty. The Sovereignty Package rejects the authority of the International Court of Justice to deal with disputes regarding the interpretation and application of the Convention that might involve the United States, except with the specific consent of the United States. It also affirms the supremacy of the U.S. Constitution over the Convention and expresses reservations about the creation of a permanent international criminal court to try perpetrators of genocide. Several West European allies of the United States expressed objections to the terms of the Sovereignty Package, but in the end the United States became a party to the treaty in accordance with the terms of the package.

The terms of the Sovereignty Package has undermined the moral position of the United States in dealing with cases of genocide, and they have had serious practical implications as well. For example, the reservation to the authority of the International Court of Justice to deal with disputes regarding the interpretation and application of the Convention effectively insulated the United States from any challenges to its exercise of discretion in interpreting and applying the convention. At the same time, however, it made it impossible for the United States to take any other country to task for its practices, however heinous, because that country could, under the doctrine of reciprocity in international law, invoke the United States’ reservation in selfdefense. Indeed, the purpose of the Sovereignty Package was to reduce the U.S. ratification of the Convention to a merely symbolic gesture, and in that, it succeeded. Recent events suggest that the situation has not changed much, and may even have worsened. The United States’ reaction to the recently created International Criminal Court provides a case in point. The U.S. negotiators on the Genocide Convention secured the adoption of an article (Article VI) that contemplated the creation of a permanent international criminal court to try anyone accused of committing genocide. The General Assembly followed up on this article and charged the International Law Commission with studying the possibility of creating such a court. However, the discussion in the commission in the late 1940s was rapidly brought to a close by the political tensions brought on by the emerging cold war between the United States and the Soviet Union. Profound disagreements among various parties involved in the project as to the nature and functioning of such a court also contributed to the problem. Although some scholars and diplomats tried to keep the issue of creating a court alive during the postWorld War II period, it was not until the 1990s that concrete achievements were made. The UN Security Council, with United States support, created two ad hoc international criminal tribunals to deal with cases arising from the Bosnian and Rwandan genocides in the early 1990s. Although these courts will cease to exist when they have fulfilled their mandates, the genocides they were created to deal with stimulated renewed and serious discussion about the need to create a permanent international criminal tribunal to deal with genocide as well as other significant crimes, such as war crimes and crimes against humanity. The discussions, which took place through the mid-1990s, concluded in a major conference in Rome in July 1998, attended by representatives of 160 coun-



United States Foreign Policies Toward Genocide and Crimes Against Humanity

tries, including the United States. The vast majority of countries that attended the conference voted to adopt the statute for the court (the Rome Statute) that emerged from it, but seven countries, including the United States, voted against it. The statute was quickly and broadly accepted, however, and the International Criminal Court (ICC) came into existence in July 2002. The ICC could try individual persons charged with committing genocide, war crimes, and crimes against humanity. Cases could be referred to it in various ways, including the Security Council, the states that are parties to the statute, and the court’s prosecutor. The United States had voted against the statute because of disagreements over several issues, including circumstances under which the court could exercise jurisdiction, especially the possibility that the court would exercise jurisdiction over persons from countries that are not a party to the statute. The statute became the subject of lively debate within the United States, with many distinguished professionals in international law arguing that the United States’ fears and concerns were exaggerated, if not unfounded. The court’s supporters urged president Clinton to reconsider the U.S. position and to at least sign the statute. The president’s signature would indicate that the United States approved the creation of the court in principle, although it would not be legally bound by the court’s statute until it ratified it. In December 2000, shortly before leaving office, president Clinton signed the statute, but not with unreserved enthusiasm. He believed that his signature would reaffirm the United States’ support for international accountability for grave crimes such as genocide, and would make it possible for the United States to remain engaged in making the court an instrument of impartial justice in the years ahead. However, he remained concerned about flaws in the statute, in particular that the court might exercise jurisdiction over persons from countries that had not ratified the statute, and he indicated that he would recommend to his successor that the statute be withheld from the Senate, postponing any request for advice and consent to ratification until these concerns were addressed. Although president Clinton was persuaded to sign the statute, even with misgivings, some members of Congress expressed outrage, stating that they would never approve a resolution of ratification. Moreover, the Clinton’s successor went substantially beyond his recommendation. Unlike the controversy over the Genocide Convention, where the executive branch was usually supportive—and never vocally opposed—to ratification, incoming President George W. Bush joined the opposition to the court. In fact, president Bush took the unprecedented step of the statute, delivering notice [1110]

to the United Nations that the United States had no intention of becoming a party to it. Among other things, the administration claimed to want to protect American servicemen from being arbitrarily accused of committing genocide (or war crimes or crimes against humanity) and dragged before the ICC to stand trial. This was the same argument that had been made repeatedly in the Genocide Convention debates in the Senate. The Bush administration did not stop with unsigning the statute. It demanded that individual countries sign agreements stating that they would not hand over to the court any U.S. nationals who might be accused of genocide, war crimes, or crimes against humanity, and it threatened to terminate military assistance to countries that refused to sign such agreements. It also demanded that the United Nations Security Council agree to immunities for U.S. military personnel involved in UN peacekeeping operations, a move that provoked dismay among diplomats and high-ranking civil servants, such as Secretary-General Kofi Annan. Clearly, the United States has experienced difficulty in dealing with the elaboration and acceptance of international norms and rules on genocide and related crimes. On the one hand, policymakers at the highest levels have repeatedly condemned genocide, war crimes, and crimes against humanity, and they have affirmed the United States’ commitment to freedom, respect for human rights, and a stable international order based on respect for law. Nonetheless, there have been serious disagreements on how best to realize those commitments. Although U.S. negotiators have been active in framing norms and rules, strong opposition to accepting legal obligations in this field has been expressed in various quarters, especially among the most conservative members of Congress. The result—in the case of the Genocide Convention a symbolic acceptance; in the case of the ICC, outright hostility—has led many to conclude that the United States may say that it wants a stable international order based on law, but is not willing to be held accountable to the same rules that it expects everyone else to accept. The United States’ Reaction to Instances of Genocide Genocide has occurred on numerous occasions, both before and after World War II. The most prominent cases occurred in Cambodia in the mid-1970s, Bosnia in the early 1990s, and Rwanda in 1994. Some say that genocide occurred in other instances as well. One example that predates World War II was the slaughter of ethnic Armenians in Ottoman Turkey during the years 1915 and 1916. Others took place in the postwar years—in Indonesia, for example, in the slaughter of hundreds of thousands of communists in the mid-


United States Foreign Policies Toward Genocide and Crimes Against Humanity

1960s, and in the invasion and occupation of East Timor, beginning in the mid-1970s; in Paraguay against the Ache Indians, in the early 1970s; in Burundi in sporadic strife between Hutus and Tutsis from the early 1970s to the 1990s; in Iraq in the late 1980s in what came to known as the Anfal campaign against the Kurds and at the time of the first Gulf War against the Marsh Arabs; and in Kosovo in the late 1990s. All of these instances of alleged genocide, each occurring under their own specific historical and political conditions, challenged U.S. policymakers to develop appropriate responses. At the time of the Armenian genocide, the United States had not yet emerged as the major world power that it became in the post World War II period. In some cases, the genocide occurred under conditions that might be called a civil war, in other cases, not. Even the magnitude of the genocides, in terms of victims and the length of time over which they occurred, differed. Nonetheless, research has shown that the United States’ reaction to the genocides has varied relatively little over time. Numerous obstacles have usually stood in the way of taking concrete action, and such measures as have been taken have usually been taken late, aimed more at dealing with post-genocide issues than at saving lives. The Armenian genocide provides a good starting point for understanding how genocides can occur with impunity because those who might be in a position to prevent or mitigate the effects of the crime have failed to take effective measures. U.S. government officials and foreign dignitaries at various levels took an interest in the plight of the Armenians. The United States Ambassador in Constantinople at the time, Henry Morgenthau, Sr., labored strenuously to try to protect the Armenians, meeting with Ottoman officials to protest their treatment, sending numerous cables to State Department officials urging action, and even raising funds to try to assist survivors and to relocate hundreds of thousands of them to the United States. After almost two years of fruitless work, he returned to the United States, frustrated that he had been unable to stop the bloodshed. It is estimated that one million Armenians were either killed outright or died as a result of the conditions of life imposed on them between 1915 and 1916. Despite the pleas of Morgenthau and others, and reports of the atrocities in some of the mass media, the United States refused to take the side of its allies, Great Britain and France, who condemned the slaughter, or to approach Germany, which was allied to the Ottoman Empire, because it did not want to abandon its neutral stance at that time. Top-level policymakers even advised Ambassador Morgenthau not to protest too

strongly to the Ottoman officials about the genocide. He was counseled to be respectful of their claim that their actions were domestic and not of concern to outside powers, and even that there was some validity to their claim that their actions were aimed at dealing with a national security threat. In short, intervention in this case was not deemed wise because it was not perceived as falling within the national interest of the United States. This pattern of dealing with the Armenian genocide set a precedent, and in later instances of genocide similar arguments were advanced as to why the United States could not take measures on behalf of the victims. Even during World War II, at a time when the Nazi regime in Germany was engaged in the genocide that would eventually take the lives of an estimated six million Jews and members of other groups, reports of the atrocities were greeted in U.S. policymaking circles with incredulity, disbelief, and even lack of interest. What British Prime Minister Winston Churchill called the “crime without a name” was already evident, yet it was greeted by denial or indifference. All efforts were directed at winning the war against Hitler’s Germany, which was seen as the only effective way of stopping the atrocities. It was only after the war that statesmen were prepared to come to terms with the truth of what had happened, and they established measures such as the Nuremberg Tribunal to punish the perpetrators, bringing some sense of justice to survivors and relatives of victims. The Armenian genocide and the genocide of World War II occurred at times when international communications and transportation were slow and cumbersome. Yet reliable information about what was going on in these instances of genocide was abundant and ready at hand. The problem was not really a lack of awareness or information; it was a lack of political will to do anything about the problem under the circumstances. More recent instances have occurred under different circumstances, when communications are virtually instantaneous, and improvements in transportation have reduced the time it would take to get to a trouble spot to hours rather than days and weeks, but still a lack of will has prevailed. The Cambodian, Bosnian, and Rwandan genocides illustrate how, even under a different kind of international system brought about in part by advances in technology the arguments against taking action in clear cases of genocide remain essentially the same. Cambodia has a long and sometimes tragic history, but it surely entered into its darkest period in April 1975, when the Khmer Rouge, headed by the infamous Pol Pot, triumphantly entered the capital city of Phnom



United States Foreign Policies Toward Genocide and Crimes Against Humanity

Penh after having won a five-year civil war. Previous to this momentous event, many foreign observers as well as Cambodians saw the Khmer Rouge fighters as potential liberators of the country, and believed that better times would follow their victory. Instead, the victory of the Khmer Rouge immediately turned into a nightmare of unimaginable proportions. During the three and a half years that the Khmer Rouge was in control, some 1.5 million people out of a total population of about 8 million people died. In the West in general, and the United States in particular, the initial reaction to the Khmer Rouge’s victory and atrocities was muted. In fact, there was a tendency to engage in a form of denial, to believe that the slaughter would stop, that it would not be indiscriminate and was, instead, targeted at a relatively small group of political opponents. This form of denial was sometimes accompanied by a debate over whether or not genocide was actually occurring in Cambodia. It was clear that Cambodians were killing Cambodians, but did this constitute genocide? Or were the Khmer Rouge engaged in what might be called “politicide”; that is, the killing of persons for political reasons. To say that the Khmer Rouge was engaged in genocide in the sense that the crime is defined in the Genocide Convention would have required that the targeted groups be national, ethnical, racial or religious, not political. Even in the earliest stages, it was clear that certain categories of persons—for example, former military officers, policemen, and government officials— were targeted, and it is known that such persons were executed along with members of their families, including infants and children. Moreover, although most of the victims were, in fact, Cambodians, there seems no doubt that certain specific ethnic groups including Vietnamese, Chinese, and Cham minorities, were targeted for elimination, and that the Khmer Rouge also set out to eliminate Buddhism as a religious force in Cambodian society. They actually succeeded in achieving these objectives to a large extent, and these actions were surely genocidal in nature, consistent with the terms of the Genocide Convention. Given the magnitude of the crimes, what could or should the United States have done? In retrospect, it is easy to say that concrete actions could have been taken in an effort to stop the atrocities. But it must be borne in mind that, at the time the Khmer Rouge came to power in Cambodia, the Vietnam War was drawing to a close. That war had become so unpopular in the United States and elsewhere that it would have been impossible for anyone to argue in favor of U.S. military intervention, even it it was motivated by a desire to stop the slaughter. In fact, there were some who argued that [1112]

U.S. policies during the Vietnam war—the bombing raids on Cambodia, the “incursion” in 1970, and the financial and military support of the Lon Nol government—had all actually contributed to the Khmer Rouge victory. If military intervention was not in order, what else could the United States have done? President Gerald Ford, and some high-ranking government officials like Secretary of State Henry Kissinger, occasionally addressed the unfolding tragedy, making statements about the “bloodbath” taking place. Apart from that, the United States largely ignored the tragedy. It maintained an economic embargo against Cambodia, but such policies are rarely if ever effective. During the presidential campaign in 1976, then-candidate Jimmy Carter argued in favor of restoring morality to American foreign policy, but when he became president in 1977, he found it difficult to translate these goals into reality. Yet, the reports coming out of Cambodia provided chilling details of the genocidal massacres that were underway, and they were widely discussed in Congress. In April 1978, President Carter denounced the government of Cambodia for its policies and called upon other members of the international community to protest the genocide. In 1978 and 1979, congressional hearings were held on the subject, and investigations were conducted by the United Nations. Both Congress and the UN concluded that there was growing evidence that genocide had occurred in Cambodia. However, it fell to the Vietnamese to do something about the matter. Vietnamese forces invaded Cambodia in January 1979 to overthrow the Pol Pot government and impose a new order. It can be argued that the Vietnamese invasion of Cambodia was a significant contribution to humanity, but it was not received as such in much of the world. At the time of the invasion, the United States was concerned with improving relations with China, which was the principal backer of the Khmer Rouge, as a way of bringing pressure to bear on the Soviet Union to be more amenable to U.S. interests. Moreover, the United States, along with other states in the region, found it difficult to accept without protest the invasion of one state by another, fearing that a dangerous precedent could be set. Incredible as it may seem, when controversy arose over which delegation to seat in the fall 1979 United Nations General Assembly meeting in New York—the ousted Pol Pot regime or the Vietnamese backed regime then in control of the country—the Association of Southeast Asian Nations (ASEAN) and China argued strongly in favor of the Pol Pot regime. The dispute had to be resolved by committee, in which the United States bowed to Chinese and ASEAN inter-


United States Foreign Policies Toward Genocide and Crimes Against Humanity

ests and voted to seat the Pol Pot regime. The United Stated did, at least, go on to claim that the issue of seating a delegation was purely technical and legal, and that its support of seating the Pol Pot regime did not imply approval of that regime’s policies. The United States maintained this stance during the Reagan administration and beyond, supporting at one time the seating of a coalition delegation that consisted of some Khmer Rouge elements. Even though statesmen missed opportunities to apply the Genocide Convention for various political reasons, the Cambodian genocide remained a matter of concern to scholars, activists, and politicians in the United States and abroad during the 1980s and 1990s. Some argued in favor of bringing a case against the Khmer Rouge to the International Court of Justice under Article IX of the Genocide Convention, which authorizes the ICJ to deal with the matter of state responsibility for genocide. Cambodia had ratified the convention with no reservation to Article IX, so there was no legal hindrance for another state party to the convention to bring a case relating to state responsibility. However, efforts to persuade another party to the convention to take up the case were to no avail. So far as the United States was concerned, it could not have brought a case to the court after becoming a party to the convention in 1989 because of its reservation to Article IX, as set forth in the Sovereignty Package, which blocks the court from dealing with a case involving the United States without the specific consent of the United States. Under the doctrine of reciprocity in international law, Cambodia could invoke the U.S. reservation in self-defense.

cide in the early 1990s occurred in Europe at a time when profound changes for the better were occurring in the international system—namely, the end of the cold war. Under these fundamentally different circumstances, it would seem that a case for the application of the Genocide Convention would have been easy to make. However, no firm action was taken, either in the early stages of the genocide or later, as it unfolded, and such actions as were eventually taken, important though they were, were mainly in the form of postgenocide actions. United States policymakers failed to take effective measures to put an early stop to the genocide in Bosnia, in part because of a lack of will, and in part because of uncertainty about what the United States’ role should be. Analysts and policymakers engaged in a seemingly endless debate over the question of the cause of the conflict. Some argued that the killing simply reflected the reemergence of age-old hatreds that had characterized ethnic relations in Yugoslavia for hundreds of years. Communist oppression had muted these hatreds for several decades, it was argued, but with the end of the cold war and communist rule in Yugoslavia, the hatreds had reappeared with a vengeance. Thus, no outside intervention would be able to stop the conflict. Even Lawrence Eagleburger, an acknowledged expert on Yugoslavia, who became Secretary of State toward the end of president George W. Bush’s administration, held this viewpoint.

The possibility of bringing the surviving perpetrators of the Cambodian genocide to trial came to the forefront in the 1990s. In 1998, during the administration of President Clinton, the United States expressed interest in putting Pol Pot on trial, but he died in April 1998, escaping, as it were, a judgment day. However, a number of his accomplices were still alive, and the Clinton administration argued in favor of exploring ways of bringing them to trial. Finally, in 2000, the United Nations and the Cambodian government reached preliminary agreement on the creation of a mixed tribunal, consisting of Cambodian as well as international judges. The Cambodian parliament approved the agreement, but subsequent disagreements over issues of Cambodian sovereignty delayed its work. Justice for the victims of the Cambodian genocide therefore remained elusive.

Those who advocated some form of intervention pointed out that such views ignored the fact that Bosnians of various religious and ethnic backgrounds had intermarried in large numbers, that they lived in ethnically mixed communities, and that strife among the various communities was virtually nonexistent. The administration, however, held firmly to the position that the conflict was not one in which the United States should become involved. In fact, the United States initially disapproved of the secession of Slovenia, Croatia, and Bosnia from the Yugoslav federation, and only reluctantly agreed to recognize their independence in April 1992. The administration also repeatedly stressed that the problem was a European one and had to be settled by the European states, a position that accurately reflected the European viewpoint at the time. Thus, until the end of the Bush administration, the United States concentrated on encouraging humanitarian actions that could be taken by the United Nations to try to relieve hunger and ensure the availability of medical supplies in Bosnia.

The Cambodian genocide occurred in a remote region of the world at a time when an unpopular war was being brought to a close. In contrast, the Bosnian geno-

The Clinton administration, which came into office in January 1993, at first seemed poised to take concrete action. The president had himself addressed the



United States Foreign Policies Toward Genocide and Crimes Against Humanity

UN Secretary General Kofi Annan shakes hands with a survivor of the Rwandan genocide, May 1998. It was during this trip to Rwanda that Annan apologized to the Parliament of Rwanda for the United Nations great failure to intervene. [ A P / W O R L D W I D E P H O T O S . ]

Bosnian genocide during the presidential campaign, and he spoke eloquently of the need for action and of the United States’ commitment to respect for human rights. High-ranking officials, including Secretary of State Warren Christopher, addressed the issue in congressional hearings and elsewhere early during the administration. However, there remained opposition in important circles to any intervention by the United States to end the genocide. General Colin Powell, for example, was opposed to intervention. Some of President Clinton’s aides were also opposed, expressing concern that entanglement in a controversial international conflict might jeopardize important domestic policy initiatives. Consequently, while the Serbians continued their policy of ethnic cleansing, the administration retreated from its earlier strong position and the president pursued an ineffective policy of engaging in a lot of rhetoric to condemn the genocide but failing to follow up the rhetoric with action. A combination of measures taken by the United States, the United Nations, and NATO beginning early in 1994 slowly, but finally, brought an end to the genocide. So far as the United States was concerned, the [1114]

Clinton administration was moved to act by increasing domestic political pressure in Congress, the media, and public opinion to do something about Serbian atrocities against civilians, which were now widely reported in the media. The United States supported United Nations resolutions calling for the end of the arms embargo, which would allow the Bosnians to fight back against the Serbian forces. NATO involvement began extremely slowly, with air strikes against Serbian military installations. The Serbians remained defiant through most of 1994 and into 1995, carrying on their policy of ethnic cleansing with impunity. Toward the end of 1995, substantial NATO air strikes against Serbian military positions forced Serbia to the negotiating table, and the Dayton Peace Accords were signed in December 1995. One of the key provisions of the accords was that the parties to the agreement were bound to cooperate fully with the International Criminal Tribunal for the former Yugoslavia, which had been set up by the United Nations Security Council, with United States backing, in May 1993. In contrast to the Cambodian and Bosnian genocides, which occurred over a period of several years, the


United States Foreign Policies Toward Genocide and Crimes Against Humanity

Rwandan genocide in 1994 lasted for only about three months, from April to June. Again, the United States— indeed, the entire international community—missed the opportunity to act in a timely manner consistent with the terms of the Genocide Convention to stop the slaughter and save perhaps hundreds of thousands of lives. The actions that were eventually taken, important as they may have been, were more along the lines of post-genocide measures designed to try to bring to justice the perpetrators and to help the victims and their survivors to resume a more or less normal life. United States policymakers reacted to the outbreak of the Rwandan genocide much as those in other countries did. In response to the immediate outbreak of violence, President Clinton ordered the evacuation of Americans in Rwanda into neighboring Burundi, and U.S. troops were dispatched to provide protection to the evacuees, if necessary. Beyond that, however, the administration tended to view the early stages of the crisis more as a civil war than as a huge humanitarian crisis such as genocide. The administration was not inclined to intervene in a civil war in Africa because of events that had occurred in Somalia in October 1993. At that time, the United States had participated in a United Nations mission in Somalia to provide famine assistance in the wake of devastation arising from feuding among warlords. However, in October 1993, American soldiers were attacked and many were killed. The corpses of some of those soldiers were dragged through the streets of Mogadishu by an angry mob. This episode led to the withdrawal of U.S. forces from Somalia, and a rethinking on the part of the Clinton administration of the conditions under which U.S. forces would be used abroad in support of United Nations actions. The new US policy, which clearly implied a reduced U.S. participation in UN peacekeeping activities, had a decisive impact on the question of intervening to stop the Rwandan genocide. At the time the genocide began, the United Nations had a small force in Rwanda (the United Nations Assistance Mission in Rwanda, or UNAMIR), which had been sent in to support the implementation of the Arusha Accords of August 1993. The accords had been adopted at the conclusion of negotiations that were held in Arusha, Tanzania, to try to resolve growing tensions between Hutus and Tutsis in Rwanda. Among other things, the accords called for the establishment of a transitional government including representatives of both Hutus and Tutsis. However, the small UNAMIR force was inadequate to halt the growing violence in Rwanda. When UN Secretary-General Boutros Boutros-Ghali urged the drastic expansion of the force, the United States objected and, instead, demanded that the force be withdrawn. Still remembering

the events of Somalia, the United States was prepared to support humanitarian assistance, which became especially important when hundreds of thousands of refugees, Hutus as well as Tutsis, began to flow into neighboring countries, where the genocide continued, but opposed the use of force. Even after the United Nations agreed to expand the size and mandate of UNAMIR in May 1994, the United States quibbled over which countries should provide military personnel, and disputed the kind and quantity of equipment that would be needed. Officials could not even agree on measures short of military force, such as destroying the Hutucontrolled radio and television services, or jamming broadcasts that exhorted Hutu to exterminate Tutsi. The administration even refused to use the word “genocide” to describe the events going on in Rwanda. Like the Bosnian genocide, the Rwandan genocide led to demands for justice in the wake of the disaster. Here the United States has played a significant role. In November 1994, it supported a UN Security Council resolution to create an international criminal court to try persons accused of committing crimes in Rwanda and in neighboring states. Specifically, the mandate of the International Criminal Tribunal for Rwanda is to try persons accused of committing genocide and other violations of international humanitarian law in the territory of Rwanda between January 1, 1994, and December 31, 1994. It may also try Rwandan citizens for committing genocide or other violations of international human law during the same time period in the territory of neighboring states, which means that the tribunal can exercise jurisdiction over crimes committed in the refugee camps that had been established in neighboring countries as Rwandans fled their own country. SEE ALSO African Crisis Response Initiative;

Armenians in Ottoman Turkey and the Armenian Genocide; Bangladesh/East Pakistan; Cambodia; East Timor; El Salvador; Genocide; Guatemala; Hiroshima; Holocaust; Indonesia; Iran; Iraq; Jackson, Robert; Khmer Rouge; Kosovo; Kurds; Lemkin, Raphael; Morgenthau, Henry; Pinochet, Augusto; Pol Pot; Proxmire, William; Refugees; Rwanda; Somalia, Intervention in; Tibet; United Nations Security Council; Yugoslavia BIBLIOGRAPHY

Barron, John, and Anthony Paul (1977). Murder of a Gentle Land: The Untold Story of Communist Genocide in Cambodia. New York: Reader’s Digest Press. Des Forges, Alison. (1999). Leave None to Tell the Story: Genocide in Rwanda. New York: Human Rights Watch. Etcheson, Craig (1984). The Rise and Demise of Democratic Kampuchea. Boulder, Colo.: Westview Press.



Universal Jurisdiction

Holbrooke, Richard (1998). To End a War. New York: Random House. Kiernan, Ben (1996). The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975–79. New Haven, Conn.: Yale University Press. Kuper, Leo (1977). The Pity of it All: Polarization of Racial and Ethnic Relations. Minneapolis: University of Minnesota Press. Kuper, Leo (1985). The Prevention of Genocide. New Haven, Conn.: Yale University Press. LeBlanc, Lawrence (1991). The United States and the Genocide Convention. Durham, N.C.: Duke University Press. Lemkin, Raphael (1944). Axis Rule in Occupied Europe. Washington, D.C.: Carnegie Endowment for International Peace. Ponchaud, Francois (1978). Cambodia: Year Zero. New York: Holt, Reinhart and Winston. Power, Samantha (2002). A Problem from Hell: America and the Age of Genocide. London: Harper Collins Publishers. Riemer, Neal, ed. (2000). Protection against Genocide. Westport, Conn.: Praeger Publishers. Robinson, Nehemiah (1960). The Genocide Convention: A Commentary. New York: The American Jewish Committee. Ronayne, Peter (2001). Never Again? The United States and the Prevention and Punishment of Genocide since the Holocaust. New York: Rowman and Littlefield. Shawcross, William (1979). Sideshow: Kissinger, Nixon, and the Destruction of Cambodia. New York: Simon and Schuster. Zimmerman, Warren (1996). Origins of a Catastrophe: Yugoslavia and Its Destroyers. New York: Times Books. Lawrence J. LeBlanc

Universal Jurisdiction Like every concept, jurisdiction may have different meanings. The word comes from Latin roots: jus or juris means “law,” and dicere means “to say” or “to read.” Therefore, “jurisdiction” can be understood to mean; “to say the law” and, as a derivative, “the power to say the law.” Presently, jurisdiction is understood as the legislative, adjudicative, and executive power that provides, respectively, the competence to prescribe, adjudicate, or execute the law. In particular, it refers to the territorial competence of courts. Jurisdiction in criminal matters may be considered either as substantial or procedural law. Prescriptive jurisdiction basically depends upon the enactment of laws by individual states, or by the state’s adoption of international conventions. In the case of genocide, most states have become parties to the 1948 Genocide Convention, and the majority of states [1116]

have incorporated the convention into their internal legal order. No international convention yet exists on crimes against humanity, except for where they may be found within the conventions that create international criminal tribunals. Executive power, in criminal law, is one of the forces (such as the police) that is permitted to intervene to enforce a search or arrest warrant. In principle, no state is allowed to exercise executive power on the territory in other states. The courts within a particular state exercise adjudicative jurisdiction, which is the authority to render a decision on a case. Adjudicative Jurisdiction Adjudicative jurisdiction can be discussed on a material, personal or territorial level. With genocide, the material jurisdiction is given by the crime itself, which has been largely uniformly understood and defined worldwide since the 1948 Genocide Convention. On the personal level, there is an onus in criminal law that every natural person over a certain age can be prosecuted for a crime, which is committed within the boundaries of a state’s borders. For personal jurisdiction, therefore, it is more a question of defining the exceptions than of defining the rule. For instance, there are exceptions for some persons under a certain age; persons eligible for or having been granted immunities; or persons of a certain status, such as military persons serving duty in foreign states, when the state they serve has signed specific conventions with the state in which they committed the act. The most controversial question debated in recent years is the extent the courts of a particular state can adjudicate crimes which have been committed outside the territory of that state. In criminal law there are different means of jurisdiction over an accused; but the means are not recognized equally by all states. The most easily recognizable and applicable basis of jurisdiction is the territorial principle, whereby persons may be tried and punished for crimes committed on the territory of the state that seeks to prosecute them. Further, persons may be prosecuted by their state of nationality for a crime no matter on which territory they commit it. This is called the active personality principle. In the first means of claiming jurisdiction, the primary interest of a state is to maintain law and order in its territory, which is the most basic duty and prerogative of states. In the second case, states may be interested in maintaining a certain level of morality among their citizens, even when those citizens act abroad. More controversial is the right for states to adjudicate crimes that have been committed abroad by foreigners but against their own citizens. This is the passive personality principle. Normally, it should be in fact the duty of the state where the crime has been committed, or even the state


Universal Jurisdiction

of the nationality of the author of the crime, to prosecute the person who has committed the crime. Yet, most states still maintain the prerogative to exercise the passive personality principle, if only to avoid a denial of justice if the territorial or the national states do not proceed against the author of the crime. Universal Jurisdiction One even more controversial issue is whether states are allowed to judge foreign persons who have committed crimes abroad against other foreigners. In this case, the state doing the judging has no connecting link with the persons or the crimes, except for the fact that the suspects are possibly present on their territory. This principle is usually known as the universality principle, or as universal jurisdiction. One view is that this principle is recognized when states expressly or tacitly allow other states to proceed against their own citizens, or permit another state to prosecute individuals for crimes that have been committed on their own territory. In such cases, jurisdiction may be transferred to another state through ad hoc agreements, bilateral treaties, or through multilateral treaties. Customary law may also allow the application of this principle, as is historically the case with piracy. Universal jurisdiction, therefore, is not new. During the Middle Ages, it was primarily applied by small states in Europe when they were fighting gangs of international thieves. Among the many multilateral treaties which allow adjudicative jurisdiction to be delegated in such a way, are those intended to fight transnational criminality such as terrorism, narcotics, or in certain fields of international humanitarian law and human rights (torture, for example). Indeed, states consider that serious transnational crimes and criminals can only be dealt with by promoting transnational accountability and mutual assistance in criminal matters, including allowing all the states party to certain treaties to prosecute the criminals where they can catch them.

are against international law, and are therefore crimes against mankind. Those who commit such crimes are considered to be enemies of the whole human family (hostes humani generic), and should be prosecuted wherever they are. In this view, the international community as a whole delegates to individual states the task of judging certain crimes and some criminals of common concern. The Lotus Case, 1927 The ambit (sphere) of the jurisdiction of states in criminal law has been dealt with by numerous specific international treaties, yet no general treaty provides for a comprehensive solution of the jurisdiction of states in criminal cases. The most comprehensive and authoritative opinion to date was issued by the Permanent International Court of Justice in the Lotus Case of 1927. In this case, the court had to deal with a case of collision between two ships, one French (Lotus) and one Turkish (Boz-Kourt), in the Mediterranean high seas, which caused loss of life among the Turkish sailors. On the arrival of the Lotus in Constantinople, the French lieutenant and officer on the bridge at the time of the collision was arrested and prosecuted by the Turkish authorities on a charge of homicide by negligence. The Turks invoked Article 6 of the Turkish Penal Code, which gave the Turkish courts jurisdiction, on the request of the injured parties, to prosecute foreigners accused of having committed crimes against Turkish nationals. The French government protested against the arrest, and the two states agreed to consult the Permanent Court of International Justice to determine whether Turkey had acted in conflict with the principles of international law by asserting criminal jurisdiction over the French officer. France alleged that Turkey had to find support in international law before asserting its extraterritorial jurisdiction, whereas Turkey alleged that it had jurisdiction unless it was forbidden by international law.

Of course, this kind of jurisdiction implies that states agree on the definition of the crimes that can be prosecuted, and that they trust each other’s respective legal systems. At the very least, the states must agree that the possible evil of the prosecution by dubious foreign judicial systems is matched by the necessity to severely repress certain crimes and criminals. It is a matter of weighing the need for crime control against a possible lack of procedural guarantees.

In its judgment, the court decided with the thinnest majority that Turkey had not infringed international law. It ruled, instead, that France had not proven its claim that international law provided a restriction of adjudicative jurisdiction. As president of the court Max Huber clearly stated: “restrictions upon the independence of States cannot be presumed.” Where international law does not provide otherwise, states are free to adjudicate cases as long as their executive power is not exercised outside its territory:

One other view, more naturalist, and which believes in the existence of a legislative power above the individual states, is that universal jurisdiction applies to crimes that affect the international community and

far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property, and acts outside their terri-



Universal Jurisdiction

tory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.

According to this case, states would be free to adjudicate cases of genocide committed abroad, even by foreigners against foreigners, as long as third-party states cannot prove that this extraterritorial jurisdiction is prohibited. The burden of proof that a state acts in contradiction to international law, at least as far as its jurisdiction is concerned, lies on the plaintiff state. Both treaties and the development of customary law (as evidence of a general practice accepted as law) are, of course, the best sources from which to discover whether individual states use a recognized principle of jurisdiction or if they trespass the limits and interfere with other states’ internal and domestic affairs. The Nuremberg Statute and the Post–WWII Prosecutions The Nuremberg Statute of 1945, provided the first express prohibition of crimes against humanity. The term genocide has also been used in several indictments by national courts that have judged Nazis after the end of the war. Yet, the Nuremberg Statute was only applicable to the crimes committed by the Nazis and their allies, although those crimes may have been committed on nonGerman territory. In addition, it has been argued that the jurisdiction of the Allies to judge the Nazis for the core crimes of aggression, war crimes, and crimes against humanity either stemmed from Germany’s surrender to the Allies, and therefore from the jurisdiction of Germany itself to judge its own nationals, or was derived from the fact of Germany’s occupation. The 1948 Genocide Convention The clearest ambit of the adjudicative jurisdiction of states for crimes of genocide is provided by Article 6 of the 1948 Genocide Convention, which states that: Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted jurisdiction.

The question to be raised is whether states that are parties to this convention allow themselves to prosecute persons who have committed or participated to a genocide in a third country, whether or not such persons are nationals of the state that wants to prosecute [1118]

them. The text of Article 6 does not say whether the term “shall be tried,” provides for compulsory territorial jurisdiction or whether a state may, on the basis of customary international law, bring someone accused of genocide before its own courts on the basis of either extraterritorial jurisdiction or universal jurisdiction. As a matter of fact, the preparatory work of the treaty shows that the authors of the working draft clearly contemplated universal jurisdiction. Yet, an historical analysis of the Convention leads to the conclusion that most states, at the start of the cold war, clearly wanted to avoid such a broad interpretation. The Soviet representative at the conference, for instance, stated “no exception should be made in the case of genocide to the principle of the territorial jurisdiction of states, which alone was compatible with the principle of national sovereignty.” According to the Egyptian representative, “it would be very dangerous if statesmen could be tried by the courts of countries with a political ideology different from that of their own country.” This opinion was also shared by the American representative, who thought that prosecution for crimes committed outside the territory of a state could only be allowed with the consent of the territorial state. The representatives of some countries, including Burma, Algeria, and Morocco, even made formal declarations according to which no crime of genocide committed on their territory could be judged by state courts other than their own. The jurisdiction of an international penal tribunal was agreed upon as a compromise between the states that wanted to limit jurisdiction to the territorial principle and those that wanted to broaden its meaning. The preparatory work of a treaty merely provides a “supplementary means of interpretation,” to be used only when ordinary interpretation leaves the meaning ambiguous or obscure, or leads to a result that is manifestly absurd or unreasonable. Besides, the 1948 Genocide Convention is more than fifty years old and the jurisdiction of states to prosecute crimes of genocide must be reviewed according to the evolution undergone by customary law in the time since it was first written. Indeed, the very restrictive approach of Article VI has been criticized by some authorities, who sometimes base their opinion on the specific nature of the crime considered. This can be seen in the work of the International Law Commission (2000); the American Law Institute, in its Restatement of the Foreign Relations Law of the United States (1987); and the International Court of Justice (ICJ), in the Genocide case (1993). It is similarly apparent in the opinions handed down by individual judges in the Arrest Warrant case (2002) as well as in the work of the International Criminal Tribunal of Former Yugoslavia (ICTY), for example in the


Universal Jurisdiction

Tadic case (1995). This view is also shared by a considerable number of academics and authors, who propose that the crime of genocide, or even crimes against humanity, should be prosecuted on the basis of universal jurisdiction. For these authorities and authors, Article VI of the 1948 Genocide Convention, by obliging states to prosecute crimes of genocide committed on their territory, does not prevent states from prosecuting them if they are committed in third countries. They also generally insist on the fact that genocide is a crime of concern not only for individual states but for the international community as a whole. International law is created by states, however, and not by “authorities” or by doctrine. It is therefore necessary to verify whether the evolution of the practice of the states and their opinio juris expressed since 1948 can match the evolution of the doctrine. As a matter of fact, it is hard to find many cases of prosecutions for acts of genocide outside the territorial state where the acts have been committed. The Eichmann and Demjanjuk Cases in Israel In 1961 Adolf Eichmann was abducted in Argentina by Israeli agents and taken to Israel, where he was prosecuted and condemned for his participation in the genocide committed by the Nazis. Argentina strongly protested the abduction, although its opposition to the judgment itself was less vocal. In any case, the German authorities clearly agreed that Eichmann, a German citizen having committed crimes in Germany, should be prosecuted by Israel. The German authorities probably did not feel that they were acting in accordance with customary law. It is likely, instead, that they approved Eichmann’s prosecution in Israel for political reasons and because they did not want to hamper the repression of Nazis. On the other hand, the Israeli courts did not rely on Germany to assert their competence to judge Eichmann. Instead, they acted on two different grounds. The first was an invocation of the passive personality principle, whereby the state of Israel asserted its legitimacy to judge acts that had been committed against Jews even before the state of Israel existed. The second ground underlying the Israeli courts’ claim of jurisdiction was a reference to a mix of international morality and law: [T]hese crimes constitute acts which damage vital interests; they impair the foundations and security of the international community; they violate the universal moral values and humanitarian principles that lie hidden in the criminal law systems adopted by civilised nations. The under-

lying principle in international law regarding such crimes is that the individual who has committed any of them and who, when doing so, may be presumed to have fully comprehended the heinous nature of his act, must account for his conduct

The reasoning of the Israeli court was that a crime can be defined by the “international community”, and that states are empowered to serve as “executive agents” of that international community, as long as the instruments under international law are not enacted and in force. What is interesting about the Eichmann case is not the declarations of the Israeli courts, but the fact that most other states did not react negatively against the application of universal jurisdiction by Israel for its prosecution of a case of genocide. Even Argentina, which did protest harshly against the abduction of Eichmann from its territory, did not go so far as to lodge a formal complaint against the judgment of the Israeli courts. Another case concerning the Nazi genocide occurred in 1986, when a U.S. court agreed to extradite John Demjanjuk, alleged to have been a camp warden in Treblinka. By agreeing to the extradition, the United States recognized the jurisdiction of Israeli courts to judge Demjanjuk, who had become a naturalized U.S. citizen after the end of World War II. Demjanjuk was tried in Israel and acquitted on the merits of the case. However, neither the Eichmann case nor the Demjanjuk case can be considered as setting a precedent for other states. Other Relevant Examples The jurisdiction of states to judge acts of genocide that have been committed in other states has been considered in various cases arising out of the genocide in Rwanda, which occurred in 1994. Overall, however, the invocation of universal jurisdiction has been rather heterogeneous and ambiguous. In 1994, for instance, Austria put the former commander of a Serbian military unit, Dusko Cvjetkovic, on trial for acts of genocide committed in the former Yugoslavia. The defense protested that Austria did not have jurisdiction, but the Appeals Court justified the Austrian court’s right to conduct the trial in the following terms: Article VI of the Genocide Convention, which provides that persons charged with genocide or any of the acts enumerated in Article III shall be tried by a competent tribunal of the State where the act was committed, or by such international penal tribunal as may have jurisdiction with re-



Universal Jurisdiction

spect to those Contracting Parties which shall have accepted its jurisdiction, is based on the fundamental assumption that there is a functioning criminal justice system in the locus delicti (which would make the extradition of a suspect legally possible). Otherwise—since at the time of the adoption of the Genocide Convention there was no international criminal court—the outcome would be diametrically opposed to the intention of its drafters, and a person suspected of genocide or any of the acts enumerated in Article III could not be prosecuted because the criminal justice in the locus delicti is not functioning and the international criminal court is not in place (or its jurisdiction has not been accepted by the State concerned) (Reydams, 2003).

Cvjetkovic was tried in Austria, and a jury acquitted him of all charges. In 1996 in France, the Appeal Court of Nıˇmes expressly rejected the French assertion of jurisdiction in the case Wanceslas Munyeshyaka, stating that Article VI of the Genocide Convention did not allow the application of universal jurisdiction for cases of genocide. This judgement was overruled by the French Supreme Court, but only on the very technical ground that alternative justifications for claiming jurisdiction were available: France could invoke either the Torture Convention of 1984, or it could base its jurisdictional claim on a specific law, based on UN Security Resolution 955, which had been adopted in France in response to the genocide in Rwanda.

In 1998 a German court sentenced a Serb named Nikola Jorgic to life imprisonment for acts of genocide, basing its claim to jurisdiction on the German Criminal Code, which provided for universal jurisdiction in cases of genocide. Interestingly, the Higher Court expressly mentioned “the generally accepted nonexclusive interpretation of Article VI of the 1948 Genocide Convention” to assert that there is no prohibition of universal jurisdiction under international law regarding the prosecution of acts of genocide. The Federal Supreme Court confirmed that a hypothetical norm forbidding the application of universal jurisdiction would be contrary to the rule prohibiting genocide, which is a peremptory (jus cogens) norm. In a later case, Maksim Sokolovic (1999), the Federal Supreme Court even dropped the requirement that a special link exist between the accused person and Germany in order to prosecute him for genocide on the basis of universal jurisdiction. In 2001 four Rwandese were prosecuted in Belgium for having participated in the Rwandan genocide in the Butare province. However, Belgium applied universal jurisdiction in order to judge them for war crimes only. They were not charged with crimes against humanity or genocide, apparently because universal jurisdiction for these crimes had only recently (in 1999) been added to the 1993 Act Concerning the Punishment of Grave Breaches of International Humanitarian Law, 1993. In this case, as in the French and Swiss trials, the Republic of Rwanda never challenged the assertion of universal jurisdiction.

In Switzerland, Fulgence Niyonteze, former mayor of Mushubati, Rwanda, was tried in 1997 by the military courts for his participation in the genocide. Although the prosecutor had indicted Niyonteze for murder, grave breaches of international humanitarian law, genocide, and crimes against humanity, the Swiss court refused to judge him for genocide or for crimes against humanity because Switzerland was not, at the time of the trial, a signatory to the 1948 Genocide Convention and had incorporated no provision for genocide or crimes against humanity in its domestic laws. The court did, however, convict Niyonteze for murder, incitement to murder, and grave breaches of the Geneva Conventions arising from his participation in the internal conflict of Rwanda.

In fact, in many cases where universal jurisdiction has been used to judge suspects of the genocide in Rwanda, the prosecuting states have either indicted and sentenced the accused on the basis of national provisions of humanitarian law, or they have enacted a special law on the implementation of the status of the International Criminal Tribunal for Rwanda. Indeed, the states that applied universal jurisdiction for acts of genocide committed in Rwanda were encouraged to do so by the international community, and especially by the UN Security Council. Therefore, it is difficult to draw definitive conclusions on the general acceptance by states of the universal jurisdiction for the crime of genocide.

The Military Court of Appeal dismissed the judgement of the Swiss court on indictment of murder and incitement to murder, retaining only the conviction regarding grave breaches of the Geneva Conventions. Unlike the Genocide Convention, the Geneva Conventions expressly provide for the possibility to judge a person on the basis of universal jurisdiction.

Legislative Practice of States Some states have implemented legislation that allows the prosecution of crimes of genocide and crimes against humanity according to universal jurisdiction. For example, Australia, Belgium, Canada, Germany, The Netherlands, Spain and, to some extent, Argentina, Ethiopia, and Venezuela allow for judging these crimes



Universal Jurisdiction

even if they have been committed abroad. Switzerland, which only became a party to the Genocide Convention in 2000, expressly enacted a law providing for universal jurisdiction for the crime of genocide by including the following passage in the Message of the Council of Ministers: with the view of the “jus cogens aspect” of the prohibition of genocide as well as of its effects “erga omnes,” there is no doubt that the prosecution of the crime of genocide must be based, in international law, on universal jurisdiction. Therefore, States may—and even must— prosecute or extradite foreign nationals or their own nationals who are suspect of having committed an act of genocide, even if the act has not been committed on their territory. This does not constitute a violation of the principle of nonintervention in other States’ internal affairs.

Unfortunately, there has been no instance in which, at the time of becoming party to the Genocide Convention, a state has made a formal declaration on the question of the extent of jurisdiction as provided for by Article VI. The reaction of the international community to such an interpretation would provide good evidence of the state of customary law on this matter. In all the cases where states adopted universal jurisdiction into their own legislation, customary law was consolidated. The states also put themselves in a situation where they cannot deny other states the right to prosecute one of their nationals for crimes of genocide. On the other hand, the huge majority of states seem neither to have implemented the Genocide Convention into their own legal system, nor to have extended their own jurisdiction for genocide to universality. Most recently, some states have shown a strong opposition against extraterritorial jurisdiction and against states that allow themselves, by law, to exercise such jurisdiction. Others became aware of the excesses universal jurisdiction could trigger and so downplayed its importance. The Belgian legislation on universal jurisdiction and its application by investigating judges and courts was notably the focal point of heated debate in doctrinal and political circles. Universal Jurisdiction and the International Criminal Court These developments, which may give the appearance that customary law could have evolved towards a more permissive jurisdiction, at least as far as a crime of genocide is concerned, have to be reconsidered since the Rome Statute of the International Criminal Court (ICC) was adopted in 1999. The Rome Statute provides for the jurisdiction of the ICC for crimes of genocide and for crimes against

humanity, with the definition of genocide being the same as under the 1948 Genocide Convention. Therefore, it is argued, states that are party to both the Genocide Convention and the Rome Statute wished to favor either the territorial or the active personality principle on the one hand, or the jurisdiction of the ICC on the other. With the emergence of the ICC, the first justification of the exercise of universal jurisdiction by a state—the Israeli explanation that the competence of its own courts derived from the fact that there was no international court allowed at that time to prosecute international crimes, in particular genocide—would now be invalidated. Yet, the ICC only has jurisdiction when a crime has been committed on the territory of a state party to the Rome Statute or by a national of a state party to the Statute. Therefore, it is argued that universal jurisdiction could still be applied by states that are parties to both the 1948 Genocide Convention and to the Rome Statute when the crime which is prosecuted has been committed on the territory of states—and by a national of states—which are not parties to the Rome statute. Cases Heard before the International Court of Justice The question of the admissible extension of a state’s criminal jurisdiction could have been laid to rest by the International Court of Justice (ICJ) in the case of the Arrest Warrant of April 11, 2000, issued by the Democratic Republic of Congo (DRC) against Belgium. In this case, an investigating judge of Belgium issued an arrest warrant for grave breaches of international humanitarian law against the Minister of Foreign Affairs for DRC President Laurent Desire Kabila. Belgium had no connecting point with the case, except that the plaintiffs were residing in Belgium. The DRC had two main points of contention about the arrest warrant. The first was that Belgium had applied extraterritorial jurisdiction to events that had taken place in the DRC, and therefore had violated its territorial authority and the principle of sovereign equality among all members of the United Nations. The other was that Belgium had violated customary law regarding the diplomatic immunity of Ministers of Foreign Affairs while still holding office. Unfortunately for the sake of international law, Congo later abandoned its claim that the in absentia proceedings against its minister was an exorbitant exercise of Belgium’s jurisdiction. Moreover, the court could save its reasoning on universal jurisdiction because it found, by thirteen votes to three, that Congo was right to complain on the basis of the sovereign immunity argument.



Universal Jurisdiction

In another case, the Republic of the Congo filed an application on December 2002 to the ICJ, instituting proceedings against France. The application sought to annul the investigations and prosecution measures taken by a French investigating judge following a complaint concerning crimes against humanity and torture allegedly committed in the Congo by Congolese officials against individuals of Congolese nationality. Among the individuals targeted by the French measures were the President of the Republic of the Congo, the Congolese Minister of the Interior, and some generals, including the Inspector-General of the Congolese Armed Forces and the Commander of the Presidential Guard. France is a party to the 1984 Torture Convention, and it has implemented a provision in its Criminal Procedure Code expressly allowing for universal jurisdiction in its courts in cases of torture. Congo, however, is not a party to the Torture Convention. It therefore considers that the issuing of the arrest warrant against Congolese authorities is a violation of its sovereignty. In its complaint, the Congo complained that by attributing itself universal jurisdiction in criminal matters and by arrogating to itself the power to prosecute and try the Minister of the Interior of a foreign State for crimes allegedly committed by him in connection with the exercise of his powers for the maintenance of public order in his country [France violated] the principle that a State may not, in breach of the principle of sovereign equality among all Members of the United Nations (. . .) exercise its authority on the territory of another State.

In this case, the question of immunity could allow the court to avoid rendering a judgment on the merits of universal jurisdiction, at least as far as the Congolese president and minister of the interior are concerned. It would be difficult, however, to see how the court could avoid making a decision on universal jurisdiction in the case of the generals, who most probably do not qualify for any claim of immunity. Therefore, the question to be decided by the court is whether states are allowed to prosecute a person on the basis of universal jurisdiction when the territorial state or the state of the nationality of the author of the alleged crime is not a party to a convention that provides for universal jurisdiction. Some Practical Considerations Even if the ICJ allows France to prosecute actors of crimes against humanity on the basis of universal jurisdiction in the Congo v. France case, it is unlikely that national courts will rush to judge cases committed abroad by foreigners against foreigners. Indeed, many obstacles still remain. One of the most obvious obstacles is the difficulty for states to allocate important human and financial re[1122]

sources to investigate cases, to prosecute, judge, and possibly imprison persons who perhaps disturbed the morale and security of the community of nations, but who did not specifically endanger the public order of the State where the arrest was carried out. For this reason, states more likely will be tempted to deny the entrance onto their territory of persons suspected of having committed acts of genocide, or, if such persons are found on their territory, to extradite them rather than to judge them. It is also very difficult for states to judge cases of genocide or crimes against humanity committed outside their borders. Such states could face grave political problems. In addition, the difficulty of gathering evidence would force the prosecuting state to rely on assistance from the territorial States, which are not likely to provide assistance if they deny the jurisdiction of the prosecuting state. Finally, cultural and linguistic differences between the state of judgment and the persons to be judged present further obstacles. With all these elements in mind, it would appear to be highly preferable that each state be encouraged to judge the acts of genocide or crimes against humanity, which have been committed on its territory. This could be encouraged through assistance from the international community, or by allowing the International Criminal Court to judge such cases. SEE ALSO Eichmann Trials; Extradition; Immunity;

National Prosecutions; Pinochet, Augusto; War Crimes BIBLIOGRAPHY

Bassiouni, M. Cherif (2001). “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice.” Virginia Journal of International Law 42:1–100. Benavides, Luis (2001). “The Universal Jurisdiction Principle: Nature and Scope.” Anuario Mexicano de Derecho Internacional 1:19–96. Cassese, Antonio and Myriam Delmas-Marty, eds, (2002). Juridictions nationales et crimes internationaux. Paris: Presse Universitaire de France. Guillaume, Gilbert (2003). “La compétence universelle: du code de Justinien à l’affaire Yerodia.” In La Cour internationale de justice à l’aube du XXIe siècle. Le regard d’un juge, ed. Gilbert Guillaume. Paris: Pedone. Henzelin, Marc (2000). Le Principe de l’universalité en droit pénal international. Bruxelles: Bruylant. Henzelin, Marc (2002). “La compétence pénale universelle: une question non résolue par l’arrêt Yerodia.” Revue Générale de Droit International Public 106:819–854. Macedo, Steve, ed. (2004). Universal Jurisdiction. Philadelphia: University of Pennsylvania Press. Randall, Kenneth (1988). “Universal Jurisdiction under International Law.” Texas Law Review 66:785–841.


Utilitarian Genocide

Reydams. Luc. (2003). “Belgium’s First Application of Universal Jurisdiction: the Butare Four Case.” Journal of International Criminal Justice 1:428–436. Reydams, Luc. (2003). Universal Jurisdiction. Oxford, U.K.: Oxford University Press. Sassoli, Marco (2002). “Le génocide rwandais, la justice militaire suisse et le droit international.” Revue Suisse de Droit International & Européen 12:151–178. Schabas, William (2003). “National Courts Finally Begin to Prosecute Genocide, the Crime of Crimes.” Journal of International Criminal Justice 1:39–63. Stern, Brigitte (2003). “Le génocide rwandais face aux autorités françaises.” In La répression internationale du génocide rwandais, ed. Laurence Burgorgue-Larsen. Bruxelles: Bruylant. CASE LAW

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, 15 February 2002; reprinted in International Legal Materials 41(2003):536. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), Order on Further Requests for the Indication of Provisional Measures, 13 September 1993, (1993) International Court of Justice Reports: 325; reprinted in International Legal Materials 32 (1993):1601–1613. Lotus (France vs. Turkey), 1927 Permanent Court of International Justice Reports, series A, no. 10, p. 4. Prosecutor v. Tadic (Case No. IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, reprinted in International Legal Materials 35(1996):35–73. Marc Henzelin

Utilitarian Genocide The pioneer genocide scholar Vahakn Dadrian introduced the concept of “utilitarian genocide” in a landmark 1975 article, “A Typology of Genocide.” He identified five “ideal types” of genocide, based mainly on the primary objective of the perpetrator: • cultural genocide, aiming at assimilation; • latent genocide, a by-product of war; • retributive genocide, localized punishment; • utilitarian genocide, to obtain wealth; • optimal genocide, aiming at total obliteration; As examples of utilitarian genocides, Dadrian cited the atrocities committed against Moors and Jews in the course of dispossesing them of businesses during the Spanish Inquisition, the forced removal and “decimation” of the Cherokees in the U.S. southern state of Georgia in 1829, and the ongoing enslavement and killing of Indians in Brazil. Even though some contemporary scholars use expressions such as “economically motivated” or “devel-

opmental genocide” instead of the actual term utilitarian genocide, there is broad agreement that (1) these terms basically cover systematic persecution and mass killings in order to obtain and/or monopolize access to land and to resources like gold or lumber; (2) generally, this type of genocide has been committed by European settlers or their descendants, with direct or indirect state authorization, against indigenous peoples in the Americas, Africa, and Australia; and (3), utilitarian motives are often mixed with or bolstered by racism and dehumanizing images. Most scholars also agree that the destruction of indigenous peoples still continues, especially in Latin America. A case in point is the nearly total extermination of the Aché (Guayaki) Indians in Paraguay during the 1970s. The subsequent scholars who have adopted either the term utilitarian genocide or its basic propositions include Irving Louis Horowitz, who in 1976 noted that “the conduct of classic colonialism was invariably linked with genocide” (pp. 19B20). Helen Fein, in 1984 used the synonym developmental genocide, that is, “instrumental acts to rid of peoples outside their [the colonizer’s] universe of obligations who stood in the way of economic exploitation” (p. 5), and in 1987, Roger Smith observed that “the basic proposition contained in utilitarian genocide is that some persons must die so that others may live” (p. 25). In 1990 Frank Chalk and Kurt Jonassohn included genocide “to acquire economic wealth” in their typology of four types of genocide based on the primary motive of the perpetrator. Even though the term utilitarian genocide is relatively new, it has long been acknowledged that utilitarian motives have played an important part in the destruction of groups, particularly in the New World. In his classic account of Spanish policy towards the Native population of the Americas, The Tears of the Indians, Dominican cleric Bartolomé de Las Casas wrote about two stages of extirpation: “the first whereof was a bloody, unjust, and cruel war they made upon them, a second by cutting off all that so much as sought to recover their liberty, as some of the stouter sort did intend. . . . That which led the Spaniards to these unsanctified impieties was the desire of Gold” (pp. 3B4). SEE ALSO Amazon Region; Genocide; Indigenous


Chalk, F. and K. Jonassohn (1995). The History and Sociology of Genocide. New Haven, Conn.: Yale University Press. Dadrian, Vahakn (1975). “A Typology of Genocide.” International Review of Modern Sociology 5:201B212.



Utopian Ideologies as Motives for Genocide

de Las Casas, Bartolomé (1972). Tears of the Indian. New York: Oriole Chapbooks. Fein, Helen (1984). “Scenarios of Genocide: Models of Genocide and Critical Responses.” In Toward the Understanding and Prevention of Genocide, ed. I. W. Charny. Boulder, Colo.: Westview Press. Horowitz, Irving Louis (1976). Genocide, State Power and Mass Murder. New Brunswick, N.J.: Transaction Books. Smith, Roger (1987). “Human Destructiveness and Politics: The Twentieth Century as an Age of Genocide.” In Genocide and the Modern Age, ed. I Wallimann and M. Dobkowski. New York: Greenwood Press. Eric Markusen Matthias Bjo⁄ rnlund

Utopian Ideologies as Motives for Genocide Genocides have existed for as long as humans have recorded history. There are instances of the intentional destruction of an entire group of people in the Hebrew Bible, and the Romans destroyed Carthage in a manner that sought to make impossible the continued existence of Carthiginians. In the Middle Ages the papacy launched a crusade designed to annihilate physically every follower of the Albigensian heresy. Since the late fifteenth century instances of colonial genocides—in the Caribbean, North America, Australasia—have been entwined with the history of European expansion around the globe. Some of these acts certainly had an ideological dimension. When the Israelites conquered Canaan and “devoted to destruction by the edge of the sword all in the city, both men and women, young and old” (Joshua 6:21–24), they were, in the Bible’s recounting, inspired by God and his promises to them as his chosen people. The medieval church also believed it was acting in God’s name and for the cause of Christianity when it stamped out heresies. But more typically, other genocides were acts of revenge and retribution in war, as with the Roman conquest of Carthage, or simply efforts to obtain land and wealth. In the colonial period Europeans conducted brutal attacks on people considered inferior, but the motivation was generally control over resources. In these actions little evidence of a fully articulated political ideology existed. In the twentieth century, however, genocides became more systematic, more extensive, and more deadly. They also became far more thoroughly imbued with an ideological character, with the claim, by perpetrators, that the utter destruction of an enemy group would pave the way toward a future of unlimited prosperity, uncontested power, and cultural efflorescence for the dominant group. In short, regimes that practiced genocide promised utopia to their followers. [1124]

The word utopia generally conjures up images of peace and harmony, of a society marked by well-being and cozy comfort. Thomas More’s classic sixteenthcentury fable Utopia (from which the word derives) conveys this vision, although More may well have been writing in an ironic mode. Many religious communities, such as the Anabaptists and Quakers, have seen themselves as the harbingers of the ultimate utopia, God’s kingdom on earth. Nineteenth-century liberals and socialists also imagined a utopian world free of hostile conflict, one in which either the natural workings of the market or the social ownership of property would bring prosperity to all and, in the socialist version, social equality as well. Nationalists such as Guiseppe Mazzini believed that once every group had its own state, individual nations would flourish and create a harmonious community of nations. Utopian goals of these kinds have never been fulfilled, but their advocates struggled mightily and contributed powerfully to many of the democratic and socially progressive advances of the modern era, from universal suffrage to the abolition of slavery to social welfare programs. However, there has also been an underside to utopianism. Invariably, its advocates have imagined a homogeneous society of one sort or another. In religious versions of utopia everyone would follow one god and one set of beliefs. In liberal utopias every country would operate according to the same market principles, and nationalists and socialists imagined each country possessing the same sort of political institutions. These utopian visions have constantly come up against the sometimes harsh reality of human difference. For all the advocacy of equality many utopians presumed the inferiority of women. Nineteenthcentury advocates of political rights and social equality often reserved these advances for men of property and the white race. The rest of the world, including eastern and southeastern Europeans in the view of some, was presumed to be too backward to excercise their rights responsibly, either because the populations had not yet reached the proper stage of development or were constitutionally inferior, usually by virtue of race, of ever reaching that level. Utopianism became far more dangerous in the twentieth century because it so often was linked to mass-based social movements that seized power, established revolutionary regimes, and venerated the state as the critical agent of social transformation. By no means were all these states practitioners of the worst kinds of violence against civilian populations. At the same time the most prevalent perpetrators of genocides in the twentieth century were revolutionary regimes of either


Utopian Ideologies as Motives for Genocide

An artist has portrayed a rather idealized tableau of the Soviet Union, with Lenin’s portrait in the upper left-hand corner. [ T H O M A S JOHNSON/SYGMA/CORBIS]

fascist or communist commitments (Nazi Germany, the Stalinist Soviet Union, Cambodia under the Khmer Rouge) or states in the throes of some kind of uneasy revolutionary transformation (the late Ottoman Empire under the Young Turks, the former Yugoslavia under Slobodan Milosevic, Rwanda under the Hutu). The particular utopias these regimes or states advocated varied significantly. Yet every one of them envisioned a homogeneous society of one sort or another, which necessarily meant the expulsion or extermination of particular groups. Indeed, all these regimes claimed that utopia would be created only through the destruction of one or more enemy groups. The historian Saul Friedländer has coined the powerful term redemptive anti-Semitism to describe the Nazi hatred of Jews. According to the Nazis, Aryan life would flourish once Jews had been driven completely from the German realm. Similarly, one can see a kind of redemptive vision at work in the Young Turk attack on Armenians, the Khmer Rouge assault on Muslim Chams and Vietnamese, and the murderous actions of the Hutu against Tutsi. Each of these regimes promised their followers a brilliant future once the enemy was destroyed. The redemptive vision, the annihilation of one group as the

decisive means for creating the future, marked the road to utopia. The regimes defined by explicitly national or racial ideologies were most open about the enemy status of the “other.” In a Nazi-dominated Europe so-called Aryans would stand astride a continent cleansed of Jews, while Slavs would be reduced to subordinate status. In the Greater Serbia envisioned by Slobodan Milosevic and his supporters, there could be no place whatsoever for Muslims and Croats. Even under some communist regimes, the differences among people would be reduced to mere exotica, whereas the fundamental institutions and life forms would be the same. Those who refused to follow the socialist path (Chechens and Tatars in the Stalinist Soviet Union, Cham and Vietnamese in Cambodia) would either be driven out or killed. All these genocidal regimes expressed in their propaganda and policies the sharp, binary distinction they drew between the goodness of the dominant group and the utterly benighted and dangerous character of the enemy population. The Bolsheviks took power in Russia in 1917 fully confident that they could create a classless, egalitarian society. By clearing away the rubble of the past, they



Utopian Ideologies as Motives for Genocide

believed, the path would be opened to the creation of the new society that would permit the ultimate efflorescence of the human spirit. In Marxian terms the “realm of necessity” would finally be surmounted by the “realm of freedom,” material prosperity in conditions of social equality would lay to rest all the pathologies of class-riven societies and the nefarious traits of individual human beings. Within the harmonious socialist society human freedom would develop in unimaginable ways, resulting in a society marked by unbounded prosperity and cultural creativity and the emergence of the new Soviet man and woman. However, the creation of that society first required the pursuit of the class opponents who would never be reconciled to the socialist vision. From the civil war of 1918 and 1920 to the forced collectivization campaign of the late 1920s and early 1930s, the Soviets developed a set of purge practices targeting entire population groups characterized as the enemies of socialism. Then in the 1930s and extending until Stalin’s death in 1953, the designated enemies were increasingly defined as members of particular ethnic and national groups, including Koreans, Chechens and Ingush, Crimean Tatars, Germans, Jews, and many others. All of them were viewed as security concerns, but even more important, as somehow constitutionally resistant to the siren song of Soviet socialism. As Stalin elevated the Russian nation to the most heroic and progressive within the Soviet federation, certain other nationalities and ethnicities were assigned the typical Soviet language for outcasts: traitors, vermin, bloodsuckers, parasites. This kind of biological language indicated a racialization of nationality and ethnicity, because virtually every single Korean or Chechen was seen to carry the nefarious traits within his or her body. Soviet socialism could only be saved by the purge of these groups, usually forced deportation in such horrendous conditions that the results were extremely high mortality rates. The Nazis claimed that only Aryans were a “culture-producing” and economically productive people, who, therefore, were entitled to dominate others. Aryans are the “Prometheus of mankind from whose bright forehead the divine spark of genius has sprung at all times,” Adolf Hitler wrote in Mein Kampf. In contrast, Jews were a “culture-destroying race” who embodied filth and disease. Through their inherent, biologically driven desire for domination, they threatened to overwhelm Aryans. Hard-fought racial struggle, through which Aryans would demonstrate their mettle, was the path to the utopian future. This would be a war of annihilation in which one side would triumph and the other would be utterly destroyed. Aryan health and prosperi[1126]

ty would be restored and become even greater through the victorious struggle against the Jews. With final victory Germany as a nation would be powerful, its rule uncontested, its domination feared. As a people, Germans would be productive and prosperous, the masters of nature through engineering and science, yet at the same time they would be able to revel in the retreat to a pristine natural order. Everyone would be joined in a racially homogeneous grouping, with healthy members and the elderly well cared for. This was the Nazi ideal of Volksgemeinschaft, the organically unified, racially select people’s community that would create a new culture that brought together rural and urban, menial and intellectual workers. As Hitler claimed in 1937, “a new feeling of life, a new joy in life” and a “new human type” were emerging, with men and women who would be “healthier and stronger.” The post-World War II genocidal regimes also espoused utopia coupled with the utter castigation of those perceived to stand in the way of its fulfillment. On the second anniversary of the Khmer Rouge victory, President Khieu Samphan depicted in bucolic terms a Democratic Kampuchea with freely flowing water, freshly flowering plants, and smiling people. Radio Phnom Penh described Cambodians of all sorts toiling together happily in the fields, harvesting rice, building dams, and clearing forests as they developed a new, prosperous, and egalitarian society. According to the Khmer Rouge vision, proper politics would enable Cambodians to vastly increase the rice harvest, and all of Cambodia’s peasants would benefit from electricity and tractors. This was a developmental vision, but also a deeply utopian one in which efforts of will would surmount existing limits of production. “When a people is awakened by political consciousness, it can do anything,” suggested one party slogan. Cambodians were to become “masters of the earth and of water,” “masters of the rice fields and plains, of the forests and of all vegetation,” “masters of the yearly floods.” With its completely collectivized society, Democratic Kampuchea had even surpassed the fellow communist states of China, Vietnam, and North Korea. But the enemies of the revolution, urban dwellers, peasants who retained “individualistic” views, and, especially, ethnic and religious minorities, were beyond the pale. They were deemed impure and unclean, and therefore threatened the health of the noble Khmer population. Echoing the biological language that both the Nazis and Soviets used, the Khmer Rouge claimed that enemies were microbes, which, if not removed, would burrow their way into the healthy population. Rotten, infected parts of the population had to be removed and eliminated, and this applied especially to the Vietnamese and Cham.


Utopian Ideologies as Motives for Genocide

The leaders of Yugoslavia in the late 1980s and 1990s also projected a utopian future based on the exclusive reign of one particular segment of the population, the Serbs. Over and over Slobodan Milosevic and other Serb nationalist leaders invoked the supposedly glorious history of Serbs and their tragic present, in which, it was claimed, Serbs were oppressed by the inferior peoples around them, whether Muslims, Croats, or Westerners of various stripes. Serbian Orthodox clerics associated with the national cause claimed that God looked down with special grace on the Serb people. Others claimed that Serbs were the “historic” people of the South Slav lands, who for hundreds of years had fought heroically against the Turks and in the nineteenth and twentieth centuries had led courageous struggles for democracy and national independence. Places of mixed ethnicity such as Sarajevo and Dubrovnik were thus sites of pestilence and prostitution. Muslims especially were called dogs, even packages or cabbages, particularly dehumanizing terms that perpetrators used to refer to their victims. Only an exclusive nation-state, cleansed of Muslims, Croats, and any non-Serbs, Serb nationalists claimed, would allow the potential of the people to burst forth in torrents of creativity and development. Cleanliness and purity are terms that, necessarily, signify their binary opposites, the unclean and the impure. In all these instances, and others as well, such as the genocide of Armenians in the late Ottoman Empire, those who were considered unclean were an active source of pollution that threatened to contaminate the clean and the pure. Hence, they had to be at least quarantined and, in the most extreme cases, eradicated altogether. For some of the powerful revolutionary systems of the twentieth century, the dirt that anthropologist Mary Douglas famously described as “matter out of place” was, in fact, human matter, and it had to be eradicated through political action. In excluding “dirt,” these systems were reshaping the very composition of their societies. Such immense, wide-ranging efforts required the mobilization of populations, both as active participants and complicit bystanders. Regular security forces did not suffice for actions that involved the killing of hun-

dreds of thousands and even millions of people. The active killers in the armies and internal security units were supplemented by paramilitaries, and also by the citizens who denounced their neighbors to the authorities and seized the property and possessions of those who had been deported and killed. In this manner twentieth-century genocides became social projects. Utopian ideologies have often generated activism directed at a more humane and peaceful future. But the propensity of utopians to think in homogeneous terms, of creating societies devoid of difference, also lurks behind many of the massive violations of human rights that have occurred in the twentieth century. In so many instances the perpetrators of genocides were those who believed that it was indeed possible to create a future of unlimited prosperity and creativity once the enemies—so often defined in national or racial terms—had been eliminated. Utopian ideologies, alongside the immense organizational capacities of the modern state, helped to make genocides prevalent and the number of their victims staggering in the twentieth century. SEE ALSO Cambodia; Developmental Genocide;

Genocide; Hitler, Adolf; Linguistic Genocide; Milosevic, Slobodan; Pol Pot; Stalin, Joseph; Union of Soviet Socialist Republics; Utilitarian Genocide BIBLIOGRAPHY

Chandler, David (1991). Voices from S-21: Terror and History in Pol Pot’s Secret Prison. Berkeley: University of California Press. Friedländer, Saul (1997). Nazi Germany and the Jews. Vol. 1: The Years of Persecution, 1933–1939. New York: HarperCollins. Kiernan, Ben (1996). The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, 1975–79. New Haven, Conn.: Yale University Press. Popov, Nebojsˆa, ed. (2000). The Road to War in Serbia: Trauma and Catharsis. Budapest: Central European University Press. Weitz, Eric D. (2003). A Century of Genocide: Utopias of Race and Nation. Princeton, N.J.: Princeton University Press.


Eric D. Weitz


V Victims Under international law, victims of human rights abuse have a right to a remedy and to reparations for violations committed by or with the acquiescence of the state. Thorny questions arise over who can be considered a victim, the types of damages or reparations available, and the relationship of victims to the prosecution of offenders. Starting in 1989, the United Nations SubCommission on Human Rights developed a set of principles on reparations, now known as the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law. In addition, the UN human rights treaty bodies and the regional human rights commissions and courts, especially in Latin America and Europe, have considered several aspects related to victims and reparations. National courts and administrative compensation schemes have also contributed to defining issues involving victims. Who are Victims? The UN’s Basic Principles document, in paragraph 8, defines a victim as follows: A person is a “victim” where, as a result of acts or omissions that constitute a violation of international human rights or humanitarian law norms, that person, individually or collectively, suffered harm, including physical or mental injury, emotional suffering, economic loss, or impairment of that person’s fundamental legal rights. A “victim” may also be a legal personality,

a dependant, or a member of the immediate family or household of the direct victim, as well as a person who, in intervening to assist a victim or prevent the occurrence of further violations, has suffered physical, mental, or economic harm.

Defining who is a victim in concrete circumstances can often prove difficult and controversial, especially where there are large numbers of potential victims. In the wake of large-scale atrocities, countries have grappled with defining victims for purposes of governmentcreated reparations programs. For example, in Chile the government decided to focus solely on those killed and disappeared by the security forces, leaving aside the vastly larger number of those who were tortured while in detention and survived, and those who were forced into exile. While this decision was justified as a way to spend limited funds on the “worst” violations, the effect was to infuriate survivors. According to a 2002 study by the Chilean human rights group CODEPU, survivors read this as a lack of recognition for the severity of their own suffering and an attempt to paper over the extent of the crimes. In South Africa, the mandate of the post-apartheid Truth and Reconciliation Commission similarly restricted the category of “victim” to those who suffered from the gross violations—killing, torture, abduction—prohibited under South African as well as international law. Critics of the TRC pointed out that this limited mandate excluded the legal pillars of apartheid: forced removals, passed laws, residential segregation and other forms of racial discrimination and detention without trial. By doing so, it shifted the focus from the complicity and benefits of apartheid to whites as a group to the misdeeds of a




In March 2001 army-backed paramilitary forces increased their raids on Barrancabermeja, Colombia. A victim lies dead on the street while others look on or walk away. [ T E U N V O E T E N ]

smaller group of security force operatives, easily characterized as “bad apples.” The definition of “victim” thus acts to limit and frame discussion over reparations. The definition of victim can also raise difficult issues that touch on family and customary law. In both court-generated and administrative reparations schemes, it has been easy to define the persons who have been physically or mentally harmed, and their spouses and children if they are deceased, as victims as a result of that loss. Moreover, courts, including the European Court of Human Rights, have found that the family members of the victim of a forced disappearance are themselves victims, as the product of the anguish and uncertainty of not knowing the fate of their loved one, or, more generally, of a human rights violation and the subsequent impunity of the perpetrators. Administrative compensation schemes have taken one of two routes: either they have compensated the immediate victims, and allowed their heirs and successors (as defined in local law) to receive the compensation if the victims were dead or disappeared, or they have speci[1130]

fied the percentage of awards to be paid to each category (spouse, child, etc.) of surviving relatives in cases of death. Regional human rights courts have also grappled with the definition of victim for purposes of assigning compensation. In the case of injuries resulting in death, both the European and Inter-American Courts of Human Rights allow claims for the harm to the victims themselves prior to death, to their families for wrongful death, and for family members’ own harms in conjunction with the abuses against the persons killed. Both economic and moral damages are covered. The InterAmerican Court, in its extensive jurisprudence on reparations, has developed a particularly expansive definition of family, which includes siblings as well as spouses, parents, and children of the person killed or disappeared. If the victim survives, he or she can of course bring claims on his or her own behalf, but the court has also presumed (in a 1999 case involving Ecuador) that close family members have suffered in cases of detention, torture or unfair trial, and awarded compensation to them. In addition to suffering and health



damage, the court has awarded family members compensation for the costs of burial, and for the costs (including lost income) incurred in looking for the victim. The court has also taken cultural attributes of the victim into account in awarding reparations. Rather than strictly apply national laws on inheritance, the court has defined its own principles, which includes taking into account “local law,” including customary law. In the 1994 Aloeboetoe case, the court found that customary law among the Saramacas, or Maroons, of Suriname, included multiple marriages. In a case involving the summary execution of a number of Saramaca men, the court allowed reparations for the multiple wives and children of the victims. In a 2002 case involving the disappearance of a Guatemalan Ma’am indigenous leader, the court allowed damages for support of the victim’s father and half-sister, based on evidence that Ma’am culture required the elder brother to support parents and younger siblings. Victims can be collectivities as well as individuals and family members. The clearest example is the destruction of property as part of a campaign of genocide or “ethnic cleansing.” The destruction of a mosque, church, temple, or synagogue creates a collective harm to the community that worshiped there, and that community (perhaps represented by the religious authorities) is the victim. More generally, collective reparations may be needed when the destruction of a community has been so thorough that there are few survivors left to file claims or they have been dispersed so widely that the original community has ceased to exist. Compensation may include payment for the loss of community cohesion, community institutions and culture. Individual reparations fail to capture the collective element of the harm in situations of genocide or crimes against humanity. A major aim of the organizers of atrocities is the destruction of the community fabric. The attempt is not simply to kill, but to isolate, terrorize, and sow distrust. Military forces may seek to make local civilians complicit in atrocities, forcing them to watch or even to participate in the violations of their neighbors’ basic human rights. These harms to community life and trust cannot easily be redressed through individual awards. In addition to individual claims for loss of life or liberty, damage to health, loss of jobs, pensions, and economic prospects, Germany paid collective reparations to Jewish organizations and to the State of Israel after the Holocaust. Survivor organizations argued that collective reparations were necessary to compensate for the property, lives, and suffering of those with no living heirs or dependants, for the loss of institutions and

communities, and for the damage to the very fabric of the Jewish people’s existence. A total of $3.45 billion deutsch marks were eventually paid to Israel for acts against the Jewish people, in addition to substantial amounts of compensation to other European states and to individual victims and survivors. Courts have generally been reluctant to design categories of collective reparations. In the abovereferenced Aloeboetoe et al. case before the InterAmerican Court of Human Rights, the court grappled with the issue of collective moral reparations. The court first discussed and ultimately denied the request for monetary compensation, as follows: [T]he Court believes that all persons, in addition to being members of their own families and citizens of a State, also generally belong to intermediate communities. In practice, the obligation to pay moral compensation does not extend to such communities, nor to the State in which the victim participated; these are redressed by the enforcement of the system of laws. If in some exceptional case such compensation has been granted, it would have been to a community that suffered direct damage (Aloeboetoe et al., paragraph 83).

However, in the final statement of reparations, the court, in paragraph 95 of its decision, “orders the State of Suriname, as an act of reparation, to reopen the school house located in Gujaba and staff it with teaching and administrative personnel so that it will function on a permanent basis as of 1994, and to make the medical dispensary already in place in that locality operational during that same year.” These measures to provide education and health care to the community in effect formed a kind of collective reparations. A second case in which the Inter-American human rights system grappled with the prospect of collective reparations is Chanay Pablo v. Guatemala, more commonly referred to as the Colotenango case. Members of a paramilitary civil patrol opened fire on a group of protesters in the town, killing Juan Chanay Pablo and injuring several others. The victims filed a complaint in the courts and subsequently in the Inter-American Commission on Human Rights. Throughout this period, civil patrol members frequently intimidated and attacked the witnesses, the accusers, and an attorney participating in the case. Guatemala and the Commission, were able to reach a friendly settlement in March 1997. Guatamala agreed to provide Q300,000 (some $43,000) to financially compensate the individuals directly affected by the Colotenango attack, and to ensure that justice was done. In addition, “the State of Guatemala shall provide communal assistance to the affected




communities of Colotenango, in accordance with a program of projects agreed upon by the parties.” Outside the context of collective victims, courts and administrative schemes have generally not recognized bystanders or witnesses to crimes against humanity as victims for purposes of reparations, at least without a showing of personal harm. One question that has arisen is whether those who are not part of the target ethnic group, but who are killed because they are attempting to defend the target group, can be considered victims of genocide. In a case involving genocide against the Mayan people of Guatemala, brought in Spain, a bare eight-judge majority of the Spanish Supreme Court found in 2003 that Spanish priests who had been killed or disappeared for their work with poor, mostly Mayan communities could not bring genocide charges on their own behalf, as Spanish citizens had not themselves been the target of a genocidal campaign. The seven dissenting judges argued that, as victims targeted because they were defending others from genocide, the priests should be considered equally as victims of genocide. In situations of genocide or massive crimes against humanity, international tribunals have not to date provided specific help to victims. In Rwanda, the International Criminal Tribunal for Rwanda (ICTR), through the Office of the Registrar, attempted to provide minimal support for witnesses coming before the Tribunal, who were often in desperate financial straits. On its own initiative, in September 2000, the Registrar’s office launched an initiative to provide legal advice, psychological counseling, physical therapy, and monetary assistance, and also contributed to a number of projects in Taba township, the locality where the mayor was convicted of genocide and where there were hundreds of survivors, most of them destitute women. But the Tribunal soon found that the needs far exceeded its capacity, that it was ill-equipped to design and administer reparations schemes, and that to do so adequately would require the amendment of the Tribunal’s statute and rules. The effort was scaled back, although the judges and prosecutor agreed that the Security Council should amend the ICTR’s statute to allow it a greater role in compensation. The statute of the International Criminal Court (ICC) allows the ICC to award reparations, and sets up a trust fund to compensate victims of genocide, crimes against humanity, and war crimes, but as of 2004 it had minimal resources and had not yet made any awards. What Rights Do Victims Have? First, and most importantly, victims have a right to a remedy, and to reparations for harm done. The law on [1132]

reparations arises in part from the requirements of international human rights treaties, and in part evolves from the law of state responsibility, which prescribes the reparations states must pay to other states for international law violations, including harm to the citizens of the aggrieved state. The basic human rights instruments encompass a “right to a remedy.” Article 8 of the Universal Declaration of Human Rights holds that “[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Article 2 of the International Covenant on Civil and Political Rights, in subsection 3, requires parties to “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity,” and article 9, subsection 5 requires compensation for unlawful detention, article 14, subsection 6, specifies compensation for wrongful conviction. Articles 6 and 13 of the European Convention, and articles 8 and 25 of the American Convention on Human Rights have similar provisions, as do the Convention against Torture and the Convention on the Elimination of Racial Discrimination, in Articles 14 and 6, respectively. Other specialized treaties and non-binding human rights instruments also call for compensation to victims. The statute of the International Criminal Court recognizes that individual offenders can also owe reparations, and sets out provisions on reparations in articles 75 and 79. The UN Draft Principles recognize both material and moral elements to reparations. Material reparations for an individual may include the restitution of access to, and title of, property taken or lost, a job, freedom, or a pension or a person’s good name. They may include medical, psychiatric, or occupational therapy aimed at rehabilitation. They may encompass monetary compensation in the form of a lump sum, a pension, or a package of services for the victim and for the survivors of those killed. For collectivities, restitution of cultural or religious property, communal lands, or confiscated public buildings, and compensation for such property as cannot be returned, are options. Moral reparations are as important—generally more important from the victims’ perspective—than material ones. They cover a wide range of measures, most having to do with a felt need for telling the story, for justice, and for measures to avoid the repetition of crimes. They may include disclosure of the facts of a victim’s mistreatment or a loved one’s death, disclosure of the names and positions of those responsible, and disclosure of the patterns of repression. They may in-



The most brutal violence in Sierra Leone was often perpetrated against children. Several with amputated limbs stay at a shelter in Freetown, 1999. [ T E U N V O E T E N ]

clude official acknowledgement that government agents wronged the victims, and an apology may be officially offered. They may also include the guarantee that those responsible suffer consequences, whether criminal, civil, or administrative will be brought to justice and removed from positions of power. Moral reparations may also be as basic as the identification and exhumation of the bodies of victims, and assistance in reburials and culturally appropriate mourning ceremonies. Assistance with finding the bodies of the dead or disappeared (that is, those kidnapped and surreptitiously killed, usually by security forces) is particularly key. These moral reparations also have a collective aspect, when entire communities dedicate memorials or markers to their dead. Other collective measures of moral reparation may include days of remembrance, the dedication of parks or other public monuments, renaming of streets or schools, preservation of archives or of repressive sites as museums, or other ways of creating public memory. Educational reform, the rewriting of history texts, and education in human rights and tolerance are all encompassed within the idea of “guarantees of non-repetition.” So too, in a broader sense, are the reform of courts, police and mili-

tary forces, and other arms of state authority that may be implicated in the original violations. The trend in international law, finally, is to open up both civil and criminal court processes to allow increased access and voice to victims. Thus, the InterAmerican Court of Human Rights in 1997 changed its procedures to allow victims direct representation before the court, rather than indirect representation through the Inter-American Commission. The European Convention on Human Rights has allowed direct victim representation since its Protocol 11 entered into force in 1998. The Rome Statute of the ICC similarly allows victims to be present, and at certain points to make representations before the court. The Colombian Constitutional Court, in the 2003 Acevedo Martelo case, held that in cases of human rights violations (as opposed to common crimes), the rights of victims had to be given considerable weight, and could override the rights of defendants to not have their cases reopened. The rights of victims to be granted access to a remedy, to reparations, and to some level of participation in criminal processes will, of course, be more complex in situations of genocide or crimes against humanity,



Videotaped Testimonials

given the sheer numbers of victims and the limited resources available. A mixture of individual and collective measures, and of moral and material reparations, will, under the best of circumstances, be the most that can be done, and yet be less than ideal. Creativity and attention to how these issues fit into larger reconstruction and development processes will be needed in such situations, if these rights are to be made a reality. SEE ALSO Compensation; Psychology of Survivors;


Barkan, Elazar (2000). The Guilt of Nations: Restitution and Negotiating Historical Injustices. Baltimore, Md.: Johns Hopkins University Press. Brooks, R. L., ed. (1999). When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice. New York: New York University Press. CODEPU/APT (2002) Truth Commissions: An Uncertain Path? English executive summary available from http:// www.apt.ch/americas/mexico/ Executive%20Summary.pdf. Mani, Rama (2002). Beyond Retribution. Cambridge, U.K.: Polity Press. Pross, Christian (1998). Paying for the Past. Baltimore, Md.: Johns Hopkins University Press. Sancinetti, Marcelo A., and Marcelo Ferrante (1999). El Derecho Penal en la Proteccion de los Derechos Humanos. Buenos Aires: Hammurabi. Shelton, Dinah (1999). Remedies in International Human Rights Law. Oxford: Oxford University Press. Torpey, John, ed. (2003). Politics and the Past: On Repairing Historical Injustice. Lanham, Md.: Rowman & Littlefield. United Nations (2000). “Report to the Secretary-General of the ICTR,” U.N. Doc. S/2000/1198, 15 Dec. 2000. The ICTY came to similar conclusions, see U.N. Doc. S/ 2000/1063, 2 Nov. 2000. United Nations Sub-Commission on Human Rights (2003). Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of Internaitonal Human Rights and Humanitarian Law, Rev. 15 (August). Available from http://www.unhchr.ch/html/menu2/ revisedrestitution.doc. Vandeginste, Stef (2003). “Victims of Genocide, Crimes Against Humanity, and War Crimes in Rwanda: The Legal and Institutional Framework of Their Right to Reparation.” In Politics and the Past: on Repairing Historical Injustice, ed. John Torpey. Lanham, Md.: Rowman & Littlefield. Wilson, Richard A. (2001). “Justice and Legitimacy in the South African Transition.” In The Politics of Memory, ed. Alexandra Barahona de Brito, et al. Oxford, U.K.: Oxford University Press. Naomi Roht-Arriaza


Videotaped Testimonials Most survivor narratives of genocidal acts generated in the twentieth century exist in written or audio format. If survivors spoke about their experience in front of a camera, it was either in a war crimes trial setting or for a documentary filmmaker. The development of easy-touse, affordable video technology in the early 1980s enabled oral history projects not only to record the voice but also the face of the interviewee. Early videotaping projects focused primarily on Holocaust survivors, while others gathered the testimonials of survivors of the Armenian genocide. Aging survivors, the awareness that their stories would soon be lost, and a growing trend toward a visually oriented society generated a multitude of videotaping projects in the 1980s and 1990s. The projects vary in size (amount of testimonies), scope (domestic vs. international), content (types of experiences covered), methodology (interview format and location of interview), and purpose (memorialization, therapy, research, education). Survivor and remembrance groups as well as research- and education-oriented institutions such as universities, research centers, and museums began to recognize the need for visual history. From large institutions or projects that engage in local and international videotaping of Holocaust survivors (e.g., the Fortunoff Video Archive for Holocaust Testimonies at Yale, United States Holocaust Memorial Museum, Yad Vashem) to smaller, locally oriented groups like memorial sites (e.g., the National Museum at Auschwitz, Ravensbrück Memorial Museum), videotaping survivors while they speak about their experience has become much more common among not only Jewish Holocaust survivors but also other victim groups and witnesses to the Nazi program of mass murder, such as the Sinti and Romani (so-called gypsy) survivors, rescuers, and liberators. By the end of 2003 an extraordinary amount of such survivor and witness accounts—estimated to number around 70,000—had been gathered worldwide. The majority (75%) of this massive data was collected by one project—the Survivors of the Shoah Visual History Foundation. Founded by filmmaker Steven Spielberg, it began to videotape survivors and other witnesses in 1994 and concluded its collection phase by 1999. Unprecedented on many levels, as of 2004, the foundation remains the largest archive of videotaped testimonials of Jewish Holocaust survivors, Sinti and Romani survivors, and other witnesses. Projects documenting genocidal crimes in places like Bosnia, Cambodia, and Rwanda as well as South Africa have consulted some of the larger Holocaust video archives on issues regarding videotaping survivors. The use of a video camera as a tool to create testi-


Videotaped Testimonials

monials also plays a crucial role in a project called WITNESS. Founded in 1992 by the musician Peter Gabriel, the Lawyers Committee for Human Rights, and the Reebok Foundation, WITNESS provides guidance, encouragement, and funding to local grassroots efforts to document human rights abuses with a video camera and to use the resulting video to expose those abuses and stimulate change. Videotaping techniques and interviewing styles vary widely, and numerous factors determine the most suitable methodology. The projected purpose of the testimonies, the financial resources available, and the intended location of the interviews are just a few elements to consider. Resources may impose limits on the kind of video-recording equipment available and thus influence the visual quality of the testimony. The quality of video may be important because the resulting testimonies could be intended for use in museum exhibits or documentaries, so broadcast-quality video may be required. Or, videotaping in remote geographic areas may limit the options on video equipment. Projects also differ in the choice of a specific setting for taping. There could be a number of different settings in which to conduct interviews: in a studio, interviewee’s home, or another location relevant to the interviewee’s experience. A studio can create a neutral environment, whereas the interviewee’s home can provide a personal environment and degree of comfort that may help the interviewee to recall his or her memories in addition to providing a visual background unique to each interviewee. Videotaping testimonials on location of the former sites of persecution or genocidal acts can provide an additional visual and create a direct link between the past event (interviewee’s narrative) and the present (a visual of the interviewee in the actual location) or give “physical evidence such as . . . forensic documentation of corpses or mass graves” (Stephenson, 2000, p. 44). The size and intent of a project may determine whether the interview will be conducted with a time limit. If no such limitation exists, survivors have the opportunity to tell as much as they can remember and/ or even correct previous statements in follow-up sessions. A time restriction is often implemented to enable a greater number of interviewees to tell their stories. The interviewing methodology ranges from a freeflowing approach, in which interviewers only ask questions for follow-up or clarification, to a more structured approach, in which interviewees are guided to tell their story in a more chronological manner, to those conducted in an investigatory manner. Historians interested in specific events and individuals involved in criminal investigations or trials prefer the more directed approach with as many clarifying questions asked as

possible. However, this does not preclude other interviews from yielding equally important information. Ultimately, the “quality”—a very subjective and not easily defined descriptor—of an interview is shaped by the interviewee, not the interviewer. The interview may include descriptions of life before, during, and after the event. Some projects focus exclusively on the actual event and are less concerned with the before and after an approach often taken if the intent is to document the event for legal purposes or if the project’s limited resources make a closer focus imperative. It is important to include narration on the life led before the act of genocide occurred if that way of life became extinct as a result. Therefore, allowing survivors to verbally recreate the past adds historical value. Equally important is the discussion of survivors’ experiences after the event up to the time of taping, especially if the interview occurs many years after the fact. How does one cope with the experience? How does one go on living? Videotape also allows for the inclusion of additional documentary evidence-showing on camera a prisoner uniform worn in a concentration camp, a number tattooed on one’s arm, or photos of family members who perished are just a few examples. A commonality exists among these approaches: allowing the survivors to tell the story in their own words. First-person accounts have been considered by some as questionable historical resources. Memory is deemed too unreliable, particularly if testimonies are taken many years after the event. In 2000, however, historian Christopher Browning noted about his research on a Jewish forced labor camp, for which he used Holocaust survivor testimonies taken over several decades after World War II ended, that those testimonies were “more stable and less malleable” than he had anticipated (p. 91). The argument that only sources created at the time of the event are reliable should also be questioned. German documents created during the 1940s were often “designed to mislead rather than to inform, to hide rather than to reveal”(Bauer, 2001, p. 23). Videotaped survivor testimonies are especially crucial when historical knowledge has largely been based on perpetrator documentation and, as in the case of the Holocaust, the perpetrators tried to eradicate not only a people but also all documentation of that eradication itself. Many efforts to collect Holocaust survivor testimonies audiovisually have been initiated to preserve the past and to educate future generations. Video records simultaneously the words, facial expressions, body language, and visual context surrounding survivors while they recount their experience and, as such, makes history not only come alive but also gives it a human dimension.



Videotaped Testimonials

The videotaped interviews with Holocaust survivors and witnesses to the atrocities of World War II in the 1970s, 1980s, and 1990s present a unique opportunity for future generations of educators, students, and researchers. However, the faces and voices of survivors of other genocides should be included to create comprehensive documentation on genocides in general.

Browning, Christopher (2000). Nazi Policy, Jewish Workers, German Killers. Cambridge: Cambridge University Press.

SEE ALSO Evidence; Films, Armenian

“The Archive”. In the Survivors of the Shoah Visual History Foundation website. Available from http:// www.vhf.org.

Documentary; Films, Holocaust Documentary; Memoirs of Survivors; Memorials and Monuments; Television BIBLIOGRAPHY

Bauer, Yehuda (2001). Rethinking the Holocaust. New Haven, Conn.: Yale University Press.


Ringelheim, Joan (1992). A Catalogue of Audio and Video Collections of Holocaust Testimony, 2nd edition. New York: Greenwood Press. Stephenson, Michèle (2000). “Video for Change: A Practical Guide for Activists.” Available from http:// www.witness.org.

Totten, Samuel, ed. (1991). First-Person Accounts of Genocidal Acts Committed in the Twentieth Century: An Annotated Bibliography. Westport, Conn.: Greenwood Publishers. Karen Jungblut


W Wallenberg, Raoul [AUGUST 4, 1912–JULY 17, 1947]

Swedish diplomat

Raoul Wallenberg has entered history as a humanitarian activist who took considerable personal risks to save men, women, and children from impending genocide. In the summer and fall of 1944, and until his disappearance in January 1945, Wallenberg was affiliated with the Swedish Legation in Budapest, Hungary, where he conducted a special rescue mission to save many thousands of Hungarian Jews from deportation to the Nazi extermination camps. Wallenberg had no kinship to the victims; he was a Lutheran by faith and a neutral Swede by nationality. Yet he accepted a difficult and dangerous assignment in a foreign country—a mission which he carried out with skill, determination, and courage. Early Life and Humanitarian Appointments Wallenberg was born in 1912 in Stockholm to an aristocratic family of industrialists and bankers. In 1930 he graduated from secondary school with top grades, in particular in Russian, which would serve him well in his later career. Following compulsory military service, he traveled to the United States to study architecture at the University of Michigan in Ann Arbor, from which he received his B.S. degree in 1935. Following his return to Sweden, he took a position with a Swedish firm in Cape Town, South Africa, engaged in the sale of building materials. In 1936 he was employed at a branch office of a Dutch bank in Haifa, Palestine (present-day Israel). In Palestine he met Jews who had fled

from persecution in Germany. Back in Sweden, Wallenberg became the business partner of Kálmán Lauer, a Hungarian Jew based in Stockholm and director of the Central European Trading Company, an import and export firm specializing in fine foods such as foie gras. In 1941 Wallenberg became foreign trade representative of the firm and in this capacity traveled to many European countries, including Hungary, Germany, and Nazi-occupied France. World War II is remembered as the stage for the major genocide of the twentieth century, following the Ottoman extermination of Armenians. Adolf Hitler’s “final solution of the Jewish question” first consumed the Polish, Baltic, Ukrainian, Russian, and West European Jews from countries under Nazi occupation. Until 1944 the 700,000 Jews in Hungary had been spared, since Hungary’s head of state, Admiral Miklós Horty, was an ally of the Germans, and thus Hitler’s henchmen could not freely operate there. This situation changed when Hungary was occupied by the Nazis in March 1944, and the deportation of Hungarian Jews to Auschwitz-Birkenau began. The first victims were the Jews from the countryside, more than 400,000 of whom were deported in the months of May and June 1944. Faced by grave danger, some of the Jews in Budapest sought protection from the embassies of neutral countries, especially those Jews who could show some links with those countries and thus request special passports. The Swedish Legation in Budapest issued some seven hundred temporary passports; those possessing the passports were exempted from having to wear the Star of David. In view of the magnitude of the



Wallenberg, Raoul

gation in Budapest, which at the time was headed by Minister Carl Ivar Danielsson and assisted by his deputy Legation secretary Per Anger. Assisting the Jews When Wallenberg arrived in Budapest on July 9, 1944, about 200,000 Jews were still in the capital. SSObersturmbannführer Adolf Eichmann intended to deport all of them within a few days, but King Gustav V addressed a letter to Horty containing a humanitarian appeal to stop the deportation of Jews. Upon Horty’s intercession, the deportations were canceled. Historians speculate that the cancelling of deportations was in part due to SS-Chief Heinrich Himmler, who was attempting to negotiate a separate peace agreement with the Western Allies and thus believed he would improve his negotiating position by making certain concessions toward the Jews.

Raoul Wallenberg, Swedish Renaissance man and diplomat, used his diplomatic status to save Hungarian Jews during the Holocaust. He also negotiated with Adolf Eichmann and other Nazi officers for the cancellation of deportations to concentration camps by playing on their fears that the Allies would eventually prosecute those responsible for such war crimes. [ U S H M M ]

problem, Valdemar Langlet, head of the Swedish Red Cross, provided assistance to the Swedish Legation. He rented buildings in the name of the Red Cross and identified these buildings as the “Swedish Library” or “Swedish Research Institute,” although they were essentially intended as hiding places for Jews. Furthermore, the Legation turned to the Ministry of Foreign Affairs in Stockholm and requested more staff. Meanwhile, following the establishment of the American War Refugee Board in 1944, an organization whose task was to save Jews from Nazi persecution, the World Jewish Congress, held a meeting in Stockholm to organize a rescue mission for the Hungarian Jews. The organization considered sending Count Folke Bernadotte, chairperson of the Swedish Red Cross and a relative of King Gustav V. When the Hungarian government did not approve Bernadotte, Lauer proposed that Wallenberg be sent instead. In late June 1944 Wallenberg was appointed first secretary of the Swedish Embassy in Budapest. The embassy granted him very broad powers of initiative, and he did not have to clear his decisions concerning the rescue mission with Stockholm or with the Swedish Le[1138]

Wallenberg’s first task in Budapest was to design a Swedish protective passport (Schutz-Pass), printed in blue and yellow (Sweden’s national colors), bearing the Three Crowns heraldry in the center. Although these “protective passports” were not documents customarily recognized in international diplomatic practice, they did appear official enough and impressed the German and Hungarian authorities sufficiently to persuade them to leave the bearers in peace. Initially 1,500 such passports were issued, soon thereafter another 1,000, and eventually the quota was raised to 4,500. Scholars estimate that Wallenberg actually issued three times that amount. Meanwhile his department at the Swedish Legation continued to grow, eventually employing 340 persons and volunteers, and harboring 700 persons who lived on the premises of the Legation. When on October 15, 1944, Horty announced that he was seeking a separate peace agreement with the Russians, German troops quickly deposed him, and he was replaced by the leader of the Hungarian Nazis, Ferenc Szálasi, the leader of the Arrow Cross movement. Thereupon Wallenberg proceeded to expand the “Swedish houses” to thirty-two buildings, mostly in Budapest, where many of the Jews resided. The number of inhabitants of these houses reached 15,000. Other diplomatic missions in Budapest also started issuing protective passports. In November 1944 Eichmann forced thousands of Jews to leave Hungary by foot, some 200 kilometers to the Austrian border. Wallenberg distributed protective passports, food, and medicine to many victims of these forced marches, and by threats and bribes persuaded the Nazis to release those who had been given Swedish passports. Then followed the deportations by trainloads, and again Wallenberg personally went to the


Wallenberg, Raoul

Smoltsov Report, he died of a heart attack on July 17, 1947. Another version of the story stated that Wallenberg was still alive in the 1970s and 1980s. Following the collapse of the Soviet Union, new efforts were undertaken to clarify his fate, and in confidential talks between Russian and Swedish diplomats, the version emerged that he had been executed in 1947. A Swedish-Russian working group that investigated the matter found no hard evidence to support this theory.

A four-meter-high (13-feet-high) bronze monument to Raoul Wallenberg, the Swedish diplomat who saved tens of thousands of Hungarian Jews in World War II, was unveiled Friday May 28 1999, in the Stockholm suburb Lidingo, where he was born. The sculpture symbolizes Wallenberg with hands behind his back, clandestinely giving out Swedish passports. [ A P W I D E W O R L D PHOTOS]

train stations to save individuals. Reports claim that he climbed on trains and passed bundles of protective passports to the occupants. Early in January 1945 Wallenberg learned that Eichmann was about to liquidate the Jews in the ghettos. Wallenberg, with the assistance of an Arrow Cross member Pa’l Szalay, whom he had bribed, approached General August Schmidthuber, commander of the German troops in Hungary. Due to this intervention, the massacre was averted. On January 12, 1945, Soviet troops entered Budapest and found some 120,000 Jews still alive in the city. On January 17, Wallenberg and his chauffeur traveled to the Soviet military headquarters in Debrecen, in eastern Hungary. It appears that there he was arrested on suspicion of espionage for the United States and taken to Lubjanka Prison in Moscow, where, according to Soviet sources and the so-called

Wallenberg’s Legacy It is not certain exactly how many persons were directly or indirectly saved by Wallenberg’s mission. Certain is that his tireless efforts, combined with the initiatives taken by the Swedish Red Cross, the International Committee of the Red Cross, other diplomatic missions in Budapest, and the papal nunciature, saved as many as 100,000 Hungarian Jews from the Holocaust. There are many parks, monuments, statues, and institutes named after him, notably the Raoul Wallenberg Human Rights Institute at the University of Lund in Sweden. On June 20, 2000, the United Nations SecretaryGeneral Kofi Annan remarked at a memorial service in Budapest that “Raoul highlighted the vital role of the bystander, of the third party amidst conflict and suffering. It was here, in the face of despair, that his intervention gave hope to victims, encouraged them to fight and resist, to hang on and bear witness.” Wallenberg is an honorary citizen of the United States, Canada, Israel, and the city of Budapest. SEE ALSO Rescuers, Holocaust BIBLIOGRAPHY

Anger, Per (1995). With Raoul Wallenberg in Budapest: Memories of the War Years in Hungary, trans. David Mel Paul and Margareta Paul. Washington, D.C.: Holocaust Library. Besymenski, Lew (2000). Die Wahrheit über Raoul Wallenberg: Geheimdokumente und KGB-Veteranen beschreiben die Mission und die Ermordung des schwedischen Diplomaten, der im Zweiten Weltkrieg Ungarns Juden zu retten versuchte. Göttingen, Germany: Steidl Verlag. Derogy, Jacques (1980). Le Cas Wallenberg. Paris: Éditions Ramsay. Gann, Christoph (1999). So viele Menschen retten wie möglich (Saving as Many Persons as Possible). Munich: C. H. Beck. Gilbert, Joseph (1982). Mission sans retour: l’Affaire Wallenberg. Paris: Albin Michel. Handler, Andrew (1996). A Man for All Connections: Raoul Wallenberg and the Hungarian State Apparatus, 1944–1945. Westport, Conn.: Praeger.



Wannsee Conference

Larsson, Jan. “Raoul Wallenberg.” Available from http:// www.raoul-wallenberg.org. Marton, Kati (1995). Wallenberg: Missing Hero. Boston: Arcade Publishing. Skoglund, Elizabeth (1997). A Quiet Courage: Per Anger, Wallenberg’s Co-Liberator of Hungarian Jews. Grand Rapids, Mich.: Baker Books. Swedish Ministry of Foreign Affairs (2000). Raoul Wallenberg: Report of the Swedish-Russian Working Group. Stockholm: Swedish Ministry of Foreign Affairs. Wallenberg, Raoul (1995). Letters and Dispatches, tran. Kjersti Board. New York: Arcade. Werbell, Frederick, and Thurston Clarke (1982). Lost Hero. The Mystery of Raoul Wallenberg. New York: McGrawHill. Alfred de Zayas

Wannsee Conference On January 20, 1942, Reinhard Heydrich, the head of the Nazi Security Police and the SS Security Service, and fourteen other senior SS officers, Nazi Party officials, and civil servants met in a villa in the Berlin suburb of Wannsee to discuss preparations for the Final Solution. When American legal investigators uncovered minutes (the sixteenth copy out of an original thirty) for the meeting among German Foreign Office records in March 1947, the meeting rapidly attained postwar notoriety and became known as the Wannsee Conference.

cated men, eight of them holding doctorates, had gone along with such proposals. As a symbol of the orderly governance of genocide, the protocol remains without parallel. A more contentious subject among scholars is the meeting’s policy significance for the emergence of the Final Solution. Heydrich’s invitation and opening remarks suggested that the meeting was of great importance and was needed to clarify fundamental issues. Postwar investigators were also aware that around December, when the meeting was originally scheduled to take place, Hans Frank had alluded in Poland to fundamental discussions taking place in Berlin. For these reasons and coupled with the Protocol’s systematic listing of all European Jews, many postwar observers believed it was at the Wannsee Conference that genocide had been decided. What cast doubts on this assertion, however, are the facts that mass killings had begun in Russia six months earlier, preparations for the Belzec camp were well underway, and the Chelmno death camp had been in operation since early December 1941. Moreover, it is not clear that Heydrich or his guests were senior enough to make important decisions about the Final Solution.

In large, single-sex labour columns, Jews fit to work will work their way eastwards constructing roads. Doubtless the large majority will be eliminated by natural causes. Any final remnant that survives will doubtless consist of the most resistant elements. They will have to be dealt with appropriately, because otherwise, by natural selection, they would form the germ cell of a new Jewish revival.

Historians have therefore puzzled over a meeting that seemed to be asking questions well after the shooting had started. Their answers have varied according to their broader understanding of how genocidal policy emerged. For those who believe a fundamental command was uttered in July 1941 or indeed earlier, Wannsee’s function seems, at best, secondary and may have been almost entirely symbolic—as the historian Eberhard Jäckel argued in a seminal article in 1992. For those historians, by contrast, who believe that a decision to murder all European Jews—as opposed to the Soviet killings—crystallized piecemeal over the second half of 1941, the meeting’s timing makes more sense as a response to an emerging consensus among Nazi leadership about the way to go forward. The timing may also have resulted from the negative reaction among some Berlin officials to the rapidly disseminated news that Berlin Jews had been shot on arrival in Riga on November 29 and 30, 1941. One of the first mass executions of German Jews, this had a different psychological significance than the already familiar content of the Einsatzgruppen reports from Russia. Wannsee was thus partly convened to ensure that the Reich’s ministries were on board.

None of the participants at the meeting, many coming from long-established ministries—the Ministry of the Interior, the Ministry of Justice, the Foreign Ministry, and the Reich Chancellery—protested. To many postwar observers it seemed incredible that such edu-

What is also clear is that Heydrich invited many of the agencies with whom his security police had regularly experienced disputes over lines of authority. Indeed, some agencies, notably representatives of the general government, were added only as an afterthought when

The conference’s impact lay partly in the clarity with which its minutes (or so-called Protocol) revealed Nazi thinking. Consisting largely of an extended presentation by Heydrich, the Protocol offered a sober account of the evolution of Nazi policy on the Jews, culminating in “new possibilities in the East.” A table slated 11 million European Jews, divided up by country, for inclusion in the plan. Although murder was not explicitly proposed, one section of the Protocol was unequivocal:




new evidence of their resistance to his mandate came to light. Heydrich wanted to assert the SS’s and specifically his leadership on the Jewish question. Moreover, to remove potential opposition to the deportation of more German Jews, he wanted to obtain agreement on any special categories to be exempted—highly decorated Jewish veterans from World War I, Jews in mixed marriages, and so forth. Much of the Protocol was taken up with these matters, and it is clear that Heydrich sought to undo most of the protection for halfJews and also quarter-Jews that the Ministry of the Interior had thus far managed to maintain. This was the one significant area in which the Protocol registered any dissent from Heydrich’s proposals, although in advocating the “compromise” of sterilizing all half-Jews, the Interior Ministry’s Wilhelm Stuckart went much further in Heydrich’s direction than had previously been the case. The Wannsee Conference’s true impact is hard to gauge. It is known that Heydrich was pleased with the outcome, and he conveyed to his subordinates the notion that the Security Police’s authority had been enhanced. The deportation of German Jews, and the killing rate, both accelerated in the spring. On the question of the Mischlinge (half-Jews), however, followup meetings showed that considerable resistance to their being equated with “full Jews” remained, and in this regard Heydrich did not achieve the breakthrough he had hoped for. SEE ALSO Germany; Heydrich, Reinhard; Holocaust BIBLIOGRAPHY

Gerlach, Christian (2000). “The Wannsee Conference, the Fate of German Jews and Hitler’s Decision in Principle to Exterminate All European Jews.” In The Holocaust. Origins, Implementation, Aftermath, ed. Omer Bartov. New York: Routledge. Huttenbach, Henry R. (1996). “The Wannsee Conference Reconsidered 50 Years After: SS Strategy and Racial Politics in the Third Reich.” In Remembrance and Recollection. Essays on the Centennial Year of Martin Niemöller and Reinhold Niebühr and the 50th Year of the Wannsee Conference, ed. Hubert Locke and Marcia Littell. Lanham, Md.: University Press of America. Jäckel, Eberhard (1995). “On the Purpose of the Wannsee Conference.” In Perspectives on the Holocaust. Essays in Honor of Raul Hilberg, ed. James S. Pacy and Alan P. Wertheimer. Boulder, Colo.: Westview Press. Roseman, Mark (2002). The Villa, the Lake, the Meeting. Wannsee and the Final Solution. London: Penguin. Mark Roseman

War For many centuries, western European attitudes toward the legality of war were dominated by the teach-

ings of the Roman Catholic Church. War was regarded as a means of obtaining reparation for a prior illegal act, and was sometimes regarded as being commanded by God. In this way much of the debate centered on the distinction between just and unjust wars, a distinction that began to break down in the late sixteenth century. In time, leaders justified wars if they were undertaken for the defense of certain vital interests, although there were no accepted objective criteria for determining what those vital interests were. In the twenty-first century, international lawyers and states rarely use the term war. This is because “war” has a technical and somewhat imprecise meaning under international law, and states engaged in hostilities often deny there is a state of war. The difference between war and hostilities falling short of war may appear very fine, but it can have important consequences especially in regard to the relations between states. Since the adoption of the United Nations Charter in 1945, there is a general prohibition on the use of force by states except in accordance with the provisions of the Charter itself. In this way the question is more about the use of force than the right to declare war. This is reflected in the difficulty government representatives have had in finding an acceptable definition for the crime of aggression under the 1998 Rome Statue of the International Criminal Court. Laws of War/International Humanitarian Law Among the equivalent and interchangeable expressions, the “laws of war,” the “law of armed conflict,” and “international humanitarian law,” the first is the oldest. War crimes come under the general umbrella of international humanitarian law, and may be defined as the branch of international law limiting the use of violence in armed conflicts. The expression “laws of war” dates back to when it was customary to make a formal declaration of war before initiating an armed attack on another state. In the twenty-first century, the term armed conflict is used in place of war, and while the military tend to prefer the term law of armed conflict, the International Committee of the Red Cross and other commentators use the expression “international humanitarian law” to cover the broad range of international treaties and principles applicable to situations of armed conflict. The fundamental aim of international humanitarian law is to establish limits to the means and methods of armed conflict, and to protect noncombatants, whether they are the wounded, sick or captured soldiers, or civilians. International humanitarian law is comprised of two main branches; the law of the Hague and the law of Geneva. The law of the Hague regulates the means




ployed to make it clear that the Conventions applied once a conflict between states employing the use of arms had begun, whether or not there had been a formal declaration of war. As the majority of armed conflicts in the cold war period were not interstate wars of the kind envisaged by traditional international humanitarian law, obvious gaps in the legal regulation governing armed conflicts remained. The adoption of the Geneva Conventions marked a break with the past in that Article 3, which was common to all four Conventions, sought to establish certain minimum standards of behavior “in the case of armed conflict not of an international character.” In an attempt to address deficiencies in the 1949 Geneva Conventions, Additional Protocols I and II were adopted in 1977.

Refugees forced from their homes as a result of the Spanish Civil War arrive at the French border town of Luchon. [ H U L T O N DEUTSCH COLLECTION/CORBIS]

and methods of warfare. It is codified primarily in the regulations respecting the Laws and Customs of War on Land (“the Hague Regulations”) annexed to the 1907 Hague Convention IV (“the Hague Regulations”). These govern the actual conduct of hostilities and include matters such as the selection of targets and weapons permissible during armed conflict. The law of Geneva is codified primarily in four conventions adopted in 1949, and these are known collectively as the Geneva Conventions for the Protection of War Victims. Their aim is to protect certain categories of persons, including civilians, the wounded, and prisoners of war. After the piecemeal development of international humanitarian law at the end of the nineteenth century and the beginning of the twentieth century, the experience of World War II exposed the shortcomings in the legal regulation of this field dramatically. This realization led to the adoption of the four Geneva Conventions for the Protection of War Victims in 1949. The adoption of the Conventions, coupled with the earlier well developed body of Hague law governing the conduct of hostilities by armed forces, meant that traditional interstate wars, or “armed conflicts” to use the language of the Conventions, were now well-regulated, in theory at least. The phrase “armed conflict” was em[1142]

Protocol I applies to international armed conflict and brought what was often referred to as “wars of national liberation” within the definition of international conflicts. Protocol II, on the other hand, did not apply to all noninternational armed conflicts, but only to those that met a new and relatively high threshold test. Despite the time and effort that was involved in drafting and agreeing the Protocols, the result was less than satisfactory, especially from the point of view of classifying armed conflicts to determine which Protocol, if any, applies in a given case. The applicability of Protocol II is quite narrow, and this helps explain in part why so many states are party to it. Codification of War Crimes The United Nations Commission for the Investigation of War Crimes was established in the aftermath of World War II in order to prepare the groundwork for the prosecution of war criminals arising from atrocities committed during the war. One of the features of the 1945 Charter of the International Military Tribunal at Nuremberg is that the crime of genocide did not appear in its substantive provisions. Consequently, the Tribunal convicted the Nazi war criminals of “crimes against humanity” for the crimes committed against the Jewish people in Europe. The relationship between war crimes, genocide, and crimes against humanity is somewhat complex due to the historical development of each category of international crime. The most significant practical legal issue to be considered is the necessity for some form of armed conflict before there can be a war crime. In the case of genocide, there is no requirement for such crimes to take place in the context of a war or armed conflict. However, such crimes can often be committed as part of a wider conflict to achieve some of the broader aims of participants. The chaos and breakdown in



law and order characteristic of armed conflict provides potential perpetrators with an opportunity to pursue illegitimate objectives and methods. Historically, it was also probably easier to evade responsibility for such crimes when they were committed in the course of an armed conflict. With the advent of the International Criminal Tribunals for the former Yugoslavia and Rwanda, Special Courts and the International Criminal Court, this situation no longer prevails. The concept of a war crime is broad and encompasses many different acts committed during an armed conflict. It is synonymous in many people’s minds with ethnic cleansing, mass killings, sexual violence, bombardment of cities and towns, concentration camps, and similar atrocities. War crimes may be defined as a grave or serious violation of the rules or principles of international humanitarian law—for which persons may be held individually responsible. The Geneva Conventions oblige states to provide effective penal sanctions for persons committing, or ordering to be committed grave violations of the Conventions. In fact, in such cases all states are required to assume power to prosecute and punish the perpetrators. Such provisions only apply if the violations were committed in the course of an international armed conflict. In reality, it is often difficult to determine if a particular situation amounts to an “international” or a “noninternational armed conflict.” However, although legally of some significance, it does not alter the serious nature of the crimes in the first instance. Furthermore, decisions of the International Criminal Tribunals for the former Yugoslavia and Rwanda have ruled that many principles and rules previously considered applicable only in international armed conflict are now applicable in internal armed conflicts, and serious violations of humanitarian law committed within the context of such internal conflicts constitute war crimes. Such decisions, and the adoption of the Rome Statute of the International Criminal Court, have tended to blur the legal significance of the distinction between international and noninternational armed conflicts. Genocide and Crimes Against Humanity The judgment of the International Military Tribunal at Nuremberg was controversial in some respects. One of the main reasons why it was considered necessary to draft a convention that dealt specifically with the crime of genocide was the limited scope given to “crimes against humanity” at the time. A crime against humanity referred to a wide range of atrocities, but it also had a narrow aspect, and the prevailing view in the aftermath of World War II was

that crimes against humanity could only be committed in association with an international armed conflict or war. The Allies had insisted at Nuremberg that crimes against humanity could only be committed if they were associated with one of the other crimes within the Nuremberg Tribunal’s jurisdiction, that is, war crimes and crimes against peace. In effect they had imposed a requirement or nexus, as it became known, between crimes against humanity and international armed conflict. For this reason many considered that a gap existed in international law that needed to be addressed. The General Assembly of the United Nations wanted to go a step further recognizing that one atrocity, namely genocide, would constitute an international crime even if it were committed in time of peace. The distinction between genocide and crimes against humanity is less significant today, because the recognized definition of crimes against humanity has evolved and now refers to atrocities committed against civilians in peacetime and in wartime. The Rome Statute of the International Criminal Court provides that crimes against humanity must have been committed as part of a “widespread or systematic attack directed against any civilian population.” Some states were concerned that international law did not seem to govern atrocities committed in peacetime (as opposed to during a time of armed conflict or war) and called for the preparation of a draft convention on the crime of genocide. The Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948, and entered into force on January 11, 1951. Under the Convention, the crime of genocide has both a physical element—certain listed acts such as killing, or causing serious mental or bodily harm to members of a racial group—and a mental element, which upholds the acts must be committed with intent to destroy, in whole of in part, a national, ethnic, racial or religious group “as such.” Although earlier drafts had included political groups, this was later dropped during final drafting stages. In this way, the killing of an estimated 1.5 million Cambodians by the Khmer Rouge is not generally considered to have been genocide as defined under the Genocide Convention (both the perpetrators and the majority of the victims were Khmer). However, its widespread and systematic nature qualifies it as one of the twentieth century’s most notorious crimes against humanity. The definition in the Convention is essentially repeated in Article 6 of the Rome Statute of the International Criminal Court, and in the relevant statues of the International Criminal Tribunals for the former Yugoslavia and Rwanda.



War Crimes

SEE ALSO International Criminal Court;

International Criminal Tribunal for Rwanda; International Criminal Tribunal for the Former Yugoslavia; Nuremberg Trials; United Nations War Crimes Commission; War Crimes BIBLIOGRAPHY

Chesterman, Simon, ed. (2001). Civilians in War. Boulder, Colo.: Lynne Rienner. Claude, Inis, Jr. (1956). Swords into Plowshares. New York: Random House. Commission of Inquiry into the Events at the Refugee Camps in Beirut (1983). Final Report of the Commission of Inquiry into the Events at the Refugee Camps in Beirut The Jerusalem Post. February 9, 1983.

crimes, long punished according to national laws and procedures. At the international level, war crimes were first clearly defined after World War II by the Charter of the International Military Tribunal. The international experience with prosecuting and punishing war criminals was followed by the codification of rules in the 1949 Geneva Conventions, the 1977 Additional Protocols, the statutes of international criminal tribunals for former Yugoslavia and Rwanda, and most recently, in the Statute of the International Criminal Court.

Gutman, Roy, and David Rieff (1999). Crimes of War. New York: Norton.

Much earlier precedents for punishing war crimes can be found in ancient Greece and Rome, the Laws of Manu in India, the code of Bushido in Japan, the Old Testament and the Qur’an. Violations of the laws and customs of war were punished by military commanders or national tribunals. Internationally, the first reported trial against a war criminal took place in Breisach in 1474, and in which Peter of Hagenbach was condemned for “crimes against the laws of man and of God.”

Holzgrefe, J. L., and Robert O. Keohane, eds. (2003). Humanitarian Intervention: Ethical, Legal, and Political Dilemmas. Cambridge, Mass.: Cambridge University Press.

The Lieber Code, promulgated by President Lincoln during the U.S. Civil War in 1863, was one of the first attempts to codify laws of war on national level. It provides for the following:

International Commission on Intervention and State Sovereignty (2001). Report of the International Commission on Intervention and State Sovereignty: The Responsibility to Protect. Ottawa: International Development Research Center.

all wanton violence committed against persons in the invaded country, all destruction of property . . . all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. A soldier, officer, or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.

Goodrich, Leyland M. (1960). The United Nations.London: Stevens. Goodrich, Leyland M., Edward Hambro, and Ann P. Simons (1969). Charter of the United Nations, 3rd edition. New York: Columbia University Press.

International Committee of the Red Cross (ICRC). Available from: http://www.icrc.org. Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda. UN Doc. S/99/1257. Published 1999. Simma, Bruno (2002). The Charter of the United Nations: A Commentary, 2nd edition. New York: Oxford University Press. Schabas, William A. (2000). Genocide in International Law. Cambridge, Mass.: Cambridge University Press. Schabas, William A. (2004). An Introduction to the International Criminal Court, 2nd Edition. Cambridge, Mass.: Cambridge University Press. United Nations (1999). Report of the Secretary General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica. UN Doc. A/54/549. White, Nigel D. (1997). Keeping the Peace, 2nd edition. New York: Manchester University Press. Ray Murphy

War Crimes Grave offenses against the laws of warfare entailing the penal responsibility of individuals constitute war [1144]

The Oxford Manual on the laws of war on land, adopted in 1880 by the Institute of International Law, provided in Article 84 that “offenders against the laws of war are liable to the punishments specified in the penal law.” Article 3 of the 1907 Hague Convention respecting the laws and customs of war on land only required that “a belligerent party which violates the provisions of the . . . Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” No individual personal responsibility was yet introduced into international law. World War I World War I led to a major step forward in the development of the rules concerning war crimes. Offenses against the law of war were prosecuted by national


War Crimes

courts of several belligerent countries, and the Treaty of Versailles (1919) proclaimed that the responsibility for these offenses fell to the German emperor. However, an attempt to create an international court was opposed by the United States. The Dutch government granted asylum to the now-deposed emperor, William II of Hohenzollern, who could then not be tried by the special tribunal envisaged by the treaty. Article 228 of the treaty also stated that “the German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war.” The persons accused of the crimes, however, were not handed over. Instead, Germany tried some of the accused before the Supreme Court of Leipzig, created expressly for this purpose. Of the 896 individuals accused of war crimes, only 45 were tried, and only 9 were convicted. The sentences were light and the convicted prisoners were pardoned a few years later. Prosecution of War Crimes during and after World War II Determined not to repeat the problem of allocating war-crimes responsibility after World War I, the Allied powers tried a new approach during World War II. They repeatedly warned the Axis powers of their responsibility for war crimes. The Moscow Declaration of 1943 distinguished between two sorts of war crimes. The first category of crimes were committed by German soldiers and members of the Nazi party who were responsible for, or took a consenting part in atrocities, massacres, and executions. They were sent back to be tried and punished in the countries where their crimes had been committed. The second category of German war criminals constituted those whose offenses had no particular geographical localization. These would be punished by joint decision of the governments of the Allies. For the first category of war criminals, the first trials were held in Krasnodar (Russia) and Kharkov (Ukraine) in 1943, before the war had ended. Military tribunals for the second category of criminals were set up in Germany’s occupation zones and were regulated by Law No. 10, of the Allied Control Council, which was passed on December 20, 1945 and which established a uniform basis of material law and procedure. International prosecution was based on the London Agreement for the prosecution and punishment of the major war criminals of the European Axis Power, signed on August 8, 1945. This agreement includes the Nuremberg Charter of the International Military Tribunal. Article 6 of the charter established individual re-

Field Marshal Wilhelm Keitel on trial at Nuremberg. Convicted of war crimes for planning and overseeing Germany’s military campaigns during World War II, he was hanged at dawn on October 16, 1946, his final request to be shot by a firing squad, as befits a loyal soldier, having been denied. [ H U L T O N - D E U T S C H COLLECTION/CORBIS]

sponsibility for crimes against peace, war crimes, and crimes against humanity. It was the first time that this terminology appeared in an international treaty. The definitions of each category of crime, as given by the charter, was only exemplary, not exhaustive. The principles established by the Charter and the judgment of the Nuremberg tribunal were affirmed and recognized by the United Nations General Assembly Resolution 95(I), which was adopted on December 11, 1946. They were not fully formulated until later, however—in 1950, by the International Law Commission. Another tribunal, similar to that of Nuremberg, was established in Tokyo and was based on a Special Proclamation of General Douglas MacArthur as the Supreme Commander in the Far East. MacArthur took this action by virtue of the authority delegated to him by the four Allied Powers at war with Japan. Non-Applicability of Statutory Limitations In order to avoid the accused escaping prosecution because of statutory limitations to the crimes committed during the World War II, member states drafted the



War Crimes

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, which was adopted by the United Nations General Assembly on November 26, 1968. At the regional level, the European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes was signed at Strasbourg on January 25, 1974. This new convention narrowed the definition of crimes against humanity in comparison with the United Nations Convention. The 1949 Geneva Conventions and 1977 Additional Protocols The four Geneva Conventions adopted on August 12, 1949, underlined the importance of domestic legislation and domestic jurisdiction in the prosecution and punishment of war criminals. According to the Conventions, the contracting parties must: • enact legislation necessary to provide effective penal sanctions for grave breaches; • search for those who have committed or gave the order to commit grave breaches; • bring such persons before its courts, regardless of their nationality, or hand over such persons for trial to another contracting party for trial and punishment; and • take measures necessary to suppress all acts contrary to the provisions of the convention other than the grave breaches. Grave breaches are defined in common Articles 50/ 51/130/147 as acts committed against persons and property protected by the conventions, including: • willful killing; • torture or inhuman treatment, including biological experiments; • willfully causing great suffering or serious injury to body or health; • unlawful deportation or transfer or unlawful confinement of a protected person under the Fourth Convention;

would render such crimes punishable by law. It is important to emphasize that not all war crimes are, in fact, “grave breaches” as listed in the Geneva Conventions and the First Additional Protocol. The broader conceptual category of war crimes covers both grave breaches and other serious violations of the laws and customs of war, but according to the First Additional Protocol, not every violation of the laws of warfare “would of necessity constitute a punishable act.” The First Protocol supplemented, developed, and clarified the “system of repression” stipulated in the 1949 Geneva Conventions by explicitly accepting the same list of “grave breaches” as were defined in the Conventions, and by requiring that the system of repression, whereby war crimes may be prosecuted and punished, be applied to these grave breaches. In addition, the protocol expanded the list of grave breaches to include any willful act or omission that seriously endangers the physical or mental health or integrity of any person who is in the power of an enemy and which violates any in a series of specified prohibitions. The specified prohibited acts include any unjustified act or omission or medical procedure not required by the state of the victim’s health; physical mutilation; medical or scientific experiments; or the removal of tissue or organs. For an act to constitute a violation it must have been committed willfully, in violation of relevant provisions of the Protocol, and it must have caused death or serious injury to body or health. The Protocol goes on to list the following acts as criminal under international law • Making the civilian population or individual civilians the object of attack; • Launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects; • Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects;

• compelling a protected person to serve in the forces of a hostile Power; willfully depriving a protected person of the rights of fair and regular trial prescribed in the conventions;

• Making non-defended localities and demilitarized zones the object of attack;

• taking of hostages • extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

• The perfidious use of the distinctive emblem of the red cross, red crescent, or red lion and sun, or of other protective signs recognized by the Conventions of this Protocol;

The First Additional Protocol revisited the definition of war crimes, specifying the conditions that

• The transfer by an occupying power of parts of its own civilian population into the territory it occu-


• Making a person the object of attack in the knowledge that he is hors de combat;


War Crimes

Ofuna prison, a POW camp in Yokohoma, Japan, August 1945. The Japanese interrogation camp was described by American prisoners of war as one of the worst in the area. [ A P / W I D E W O R L D P H O T O S ]

pies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;

• Depriving a person protected by the Conventions and the Protocol of the rights of fair and regular trial.

• Unjustifiable delay in the repatriation of prisoners of war or civilians; • Practices of apartheid or other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination;

In addition to the grave breaches, other serious violations of the laws and customs of war, including those stipulated in Article 23 of the 1907 Hague Regulations, remain war crimes and are punishable within the framework of customary international law.

• Intentionally targeting clearly recognized historic monuments, works of art, or places of worship which constitute the cultural or spiritual heritage of peoples, resulting in the extensive destruction thereto, when such locales or objects have been accorded special protection and when these targets are not located in the immediate proximity of military objectives;

The Nuremberg principles specified that complicity is also a crime under international law. Therefore, joint offenders and accessory accomplices are also punishable. An individual who commits a war crime is personally liable, regardless of his rank or governmental position. The commander is responsible, as are his subordinates for such violations. Military commanders must prevent or suppress war crimes, report breaches,



War Crimes

and ensure that members of armed forces under his command are aware of their obligations. Treatment of Offenders An offender who benefits from the status of prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts and the same procedure as would be used in trying the members of the armed forces of the detaining power. The Convention and the Protocol prescribe judicial guarantees of the fair treatment for all military and civilian offenders. Even if a person does not benefit from the status of protected persons, that person will always benefit from the fundamental guarantees provided by human rights and by Article 75 of the Protocol, which express rules of customary law. The death penalty cannot be imposed if such penalty has been abolished by the detaining power. Repression of War Crimes after 1945 Several domestic jurisdictions prosecuted and punished war criminals after 1945. One case was the massacre of forty-seven Arabs in Kafr-Kassem in October 29, 1956. Another occurred in 1958, when a military tribunal in Jerusalem condemned two officers and six border guards to seven to seventeen years imprisonment. The sentence was later reduced. In the United States, in 1971, a court martial sentenced U.S. Lieutenant William Calley to life imprisonment for his responsibility in the My Lai massacre of March 16, 1968, in which 347 civilians were killed in a village 510 kilometers outside of Saigon, Vietnam. His sentence was later reduced to 20 years, and he was paroled in 1974. Two other officers received disciplinary sanctions for their involvement in the same incident. After the invasion of Kuwait in 1990, the United States, the United Kingdom, and the UN Security Council warned Iraqi authorities to respect the rules of war. The Security Council passed Resolution 674 in October 29, 1990, reaffirming the duty of Iraq “to comply fully with all terms” of the Fourth Geneva Convention and proclaiming Iraq’s liability, as well the liability of individuals, for grave breaches. The resolution invited the UN member states “to collate substantial information in their possession or submitted to them on the grave breaches by Iraq . . . and to make this information available to the Security Council.” In the wake of the second Iraq war, the provisional Iraqi government adopted the statute of a special tribunal in 2003 to try war criminals, including Iraq’s former president, Saddam Hussein. [1148]

Crimes Committed in Former Yugoslavia and in Rwanda During the conflicts in Yugoslavia, the UN Security Council required compliance with the rules of international humanitarian law and affirmed individual responsibility for violations. The United Nations created a commission of experts to investigate the crimes committed on the territory of former Yugoslavia. With Resolution 808 (1993), the Security Council established the International Tribunal for the Former Yugoslavia (ICTY). The tribunal deals with grave breaches of the Geneva Convention, violations of the laws and customs of war, genocide, and crimes against humanity (Articles 2 through 5). The definition of war crimes was based on the provisions of the Geneva Conventions and customary rules of international law. With Resolution 955 (1994), the Security Council established the International Criminal Tribunal for Rwanda (ICTR), which was responsible for prosecuting genocide and other serious violations committed in the territory of Rwanda and its neighboring between January 1 and December 31, 1994. The list of crimes includes genocide, crimes against humanity, and violations of Article 3 of the Geneva Conventions and of the Convention’s Additional Protocol II. The crimes were limited to those committed in the course of the internal conflict. The statutes of both tribunals affirmed the principle of individual responsibility for planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation, or execution of such acts. The concept of command responsibility was included: the official position of the accused does not relieve the person of responsibility nor mitigate the punishment, nor does the fact that the person ordered the acts but did not commit them personally. The fact that an accused person acted on the orders of a superior does not relieve the person of responsibility, either, but “may be considered in mitigation of the punishment.” By April 2004, the ICTY had tried forty-six individuals accused of genocide, war crimes, and crimes against humanity: Twenty-five of the defendants were judged guilty and began serving their sentences, A further sixteen were found guilty but began the process of filing appeals. Three persons were found not guilty on appeal. Two of the accused were acquitted. By the same date, the ICTR had completed trials for twenty cases. The tribunals have concurrent jurisdiction with national courts, but in cases of conflict, the international tribunals have primacy over national courts and may formally request national courts to defer to them. Both tribunals made significant contributions to the development of international humanitarian law and to crimi-


War Crimes

nal law in general. They also helped to define and explain legal norms and establish the path for the future International Criminal Court (ICC). For instance, the appeals chamber of the ICTY, after hearing the Tadic case, came to the conclusion that “customary international law imposes criminal liability for serious violations of common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means and methods of combat in civil strife.” The Special Court for Sierra Leone The Special Court for Sierra Leone was established on January 16, 2002, by joint agreement of the government of Sierra Leone and the United Nations. The court was mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean domestic criminal law committed in the territory of Sierra Leone since November 30, 1996. As of November 2003, thirteen persons from all three of the country’s former warring factions were indicted by the special court. They were charged with war crimes, crimes against humanity, and other serious violations, including murder, rape, extermination, acts of terror, enslavement, looting and burning, sexual slavery, conscription of children into an armed force, and attacks on UN peacekeepers and humanitarian workers. International Criminal Court After several attempts in the past, most notably in 1919 and 1937, the United Nations adopted the Rome Statute of the International Criminal Court on July 17, 1998. The ICC is independent from the United Nations, and its relations with them is governed by an agreement that has been approved by the UN General Assembly. The treaty creating the ICC came into force on July 1, 2002, and by February 19, 2004, ninety-two states had become signatories to the treaty. The ICC’s judges and prosecutor were elected in 2003. The court is based in the Hague. In its founding statute, the ICC enumerates the crimes over which it has jurisdiction. These include genocide, war crimes, crimes against humanity, and crimes of aggression. The ICC accepts the 1948 Genocide Convention’s definition of what constitutes the crime of genocide. The Rome Statute also provides a detailed definition of what constitutes a crime against humanity, which is markedly better developed than the definition provided in the Nuremberg Charter. It also defines several other essential terms, including extermination, enslavement, deportation and forcible transfer or torture.

It was only long after the fact that some war crimes became the subject of public scrutiny, including the atrocities committed by the Japanese during its “Rape of Nanking” in December 1937. Here, captors and prisoners party to this massacre watch from above while Japanese soldiers below taunt, and then bayonet, their Chinese victims. [ B E T T M A N N / C O R B I S ]

The ICC assumes jurisdiction over war crimes that have occurred “as part of a plan or policy or as part of a large-scale commission of such crimes.” These are not the only acts against which the ICC can take action however. According to the Rome Statute, the ICC can prosecute (1) Grave breaches of the Geneva Conventions of August 12, 1949; (2) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law. The statute then goes on to descript 26 specific prosecutable acts that may be committed in international armed conflicts; (3) In the case of an armed conflict not of an international character, the ICC may prosecute any violations of the 1949 Geneva Conventions that have been committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those who are no longer in active combat due to sickness, wounds, detention, or any other cause; (4) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, referring to the provision of Protocol II and customary rules of international law.



War Crimes

The Statute specifies that its right to prosecute acts perpetrated in “armed conflicts not of an international character” does not apply to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence, or other acts of a similar nature. Moreover, it presupposed that prosecutable violations in noninternational armed conflicts must have taken place in the territory of a state when there is protracted armed conflict between governmental authorities and organized armed groups, or a similarly protracted armed conflict between such groups. The Rome Statute affirms several broadly accepted legal principles such as nullum crimen sine lege and nulla poena sine lege (there can be no prosecution, nor punishment, for acts that were not prohibited by law at the time). This establishes that, even though an act may today be defined as illegal, that law cannot be applied retroactively to a time when it was not yet a part of the legal code. The statute also affirms the concept of non bis in idem, which disallows double jeopardy: an individual cannot be tried twice for the same offense. In addition, it affirms the principle of individual responsibility, denies prosecutorial jurisdiction over persons less than 18 years of age, and establishes that there is no statute of limitation for the crimes under its jurisdiction. Finally, it expressly holds commanders and other superior officers responsible for acts carried out under their orders, and rejects the defense strategy of claiming immunity for individuals who hold (or held, at the time of the violation) head-of-state status. These provisions constituted a significant step forward in international criminal law, particularly by filling certain gaps that had been left unaddressed in the Geneva Conventions. For instance, neither the Geneva Conventions, nor their Additional Protocols included a provision to address the defense that an accused was innocent by virtue of acting on the orders of a superior. Article 33 of the ICC’s Rome Statute states that, a person who commits a prosecutable crime on the orders of another (a government or military superior) cannot escape criminal responsibility except in certain specific circumstances. The defendant, in such a case, must be able to show the law was manifestly lawful, or that he or she was under a legal obligation to obey orders of the Government or the superior in question or did not know that the order was unlawful. By the very definition of genocide or crimes against humanity, however, any orders to commit such crimes are manifestly unlawful, which makes the defense of “acting on superior orders” extraordinarily difficult to sustain. The creation of the International Criminal Court is due, in large part, to the efforts of non-governmental organizations (NGOs). A coalition of thirty NGOs was [1150]

created on February 25, 1995, which quickly grew to 800 by the opening of the Rome Conference (at which the ICC was created) in June 1998, of which 236 were in attendance at the meetings. During the conference, attendees focused on substantive issues and sought to establish the broadest possible jurisdiction for the newly created court. They also worked to create a system of complementarity, by which national courts held primary responsibility for prosecutions; an independent prosecutor, and a court that was free from the interference of any political body, including the Security Council. Other issues addressed by the conference included provisions for restitution for victims, the incorporation of gender concerns within the definition of actionable crimes; and a mechanism to assure the court with adequate funding over the long term. SEE ALSO Geneva Conventions on the Protection of

Victims of War; Hague Conventions of 1907; Humanitarian Law; Nongovernmental Organizations BIBLIOGRAPHY

Askin, Kelly Dawn (1997). War Crimes Against Women: Prosecution in International War Crimes Tribunals. The Hague: Martinus Nijhoff. Ball, H. (1999). Prosecuting War Crimes and Genocide: The Twentieth-Century Experience. Lawrence: University Press of Kansas. Bantekas, Ilias (2002). Principles of Direct and Superior Responsibility in International Humanitarian Law. Manchester, U.K.: Manchester University Press. Bassiouni, M. C., and P. Manikus (1996). The Law of the International Criminal Court for Former Yugoslavia. Irvington-on-Hudson, N.Y.: Transnational. Baxter, R. R. (1951). “The Municipal and International Law Basis of Jurisdiction over War Crimes.” British Yearbook of International Law 28:382–393. Beigbeder, Yves (1999). Judging War Criminals: The Politics of International Justice. London: Macmillan. Cassese, A., P. Gaeta, and J. R. W. D. Jones, eds. (2002). The Rome Statute of the International Criminal Court: A Commentary, 2 volumes. Oxford: Oxford University Press. Dinstein Y., and M. Tabory (1996). War Crimes in International Law. The Hague: Martinus Nijhoff. Dörmann K., L. Doswald-Beck, and R. Kolb (2003). Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary. Geneva: International Committee of the Red Cross. Green, L. C. (1984). “War Crimes, Extradition and Command Responsibility.” Israel Yearbook on Human Rights 14:17–53. Jescheck, Hans-Heinrich (1992). “War Crimes.” In Encyclopedia of Public International Law, volume 2, ed. R. Bernhardt. Amsterdam: North-Holland Publishing Company.


Weapons of Mass Destruction

Kniriem, A. von (1959). The Nuremberg Trials. Chicago, Il.: Regnery Co. Lee, Roy S., ed. (2001). The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Ardsley, N.Y.: Transnational Publishers, Inc. McCormack, Timothy L. H., and Gerry J. Simpson, eds. (1997). The Law of War Crimes: National and International Approaches. The Hague: Kluwer Law International. Pritchard R. John, and Sonia Magbanua Zaide, eds. (1981–1988). The Tokyo War Crimes Trial. 22 volumes. New York: Garland. Röling, B. V. A., and C. F. Rüter eds. (1977). The Tokyo Judgment: The International Military Tribunal for the Far East. Amsterdam: APA-University Press Amsterdam. Smith, Bradley F. (1977). Reaching Judgment at Nuremberg. London: Andre Deitch. State of Israel (1992–1995). The Trial of Adolf Eichmann: Record of Proceedings in the District Court of Jerusalem, 8 volumes. Jerusalem: Ministry of Justice. Tanaka, Y. (1996). Hidden Horrors: Japanese War Crimes in World War Two. Boulder, Colo.: Westview Press. Taylor, Telford (1992). The Anatomy of the Nuremberg Trials. New York: Alfred A. Knopf. United Nations War Crimes Commission (1947–1949). Law Reports of Trials of War Criminals, 15 volumes. London: Her Majesty’s Stationery Office. United Nations War Crimes Commission (1949). History of the United Nations War Crimes Commission. London: Her Majesty’s Stationery Office. U. S. House of Representatives (July 15, 1970). Investigation of the My Lai Incident: Report of the Armed Services Investigating Subcommittee of the Committee of Armed Services, House of Representatives, 91st Congress, 2nd session, Under authority of H.Res. 105. Washington, D.C.: U.S. Government Printing Office. Weyas, A. M. de (1989). The Wehrmacht War Crimes Bureau 1939–1945. Lincoln: University of Nebraska Press. Jiri Toman

Weapons of Mass Destruction Genocide and crimes against humanity are “weapons neutral.” They can be effected with simple tools like guns and machetes, or with sophisticated ones like atomic bombs or asphyxiating gas. Thus, in addition to proving the use of such weapons, a prosecutor would need to show the necessary intent against a group in the case of genocide, or the knowledge that the use was part of an attack on a civilian population in the case of crimes against humanity. The efforts to make weapons of mass destruction unavailable for genocide, or any other purpose, will be explored here.

Early Usage of the Term The term weapons of mass destruction was apparently coined by the London Times in 1937 to describe the bombing and destruction of the Basque town of Guernica by German planes assisting the rebels in the Spanish Civil War. As such, it referred to fairly conventional weaponry, used in massive amounts. It soon came to bear a more restrictive meaning, applying to certain unconventional weapons. Thus, the very first resolution adopted by the United Nations (UN) General Assembly at its initial session in 1946 created an Atomic Energy Commission, whose major task was drawing up proposals “for the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction.” A parallel body, the Assembly’s Commission on Conventional Armaments, in 1948 addressed the difference between conventional armaments and weapons of mass destruction. “Weapons of mass destruction,” it suggested, “should be defined to include atomic explosive weapons, radioactive material weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics comparable in destructive effect to those of the atomic bomb or other weapons mentioned above.” Physicist Albert Einstein and mathematician/ philosopher Bertrand Russell had hydrogen bombs particularly in mind when they issued their so-called Pugwash Manifesto in 1955, calling on scientists to “assemble in conference to appraise the perils that have arisen as a result of the development of weapons of mass destruction.” After the terrorist attacks in New York City and Washington, D.C., in September 2001, which some categorized as crimes against humanity, the term seemed again to acquire a broader connotation. Now it included the use of planes being deliberately crashed to wreak death and destruction, and suicide bombers attempting indiscriminate killing. In this respect, weapons of mass destruction came close to the concept of terrorist bombing, criminalized by treaty. The 1998 International Convention for the Suppression of Terrorist Bombings prohibited the use of explosives or other lethal devices in public places. “Explosive or other lethal device” was defined as an explosive or incendiary weapon or device that is designed, or has the capability, to cause death, serious bodily injury, or substantial material damage; or a weapon or device that is designed, or has the capability, to cause death, serious bodily injury, or substantial material damage through the release, dissemination, or impact of toxic chemicals, biological agents or toxins or similar substances, or radiation or radioactive material. The definition, however, in its narrower meaning, referred solely to nuclear, biological, and chemical weapons, the kind that



Weapons of Mass Destruction

A bystander examines the rusted remains of Iraqi missile heads at Aziziyah, 90 kilometers south of Baghdad, February 27, 2003. Although the United States believed Saddam Hussein’s regime possessed weapons of mass destruction when it invaded Iraq, none were found. [ R E U T E R S / C O R B I S ]

Iraq’s alleged possession of the United States used to justify its invasion of that country in 2003.

in 1868 and has proceeded at two levels of abstract thought that might be described as principles and rules.

As in 1946, the General Assembly is still concerned with the general issue, and the problem may be proliferating. The Assembly’s provisional agenda for its sixtieth session in 2005 includes an item on “the development and manufacture of new types of weapons of mass destruction and new systems of such weapons.”

At the level of principle are propositions such as “means of injuring the enemy are not unlimited,” or “it is forbidden to use weapons of a nature to cause superfluous injury or unnecessary suffering, or which fail to discriminate between soldiers and civilians.” The 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (hereafter referred to as the Biological and Toxin Weapons Convention) describes the use of such weapons as “repugnant to the conscience of mankind.” Sometimes, these principles are promulgated as standards to govern broad categories. Other times, they lead to narrow agreement that a particular weapon is illegal, but a very similar practice is perhaps not. So it was that the Declaration of St. Petersburg avowed that the legitimate objective of war, to weaken military forces of the enemy, “would be exceeded by the em-

Banning Barbaric Weapons in the Law of Armed Conflict Eliminating specific kinds of barbaric weapons (and certain other tactics of war) has a long history in codes of chivalry and customary international law. Efforts to proscribe weapons of mass destruction (especially through the negotiation of treaties) are thus part of a broader movement that has defined the objects to be banned in various general (and overlapping) categories. Multilateral treaty-making concerning barbaric weapons began with the Declaration of St. Petersburg [1152]


Weapons of Mass Destruction

ployment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.” Notwithstanding this generality, the parties agreed specifically only to “renounce, in case of war among themselves, the employment by their military or naval troops of any projectile of a weight below 400 grams, which is either explosive or charged with fulminating or inflammable substances.” Parties attending the First Hague Peace Conference in 1899 agreed not to use expanding bullets or “projectiles, the sole object of which is the diffusion of asphyxiating or deleterious gases.” At the Second Hague Peace Conference in 1907 participants concurred that it was “especially forbidden . . . to employ poison or poisoned weapons.” As “especially forbidden,” in more general terms, was the employment of “arms, projectiles, or material calculated to cause unnecessary suffering.” These became the fundamental principles of the laws of armed conflict, or international humanitarian law. Although the term weapons of mass destruction had not yet been coined, the first treaty that can be regarded, in retrospect, as addressing them is the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (otherwise known as the Geneva Protocol of 1925). The Protocol proclaims, “the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids materials or devices, has been justly condemned by the general opinion of the civilized world.” It then adds: “The High Contracting Parties, so far as they are not already Parties to Treaties prohibiting such use, accept this prohibition, agree to extend this prohibition to the use of bacteriological methods of warfare and agree to be bound as between themselves according to the terms of this Declaration.” Many member states ratifying the Protocol entered a reservation (or exception) that turned it into a promise not to be the first in a particular conflict use the prohibited weapons, but left retaliatory use open. Implicit was the assumption that it was legal to develop and possess such weapons, although illegal to use them in making the first strike (or at all). Thinking about development and possession leads a state inevitably to contemplating arms control or disarmament, rather than merely forbidding use. Sophisticated weapons, such as nuclear bombs, require testing (or they did until the recent development of sophisticated computer models significantly obviated that need). Both the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, and the 1968 Treaty on the NonProliferation of Nuclear Weapons addressed, albeit weakly, the development and possession of nuclear

weapons. The 1963 treaty still permitted underground tests, and the 1968 treaty acknowledged the nuclear status of the five countries that originally possessed the bomb, although this was subject to an as yet unrealized obligation to negotiate disarmament. Nuclear weapons were also addressed in numerous condemning resolutions adopted by the General Assembly that many diplomats and commentators believed represented international customary law in declaring their use illegal against people. A majority of the International Court of Justice (ICJ) took a different view, however, of the status of these resolutions in the 1996 Advisory Proceedings on the Legality of the Threat or Use of Nuclear Weapons, saying nuclear weapons were not totally illegal in themselves; each case turned on proving the necessary breach of more general rules. In a 1963 resolution adopted unanimously by acclamation, the General Assembly solemnly called on states “to refrain from placing in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, installing such weapons on celestial bodies, or stationing such weapons in outer space in any other manner.” A more comprehensive assault on development and acquisition of certain weapons of mass destruction is the 1972 Biological and Toxin Weapons Convention. It bans a type or quantity of biological agents or toxins that is not justified for prophylactic, protective, or other peaceful purposes, and equipment or means of delivery designed to use them in armed conflict. Parties undertake to destroy or divert to peaceful purposes, not later than nine months after the treaty’s entry into force, all agents, toxins, weapons, equipment, and means of delivery in their possession or under their jurisdiction or control. The reference to prophylactic, protective, and other peaceful purposes has created an opportunity for some slippage, as the Convention does not provide for inspections or other means of enforcement. In the early 1990s, when Russia revealed the extent of cheating by the former Soviet Union and the international community became concerned about Iraq’s pursuit of weapons of mass destruction, negotiations began for a Protocol (or amendment) to the Convention that might provide for monitoring. These efforts collapsed early in the twenty-first century when the administration of President George W. Bush took a different approach to inspection regimes that could be potentially applied to the United States itself. Instead, the National Strategy to Combat Weapons of Mass Destruction, a policy statement issued by the U.S. government in December 2002, emphatically asserts a right to use overwhelming force, including nuclear weapons, and even preemptively, to counter threats of use of any kind



Weapons of Mass Destruction

of weapon of mass destruction against the United States or its allies. Enforcement Mechanisms in Treaties Banning Weapons The 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (often referred to as the 1993 Chemical Weapons Convention) contains enforcement mechanisms that could potentially be highly intrusive. It established in the Hague an international organization, the Organization for the Prohibition of Chemical Weapons (OPCW), whose functions include verification of compliance. The Convention’s basic obligations are starkly comprehensive: 1. Each State Party to this Convention undertakes never under any circumstances: (a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly chemical weapons to anyone; (b) To use chemical weapons; (c) To engage in military preparations to use chemical weapons; (d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention. 2. Each State Party undertakes to destroy chemical weapons it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention. 3. Each State Party undertakes to destroy all chemical weapons it has abandoned on the territory of another State Party, in accordance with the provisions of this Convention. 4. Each State Party undertakes to destroy any chemical weapons production facilities it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention. 5. Each State Party undertakes not to use riot control agents as a method of warfare.

Paragraph 5’s prohibition of riot control agents in warfare settles an issue much disputed in earlier international practice. The Convention defines riot control agents as chemicals that “can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” If riot control agents are banned specifically in war, however, by implication they may be legal in domestic law enforcement. At a review conference on the Convention in 2003, the International Committee of the Red Cross (ICRC) expressed concern about increasing interest among police, security, and armed forces in incapacitating chemical agents. The ICRC fears that the development of new incapacitants domestically could undermine both the Convention and its underlying humanitarian norms. If it is “legal” [1154]

for a state to use a particular weapon against its own people in situations short of armed conflict, the inhibitions against using it in armed conflict lose some of their power. A more general problem also exists. Chemicals, like guns and machetes, may have dual uses (good and bad), and some chemicals, benign in themselves, may be precursors to weapons of mass destruction. Thus, the 1993 Convention, like treaties dealing with nuclear and bacteriological weapons (and narcotic drugs, for that matter), must strike a complex balance between licit and illicit uses. The Convention is enforced through selfreporting, by routine inspections, and in requests for clarification that parties may make to question other parties’ compliance. Each party can also request an onsite “challenge inspection” of any facility maintained by another party “for the sole purpose of clarifying and resolving any questions concerning possible noncompliance with the provisions of [the] Convention.” OPCW has limited resources but infinite potential for strong enforcement and as a model to be applied to other weapons. Developments In spite of their clear illegality under the laws of armed conflict, the use of biological and chemical weapons is not among the war crimes within the jurisdiction of the new International Criminal Court (ICC), formed by the Rome Statute of 1998. Their use, along with that of nuclear weapons, was included in early drafts of this instrument. When it became apparent that states which were nuclear powers would not accept the reference to nuclear weapons, some developing countries insisted that less technologically sophisticated weapons of mass destruction should not be included either. Nonetheless, the absence of these weapons from the ICC’s jurisdiction does not affect their illegality under general international law. At a historic meeting at the level of heads of state and government on January 31, 1992, the Security Council asserted that the “proliferation of nuclear, chemical and biological weapons constitutes a threat to international peace and security.” When the Council reexamined the subject in late 2003, it was amid fears that nonstate actors as well as outlaw regimes were seeking to acquire, traffic in, or use weapons of mass destruction. As President Bush told the General Assembly in September 2003: “The deadly combination of outlaw regimes and terror networks and weapons of mass murder is a peril that cannot be ignored or wished away.” He also noted the United States had worked with Russia and other former Soviet states to dismantle


West Papua, Indonesia (Irian Jaya)

and destroy or secure weapons and dangerous materials left over from another era. (The nuclear weapons abandoned in Belarus, Kazakhstan, and Ukraine were of particular concern.) He added that eleven nations were cooperating in a “proliferation security initiative,” aimed at interdicting lethal materials in transit. A significant feature of this new landscape is the recognition of weapons of mass destruction not only as an arms control problem, but also as a matter of international criminal law that merits the same kind of legal analysis as efforts to address terror and narcotics. Accordingly, there have been proposals for the Security Council, as well as the General Assembly, to call on states to adopt and enforce laws that would prohibit the involvement of nonstate actors with such weapons or delivery systems for them. SEE ALSO Gas; Iraq; Nuclear Weapons; War Crimes BIBLIOGRAPHY

Deller, Nicole and John Burroughs (2003). “Arms Control Abandoned: The Case of Biological Weapons.” World Policy Journal XX(2). Available from http:// www.worldpolicy.org/journal/articles/wpj03-2/ deller.html. “Etymologies & Word Origins: Letter W, Weapon of Mass Destruction.” Available from http://www.wordorigins. org/wordow.htm. Fidler, David P. (2003). “Weapons of Mass Destruction and International Law.” American Society of International Law Insights. Available from http://www.asil.org/ insights/insigh97.htm. Goldblat, Jozef (2002). Arms Control: The New Guide to Negotiations and Agreements, 2nd edition. New York: Sage Publications. Graham, Kennedy (2003). “Weapons of Mass Destruction: Restraining the Genie.” New Zealand International Review xxviii(3):2. Russell, Bertrand, and Albert Einstein (1955). “The Russell–Einstein [Pugwash] Manifesto.” Available from http://www.pugwash.org/about/manifesto.htm. Stanley Foundation (2003). “Global Disarmament Regimes: A Future or a Failure?” Available from http://reports. stanleyfoundation.org. “Transcript of Address by President Bush to the United Nations General Assembly.” The New York Times (September 24, 2003), Section A, page 12, column 1. United Nations, Weapons of Mass Destruction Branch, Department for Disarmament Affairs, website. Available from http://disarmament.un.org:8080/wmd. Yepes-Enriquez, Rodrigo, and Lisa Tabassi, eds. (2002). Treaty Enforcement and International Cooperation in Criminal Matters with Special Reference to the Chemical Weapons Convention. The Hague: T.M.C. Asser Press. Roger S. Clark

West Papua, Indonesia (Irian Jaya) New Guinea, the largest tropical island in the world, is divided roughly in half. To the east is Papua New Guinea (PNG), independent since 1975. To the west is Papua (163,000 square miles), which comprises approximately one-fourth of the total area of the Indonesian archipelago. Papua is often called West Papua (WP) to distinguish it from PNG. The two halves of the island are divided along a 500-mile north–south colonial boundary that, in places, runs directly through the middle of villages. Until 1962, WP was a colonial possession of the Dutch. In 1961 WP was on the verge of independence, although both Indonesia and the Netherlands made claims of sovereignty to the territory. Cold war tensions had been injected into the WP sovereignty dispute and, in addition, between the Dutch colonial power and the oil companies in WP; rivalry over WP’s rich oil and gold deposits further added to the complexity of the situation. UN Secretary-General Dag Hammarskjold was preparing to reject both Indonesian and Dutch claims to sovereignty of Papua in favor of granting independence to the West Papuans themselves. However, Hammarskjold’s plan ended abruptly with his death in a midnight plane crash near Ndola, Northern Rhodesia. All matters relating to WP, even under the auspices of the United Nations, subsequently became embroiled in the cold war. From a Western perspective, the tragic disappearance of Michael Rockefeller in 1961 cast a further pall on the subject of Papuan self-determination. The Rockefeller family had been associated with Standard Oil for most of the previous century, and this company was conducting oil exploration in West Papua when Michael visited in 1961. As Michael and a Dutch anthropologist, Rene Wassing, were crossing the fifteenmile wide mouth of the Eilanden River on the southern coastline, their boat overturned. It drifted out to sea, the two men clinging to its sides. The following day, when the boat was twenty miles from shore (according to Wassing, who was interviewed by the author), Michael Rockefeller attempted to swim ashore. “We could see no land anywhere,” explained Wassing, who was later rescued. The world media attributed the disappearance of Michael Rockefeller to cannibalism, an intangible influence on the UN reversal of support for Papuan self-determination. In August 1962, the UN reached the New York Agreement, which abrogated Dutch sovereignty in favor of Indonesian control until 1969. According to



West Papua, Indonesia (Irian Jaya)

the agreement, the Papuan people would then be permitted to decide for themselves whether or not they wanted to remain under Indonesian rule. The quest to control Irian Jaya (as WP was called when it was no longer Netherlands New Guinea) was in the hands of Major-General (later president) Suharto in the early 1960s. This same army under his command was credited by the American Central Intelligence Agency (CIA) with perpetrating one of the worst massacres of the twentieth century in Java and Bali during the years 1965 and 1966. The task of “ascertaining the freely expressed will of the population” (in the words of the agreement) should not have been done under Indonesian oversight, yet it was, and all Papuan aspirations of independence met with Indonesian rejection. Papuans, who had voted under Dutch rule, were not allowed to do so freely under Indonesia’s control. Only a small portion of the population was permitted to vote, and then only under extreme duress.

the new capital, the army used tanks and machine-guns to clear the streets of 5,000 Papuans who protested the injustice. None of the handful of UN observers present raised an objection to the gross infringements of human rights that the Indonesian army committed in order to secure an outcome favorable to Indonesia. Officially, the UN “took note” of the outcome, tacitly acknowledging the vote. Anything less would have been tantamount to criticism of President Suharto’s “New Order” and its anti-communist credentials which, in the height of the cold war era, were considered overwhelmingly important to Western interests. Papua became a “military operations area” during Suharto’s presidency, and was placed under the control of Indonesian security forces. In addition, the vast territory, with some of the richest gold deposits and the purest oil in the world, was transformed into a multibillion dollar source of revenue for U.S. mining and oil interests.

In the years leading up to the UN-mandated Act of Free Choice in 1969, the Indonesian army engaged in widespread killing to quell Papuan resistance. In the latter half of the 1960s, thousands of Papuans were massacred, such as in the Kebar Valley and the Paniai uprising, showing that Indonesia would stop at nothing to retain the territory. Papuan resistance only intensified, however. Remnants of the 3,000-strong Papuan Battalion, which had been formed by the Dutch, became guerrilla units that were collectively known as the Organisasi Papua Merdeka (Free Papua Movement; OPM). The OPM became the bane of the Indonesian occupation army, attracting a cross-section of the Papuan population. By 1967, the OPM was powerful enough to take over the former Dutch capital, Manokwari. They held it for several days, until the city was bombed and strafed, then retaken by Indonesian paratroopers.

The Indonesian Army, too, had business interests that extended throughout Indonesia as a corollary of the territorial command structure, reaching from Jakarta to remote villages in WP. Thus, the ousting of Suharto from government in 1998 made no difference locally, for the army remained in place. According to the WP-based human rights group, Elsham, when the Indonesian economy suffered a downturn in the late 1990s, the army intensified its exploitation of WP, particularly through illegal logging schemes. In addition to the army, Indonesian security forces in WP included also police, air force and navy personnel. Among these, a special unit of the police known as mobile brigade (BriMob) is noted for being particularly ready to resort to brutality. The most notorious, however, has been the army special unit known as Kopassus (the Special Forces Command), which also operates as an intelligence service.

For the historically momentous vote in 1969, the army carefully chose “representatives” who would conform to Indonesian directives. Many who wanted a proPapua outcome were massacred. Whole villages—men, women, and children alike—were forced to dig their own burial pits before being killed by the Indonesian army. The 100 or so villagers living in Iapo, on the shore of Lake Sentani, were but one example of this village-wide approach to killing. The smoke from their burning bodies served to warn thirty other nearby villages how the army dealt with independence sympathizers. Similar crimes against humanity were perpetrated in many areas of West Papua before the UNmandated Act of Free Choice. By a show of 1,025 hands (983 males, 42 females) the “vote” was considered unanimous: all favored Indonesian rule. In Jayapura,

In 1977, when Indonesian armed forces moved into the highlands, the most densely populated area of WP, many villages in the mountain valleys were strafed and bombed by Vietnam surplus OV-10 “Bronco” aircraft. According to W. H. Vriend of the Government Hospital, author of the 2003 book Smoky Fires, there were American advisers for the Indonesian pilots, deployed on the tarmac at the main airport in the Papuan highlands at Wamena. An estimated 70 percent of the Tagi people of the Western Dani valley were killed in such raids. Papuans themselves say seventeen thousand people died. Kopassus officers directly from Jakarta selected many Papuan leaders and articulate individuals for slaughter. Extrajudicial killings have occurred throughout the decades since WP fell under Indonesian rule.



Whitaker, Benjamin

In 1997, along the southern foothills of the central range, Major-General Prabowo Subianto (Suharto’s son-in-law and head of Kopassus) was responsible for bombing and strafing of villages, and causing widespread starvation by laying waste to all gardens and farm-animals. In the early twenty-first century, the population of PNG was estimated at 5.5 million inhabitants. By contrast, the indigenous population of WP is only 1.8 million, with an additional 1.7 million “transmigrants” mainly from the Indonesian islands of Java and Sulawesi. Had the indigenous population of WP grown at the same rate as PNG, it should have achieved a total of approximately 3.4 million. The explanation for the Papuan population deficit can be found in the policies pursued by the Indonesian army and police stationed in Papua. The deliberacy of their violence, and the intent underlying their actions, predicates the accusation of genocide. The indigenous peoples of WP have more recently faced a new threat to their survival, according to medical workers in three regions of the territory who allege that the Indonesian army is deliberately using Javanese prostitutes known to be infected with HIV-AIDS. One of these medical officers produced a detailed report, listing not only the names of sixteen prostitutes brought from Surabaya to Papua, but also the names of those who had become infected from those sixteen, and those who had died. Today, WP has the highest incidence of HIV-AIDS in Indonesia, more than twice that of PNG. Poisoning of water and food supplies by army personnel has also been alleged, such as in the February 2004 case reported in the Courier-Mail in which seventeen Papuans died in Ilaga Hospital. Far from arriving in WP to liberate the indigenous peoples from Dutch colonial rule, the Indonesian military since the 1960s has simply replaced the Dutch as colonial overlords with a prison-guard mentality. To the occupying forces, Papuan ethnicity has been treated as the equivalent of a crime. The activities of the Indonesian army in this once-ignored half-island is steadily attracting more Western attention, yet the Kopassus strategy of dealing with Papuan aspirations for independence remains what it has always been: to eliminate it at the source. SEE ALSO Indonesia BIBLIOGRAPHY

Brundige, Elizabeth, Winter King, Priyneha Vahali, Stephen Vladeck, and Xiang Yuan (2003). Indonesian Human Rights Abuses in West Papua: Application of the Law of

Genocide to the History of Indonesian Control. Available from www.law.yale.edu/outside/html/Public_Affairs/426/ westpapuarights.pdf. Lagerberg, Kees (1979). West Irian and Jakarta Imperialism. New York: St. Martin’s Press. Poulgrain, Greg (1984). West Papua: The Obliteration of a People. London: Tapol. Vriend, W. H. (2003). Smoky Fires: The Merits of Development Co-Operation for Inculturation of Health Improvements. Amsterdam: Vrije Universteit. Greg Poulgrain

Whitaker, Benjamin [SEPTEMBER 15, 1934–]

Advocate for minority rights

Benjamin Whitaker’s career has been completely devoted to justice, in particular justice for those in greatest need. He has worked tirelessly for the protection of minorities and recognized the importance of this to the prevention of genocide. Born in London, Whitaker studied modern history and law at Oxford. He practiced as a barrister from 1959 through 1967. In 1966 he was elected to Parliament, representing Hampstead in London, and was immediately given a role with the Ministry of Housing and Local Government, becoming Junior Minister for Overseas Development in 1969. He left Parliament in 1970. In 1971 Whitaker became Executive Director of the Minority Rights Group (MRG), a nongovernmental organization (NGO) founded in the late 1960s by a group of academics, lawyers, and journalists. MRG focused on the need to protect the rights of persons belonging to minorities and the collective rights of minorities. It specialized in producing expert reports on minorities or minority issues, to use as a basis for lobbying, often at an international level. MRG’s reports were highly regarded throughout the human rights community. Their level of credibility was a tribute to Whitaker’s leadership, not least because MRG had a small budget and depended on his ability to identify experts and persuade them to donate their writing. Under Whitaker’s guidance, MRG produced several reports on genocide, most notably those authored by René Lemarchand on Burundi and by Leo Kuper on the international prevention of genocide. MRG attended the annual sessions of the United Nations (UN) Commission on Human Rights and its Sub-Commission on the Prevention of Discrimination and the Protection of Minorities (now the Sub-Commission on the Promotion and Protection of Human Rights). The early 1970s were difficult days for those trying to draw UN attention to human rights violations; Whitaker would later



Whitaker, Benjamin

regale students with stories of how NGOs, prohibited from mentioning an offending state’s name in a UN forum, would refer to “a long slender State on the other side of the Andes from Argentina.” Whitaker had the wisdom to enlist Kuper as a member of MRG’s delegation on such occasions, thus informing Kuper’s understanding of the international community’s approach to the prevention of genocide as well as MRG’s advocacy. In 1975 Whitaker became a member of a UN body of independent experts, the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. From 1976 through 1978 he chaired its working group on slavery, and in 1982 produced its report on contemporary slavery. Following this, Whitaker was assigned the role of special rapporteur on genocide for the Sub-Commission, for which he produced a report in 1985. The Whitaker Report, as it came to be known, assessed the failings of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, and drew on contemporary thinking to come up with recommendations. It is important to note that, when embarking on this work in 1984, Whitaker circulated a questionnaire on genocide to UN members, organizations, and agencies; regional bodies; academics; and NGOs. Thus, a wide range of responses informed his conclusions. The Whitaker Report called for the establishment of an international criminal court and a system of universal jurisdiction, what was called, “a double system of safeguard,” to ensure the punishment of genocide. Whitaker did not, however, view punishment as the first priority in the fight to eradicate genocide, asserting that those who were likely to commit genocide were not easily deterred by the threat of retribution. Rather, he called for a number of preventive measures at the international level designed to reflect stages in the evolution of genocide; anticipate its occurrence; provide early warning of its onset; and determine action to be taken at the outset of or during genocide to stop it. Whitaker recognized that the prevention of genocide required first a database of continuously updated information, to enable the identification of patterns of developing genocides. Armed with such a resource, a permanent body of coordination linked with UN agencies and the International Committee of the Red Cross (ICRC) could, argued Whitaker, help to save thousands of lives. Whitaker envisaged that such a body would be able to draw on a broad range of responses to the early warning of genocide. Allegations would be investigated. UN organs, related organizations, member states, interregional organizations, and the media could be engaged. When appropriate, local leaders could be asked [1158]

to intercede. To defuse tension, UN or ICRC conciliators or mediators could be brought in. A sanctions regime employing such measures as economic boycotts and exclusion from certain international activities could also be introduced. Whitaker additionally recommended that an impartial and respected UN body be created to deal exclusively with genocide. He argued that ideally a body monitoring adherence to the 1948 UN Genocide Convention should be created, possibly under the “competent organs” article, Article VIII, of the Convention. Modeled on the UN Committee against Torture, such a committee would review allegations of genocide, interview the state concerned, and undertake its own investigations. In addition to reporting annually to the UN General Assembly, the proposed Committee on Genocide would be empowered to bring urgent situations to the immediate attention of the UN Secretary General. This would have the advantages of removing the determination of genocide from the political arena through the use of independent experts and ensuring a timely response at the appropriate level by avoiding the sometimes lengthy cycle of the UN human rights system. Whitaker recognized that amending the UN Genocide Convention to create a treaty monitoring body might be a difficult process, and suggested that a UN Commission on Human Rights working group on genocide might provide an alternative. He concluded his report by stating, “the reforms recommended will, like most things worthwhile in human progress, not be easy. They would however be the best living memorial to all the past victims of genocide. To do nothing, by contrast, would be to invite responsibility for helping cause future victims” (p. 46). Whitaker departed from the MRG and UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities in 1988 and went on to work for the Gulbenkian Foundation. Fifteen years after he wrote his 1985 report, he chaired a session of the Raphael Lemkin Centenary Conference in London, where scholars discussed the new International Criminal Court. SEE ALSO Genocide; United Nations Sub-

Commission on Human Rights BIBLIOGRAPHY

Kuper, Leo (1984). International Action against Genocide. London: Minority Rights Group. Robinson, N. (1960). The Genocide Convention. New York: Institute of Jewish Affairs. Whitaker, Benjamin (1985). On the Question of the Prevention and Punishment of the Crime of Genocide. Sub-


Wiesel, Elie

Commission on Prevention of Discrimination and Protection of Minorities. Revised 1986. UN Document E/ CN.4/Sub.2/1985/6. Bernard F. Hamilton

Wiesel, Elie [SEPTEMBER 30, 1928–]

Romanian-born writer, novelist, Nobel Peace Prize Laureate 1986, spokesman for humanity, and Holocaust survivor.

Elie Wiesel was born on September 30, 1928, in Sighet, Romania. The town of his birth is located in the region of Northern Transylvania annexed by Hungary in September 1940. The Wiesel family remained relatively untouched by the violence of the Holocaust until the German invasion of March 1944. At that time, the methods that the Germans had developed over three years within Poland were imposed immediately in Hungary. Within weeks, Hungarian Jews were ghettoized, and between May 15 and July 8, 1944, 437,402 of them were sent on 147 trains, primarily to Auschwitz II-Birkenau, the death camp. Weisel was but fifteen years old when he deported to Auschwitz. It is through the lens of his religious worldview that Wiesel was later to write of his experience. Wiesel arrived in Auschwitz with his parents and three sisters. He immediately faced the Nazi selection process: “men to the left, women to the right” is the way he described it. His mother and younger sister were sent to the gas chambers, and his older sisters were sent to work. He and his father, Shlomo Wiesel, were sent to Buna-Monowitz, the slave labor complex known as Auschwitz III. He remained there until the forcible evacuation of Auschwitz on January 18, 1945, after which he and his father set off on foot to Bergen-Belsen, on what became known as a death march. Wiesel and his father arrived in Bergen-Belsen, but within days of their arrival, Shlomo Wiesel died of exhaustion and despair. Wiesel was liberated from Bergen-Belsen on April 11, 1945, and was taken with a children’s group to France where he began his recovery and resumed his education. He studied at the Sorbonne, where he worked on but never completed his Ph.D., and earned a meager living writing for Israeli newspapers. Wiesel came to the United States in 1956 as the United Nations correspondent for an Israeli newspaper, Yediot Acharonot. He became an American citizen in part because it was easier than dealing with the bureaucracy involved in renewing his French travel documents. Weisel is the author of more than forty books. In his early books, Wiesel struggled to find meaning for

A survivor of three concentration camps who lost most of his family to the Holocaust, writer Elie Wiesel remains a powerful voice for the victims of war and injustice. [ G E T T Y I M A G E S ]

his suffering, to endow his destiny and the history of the Jewish people with a transcendent purpose in the wake of what seemed to him to be the collapse of the religious covenantal framework. Night (1960), his first book to be published in English (translated from the French), is a memoir, although it is often described as a novel. It is the only book aside from a chapter in his autobiography, All Rivers Run to the Sea (1995), in which Wiesel directly deals with the Holocaust. Widely regarded as a classic in Holocaust literature, Night is the story of a young boy, reared in the ways of Torah and fascinated by the eternity of Israel. The protagonist is rudely shocked by history when he is transported from his hometown of Sighet to Auschwitz, from a world infused with God’s presence to a world without God and humanity. An earlier version of the work, written in Yiddish and entitled When the World Was Silent, was first published in Argentina in 1956 after a decade of self-imposed silence. The later, French version of the book is shorter and couched in less overtly angry language, and featured an introduction by Wiesel’s mentor, the French writer Francois Mauriac. Night forms one part of a trilogy. It was followed by the novel Dawn (1961), which tells the story of a



Wiesel, Elie

Holocaust survivor who is recruited to join a Jewish underground organization in pre-state Palestine. The protagonist of this novel is chosen to execute a British soldier in retaliation for the execution of one of his comrades. The final volume of the trilogy was originally published in English under the title Accident (1962; its title in French was Le Jour). This is the story of a Holocaust survivor who became a correspondent for an Israeli newspaper. The protagonist is struck by a car (the “accident” of the title) and hovers between life and death. His condition serves as the externalization of the survivor’s inner struggle. Only in Weisel’s fourth book, The Town Beyond the Wall (1964), does the author succeed in the effort to endow suffering with meaning. The major character is a young Holocaust survivor who has made his way to Paris after the war. His mentor, the man who teaches him the meaning of survival, is not a Jew with memories of Sinai and Auschwitz. Rather, he is a Spaniard who learned his own lessons of death and love during the Spanish Civil War. From this man, Pedro, the young survivor learns two lessons that have shaped Wiesel’s writings ever since. Pedro tells the young man: You frighten me. . . . You want to eliminate suffering by pushing it to its extreme: to madness. To say “I suffer therefore I am” is to become the enemy of man. What you must say is “I suffer therefore you are.” Camus wrote that to protest against a universe of unhappiness you had to create happiness. That’s an arrow pointing the way: it leads to another human being. And not via absurdity.

In other words, Pedro teaches the protagonist that the only way to redeem suffering and endow it with meaning is to treat its memory as a source of healing. In his public career and in all the rest of his writings, Wiesel has remained faithful to this insight.

versity—he has not built a power base within academia. Widely regarded as a spokesperson for Israel, he deliberately stands apart from partisan Israeli politics. In Israel, for a time, he was regarded by many as yored, one who has left Israel and abandoned the quest for a national Jewish renaissance in the ancient homeland. The one institutional base he did enjoy—as chairman of the United States Holocaust Memorial Council—was rather problematic, and Wiesel was uncomfortable with his institutional role. He served in this capacity for eight years, but resigned on the eve of his departure for Oslo to receive the Nobel Peace Prize in December 1986. (The museum’s architectural design and the creation of the exhibition’s storyline were created after his resignation.) Wiesel is perhaps the only Jewish leader who speaks without the power of office or vast wealth to command the attention and respect of his audience. Seemingly aloof from politics, he stands above the controversies that consume most others within the American Jewish leadership. Although Wiesel has influenced both Jewish and Christian theologians, he is not a religious figure in any ordinary sense. Rabbis lead their congregations; they speak from their pulpits; they are ordained by tradition. Hasidic masters have a court and a community, disciples and students, followers and supporters. They counsel their community and have authority over their followers. Theologians propose new religious interpretations and gain influence by virtue of their teachings. Wiesel has been called a non-Orthodox rebbe, the leader of a diverse group of admirers and followers, yet he does not exercise his authority in any direct way. Wiesel’s teachings are open to diverse interpretations depending on the background of the critic. Like a Hasidic master, Wiesel has more admirers and followers than peers or friends.

With Martin Buber and Abraham Joshua Herschel, Wiesel came to represent Jewish history and values to Jews and non-Jews outside of Israel. He is particularly revered throughout the American Jewish community, having achieved iconic status. Non-Jews also perceive Wiesel as the non-Israeli embodiment of the Jewish people for this generation, and because he is not an Israeli, Wiesel is untainted by some of the negative aspects of Israel’s late twentieth and early twenty-first century policies.

What Wiesel offers is entry into the experience of the Holocaust and the shadows that remain in its aftermath. The sacred mystery of our time may be the face not of God, but of the anti-God: the evil side of humanity. Through Wiesel’s work and persona, the nonsurvivor is offered a glimpse of what was but is no longer, of unspeakable horror and of the painful but productive process of regeneration after destruction. The non-survivor is offered only a glimpse, for as Wiesel has said: “only those who were there will ever know and those who were there can never tell.”

Wiesel neither directs any organization nor heads any movement, he has no institutional base. Unlike Jacob Neusner or the late Gershom Scholem, Wiesel has not defined a field of scholarship. Although employed by a university—Wiesel is the Andrew Mellon University professor of the Humanities at Boston Uni-

Wiesel always writes as a Jew, but he does not speak only of Jews. He raises his voice on behalf of all who are in pain, all who are in need of refuge. He was a visible and influential spokesman for Soviet Jewry, taking trips to the Soviet Union during the 1960s and telling of his encounters with Soviet Jews in The Jews



Wiesenthal, Simon

of Silence (1966). He is also an ardent supporter of Israel and refuses to criticize Israel outside of Israel. His attitude toward Israel is primarily one of gratitude for its creation, and in this he has much in common with many other Holocaust survivors. He worked against apartheid in South Africa, and continues to take up the cause of black South Africans and starving Ethiopians, as he did in earlier years for Biafrans. He has asked for refuge for Central Americans and for Iranian Bahais in much the same way as he pleaded for Soviet Jews. He traveled to Thailand to plead for the Cambodian victims of genocide and to Argentina to act of behalf of disappeared persons. Wiesel considers all these events a shadow of the Holocaust, a reflection of an evil unleashed across the planet—one whose mysterious implications are not yet known. An example of Wiesel’s style in influencing others can be seen in his encounter with president Ronald Reagan over the President’s proposed 1985 trip to Bitburg to lay a wreathe at the graves of Waffen SS soldiers. Even within the American Jewish community, many were reluctant to confront the President, who had thus far been so supportive of Israel, but Wiesel provoked a confrontation with Reagan, and did so courteously, deliberately, and insistently. Just days before the president’s scheduled trip to Germany, Wiesel attended a White House ceremony to receive the U.S. Congressional Gold Medal. While there, he took the opportunity to speak his mind, and said, “I belong to an ancient people that speaks truth to power.” Speaking directly to president Reagan he said: “that place is not your place, Mr. President. Your place is with the victims of the SS.” Charles Silberman, a distinguished commentator on American Jewish history, regards this moment as a high point in the assertion of Jewish dignity and Jewish acceptance within America, ranking it with the nomination of senator Joseph I. Lieberman, an observant Jew, as the Democratic candidate for Vice President in 2000. A man of peace, Wiesel nonetheless supported president George W. Bush’s invasion of Iraq in 2003. He explained that he opposed all war and the killing it entails, but believed that some evils must be confronted. Teaching has always been central to Wiesel’s very sense of self. He first taught as a Distinguished Professor of Judaic Studies at the City College of New York (1972–1976). Since 1976, he has been the Andrew W. Mellon Professor in the Humanities at Boston University, where he also holds the title of University Professor. He is a member of the faculty in the Department of Religion as well as that of the Department of Philosophy. He was the first Henry Luce Visiting Scholar in Human-

ities and Social Thought at Yale University, a position he held from 1982 to 1983. Wiesel has received numerous awards. In addition to the Nobel Prize for Peace, which he received in 1986, he was also awarded the Presidential Medal of Freedom, the U.S. Congressional Gold Medal, and the Medal of Liberty. In addition, he was granted the rank of Grand-Croix in the French Legion of Honor. He is married to Marion Wiesel, who often serves as his translator, and they have one son, Elisha. SEE ALSO Auschwitz; Holocaust; Memoirs of

Survivors; Psychology of Survivors BIBLIOGRAPHY

Abrahamson, Irving, ed. (1985). Against Silence: The Voice and Vision of Elie Wiesel. New York: Holocaust Library. Berenbaum, Michael (1994). Elie Wiesel, God, The Holocaust and the Children of Israel. West Orange, N.J.: Berhman House. Chmiel, Mark (2001). Elie Wiesel and the Politics of Moral Leadership. Philadelphia: Temple University Press. Estess, Ted L. (1980). Elie Wiesel. New York: F. Ungar. McAfee Brown, Robert (1983). Elie Wiesel, Messenger to all Humanity. South Bend, Ind.: University of Notre Dame Press. Rittner, Carol, ed. (1990). Elie Wiesel: Between Memory and Hope. New York: New York University Pres. Roth, John K. (1979). A Consuming Fire: Encounters with Elie Wiesel and the Holocaust. Atlanta: John Knox Press. Roth, John K. (1992). “From Night to Twilight: A Philosopher’s Reading of Elie Wiesel.” Religion in Literature 24(1):59–73. Sibelman, Simon P. (1995). Silence in the Novels of Elie Wiesel. New York: St. Martin’s Press. Wiesel, Elie (1972). Souls on Fire. New York: Random House. Wiesel, Elie (1987). The Night Trilogy: Night, Dawn, Day. New York: Harper/Collins. Wiesel, Elie (1995). All Rivers Run to the Sea: Memoirs. New York: Alfred A. Knopf. Wiesel, Elie (1999). And the Sea Is Never Full: Memoirs, 1969–. New York: Alfred A. Knopf. Michael Berenbaum

Wiesenthal, Simon [DECEMBER 31, 1908–]

Polish humanitarian

Born in 1908, in Buczacz, Galicia (in the Polish Ukraine), Simon Wiesenthal was raised in a typical shtetl (small Jewish town) environment. The family moved to Lvov, Vienna, and finally back to Buczacz.



Wiesenthal, Simon

Humanitarian Wiesenthal began his postwar career by aiding the U.S. war crimes investigators in the immediate aftermath of liberation. In May 1945 he submitted his first extensive list of Nazis perpetrators to the U.S. authorities, and joined their team as an investigator and translator. The onset of the cold war between the Western countries and the Soviet Union caused the United States and the other Western Allies to turn away from the pursuit and judgment of Nazis, by either ignoring them or using them as either scientific or intelligence assets. (This was true of the Soviet Union and other Communist bloc countries as well.) By 1947 the U.S. Army had begun to abandon the effort, but using files that had been collected by the army, Wiesenthal opened the first Jewish Historical Documentation Center in Linz. He maintained this center until 1954, when he closed it down due to the lack of interest and support, sending his files to Yad Vashem, Israel’s center for Holocaust study and commemoration. For the next few years Wiesenthal worked as a journalist and with refugee agencies.

Simon Wiesenthal, Nazi hunter, ninety years old at the time of this 1999 photo. In April 2003 Wiesenthal announced his retirement, saying that he had found all the mass murderers he had been looking for. According to Wiesenthal, the only Austrian war criminal still alive is Alois Brunner, Adolf Eichmann’s righthand man, believed to be hiding in Syria.[ A P / W O R L D W I D E P H O T O S ]

Wiesenthal continued his education in Prague, where he was trained as an architect. Leaving school in 1932, Wiesenthal returned to Lvov, where he married Cyla Muller in 1936 and, due to anti-Semitism, only received the formal degree of architectural engineer in 1939. In the wake of the nonaggression pact between the Nazis and the communists in 1939, the Russians took over Lvov, and Wiesenthal was no longer allowed to practice his profession. On June 28, 1941, the Nazis occupied Lvov, and Wiesenthal and his family were swept up in the Nazi occupation. Wiesenthal went through a series of concentration camps, including Gross-Rosen, Janowska, Buchenwald, and finally Mauthausen, in Austria, from which the U.S. Army liberated him on May 5, 1945. Shortly thereafter he was reunited with his wife, who was the only other member of their extended families to survive, and in 1946 their only child, a daughter, was born. [1162]

The trial of Adolf Eichmann in Israel in 1961 brought both Wiesenthal and the pursuit of Nazis back into the limelight. While many people have claimed full credit for the capture, Wiesenthal’s contribution of persistent tracking and important information greatly helped the Israeli operation. The question of credit for the capture has remained one of the major controversies associated with Wiesenthal throughout his career, with Mossad chief Isser Harel claiming sole responsibility and denying Wiesenthal any credit for the capture. Despite Harel’s position, historians believe that Wiesenthal did contribute to the effort of tracking and capturing Eichmann, particularly by keeping the effort going until the Israelis became involved. As a result of this renewed interest, Wiesenthal decided to move to Vienna and to reopen his Documentation Center there. Continuing to work independently, he became famous as the world’s leading Nazi-hunter. Over the next decades he investigated and helped bring to justice over one thousand Nazi war criminals. Some of the more prominent cases included Franz Stangl, the commandant of Sobibor and Treblinka, Franz Murer, commandant of the Vilna ghetto, Karl Silberbauer, the policeman who arrested Anne Frank, Hermine Braunsteiner Ryan, the former Majdanek guard who was located in the Unites States, thus publicizing the presence of Nazi war criminals in the United States and Eduard Roschmann, second in command of the Riga ghetto. From the early stages of his postwar career, Wiesenthal spoke up for other groups, not only Jews. In the 1950s he began to speak about the fate of the


Wiesenthal, Simon

Roma and Sinti under the Nazis, and has continued to draw attention to their persecution in Europe. He also spoke out on behalf of other threatened groups such as the Cambodians under Pol Pot and the Kurds. He championed the Soviet dissident Andrei Sakharov, and helped draw the world’s attention to the fate of Raoul Wallenberg, the Swedish diplomat who saved Jews during the Holocaust and vanished after being arrested by the Soviets in 1945. Prolific Author Wiesenthal has been a prolific author over the years. Among his most significant works are The Murderers Among Us (1967), which interweaves chapters describing Wiesenthal’s life and beliefs with those describing his pursuit of specific Nazis; The Sunflower (1970, 1998), which is a symposium on forgiveness with responses from major thinkers; Every Day Remembrance Day (1987), a calendar of anti-Semitism throughout Jewish history; and a last volume of memoirs, Justice Not Vengeance (1989). His other books include Sails of Hope, which deals with the theory of Christopher Columbus’ supposed Jewish ancestry, as well as other works related to the Holocaust. In 1989 The Murders Among Us was made into a major television film starring Ben Kingsley. Johanna Heer and Werner Schmiedel’s acclaimed documentary about Wiesenthal, The Art of Remembrance, appeared in 1997. Wiesenthal has been the subject of many books, particularly the biography by Hella Pick, Simon Wiesenthal: A Life in Search of Justice (1996) and Alan Levy’s The Wiesenthal File (1993). Controversy Wiesenthal’s career has been marked by some significant controversies. From 1970 to 1990 there was an ongoing bitter feud with Austrian Chancellor Bruno Kreisky. The feud was connected to Austrian politics, Israel, and Jewish identity. Kreisky, who was an assimilated Jew, accused Wiesenthal of surviving the war by collaborating with the Nazis. After a series of lawsuits, Wiesenthal finally won a judgment of slander against Kreisky, who died shortly after. This controversy was later dwarfed by the Waldheim affair. In 1986 the World Jewish Congress (WJC) launched a public relations campaign aimed at convincing Austrians (and the world) that former United Nations Secretary General Kurt Waldheim was a Nazi war-criminal and unfit to be elected as president of Austria. Wiesenthal reacted cautiously and, while agreeing that Waldheim had lied and covered up his wartime activities, refused to label him a war criminal without specific proof that would hold up in a court of law. The WJC reacted angrily, and viciously attacked Wiesenthal, who refused to back

down. Ultimately Waldheim was elected, Wiesenthal called for his resignation, the United States placed Waldheim on its “watch list” (preventing him from entering the country), and the bitter feelings between Wiesenthal and the WJC lingered. The Simon Wiesenthal Center In 1977 the Simon Wiesenthal Center in Los Angeles was founded by Rabbi Marvin Hier to continue Wiesenthal’s work. The Center has offices in New York, Miami, Toronto, Jerusalem, Paris, and Buenos Aires. The innovative Museum of Tolerance was opened in Los Angeles in 1993, the New York Tolerance Center in 2004, and the Center for Human Dignity is planned by the Wiesenthal Center for Jerusalem. The Center’s agenda mirrors that of Wiesenthal, being involved in campaigns against Nazi war criminals, current antiSemitic and other extremist activities, particularly on the Internet, and human rights issues in general. Its film division has produced a number of documentaries, including two Academy Award–winning films, (Genocide in 1981 and The Long Way Home in 1997), and its publications include Genocide: Critical Issues of the Holocaust (1983), The Simon Wiesenthal Center Annual (1984–1990), and Dismantling the Big Lie: The Protocols of the Elders of Zion. While the Center bears Wiesenthal’s name and has acted in association with Wiesenthal, both Wiesenthal and the Center maintain the right to act independently of each other. Wiesenthal’s Legacy Over the course of his long career Wiesenthal has received many honors, including the U.S. Congressional Gold Medal (1980) and Presidential Medal of Freedom (2000), French Legion of Honor (1986), Great Medal of Merit (Germany, 1985), Erasmus Prize (Amsterdam, 1992), and he was named an honorary citizen of Vienna in 1995. In 2004 Wiesenthal was awarded an honorary knighthood (KBE) by Queen Elizabeth of England. Wiesenthal’s accomplishments go beyond the honors he has accumulated. They include being the inspiration of the Simon Wiesenthal Center, which in 2004 had close to a half-million members worldwide, and is one of the leading Jewish human rights organizations in the world. For the first two decades after the Holocaust, his was essentially the only voice that kept the memory of that period alive for the public, particularly in Europe, and especially in the countries where National Socialism and the Holocaust originated. For the survivors and for many Jews who were born after the war he became the symbol of a new Jewish resolve to no longer be passive, thus overcoming the guilt associated with the claim that Jews were led “like sheep to the slaughter.” His resolve to avoid revenge and to



Women, Violence against

focus on bringing the Nazis to justice served as an affirmation of the legal process and earned him international respect. Wiesenthal’s persistent efforts, against determined opposition, eventually helped lead to the creation of Nazi hunting units in various countries including the United States, and also helped to normalize the concept of governmental action against war criminals. War crimes tribunals, such as those dealing with the genocides of Bosnia and Rwanda, might not have occurred had Wiesenthal not kept the pursuit of Nazi war criminals on the world’s agenda for so long. By fighting to keep the memories of the victims alive and to bring justice to their killers, however delayed, he managed to help change the world’s reactions to genocide and war crimes. SEE ALSO Holocaust; Prosecution; Psychology of


Levy, Alan (1993). The Wiesenthal File. London: Constable. Wiesenthal, Simon (1967). The Murderers among Us, ed. Joseph Wechsberg. London: Heinemann. Wiesenthal, Simon (1970). The Sunflower, tran. H. A. Piehler. London: W. H. Allen. Wiesenthal, Simon (1982). Max and Helen: A Remarkable True Love Story. New York: William Morrow. Wiesenthal, Simon (1987). Every Day Remembrance Day: A Chronicle of Jewish Martyrdom. New York: Henry Holt. Wiesenthal, Simon (1989). Justice, Not Vengeance. London: Weidenfeld and Nicolson. Mark Weitzman

Women, Violence against The term violence against women refers to genderbased aggression, which disproportionately victimizes women and girls. Sexual assault, battering by intimates, sexual abuse of children, sex trafficking, sexual harassment, forced pregnancy, and often prostitution and pornography are considered included, as are dowry burnings, honor killings, female infanticide, and female genital mutilation. When a woman or girl is violated or killed because she is female—due, for instance, to misogyny or sexual stereotypes or gendered roles of masculinity or femininity—she is subjected to violence against women. Such attacks often occur on the basis of sex combined with race, ethnicity, religion, nationality, and age, exacerbated by poverty and economic dependence. Likened to a war on women, violence against women, pervasive if largely invisible outside recognized wars, is surrounded by victim blaming, shaming, denial, and a culture of inevitability. It often explodes during armed conflict and genocide. [1164]

Most acts of violence against women are formally illegal but largely ignored by local, national, and international legal systems. Human rights instruments and peremptory norms binding on states guarantee equal protection of the law and prohibit discrimination on the basis of sex. To explicitly combat violence against women and ineffective law enforcement against it, the Organization of American States (OAS) promulgated the Convention on the Prevention, Punishment, and Eradication of Violence Against Women in 1994. The United Nations committees that interpret the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the International Covenant on Civil and Political Rights (ICCPR) have determined that officially ignoring violence against women violates these conventions. The Beijing Platform for Action calls on states to take strong measures against these acts. Although some action has been taken regionally in Europe and Latin America against official violence against women in the form of rape in custody, little has been done anywhere to stop the widespread pattern of violence against women that is pervasive and officially condoned. International humanitarian law and the laws of war have long prohibited rape and enforced prostitution in both domestic and international armed conflicts, yet those provisions too have seldom been enforced. Women targeted for genocide were violated in sexspecific ways during the Holocaust, yet the Nuremberg Tribunal did not recognize these atrocities as such. Genocide was defined in the Genocide Convention (1949) that emerged from that experience, specifying abuses inflicted with intent to destroy peoples as such; sexual violence was not specifically listed. Concepts of crimes against humanity emerging from this era also did not include widespread and systematic assaults on the basis of sex, nor did they focus on atrocities committed on the basis of sex combined with race, ethnicity, nationality, or religion. Most violence against women, in war as well as peace, has thus been committed with effective impunity. In the last decade of the twentieth century, this pattern began to change in the international system. Beginning in 1991, Croatian and Bosnian Muslim women survivors spoke out against the mass rapes systematically inflicted on them as a weapon of the genocidal onslaughts directed by Serbian forces against their communities. By the turn of the century, they had civilly sued Radovan Karadzic, leader of the Bosnian Serbs, for genocidal rape and won under the Alien Tort Claims Act (ACTA) in the United States. Their case established sexual acts of violence against women as legally genocidal under international law for the first time. Also dur-


World War I Peace Treaties

ing this period the International Tribunal for Former Yugoslavia (ICTY) indicted perpetrators for rape and other sexual atrocities as war crimes and as crimes against humanity, specifically as slavery. The tribunal eventurally indicted Slobodan Milosevic, the former president of Serbia, for genocide. The International Tribunal for Rwanda (ICTR) made greater strides, convicting Hutu leaders of rape and other sexual atrocities against Tutsi women as genocide in its breakthrough Akayesu opinion. As a crime against humanity, rape was there defined internationally for the first time, as “a physical invasion of a sexual nature, committed on a person under conditions which are coercive.” The International Criminal Court (ICC) built on these advances. Under its Rome Statute (1998), the definition of genocide remained the same, permitting interpretation of killing, serious bodily or mental harm, destructive conditions of life, and measures to prevent births to encompass gender-based violence when committed for genocidal purposes. The ICC definition of crimes against humanity expressly included “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity,” when committed as part of a widespread or systematic attack knowingly directed against a civilian population. Gender-based persecution through such acts was also recognized as a crime against humanity. This implementation of international law, emancipated from hostilities recognized as armed conflict, together with doctrines of universal jurisdiction and other devices available in some national courts, offers hope that the legal impunity that has long marked violence against women may be coming to an end. SEE ALSO Female Infantacide and Fetal Murder;

Rape; Reproduction BIBLIOGRAPHY

Commission on Human Rights (1994). Preliminary Report Submitted by the Special Rapporteur on Violence against Women, Its Causes and Consequences. E/CN.4/1995/42. Available from http://www.unhchr.ch/Huridocda/ Huridoca.nsf. Commission on Human Rights (1996). Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences. E/CN.4/1996/53. Available from http:// www.unhchr.ch/Huridocda/Huridoca.nsf. Committee on the Elimination of Discrimination Against Women (1992). General Recommendation 19. UN Doc. CEDAW/C/1992/L.1/Add.15. Available from http:// www.un.org/womenwatch/daw/cedaw/ recomm.htm#recom/19. Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against

Women (Convention of Belem do Para) (1994). 33 I.L.M. 1534. Kadic v. Karadzic. 70 F3d 232 (1995). MacKinnon, Catharine A. (2004). “Genocide’s Sexuality.” In Political Exclusion and Domination, ed. Stephen Macedo and Melissa Williams. New York: New York University Press. Prosecutor v. Akayesu. (1998). ICTR-96-4-T Russell, Diana E. H., and Nicole Van de Ven, eds. (1976). Crimes against Women: Proceedings of the International Tribunal. Millbrae, Calif.: Les Femmes. Catharine A. MacKinnon

World War I Peace Treaties After World War I, the Allied and Associated powers concluded a series of peace treaties with the so-called Central powers: Germany (at Versailles, June 28, 1919), Austria/SaintGermain (September 10, 1919), Bulgaria (Neuilly, November 27, 1919), Hungary (Trianon, June 4, 1920), and Turkey, (Sèvres, August 10, 1920). Turkey fought successfully against the implementation of the August 10 treaty, and a new peace agreement was negotiated and signed at Lausanne, July 24, 1923. The United States Senate refused to ratify the treaties, however. Instead, the U.S. government concluded separate peace treaties with the former Central Powers. None of the peace treaties concluded after World War I contained dispositions concerning the punishment of genocide. Within the context of the overall fighting, there had been many armed conflicts, which led to radical population reductions and even to the total disappearance of some races and nations, but at that time international law did not recognize specific rules on their prohibition and punishment. On the other hand, there were dispositions in the treaties connected with violations of the laws and customs of war. Article 227 of the 1919 Treaty of Versailles merits special attention, because it called upon the Allied and Associated powers to publicly arraign the defeated German emperor, William II of Hohenzollern, on the charge of having committed a supreme offense against international morality and the sanctity of treaties. It further called for the constitution of a special tribunal to try the accused, and assured the former emperor the guarantees essential to the right of defense. The tribunal was composed of five judges, one each to be appointed by the United States, Great Britain, France, Italy, and Japan. The former emperor, however, had taken refuge in the Netherlands, whose government refused his extradition, arguing that the crimes alleged in the arraign-



Wounded Knee

ment—supreme offenses against international morality and the sanctity of treaties—had no counterpart in the articles of the Dutch Penal Code. William II never appeared before an international tribunal, and no judgment was ever rendered on him. Article 228 of the Treaty of Versailles contained the following disposition: The German Government recognizes the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in territory of her allies.

Articles 229 and 230 of the treaty concerned the composition of the tribunals, the accused’s right of defense and right to counsel, and the obligation of the German government to cooperate in furnishing evidence of any crimes alleged and brought before tribunals. The Allied powers suspected that more than 900 German soldiers had violated the laws and customs of war. Among the suspects were some of the top generals in the German High Command. From this great number, however, only twelve individuals stood accused before the Tribunal of Leipzig. Of these, only six were found guilty. They received prison sentences not to exceed four years. There were identical dispositions in the corresponding articles of the peace treaties concluded with other defeated Central Powers, (Articles 173 to 175 of the treaty of St. Germain, Articles 118 to 120 of the Neuilly treaty, Articles 157 to 159 of the Trianon treaty, and Articles 228 to 230 of the treaty of Sèvres). In the turmoil of the postwar period, however, these provisions were not applied. None of the treaties included rules that might be brought to bear against citizens of a victorious state who might be accused of violating the laws and customs of war. SEE ALSO Impunity; Minorities BIBLIOGRAPHY

Appleman, J. A. (1971). Military tribunals and International Crimes. Westport, Conn.: Greenwood Press. Lachs, M. (1945). War Crimes: An Attempt to Define the Issues. London: Stevens. Schwarzenberger, G. (1968). International Law as Applied by International Courts and Tribunals. Volume 2: The Law of Armed Conflict. London: Stevens. G. G. Herczegh


Wounded Knee The Wounded Knee massacre took place December 29, 1890, on the Pine Ridge Indian Reservation in South Dakota. The massacre was precipitated when the Seventh Cavalry of the U.S. Army tried to disarm a group of about 500 Lakota Sioux under the leadership of Chief Big Foot. During the contentious process of disarming, a shot was fired. After this, the army began a merciless slaughter. Within hours, the Seventh Cavalry killed between 270 and 300 of Big Foot’s people. Of these, 170 to 200 were women and children. The army killed a few men who were fighting back, but the large majority of Lakotas were destroyed while trying to flee or hide. In a few instances, soldiers shot Lakotas at point blank range, three or more miles from the place the firing began. The chain of events that led to Wounded Knee began six weeks earlier, when the United States government decided to use massive military force to suppress the Ghost Dance on Lakota reservations. The Ghost Dance originated in the teachings of Paiute prophet Wovoka, living on the Walker River Indian Reservation in Nevada. In 1889, Wovoka began to forecast the coming of a new world in which non-Indians would be destroyed or removed, game restored, and tribal ancestors returned to life. Portions of several tribes in the western United States adopted Wovoka’s teachings, including several Lakota communities. Although many scholars have argued that the Lakotas fundamentally altered Wovoka’s originally “peaceful” teaching into one of hostility toward European Americans, thus justifying military action, recent scholarship has called this view into question. It is doubtful that the Lakotas changed Wovoka’s teachings. Rather, the government’s decision to suppress the Ghost Dance among the Lakotas, but not among other tribes, resulted from long-standing American perceptions of the Lakota Sioux as particularly treacherous, as well as army officers’ perceptions that the situation on the Lakota reservations afforded an opportunity to demonstrate the continued importance of the army’s mission in the West. The army’s invasion of Lakota country, the single largest military operation since the Civil War, was designed to overawe the Lakota ghost dancers into giving up the dance. At first, this strategy had some success. In late November and early December several groups of ghost dancers surrendered. On December 15, however, military officials began to lose control of the situation when reservation Indian police killed Sitting Bull at his home on the Standing Rock Reservation. Fearing for their lives, most of Sitting Bull’s people fled south,


Wounded Knee

The United States Seventh Cavalry massacred over 300 Lakota (Sioux) men, women, and children at their encampment beside Wounded Knee Creek in South Dakota, on December 29, 1890. Here, Miniconjou Sioux chief Big Foot lies dead in the snow. He was among the first to die that morning. [ N A T I O N A L A R C H I V E S A N D R E C O R D S A D M I N I S T R A T I O N ]

with some joining Big Foot’s village on the Cheyenne River. Army officers responded to these events by adopting a punitive attitude toward Big Foot and the ghost dancers among his people. Big Foot was characterized as “defiant and hostile” and the army positioned troops near his village to secure his arrest. For their part, Big Foot and the other leaders of his community were deeply fearful of the army’s intentions. Having received an invitation from Lakota leaders at Pine Ridge to help with their ongoing diplomatic efforts to secure a peaceful conclusion to the army’s invasion of their country, Big Foot decided on December 24 to leave Cheyenne River and travel through the rough country of the Badlands to Pine Ridge. Big Foot’s evasion of military surveillance increased army officers’ frustration. More than ever they desired to punish Big Foot and his people. Hence, officers in charge of the campaign issued orders to all units to try to find Big Foot, and should they succeed, to disarm him, adding: “If he fights, destroy him.” On December 28, the Seventh Cavalry intercepted Big Foot and his people about twenty-five miles from Pine Ridge and escorted them

to nearby Wounded Knee Creek. The next morning the Seventh Cavalry began to carry out its orders. Much of the analysis of Wounded Knee has focused on who fired the first shot. One theory is that army officers planned in advance to open fire, perhaps to avenge the Seventh Cavalry’s defeat under George Armstrong Custer at the Little Bighorn fourteen years before. Another theory is that the first shot was fired when a single Indian refused to give up his gun and it discharged accidentally when soldiers tried to take it from him. A third theory, advanced by the army after the massacre, is that a few Lakotas, acting in concert, opened fire. Wounded Knee qualifies as an instance of genocide most obviously under the first of these theories, as it holds that the destruction of Big Foot’s people was intentional. In all likelihood, however, army officers probably did not plan the massacre and instead intended to use the threat of force to secure a bloodless disarmament of Big Foot’s people. Nonetheless, even under the second (very likely) theory or the third (very doubtful) theory, the events after the first shot reveal



Wounded Knee

widespread genocidal impulses. Although army officers testified before a court of inquiry that they and their men took great pains to prevent the killing of women and children, their testimony collapses under the weight of the sheer number of casualties and the circumstances of their deaths. Regardless of who fired the first shot, the killing fields of Wounded Knee must be placed within a long tradition of racist Indian-hating in American culture, reflected in widely held axioms like “nits breed lice” and “the only good Indian is a dead Indian,” and manifested in numerous instances in which the army, volunteers, and civilians engaged in acts of indiscriminate slaughter with the intent to kill as many Indians as possible. Neither the army’s campaign to suppress the Lakota Ghost Dance nor nineteenth-century U.S. Indian policy explicitly called for the extermination of all Indians. Yet, both were premised on the view that Indian opposition to U.S. authority was illegitimate and deserving of punishment, and that it was therefore legiti-


mate to use the threat of extermination to secure policy objectives. In many instances, as at Wounded Knee, the threat of genocide became reality. SEE ALSO Indigenous Peoples; Massacres; Native

Americans; Racism BIBLIOGRAPHY

Brown, Dee (1971). Bury My Heart at Wounded Knee: An Indian History of the American West. New York: Holt, Rinehart, & Winston. Mooney, James (1896). The Ghost-Dance Religion and the Sioux Outbreak of 1890. Fourteenth Annual Report of the Bureau of Ethnology, 1892–1993. Washington, D.C.: Government Printing Office. Ostler, Jeffrey (2004). The Plains Sioux and U.S. Colonialism from Lewis and Clark to Wounded Knee. Cambridge: Cambridge University Press. Utley, Robert (1963). The Last Days of the Sioux Nation. New Haven, Conn.: Yale University Press. Jeffrey Ostler


Y Yugoslavia Between 1991 and 1999, the Socialist Federative Republic of Yugoslavia (population: approximately 23 million) disintegrated amid four successive wars. Although the violent end of federal Yugoslavia was not determined by its bloody origins, those origins should not be omitted from an account of its denouement, in part because they were deliberately evoked to mobilize support for war in 1991 and 1992. World War II: 1941–1945 After the kingdom of Yugoslavia capitulated to Germany in April 1941, Hitler divided the country among the Axis states. Germany annexed most of Slovenia, occupied Serbia, and administrated eastern Vojvodina. Italy annexed or occupied much of the Croatian coastland, southern Slovenia, western Macedonia and Kosovo, and tried in vain to control Montenegro by means of an autonomous administration. Hungary annexed the remainder of the province of Vojvodina and eastern Slovenia. Bulgaria took Macedonia and a sliver of southeastern Serbia. The occupiers established puppet regimes. Croatia, Bosnia and Herzegovina were put in the charge of a Croatian nationalist group, the fanatical Ustashas, whose leaders had spent the 1930s as Mussolini’s clients and sometimes his prisoners. The poglavnik (equivalent to führer) of the self-styled Independent State of Croatia (Nezavisna Drzava Hrvatska, NDH) was Ante Pavelic. Its leaders were obsessed with eliminating the Serb Orthodox population, which was seen as the historic obstacle to Croatian sovereignty.

The NDH’s population of 6.3 million included only 3.4 million Croats. The remainder were mostly Serb (1.9 million), Muslim (700,000), German (150,000) and Jewish (37,000). In line with Axis policy, the Ustashas deported and killed Jews and Roma. The Serb population was the strategic target, however, owing to its size and to Ustasha ideology. At least 20,000 Serbs were killed in pogroms during summer 1941. By 1945, in line with the Ustasha intention to eradicate the Serb Orthodox population by mass conversion, expulsion, and murder, enough death and destruction had been achieved to make the NDH the bloodiest regime in Europe after Germany itself. In Serbia, the Nazis formed a “government of national salvation” under Milan Nedic, who saw himself as caretaking until the royalist government could return from exile in London. Pavelic’s equivalent in Belgrade was Dimitrije Ljotic, who received limited German support for his Serbian fascist movement. Even without an ideology of genocide, Nazi mechanisms functioned efficiently and the situation for Jews and Roma was no better than in Croatia. Serbia was proclaimed Judenfrei (Free of Jews) in early 1942. Some army officers took to the hills and formed a royalist resistance movement, the Chetniks, loyal to the royalist government but also to a Serbian nationalist program. Savage Nazi reprisals in Serbia in 1941 soon quieted this movement’s anti-German actions, but it continued to commit atrocities against Croats and Muslims in the NDH. Proportionately, Muslim losses in the war were heavier than Serb or Croat losses.




Croatian and Serbian nationalist crimes strengthened the resistance movement launched in summer 1941 by the Communist Party of Yugoslavia under a shadowy figure called Josip Broz, later known as Tito, who was supported by the USSR. The engorged but Axis-occupied Croatian state became the principal battleground between the partisans and their pro-fascist or anti-communist opponents, with each side’s armed forces numbering around 150,000 by 1943. At least a million Yugoslavs (6% of the pre-war population) were killed between 1941 and 1945, mostly at their compatriots’ hands. The killing continued after the war, as Tito’s victorious forces took revenge on their real and perceived enemies. British forces in Austria turned back tens of thousands of fleeing Yugoslavs. Estimates range from 30,000 to 55,000 killed between spring and autumn 1945. Native German and Hungarian communities, seen as complicit with wartime occupation, were brutally treated; tantamount in some cases to ethnic cleansing. The Volksdeutsch settlements of Vojvodina and Slavonia largely disappeared. Perhaps 100,000 people—half the ethnic German population in Yugoslavia—fled in 1945, and many who remained were compelled to do forced labor, murdered, or later ransomed by West Germany. Some 20,000 Hungarians of Vojvodina were killed in reprisals. Albanian rebellions in Kosovo were suppressed, with prisoners sent on death marches towards the coast. An estimated 170,000 ethnic Italians fled to Italy in the late 1940s and 1950s. (All of these figures are highly approximate.) The partisans were not always ruthless to their wartime opponents. By contrast with Germany, however, the postwar order in Yugoslavia did not allow an impartial examination of the war years. Grief was made more bitter by the anger and vengefulness of those whose struggles and sufferings were officially distorted or denied. Tito’s regime created an official celebratory myth about the “People’s Liberation War,” denying partisan atrocities and negotiations with Germans and exaggerating their role in defeating the Axis. While this helped to unify the traumatized nationalities in the wake of fascism’s defeat, it could not silence the truths and counter-myths handed down within families throughout Yugoslavia and nursed among Serb and Croat émigrés. In particular, many Croats came to resent what they saw as excessive attention to the Ustasha regime and a corresponding exculpation of Serbian nationalist crimes. By the time Titoist orthodoxy relaxed and the archives yielded their secrets, in the 1980s— confirming that the partisans’ black-and-white, epic version had concealed an unsurprising pattern of shifting allegiances and power—plays in which Tito’s forces [1170]

eventually bested their enemies—it was too late for reconciliation. The Wars of Yugoslav Succession (1991–1999) The wars of the 1990s—from Slovenia, to Croatia, then Bosnia and Herzegovina, and finally Kosovo—were the result of four factors: • the weakness of Yugoslavia’s institutions of central government • the rise of aggressive nationalism in Serbia • the collapse of one-party communist systems in Europe around 1990—including in Yugoslavia • the Yugoslav People’s Army’s embrace of Serbian nationalism. After Tito’s death in 1980, Yugoslavia’s federal system proved incapable of providing effective governance. Once each decade, Tito had rebalanced the system, effectively decentralizing power until Yugoslav unity rested on three pillars: Tito’s own prestige; the coherence of the League of Communists of Yugoslavia (LCY), as the communist party was called; and the Yugoslav People’s Army (Jugoslovenska narodna armija, JNA). The first and second of these decayed over the 1980s; the third endured in deepening isolation from democratic change. Political and economic competencies devolved to the six republics and two autonomous provinces of Kosovo and Vojvodina. The federation became, in a vivid phrase coined by Croatian economist Branko Horvat, an alliance of regional oligarchies. The resultant instability encouraged restiveness among the republics and revived long-standing mutual grievances. In Serbia, one politician turned this situation to his advantage. Slobodan Milosevic (b. 1941) rose in the 1980s to head the Serbian League of Communists. Milosevic played upon the Serbs’ bitterness over their status in Yugoslavia. These feelings centered on the southern province of Kosovo, site of the mythologized 1389 battle against the Ottoman empire, and traditionally celebrated as the cradle of Serbian culture. With more than 20 percent of Serbia’s population, Kosovo in the 1980s was more than 80 percent ethnic Albanian. Since the late 1960s, Albanians had ceased to be a second-class nationality in Kosovo. This evolution, formalized by Kosovo’s federal status in the 1974 constitution, was felt as unacceptable by many Serbs. In 1986 Serbia’s Academy of Sciences and Arts purported to speak for the nation when it alleged—with inflammatory intent—that Serbs in Kosovo were subject to “physical, political, legal, and cultural genocide.” Milosevic was the first senior politician to acknowledge Serbian anger over Kosovo as valid. With



the help of media manipulation, staged rallies, and covert agitation, he seized the leadership of the Serbian communists in late 1987, then used the same techniques to abolish the autonomy of Kosovo and Vojvodina. When he succeeded in changing the leadership in Montenegro (population 0.58 million), Milosevic controlled half the federal units. Although public opinion was orchestrated, these early successes were enabled by an extraordinary groundswell of support. Journalists, intellectuals, and artists echoed the simple message that Serbia and the Serbs—some 36 percent of Yugoslavia’s population— must be “united” at any cost. Even those who disliked Milosevic’s methods believed that his “antibureaucratic revolution” was necessary. Dissenters were few and, thanks to the machinery of party-state power, easily marginalized. Milosevic’s wider ambition was to intimidate the other republics into letting Yugoslavia be re-centralized under Serbian hegemony. The international community, eager to see Yugoslavia restabilized, was vaguely sympathetic. But Serbia’s strongman had not foreseen the collapse of European communism after November 1989. This reduced the strategic significance Yugoslavia had enjoyed during the cold war, poised between the Western and Eastern blocs. It also encouraged nascent pro-democratic groups in Yugoslavia, especially in the western republics of Slovenia and Croatia, where they found common cause with communists who were worried by Serbian revanchism. Serbia’s vaunting ambition had emboldened other republics. The last congress of the LCY, in January 1990, was suspended when the Slovenian delegation walked out after their reform proposals were jeeringly rejected. Slovenia and Croatia scheduled multiparty elections for the spring. Far from backing down at this reversal, Milosevic escalated his threats against other republics. If the political structures were too weak and the JNA was still too indecisive to give him the leverage he needed, he would use demography instead—the 25 percent of Yugoslavia’s Serbs who lived outside Serbia.

oretical and cultural forms, in the unprecedented irreverence toward Titoist myths. With newly elected leaders, Slovenia declared sovereignty in July 1990. In late December, the result of a referendum allowed the leadership to announce that independence would be declared the following June. If Serbia supplied the main leverage to destroy Yugoslavia, the timetable was Slovenia’s. Determined not to be left behind, Croatia (population: 4.78 million) committed itself to secede alongside Slovenia, although Croatia’s position vis-à-vis Serbia was incomparably worse. Milosevic was willing to let Slovenia go, but not Croatia. After Croatia’s first multiparty elections in spring 1990, the Serbian media had conducted a frenzied campaign to instil fear and hatred of Croatian intentions. Cynically exploiting fears of an Ustasha revival, this campaign targeted Croatia’s 580,000 Serbs, especially the compact Serb communities in the central highlands. Agents were sent to stir up discontent. Open rebellion started in autumn, with armed roadblocks around the town of Knin. The Yugoslav army and Serbian ministry of interior supplied the weapons. Agitation was made easier by the nationalism of Franjo Tudjman (1922–1999). His election platform included two crucial claims: Croatia must have “selfdetermination in its natural and historic borders,” and the NDH (1941–1945) “was not only a formation in the service of the [Nazi German-Fascist Italian] occupier, but also the expression of the historic aspirations of the Croatian people.” The former claim disclosed Tudjman’s covetous interest in neighbouring Bosnia and Herzegovina, while the latter—playing into the hands of Serbian propaganda—signaled a readiness to rehabilitate aspects of the Ustashas’ record.

Slovenia and Croatia In the late 1980s, Slovenia’s challenge to the federal system was as profound as Serbia’s, but opposite in method and intention. With under two million inhabitants, abutting Italy and Austria, by 1990 Slovenia was “the most successful and modern economy in Central and Eastern Europe.” Some two-fifths of export trade was with western Europe.

So pressing was the threat posed by Serbia and its local proxy forces in Knin that most Croatians—like most Serbians, though arguably with better reason— wanted a strong leader, whatever the price. In Tudjman’s case, the price was an authoritarian kleptocracy and, less predictably, a habit of conspiring with his Serbian counterpart. Far from sharing his supporters’ revulsion at Milosevic, Tudjman saw the other man as his natural partner for achieving a historic concordat that would settle the Serbs’ and Croats’ differences once and for all. In his vision, this required splitting Bosnia and Herzegovina, which he saw as an artificial construct, much of which belonged by historical right to Croatia, and whose majority Muslim inhabitants were descended from apostate Catholics, that is, Croats.

Milosevic’s recentralizing drive spurred Slovenian nationalism. This took political form, in terms of resistance to the Serbian bloc in federal structures, and the-

Tudjman sought opportunities to plot the dismemberment of Bosnia and Herzegovina with Milosevic, most notoriously at Karadjordjevo on March 25, 1991.




At that meeting, he hoped to exploit the other man’s vulnerability after the JNA chiefs of staff—aligning themselves ever more closely with Milosevic—had failed to panic the federal presidency into declaring a state of emergency. This was a critical misreading of the situation. Tudjman thought that a chastened Milosevic would cooperate over Bosnia and Herzegovina, whereas his recent setback actually hardened Milosevic’s—and the JNA’s—resolve to stop Croatia from escaping intact. On March 16, Milosevic met Serbia’s district leaders. Proclaiming his readiness to “defend the interests of our republic and also the interests of the Serb people beyond Serbia,” he told his audience that “borders, as you know, are always dictated by the strong and never by the weak” (Sell, 2002, p. 137). Tudjman, however, trusted Milosevic crony Borisav Jovic’s private assurances that Milosevic was uninterested in Croatia’s Serbs or their ultimate fate. By this time, the Croatian Serb rebels, backed by the JNA, had proclaimed their own state—the Republic of Serb Krajina (RSK)—and controlled key transport routes. Typically, Croatia held its referendum only a month before the date set for secession. When 93 percent of an 84 percent turn-out supported “sovereignty and independence,” confrontation became unavoidable. Independence and War Slovenia prepared its 20,000-strong armed forces in high secrecy, readying itself to take over border crossings and resist army intervention. Slovenia’s showdown with the JNA began on June 25, the day it declared independence. Local and international observers were surprised at the skill and determination of the Territorial Defence forces. JNA confidence—based on poor intelligence and anti-Slovenian prejudice—that the Slovenes would back down after a show of force was quickly dispelled. After ten days, the Slovenian side had suffered 13 dead and 112 wounded, compared with 39 dead and 139 wounded on the JNA side. The JNA chiefs of staff—after long careers in a bubble of privilege and unaccountability—were angered by their humiliation. Under terms brokered by the European Community, some 22,000 JNA personnel were withdrawn, mostly to bases in Croatia and Bosnia and Herzegovina. The chiefs of staff now shed the residual Yugoslavist loyalty which had deterred them from overthrowing the federal organs in March, and threw in their lot with Serbian nationalism. The war in Croatia was less clear-cut and vastly more destructive of life and property. After incidents against and involving police forces in spring and early summer, the rebel forces, along with JNA regulars and Serbian paramilitaries, began to target large numbers of [1172]

civilian Croats in and around the territory claimed by the self-styled RSK, killing many and driving away survivors. By November they controlled almost a third of the country. The worst fighting in this undeclared war was in the east, where Croat forces, unaided by forces from the Croatian capital of Zagreb, valiantly defended Vukovar until the city was rubble. After Serbian forces captured the city, more than 200 Croats were removed from the hospital and shot. This was the first indisputable war crime. By December, half a million people had been displaced in Croatia or fled as refugees. Damage was estimated at some $18.7 billion. The United Nations Protection Force (UNPROFOR) The United Nations Security Council’s first action in the war was to impose an arms embargo on all parties in September 1991. The fighting continued regardless. The attacks on Vukovar and Dubrovnik showed that real war could not be averted. After twelve cease-fires in Croatia collapsed, UN envoy Cyrus Vance succeeded in making the thirteenth stick: Milosevic compelled the leaders of the RSK to accept. The January 2, 1992, agreement (called the Vance Plan) provided for 10,000 (later 14,000) UN peacekeepers to stabilize the disputed territory while a political settlement was worked out. Over the next several years, UNPROFOR failed to demilitarize the rebel areas or to create conditions for the return of refugees. Indeed, refugee numbers swelled as Serbs in government-controlled areas were attacked in retaliation for the crimes of the rebels. According to human rights activists, 11,000 Serb-owned homes were destroyed outside rebel areas during the year after the January 1992 cease-fire. Non-Serbs in RSK territory were killed and expelled under the eyes of UN peacekeepers. Illogically, the UN protected Serbs in Serb-controlled territory while it did nothing for those who remained in government-controlled territory, who were at much greater risk. The so-called Republic of Serb Krajina was now a twilight land ruled by a paramilitary mafia, sustained by plunder, contraband and humanitarian aid. The mafiosi never believed that the Croatians could retake the territory. Their total intransigence played into Tudjman’s hands: he appeared reasonable by comparison. As time passed, his barely concealed ambition of recovering the territory minus its Serb population appeared almost pragmatic. Writing in a special edition of Globus news magazine (Zagreb, December 11, 1999) shortly after Tudjman’s death, his former chef de cabinet, Hrvoje Sarinic, recalled the eve of Operation Storm in August 1995,



when Croatia recaptured most of the Serb rebel-held territory: “All attempts at a peaceful solution (which, to tell the truth, we didn’t even want) had failed. The military-police forces got the order to establish the constitutional and legal system.” This attitude was obvious at the time, though not publicly acknowledged by the United Nations. Despite its failures, the UN mission served Croatia’s longer-term interests, stabilizing the country while it built up its forces. By late 1994, the Western powers were impatient with the stalemate. The turning point was a U.S.–Croatian memorandum on defense cooperation, signed in November 1994. This led to training and planning assistance which was put to use the following summer. Bosnia and Herzegovina Bosnia and Herzegovina (4.12 million) was the only Yugoslav republic without a titular nation, hence the only one that could not become a nation-state. Serb and Croat nationalists traditionally claimed part or all of Bosnia and Herzegovina, as well as authority over the Muslim plurality (44% in 1991). The first multiparty election in Bosnia and Herzegovina was effectively a national plebiscite, with results reflecting the region’s ethnic balance (Serbs were 31% and Croats were 17% of the population). The main Muslim political party was led by Alija Izetbegovic´ (1925–2003), a peaceable if erratic Islamic dissident who had been jailed in the 1980s by the republic’s repressive communist structures. He tried to form a unity government with the main Serb and Croat parties. While the Croats were tactically cooperative, the Serbs—led by Radovan Karadzic, a colorful psychiatrist and poet—categorically resisted efforts to strengthen Bosnia and Herzegovina’s sovereignty. In spring and summer 1991, Serb-majority regions in the north and east formed “autonomous regions,” which formed the territorial basis for a breakaway Serb entity. JNA garrisons supplied arms to nascent Serb forces and later encircled major cities with heavy weapons. Izetbegovic´ could either capitulate to Serb pressure, tying Bosnia and Herzegovina unconditionally to Serbia and its satellite, Montenegro; or he could follow the path taken successfully by Slovenia and bloodily by Croatia. The first option was unacceptable to most Muslims and all Croats; the second was intolerable to the Serbs. In mid-October 1991, the Serb delegates boycotted the Bosnia and Herzegovina parliament’s vote on sovereignty. Before exiting the chamber to set up their own “Serb Assembly” (which at once appealed to the JNA for protection), Karadzic issued a warning. His words,

and Izetbegovic´’s response, are quoted in the book, Unfinished Peace: “Do not think that you will not lead Bosnia into hell, and do not think that you will not perhaps lead the Muslim people into annihilation, because the Muslims cannot defend themselves if there is war.” Izetbegovic´ replied: “His words and manner illustrate why others refuse to stay in Yugoslavia. Nobody else wants the kind of Yugoslavia that Mr. Karadzic wants anymore. Nobody except perhaps the Serbs” (Tindemans et al., 1996, p. 34). Speculating that even war would be better than a future as Milosevic’s vassals, the Muslim and Croat leaders sought international recognition for Bosnia and Herzegovina in December 1991. Such recognition had been preempted by a Bosnian Serb “plebiscite” on remaining in Yugoslavia in November. The European Community required a referendum. Held in early March, it was duly boycotted en masse by the Serbs, whose leaders had preemptively proclaimed a “Serb Republic of Bosnia and Herzegovina” in January 1992. The result was treated as valid ground for granting international recognition, but, incredibly, the Bosnia and Herzegovina government’s requests for practical defensive aid, or merely for UN peacekeepers, were turned down. The local leaders’ irresponsibility was abetted by the irresponsibility shown by the outside powers. The JNA had prepared for Bosnia and Herzegovina’s independence since December 1991 by transferring Bosnian Serb troops into Bosnia and Herzegovina. When international recognition came, on April 6–7, 1992, Bosnia and Herzegovina had only a fractured police force, a nascent, Muslim-led Patriotic League, and a Croat militia to defend it. This lack of readiness was due partly to the difficulty of acquiring weapons. Unlike Slovenia and Croatia, Bosnia and Herzegovina’s borders all lay within Yugoslavia. Lack of readiness can also, in part, be attributed to Izetbegovic´’s refusal to accept that the JNA would target Muslims for their faith or national identity. In May 1992, the JNA ostensibly withdrew some 14,000 JNA forces from Bosnia and Herzegovina, leaving behind some 75,000 who were allegedly Bosnians by origin. This remaining force, along with artillery, tanks, and fighter planes, became the Army of the Serb Republic, which operated in key respects as an extension of the JNA. When the Serb faction occupied a town, Muslim and Croat community leaders and intellectuals were shot or abducted. Thousands of Muslims and Croats were herded into unused industrial facilities, where they were starved, tortured, and even killed. By late summer, the Serb forces controlled 70 percent of Bosnia and Herzegovina, and more than a million people had been displaced from their homes. The rump




Bosnia and Herzegovina government quickly settled on a strategy of endurance, publicizing Serb and later Croat atrocities while clamoring for full-scale international intervention. The rag-tag forces enlisted by the government held some 10 percent of the country in the center and east. Croat forces controlled the remainder. Sarajevo’s 400,000 inhabitants were helpless under bombardment. Croat strategy was divided. Many Croat nationalists were convinced that compact Croat-majority areas in the southwest and northeast of the republic, as well as mixed areas in central Bosnia, should secede and join Croatia proper. A separate Bosnian Croat entity called Herzeg-Bosna was declared unilaterally, with Zagreb’s support, in July 1992. On the other hand, an equal or greater number of Croats, living in mixed communities, regarded Bosnia and Herzegovina as their homeland, to be preserved intact. Tudjman shared the nationalist view. He sent the Croatian Army over the border to fight the Serbs, but then switched in 1993 to attacking their nominal ally, the Army of Bosnia and Herzegovina, with its predominantly Muslim troops. The alliance collapsed in spring 1993 as the Croats, encouraged by international proposals for apportioning territory among the nationalities, made a bid to control their majority areas and parts of central Bosnia. They established concentration camps for Muslims. But early success turned sour when the Bosnia and Herzegovina Army fought back well, and also committed crimes against Croat civilians. The Western mediators’ only significant peacemaking success came in early 1994, when they persuaded the Bosnian Croat forces to stop their war. The separatist ambitions of the Bosnian Croats went unchanged, however, and Western hopes that the reconstituted alliance would be able to reverse Serb gains were in vain.

its government defend itself, these leaders declared that these fundamental principles must be upheld. Envoys were tasked to design settlements that would reverse land grabs and vast refugee movements without any credible external coercion. The Vance-Owen Plan (January 1993) envisaged ten cantons, nominally mixed but each dominated by one nationality, with a weak central government. It was followed by the OwenStoltenberg plan (July 1993), which awarded 53 percent of Bosnia and Herzegovina as contiguous territory to the Serbs. The Contact Group plan (July 1994) proposed to split the country between the Serbs (49%) and the Muslim-Croat Federation (51%), which U.S. diplomats brokered in February and March 1994. This was the ratio confirmed at Dayton. Milosevic’s attitude to these plans was pragmatic. He supported them all, but kept his options open by letting men, materiel, and fuel flow from Serbia to the Bosnia Serbs. By late 1994, about half of the territory of Bosnia and Herzegovina was covered by air-toground missile systems, which had been imported from Serbia to deter NATO from overflying Bosnia and Herzegovina. No nationalist by conviction, and eager for economic sanctions (which had been imposed in 1992) to be lifted, he felt little loyalty to Serb rebel leaders— his partners in the “joint criminal enterprise.” He was ready to bargain away their territory on terms which would not weaken him in Serbia, where his position was less secure than it appeared from outside. At home he faced runaway inflation (running at about 1% hourly by late 1993) and staples such as flour and oil were rationed.

Peace Plans The first and best peace plan was presented by European mediator Lord Carrington in October 1991. This would have framed new relations between sovereign and independent Republics, with special status for minority areas. When, alone among the republic leaders, Milosevic rejected Carrington’s plan with impunity, the chance of a unified solution was lost. For the next three-and-a-half years, the international community drifted.

By late November 1991, Milosevic wanted a truce in Croatia, which he eventually imposed on a reluctant Serb rebel leadership. A year later, Bosnian Serb conquests became a liability. Politically, however, he needed to make a show of being forced to renounce the concept of a “Greater Serbia,” that most Serbian voters embraced, but with which he had only flirted. Intoxicated by their devastating early success, however, the rebel leaders refused realistic compromises. Impunity fed their hubris. Not until 1995 were the Western powers ready to use force on a wide enough scale to reassure Milosevic that he could abandon the rebels (in Croatia) or compel them to compromise (in Bosnia and Herzegovina) without opening himself to weighty charges of betrayal.

Western leaders seemed unable to judge the significance of a regional conflict in southern Europe that threatened no vital interest except fundamental principles of international law, human rights, and acceptable interstate conduct. Having recognized the independence of Bosnia and Herzegovina without then letting

The moral nadir of international policy-making in Bosnia and Herzegovina was to be found, however, not so much in these failed plans as in Resolution 836 of the UN Security Council (June 1993). This resolution stated that six places unconquered by Serb forces were to be “safe areas. . .free from armed attacks and from




any other hostile act.” While seemingly promising to protect civilians in those areas, Britain and France ensured that this resolution only committed the UN to deter attacks on civilians. If deterrence failed, UN troops would use force, but only in self-defense. This diplomatic sleight helped to enable the mass slaughter at Srebrenica two years later. UN Secretary-General Kofi Annan has since accepted that “the United Nations hierarchy” made “errors of judgment . . . rooted in a philosophy of impartiality and non-violence wholly unsuited to the conflict in Bosnia.” In his Report of the Secretary General Pursuant to General Assembly Resolution 53/35 (1998): The Fall of Srebrenica, he wrote, “The provision of humanitarian aid” was not “a sufficient response to ethnic cleansing and to an attempted genocide.” For, “a Member State of the United Nations, left largely defenseless as a result of an arms embargo imposed upon it by the United Nations, was being dismembered by forces committed to its destruction. This was not a problem with a humanitarian solution”. Yet, whatever the mission leaders’ failings, many staff did excellent practical work, delivering aid that sustained minority pockets in hostile areas. Endgame By spring 1995, UNPROFOR had suffered almost 200 casualties. Frustration over these losses, and over the general stalemate led Western governments to allow the new UN commander in Bosnia and Herzegovia, Lt. Gen. (now Sir) Rupert Smith (U.K.), leading 31,000 peacekeeping troops, to be more assertive. When Smith ordered air strikes against unmanned military targets, following the sort of violation of safe areas that had rarely been punished before, the Bosnian Serb military chief, General Ratko Mladic, took more than 300 UN hostages, humiliated French troops in Sarajevo, and tried to capture the eastern “safe area” of Gorazde. Although no hostages were harmed, Smith argued that UNPROFOR must reduce its vulnerability to allow the mandated use of force against the Serb side. Extra French and British troops were sent to Sarajevo as a rapid reaction force, capable of swift military response. Western commitment to the Muslim safe areas again wavered, but before any decision to extract UN troops from those enclaves could be taken, Mladic took the initiative. Having failed to take Gorazde, his men attacked two other safe areas in eastern Bosnia: Srebrenica and Zepa. As they closed in upon Srebrenica, Smith’s civilian and military superiors in UNPROFOR refused to allow air-strikes. Dutch peacekeepers in the enclave yielded quietly to Mladic on July 11. Over 7,000 Muslim men and boys were separated from their families and executed.

This atrocity, the worst crime in Europe since 1945, sparked serious Western efforts to end the war. Smith was given authority to order air strikes in the event of further violations of safe areas. The principle of “proportionality” (counterstrikes calibrated to equal, but not exceed, the damage done by the attack that triggered them) was dropped. Thus, when mortar bombs hit a crowded Sarajevo marketplace on August 28, NATO launched a comprehensive air assault on Bosnian Serb arsenals and communications. In early August, government forces—enhanced by U.S. technical support—recaptured most of the rebel territory in Croatia, leading to the immediate exodus of up to 150,000 Serbs and the murder over succeeding weeks of hundreds more, mostly elderly civilians who had stayed on in the recaptured areas. In 1991 there were 580,000 Serbs in Croatia. A decade later, the census found 201,600. Although the population has undoubtedly grown since then, the Serb community has probably lost a quarter of a million members as the price of pointless rebellion. The success of Operation Storm opened the way for Croatian troops to push into Bosnia and Herzegovina from the west, justified by Mladic’s effort to conquer the safe area of Bihac, while the Bosnia and Herzegovina Army made gains in central Bosnia. As Serb-held territory fell from 70 to around 50 percent of Bosnia and Herzegovina, U.S. envoy Richard Holbrooke gained broad acceptance of the principles for a settlement negotiated at an air force base in Dayton, Ohio. The “General Framework Agreement for Peace in Bosnia and Herzegovina” (known as the Dayton Accords) divided the country into two distinct “entities,” the Serb Republic and the (Muslim-Croat) Federation. The weak “common institutions” (parliament, presidency and constitutional court) had power over foreign policy and trade, customs and monetary policy, inter-entity law, transport, and communications. Everything else— military, police, taxation, justice, education—was controlled by the entities, or by the ten sub-units known as “cantons” within the Federation. Ultimate authority was vested in a Peace Implementation Council, represented in Bosnia and Herzegovina by an international viceroy, the High Representative, and backed up by a NATO-led, multinational Implementation Force. At the outset, this force numbered 60,000 troops; by late 2003 its troop strength had been reduced to 7,000. Dayton was a skillfully managed exercise in underachievement. Nominally civic but substantially ethnic, the Accords delivered an armed truce that has only slowly moved toward a self-sustaining peace and not yet toward a viable state. The international political and military resources mobilized in 1995 should have




yielded a better solution for the peoples of the region. Misunderstanding Milosevic as a blood-and-soil nationalist, the international mediators conceded too much, recognizing the Republika Srpska, an entity forged by ethnic cleansing, and failing to impose a workable governance system. When they realized what the Dayton Accords meant in practice, the Bosnian Serb leaders switched from being their harshest critics into their stoutest defenders. In effect, The power of the U.S. had been used to obtain a partitionist solution of the sort that Britain and France, with their “realist” (i.e., pro-Serb) policies, had pursued since 1993.

No sooner had NATO occupied Kosovo and refugees flooded back than a reverse ethnic cleansing commenced. At least half the remaining Serb minority population was terrorized into fleeing northwards into Serbia. Despite its overwhelming troop strength, NATO was unwilling or unable to stop this exodus and, as had happened in Bosnia and Herzegovina, some observers accused the U.S. of prioritizing the protection of its troops over the responsibility to protect civilians. Kosovo’s suspended sovereignty gave Albanian extremists a political excuse to cleanse the Serbs from the territory. The wave of violence in March 2004, causing 19 deaths, was a grim reminder that Kosovo could not be stabilized without resolving its final political status.

Toward War in Kosovo After Milosevic’s 1989 putsch, Kosovo’s Albanians stuck to nonviolent strategies, ignoring Serbian political structures and developing a “parallel system” of basic education and healthcare. By 1996, this system was dilapidated. In the wake of Dayton, nobody believed any longer that nonviolence would win international backing against Serbia. Guerrilla bands calling themselves the Kosovo Liberation Army (KLA) wanted confrontation with the Serbian police, which readily obliged. Fighting escalated in 1998; by August, some 200,000 Kosovars had fled into the hills and another 100,000 had left the province. Threatened with NATO bombardment, Milosevic accepted an unarmed observer mission and a negotiating process. Predictably, this attempt to avert the worst met with failure. Milosevic had nowhere to fall back to from Kosovo, while the KLA was fighting for Kosovo’s independence. With both sides playing for the highest stakes, the conflict duly resumed. In Kosovo, as in Croatia and Bosnia and Herzegovina, international policy was atrocity-driven. The galvanizing role played earlier by the destruction of Vukovar and the slaughter at Srebrenica was now performed by the murder of 45 Albanians at Racak in January 1999. Milosevic and the Albanian leaders were given an ultimatum: accept an international settlement granting Kosovo the widest measure of autonomy, or face punishment by NATO missiles. The Albanians eventually saw their own interest and signed, isolating Milosevic. For him, defiance held more appeal than capitulation. NATO leaders found themselves bombing Serbian military targets and civic infrastructure. Serbia responded by killing an estimated 11,000 Albanians and driving almost one million out of the province. This ethnic cleansing fortified the Western leaders’ resolve to persevere. After 78 days, Milosevic agreed to pull out of Kosovo. A UN administration was established to oversee reconstruction and nurture self-government, with 42,000 NATO troops providing security.

Having played his last nationalist card, Milosevic could no longer rule by dividing his opponents. Yet he was equally unable to normalize his state without destroying his own party-state powerbase. He lasted until October 2000, eleven years longer than the Berlin Wall—a unique achievement among Europe’s communist leaders.


The wars of Yugoslav sucession were fought for power over people and territory. National identities were used as labels for political constituencies. The escalatory logic of the terminal crisis consisted in the readiness of leaders on all sides to discover and pursue maximal goals, in essence daring their opponents to trump them. In this process, fathered by Milosevic and facilitated by Tudjman, legitimacy was pitted against coercive resources in a complex pattern, until trumping meant nothing short of war. SEE ALSO Bosnia and Herzegovina; Croatia,

Independent State of; Ethnic Cleansing; Humanitarian Intervention; Incitement; International Criminal Tribunal for the Former Yugoslavia; Izetbegovic´, Alija; Karadzic, Radovan; Kosovo; Massacres; Milosevic, Slobodan; Mladic, Ratko; Peacekeeping; Propaganda; Safe Zones; Tudjman, Franjo BIBLIOGRAPHY

Annan, Kofi. Report of the Secretary-General Pursuant to General Assembly Resolution 53/35 (1998): The Fall of Srebrenica. United Nations publication A/54/549, 15 November 1999. Banac, Ivo (1984). The National Question in Yugoslavia: Origins, History, Politics. Ithaca, N.Y.: Cornell University Press. Carmichael, Cathie (2002). Ethnic Cleansing in the Balkans: Nationalism and the Destruction of Tradition. London: Routledge. Djilas, Milovan (1962). Conversations with Stalin. New York: Harcourt, Brace & World.


Yuki of Northern California

Djilas, Milovan (1977). Wartime. London: Secker & Warburg. Gow, James (1977). Triumph of the Lack of Will: International Diplomacy and the Yugoslav War. London: Hurst. Gow, James (2003). The Serbian Project and Its Adversaries: A Strategy of War Crimes. London: Hurst. Judah, Tim (2000). Kosovo: War and Revenge. New Haven, Conn.: Yale University Press. Lukic, Reneo, and Allen Lynch (1996). Europe from the Balkans to the Urals: The Disintegration of Yugoslavia and the Soviet Union. Oxford: Oxford University Press and the Stockholm International Peace Research Institute. Ramet, Sabrina (2002). Balkan Babel: The Disintegration of Yugoslavia from the Death of Tito to the Fall of Milosevic, 4th edition. Boulder, Colo.: Westview Press. Ripley, Tim (1999). Operation Deliberate Force: The UN and NATO Campaign in Bosnia 1995. Lancaster, Pa.: Centre for Defence and International Security Studies. Simms, Brendan (2001). Unfinest Hour: Britain and the Destruction of Bosnia. London: Allen Lane/The Penguin Press. Sell, Louis (2002). Slobodan Milosevic and the Destruction of Yugoslavia. Durham, N.C.: Duke University Press. Silber, Laura, and Allan Little (1995). The Death of Yugoslavia. London: Penguin Books and BBC Books. Thompson, Mark (1999). Forging War: The Media in Serbia, Croatia, Bosnia and Herzegovina. Luton, U.K.: University of Luton Press. Tindemans, Leo, et al. (1996). Unfinished Peace: The Report of the International Commission on the Balkans. Berlin: Aspen Institute. Ugresic, Dubravka (1998). The Culture of Lies. University Park: Pennsylvania State University Press. Mark Thompson

Yuki of Northern California In the first half of the nineteenth century, the Yuki flourished in the rugged Coast Range Mountains of Mendocino County, Northern California. They lived along the middle fork of the Eel River in settlements of approximately 150 people and subsisted by hunting deer, fishing salmon, and gathering acorns and other wild plants. Their population was extremely dense and may have numbered more than 10,000 Indians. The Yuki enjoyed a rich annual round of religious celebrations, social dances, trade expeditions and war raids. Although they were regarded as a fierce and warlike group by their neighbors, their weapons were bows and arrows and mortality in any battle was very low. Life was eventful and satisfying. The Yukis earliest encounter with whites may have occurred in 1833, when a Hudson’s Bay Company fur

trading party led by Michael Laframboise passed peacefully through the mountain valley that forms the heart of Yuki territory. They remained only a few days before departing, leaving just memories and a few trade beads. Not until 1854 did whites again venture into the valley, when an American exploration party consisting of the brothers Pierce and Frank Asbill, with their friend Jim Nephus, discovered this isolated, lush, almost perfectly round valley. While riding through the valley on horseback, they encountered a great congregation of Yuki and, in the confusion that followed, the whites killed a number of Indians and escaped unharmed. The following year, this party returned to spend the summer in the beautiful valley, hunting deer and tanning skins. During their stay, the whites befriended young Yuki, but when they departed at the end of the summer, they kidnapped thirty-five girls and young women to sell as wives to Mexican vaqueros in the Sacramento Valley. Other explorers soon followed the Asbill party and word spread in Northern California of the remote mountain valley named “Round Valley” by Europeans. Settlers were attracted to the area for its cattle ranching potential, whereas the U.S. government identified it as a desirable place to gather Indians from a number of Northern California tribes displaced by settlers, gold miners, and ranchers. The government declared the entire valley an Indian Reservation in June, 1856, but this proclamation came too late as settlers were already entrenched. They continued to arrive and stake large land claims in the southern half of the valley, leaving the government only the northern end for the reservation. Simmon P. Storms, Indian agent for Round Valley Reservation, erected reservation buildings, surrounding them with a stockade; he also relocated here a group of Maidu from the Sacramento Valley. A farm was begun, but few Yuki were attracted to farming; most continued to pursue their traditional hunting and gathering existence in the valley and surrounding mountains. Some Yuki tried to drive out the reservation personnel shortly after their arrival by killing stock animals and threatening the personnel with bows and arrows. In response, Storms claimed that reservation staff “were forced to kill many of. . .[the Indians]. . . , which stopped their proceedings” (Miller, 1979, p. 49). When settlers tried to prohibit the Yuki from their traditional hunting and gathering activities in the valley, the Indians killed a few cattle, horses, and pigs for food. The settlers were quick to retaliate and formed expeditions to punish the Yuki. These expeditions were best described in the testimony of a responsible settler under oath to a California State Investigating Committee in 1860:



Yuki of Northern California

. . . in one thousand eight hundred and fifty six the first expedition by the whites against the Indians was made, and [the expeditions] have continued ever since; these expeditions were formed by gathering together a few white men whenever the Indians committed depredations on their stock; there were so many of these expeditions that I cannot recollect the number; the result was that we would kill, on an average, fifty or sixty Indians on a trip, and take some prisoners, which we always took to the reserve; frequently we would have to turn out two or three times a week (Miller, 1979, p. 49).

This statement, substantiated by other settlers, implies that at least five thousand Yuki were murdered in and around Round Valley each year, although presumably the numbers decreased as the Yuki population declined. Hostilities between the Indians and the settlers were not entirely one-sided, but the Yuki killed did not kill any white men until 1857, when, in desperation, they killed two whites, one of whose “favorite amusement[s] is said to have been shooting at the Indians at long range, and he usually brought down his game” (Miller, 1979, p. 50). Citing this killing as an example of the constant danger they were exposed to, the settlers sent word to California Indian Superintendent Thomas J. Henley for troops to protect them. The troops marched through the mountains in the summer of 1858 and caused over two thousand Indians to descend on the reservation for their own protection. When the troops departed, so did the Indians. The settlers continued to send raiding parties to pursue and kill Yuki and other Natives living in the nearby mountains. The U.S. Department of the Interior dispatched Special Agent J. Ross Browne in 1858 to investigate the Indian Wars in and around Round Valley. Browne reported at the end of September that the situation was a “war of extermination” being waged against the Indians (Miller, 1979, p. 55). Even settlers who were missing no stock launched parties to go into the mountains and hunt Indians; some settlers boldly invaded Round Valley Reservation in broad daylight shooting adult Indians and kidnapping younger ones to sell into virtual slavery outside the valley. Such massacres continued with shocking intensity and frequency so U.S. troops were again transported to Round Valley in January, 1859, with instructions to protect the Indians and whites from each other and generally to maintain the peace. When it became apparent that Lieutenant Edward Dillon, the officer in charge, intended to be fair to both Indians and whites alike, the settlers concluded that the soldiers would not punish the [1178]

Indians so they continued their own murderous raids. At the same time, they began petitioning California Governor John B. Weller to commission a company of volunteers to hunt down the Yuki more effectively. The settlers did not bother to wait for the commission, but raised a complement of volunteers who selected Walter S. Jarboe as their leader. His company of Eel River Rangers commenced their raids in July, murdering indiscriminately all Indians they could find, regardless of age or sex. This intense pace of raids and killings went on for six months until Jarboe’s commission expired in January, 1860. In subsequent testimony one volunteer in Jarboe’s unit claimed that “Captain Jarboe told me his company had killed more Indians than any other expedition . . . ever . . . ordered out in this State” (Miller 1979, p. 72). After Jarboe’s company was decommissioned, the settlers continued for several years to raid Yuki and other Indian camps in the area. But by 1860, there were only three hundred Yuki on Round Valley reservation, with perhaps another few hundred in the surrounding mountains. Through an extremely intense campaign of genocide, the flourishing Aboriginal Yuki population had been drastically reduced by more than ten thousand Indians in only five years. The effects on neighboring mountain tribes were equally devastating. What became of the survivors on Round Valley Reservation? Under the tutelage of Indian agents and missionaries, they became victims of cultural genocide as they were encouraged to exchange their Indian languages, worldview, knowledge, and cultural values for the English language and European values and culture. As tribal elders died, the rich Yuki culture and language disappeared with them. By 1900 there were only about one hundred Yuki. In 2003, fewer than one hundred mixed-blood individuals claim Yuki ancestry. SEE ALSO Developmental Genocide; Indigenous

Peoples; Native Americans BIBLIOGRAPHY

Miller, Virginia P. (1978). “Yuki, Huchnom, and Coast Yuki.” In Handbook of North American Indians, Vol. 8, California, ed. Robert F. Heizer. Washington, D.C.: Smithsonian Institution. Miller, Virginia P. (1979). Ukomno’m: The Yuki Indians of Northern California. Socorro, N.M.: Ballena Press. Miller, Virginia P. (1994). “Yuki.” In Native America in the Twentieth Century, ed. Mary B. Davis. New York: Garland Publishing. Patterson, Victoria, DeAnna Barney, Les Lincoln, and Skip Willits, eds. (1990). The Singing Feather. Ukiah, Calif.: Mendocino County Library. Susman, Amelia, and Robert F. Heizer, eds. (1976). “The Round Valley Indians of California.” In Contributions of


Yuki of Northern California

the University of California Archaeological Research Facility 31. Berkeley, Calif.: Archaeological Research Facility. Virginia P. Miller



Z Zulu Empire From the 1810s until its destruction by the British in 1879, the Zulu kingdom was the largest in southeastern Africa, occupying most of what is today KwaZulu-Natal province, in South Africa. The Zulu kingdom was rather small and insignificant until King Shaka (ruled c. 1816–1828) conquered many neighboring polities. Shaka is a highly ambiguous figure in popular memory today. For Zulu ethnic nationalists in South Africa, and for many Pan-Africanists throughout the world, he serves as a symbol of African achievement and anticolonial resistance. For many whites, in contrast, Shaka became a symbol of African barbarism. However, the debates about Shaka do not necessarily follow racial lines: some whites have seen Shaka as a rather heroic figure, while many black South Africans have seen Shaka as an oppressor who indiscriminately slaughtered not only his opponents, but also innocent noncombatants, including women and children. Already in the 1820s, when Europeans began expanding into the lands of the Zulus and their immediate neighbors, a territory that the Europeans called Natal, Europeans used Shaka’s alleged atrocities to justify their own activities. As elsewhere in the colonized world, Europeans portrayed themselves as saving native peoples from the often deadly upheavals fomented by the natives’ own leaders. In the Zulu case, however, this rhetoric ultimately became a highly detailed and well-developed complex of stories and historical arguments, all centered around Shaka and the chain of events that he allegedly set in motion, which became known as the mfecane.

According to European accounts of the mfecane, Shaka revolutionized African society, politics, and especially warfare. In this version of the events, the entire Zulu kingdom became a permanent standing army, highly centralized, disciplined, and aggressive. Not only did Shaka and his armies attack their immediate neighbors, they also chased refugees for hundreds, even thousands, of miles, sending them as far away as the Great Lakes region of East Africa. In the process, Shaka’s forces supposedly killed more than a million Africans, a figure which received the sanction of authority when it was cited by Hannah Arendt in The Origins of Totalitarianism (1951). At the same time, most of South Africa was cleared of its inhabitants, becoming “empty land” conveniently awaiting colonization by Boer trekkers and British settlers. During the twentieth century, apartheid ideologues claimed that the thirteen percent of South Africa’s land set aside for blacks as “homelands” or “Bantustans” coincided with the small pockets in which the refugees from Shaka’s mfecane huddled. Since the 1960s, research by numerous historians has demonstrated that much of the mfecane was actually a myth created by South African whites. Indeed, the term mfecane itself, though seemingly of African origin, was actually coined by whites. The Shakan military system had been developed by numerous people for generations preceding Shaka, and it was not unique to the Zulu kingdom. Shaka’s rule did not even effectively extend throughout the whole of present-day KwaZuluNatal province, let alone the vast territories beyond. Refugees from the Shakan wars did indeed ultimately migrate as far as East Africa, but over decades and of




their own accord: The Zulu army was barely able to act just beyond the borders of the Zulu kingdom; it had neither the ability nor the desire to “chase” refugees farther than that. Those who died during the Shakan wars probably numbered only in the tens of thousands, as the KwaZulu-Natal region itself had only a few hundred thousand inhabitants at the beginning of Shaka’s reign. Blacks were largely confined to what became the homelands, not by Shaka’s wars, but by decades of land expropriation by white settlers. One historian, Julian Cobbing, has even gone so far as to argue that white slave raiders of the 1810s and 1820s invented the idea of the mfecane as an alibi to cover up their own attacks on Africans. This last argument has received a lot of attention, but has not held up in the face of further research. Nevertheless, the other criticisms of the mfecane, by Cobbing and others, have become accepted by most specialists in the subject. The debate surrounding Shaka’s reign has often had as much to do with the nature of the evidence as with the actual historical events. For example, two of the richest sources on the Shakan era are the diaries of the English adventurers Nathaniel Isaacs and Henry Francis Fynn. Both observers were clearly biased against Shaka, and both accounts were written well after the fact. There is even a letter in which Isaacs urges Fynn to sensationalize his account in order to attract more readers. In the 1920s, the missionary A. T. Bryant published a compendious history of the Zulu kingdom based on oral traditions he had collected, but Bryant never makes it clear what comes from the oral traditions and what stems from his own admitted efforts to “clothe the dry bones” of history. The most exhaustive and well-documented collection of Zulu oral tradition is that produced by James Stuart, a British colonial official in Natal during the late nineteenth and early twentieth centuries. Though Stuart was also arguably biased against the Zulus in some ways, he seems to have been rather meticulous and even-handed in his recording of the evidence that Africans gave to him. Certainly, although the testimony collected by Stuart contains much that is critical of Shaka and other Zulu kings, there is also much that is positive, and there is no shortage of criticism of European rule. More recently, the Zulu-speaking poet Mazisi Kunene has published a novel-length praise poem on Shaka’s life based upon oral traditions, but another black South African, Mbongeni Malaba, has taken Kunene to task for glossing over the negative aspects of Shaka’s rule. Black South Africans have never been unanimous in their opinions on Shaka. [1182]

Although the numbers and geographical extent of the killings during Shaka’s reign have been exaggerated by many white commentators, there is little doubt that Shaka (and his successor, Dingane, who ruled during the period from 1828 to 1840) did order the extermination of large numbers of people, including innocent civilians. Some of this killing was ordered out of personal vindictiveness, but even that done “for reasons of state” could still be considered genocide. Like other perpetrators of genocide, both Shaka and Dingane targeted whole categories of people for elimination, including at various times all the subjects of the Ndwandwe, Mthethwa, Langeni, Thembu, and Qwabe kingdoms. On the other hand, Shaka and Dingane did not always ruthlessly pursue such objectives to their logical conclusions, but rather relented and even incorporated some of their former enemies as full-fledged subjects of the Zulu kingdom. Over time, many of Shaka and Dingane’s victims, or at least their descendants, not only forgave and forgot, but even came to identify themselves as Zulus. SEE ALSO Apartheid; Shaka Zulu; South Africa BIBLIOGRAPHY

Etherington, Norman (2001). The Great Treks: The Transformation of Southern Africa, 1815–1854. London: Longman. Hamilton, Carolyn, ed. (1995). The Mfecane Aftermath: Reconstructive Debates in Southern African History. Johannesburg: Witwatersrand University Press; Pietermaritzburg: University of Natal Press. Mahoney, Michael R. (2003). “The Zulu Kingdom as a Genocidal and Post-genocidal Society, c. 1810 to the Present.” Journal of Genocide Research 5:251–268. Michael R. Mahoney

Zunghars The Zunghar nation developed in the early seventeenth century from nomadic tribes of Western Mongols who had established a homeland beyond the Altai Mountains, astride the modern China-Kazakhstan border. By 1700, the Zunghars had created an empire that included the oasis towns of Eastern Turkestan, and were sufficiently strong to pose a threat to both their Russian and Chinese neighbors. Following several conflicts with the nomads, the Chinese emperor, Qianlong, grasped an opportunity to conquer Zungharia in 1755. He easily succeeded but, after Chinese forces withdrew, the Zunghars rose in revolt, prompting the Qing ruler to seek a final solution to his Zunghar problem. Acting at the behest of the emperor, Chinese armies intentionally exterminated at least 180,000 people during the ensu-



ing campaign, representing some 30 percent of the Zunghar population. An outbreak of smallpox ravaged the remainder, leaving less than one-third of the Zunghars alive to face either slavery or exile. Having assailed the populace, the Chinese emperor subsequently arranged the eradication of the Zunghar culture. In intentionally destroying part of a national group in these ways, Qianlong was committing genocide, as defined by Article II of the current United Nations Genocide Convention. The Qing descended from Manchuria during the seventeenth century and established control over the core China by 1681. Although they incorporated cooperative foreigners into their system, the Qing dealt with their more unruly neighbors through a combination of diplomacy, tribute, and force, often setting one group against another. The principal aim of their efforts was to ensure that barbarians never presented a united front against the new dynasty. The Qing established control over Outer Mongolia in 1691 and invaded Tibet in 1720. By the mid-eighteenth century, they ruled over a massively expanded Chinese territory. Meanwhile, a new nation was developing farther west, beyond the Altai Mountains and the ever-expanding reach of Beijing. In the early seventeenth century, the Choros, Dorbet, and Khoits, tribes of the Western Mongols (also referred to as Oirats), settled in the region of the Irtysh River, near the modern border between China and Kazakhstan, and united to form the embryonic Zunghar nation. From their capital at Kubakserai, on the banks of the Imil River, they developed agriculture and crafts, which brought an air of diversity and sedentary culture to their nomad society. The Zunghars embraced Buddhism, along with the majority of Mongols, established temples and monasteries in their lands, and maintained a body of literature in a modified Mongolian script that suited their phonetic system. The power and influence of the Zunghars increased throughout the seventeenth century. Under the capable leadership of Galdan Boshughtu (r. 1671–1697), their homeland stretched from Lake Balkhash to the Altai and their empire incorporated the conquered oasis towns of Hami, Turfan, and Kashgar, in East Turkestan. They repeatedly attacked Russian settlements in Siberia and even invaded Outer Mongolia in 1688, forcing its populace to seek Qing protection. After Russia and China, each influenced by the perceived threat of the nomads, settled their differences in the Treaty of Nerchinsk in 1689, the Zunghars became “the last real Inner Asian threat to [the] Qing” (Rossabi, 1975, p. 141). Over the coming decades, they repeatedly clashed with Chinese armies. Galdan Bo-

shughtu fought the Qing in Mongolia during the 1690s and further battles occurred in 1720, when the Chinese ousted Zunghar invaders from Tibet, and in 1731, when the Zunghars again marched on Mongolia. Even though the Zunghars agreed a temporary accord with the Qing in 1739, trade disputes continued to plague relations between the two powers. The death of Galdan Tsering, in 1745, marked the beginning of the end of the Zunghars, then civil war, tore their nation apart. After losing the power struggle to a rival, Amursana fled to the open arms of the Chinese emperor in 1754. Qianlong (r. 1736–1795) immediately discerned an opportunity to conquer the Zunghars and secure his frontiers from what he perceived as a continuing threat. He formed an alliance with Amursana and dispatched an army of at least fifty thousand troops to Zungharia in the spring of 1755. The soldiers spread propaganda leaflets as they advanced, promising rewards and protection in return for Zunghar compliance. Disunited and weakened by years of civil war and confronted by such a large Chinese force, the Zunghars were unable to mount any effective opposition and their leaders fled. Those who remained readily capitulated and, in the summer of 1755, the Qing army withdrew. Amursana expected to govern all of Zungharia, but was sadly disappointed. Instead, Qianlong sought to divide and rule, so he split the land into four territories, only one of which was reserved for Amursana. Angry and bitter, Amursana instigated an armed revolt and attacked a Chinese border force. When news reached Beijing, the emperor flew into a rage and immediately began to reassemble his army. In 1756, a Qing force, comprising more than 400,000 mostly Manchu and Mongolian troops, flooded into Zungharia. Amursana had already fled westwards. Encountering no organized resistance, the army “set about the universal destruction of the Oirat population” (Zlatkin, 1983, pp. 450–451). Qianlong repeatedly called for the extermination of the Zunghars, but was inconsistent when speaking of who should be spared. He ordered, “Show no mercy at all to these rebels. Only the old and weak should be saved” (Qianlong, quoted in Perdue, 2003a, p. 50). In another edict, however, he commanded the massacre of all the followers of any rebel leader who refused to prostrate himself before the Chinese and beg the right to surrender. Later, he demanded the destruction of all able Zunghar males and reserved female survivors as slaves for his troops. Following the repeated issue of such callous yet inconsistent edicts, confusion reigned. Nevertheless, as the emperor continued to reward commanders who carried out massacres and to punish




those who captured only territory, it became prudent to err on the side of slaughter: Russian officials in Siberia reported that “Manchu troops massacred men, women, and children, sparing no one” (Perdue, 2003a, p. 52). Between the summer of 1756 and January 1757, the Khalkha Mongols of Outer Mongolia rose in rebellion against the Qing. In spite of the temporary distraction, which forced Qianlong to withdraw his Mongol troops from Zungharia, the remaining soldiers continued to massacre the Zunghar population. During this period, Amursana returned to his homeland and attempted to organize resistance against the Chinese. However, he was unable to raise more than 10,000 troops and, despite bravely engaging his enemy, was forced to flee in the summer of 1757. Qianlong spared 50,000 soldiers to send in hot pursuit of Amursana, betraying a personal loathing of the Zunghar leader. Nevertheless, the fugitive escaped to Russia, where he died of smallpox in September that same year. Scholars differ in their opinions as to Qing policy after the flight of Amursana. Fred Bergholz, whose work is based mostly on Russian secondary sources, argues that, until 1759, “Qianlong’s armies carried out the killing of every Oirat they could find” (Bergholz, 1993, p. 402). In contrast, Peter C. Perdue, who bases his findings largely on Chinese primary sources, contends that Qing policy became more lenient as the immediate perceived threat had disappeared, and the emperor wished to avoid driving the few remaining Zunghars southward to join an imminent rebellion in Turkestan. Nevertheless, he notes that, in the fall of 1757, Qianlong criticized two of his leading generals as they “shrank back from wholesale slaughter, despite continual prodding” (Perdue, 2003a, p. 53). The overall result of Qing policy, however, was the intentional extermination of a substantial part of the Zunghar population. The estimated total Zunghar population was 600,000. Of these, Owen Lattimore estimates that 50 percent were exterminated, 20 percent died of smallpox, and 30 percent survived in exile or slavery. Peter C. Perdue, however, suggests that 30 percent were exterminated, 40 percent died of smallpox, and 30 percent survived in exile or slavery. Both Lattimore and Perdue base their estimates on Chinese sources. Ilya Zlatkin, who bases his work mostly on Russian sources, suggests that only 7 percent survived, but makes no distinction between exterminations and smallpoxrelated deaths. The academics, Frank Chalk and Kurt Jonassohn, have identified strong, centralized authority and dehumanization as two preconditions that facilitate the ma[1184]

jority of genocidal actions. In eighteenth-century China, the emperor wielded absolute power under a heavenly mandate and ruled through his generals and elite Confucian officials, who implemented his designs. As unruly neighbors, the Zunghars were considered barbarians. Moreover, the inscription on a 1758 victory tablet, describing the Zunghars as evil and fierce demons who “made men their food” (Krueger, 1972, p. 68), suggests an attempt by Chinese authorities to place the nomads far outside the bounds of human obligation. For over half a century, the Zunghars had repeatedly clashed with the Chinese, who perceived the nomads as a constant threat to their frontiers and, when Amursana personally betrayed Qianlong, he embarrassed and infuriated the emperor, who sought a terrible revenge. The Qing had not previously employed massacre in managing nomad relations but, as Qianlong noted, “It was only because they repeatedly submitted and then rebelled that we had to wipe them out” (Ch’ien-lung, quoted in Perdue, 2003a, p. 53). The Son of Heaven needed to send a powerful message throughout his empire to terrorize anyone who might dare question his imperial authority. Such motives translated into intent as the emperor issued a series of edicts that explicitly called for the extermination of at least part of the Zunghar nation, and encouraged the slaughter by rewarding those of his commanders who complied, while punishing those who did not. In the face of overwhelming odds, the Zunghars, weakened and disunited by years of civil war, were effectively defenseless. During the campaign, their ability to resist declined still further when a smallpox epidemic claimed between 20 and 40 percent of their original population. Not content with destroying the populace, the Chinese emperor subsequently arranged the eradication of the Zunghar culture. Qianlong confiscated the Mongol genealogies, which no longer survive, and commissioned Chinese archivists and historians to record a one-sided history of his actions. Most Zunghar documents were burned during the campaign of extermination. The Qing destroyed the equipment and herds of the Zunghars, erased their settlements, and repopulated Zungharia with nomads from Manchuria and Mongolia. Qianlong’s actions were so successful that the Zunghar nation and culture effectively disappeared. SEE ALSO China BIBLIOGRAPHY

Barfield, Thomas (1992). The Perilous Frontier: Nomadic Empires and China. Cambridge, Mass.: B. Blackwell. Bergholz, Fred (1993). The Partition of the Steppe: The Struggle of the Russians, Manchus, and Zunghar Mongols



for Empire in Central Asia, 1619–1758. New York: Peter Lang. Chalk, Frank, and Kurt Jonassohn (1990). The History and Sociology of Genocide: Analyses and Case Studies. New Haven, Conn.: Yale University Press. Krueger, John (1972). “The Ch’ien-lung Inscriptions of 1755 and 1758 in Oirat-Mongolian.” Central Asiatic Journal 16:59–69. Lattimore, Owen (1950). Pivot of Asia: Sinkiang and the Inner Asian Frontiers of China and Russia. Boston: Little, Brown. Millward, James (1998). Beyond the Pass: Economy, Ethnicity and Empire in Qing Central Asia, 1759–1864. Stanford, Calif.: Stanford University Press.

Perdue, Peter C. (2003b). “Shanghai, 1903: Erasing the Empire, Reracing the Nation.” Paper presented at the University of Chicago Graduate Workshop on “Asia in the World, the World in Asia.” Available from http:// cas.uchicago.edu/workshops/asiaworld/pdf/ReRacing.pdf. Rossabi, Morris (1975). China and Inner Asia: From 1368 to the Present Day. New York: Pica Press. Schirokauer, Conrad (1991). A Brief History of Chinese Civilization. San Diego: Harcourt Brace Jovanovich. Zlatkin, I. IA. (1983). Istoriia Dzhungarskogo Khanstva, 1635–1758, 2nd edition, tran. Alison Rowley. Moscow.


Richard Pilkington


g l o s sa r y Ad Hoc Tribunal: a court created to deal with specific dis-

putes, generally by an international body like the United Nations Security Council; such a court has a geographical, subject-matter, and temporal limits on its jurisdiction. Anschluss: annexation of Austria by Germany on March

13, 1938. Anthrax: virus that produces black postules, vomiting,

fever, and finally suffocation in two to four days. It can lie dormant for decades and has been used as a biological weapon for the mass destruction of individuals. Anthrax infection can occur in three forms: cutaneous (skin), inhalation, and gastrointestinal. B. anthracis spores can live in the soil for many years, and humans can become infected with anthrax by handling products from infected animals or by inhaling anthrax spores from contaminated animal products. Anthrax can also be spread by eating undercooked meat from infected animals. Assimilation: systematic process of one group taking on

the customs, language, or religion of another group. The process often deprives a group of its own language, customs, and tradition based on the presumed inferiority or lack of utility of its culture. Asylum: refuge and protection in another state that an

individual can receive. Under current international refugee law, asylum is based on a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a social group. Blood Diamonds: diamonds from areas controlled by

forces or groups opposed to legitimate govern-

ment. The diamonds are often mined by children, who are frequently killed or mutilated by the forces based on suspicion of theft, lack of productivity, or sport. Rebel forces use the diamonds to finance arms purchases and other illegal activities. Once the diamonds are brought to market, their origin is difficult to trace and once polished, they can no longer be identified. Blood Libel: widespread belief in parts of Europe that

Jews killed Christian children and used their blood for Passover meals. Capital Punishment: penalty involving loss of life, by

shooting, hanging, lethal injection of other means; still imposed in some countries for serious crimes. Cold War: state of political tension and military compe-

tition that stopped short of actual war between communist countries and western democracies. It began shortly after World War II in 1948 and continued until the fall of communism about forty years later. Collectivization: the act or process of collective control,

especially over the production and distribution of property. It was practiced during the Stalin years and in many communist countries. Where it was practiced it was forcibly imposed and the attendant protests were often accompanied by loss of life, torture, imprisonment, and starvation. Cutaneous: Most (about 95%) anthrax infections occur

when the bacterium enters a cut or abrasion on the skin, such as when handling contaminated wool, hides, leather or hair products (especially goat [1187]


hair) of infected animals. Skin infection begins as a raised itchy bump that resembles an insect bite but within one to two days develops into a vesicle and then a painless ulcer, usually one to three cm in diameter, with a characteristic black necrotic (dying) area in the center. Lymph glands in the adjacent area may swell. About 20 percent of untreated cases of cutaneous anthrax will result in death. Deaths are rare with appropriate antimicrobial therapy. Dehumanization: “killing” the humanity of another. It

is the process of depriving others of human qualities, personality, or spirit. Democide: the systematic killing of the members of a

country’s general population, or the murder of any person or people by a government. It includes genocide, politicide, and mass murder. Denazification: the efforts of Allied powers after World

War II to eliminate the influence of Nazism, and to remove Nazis from public life in Germany. Desaparecidos: Spanish word for “the disappeared.”

They are people who have been taken into custody by state agents and whose whereabouts, custody and fate are either hidden or denied by the state. Most are eventually murdered by the state. Detention: the practice of detaining individuals or

groups of individuals for the purpose of trial. However individuals are often detained without charge or trial and for long periods of time. Sometimes this results in death, torture, or the disappearance of detained persons. Displaced Person: persons or groups of persons who

have been forced to flee or leave their places of habitual residence as a result of, or in order to avoid, the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters and who have not crossed an internationally recognized State border. Ecocide: massive and organized degradation of the en-

vironment in armed conflict. Ex Post Facto: the retroactive application of a law. Extermination: a category of crime against humanity in-

volving killing on a large scale. Extrajudicial Execution: a killing on political or other

grounds that is not the consequence of a fair trial, held in accordance with recognized international standards. Grave Breaches: war crime term established by the

1949 Geneva Conventions. It includes such acts as willful killing, torture or inhuman treatment, will[1188]

fully causing great suffering, extensive destruction and appropriation of property that is not justified by military necessity, unlawful deportation, and taking of hostages. Indemnification: compensation for damage, loss, or injury suffered. Inhalation: initial symptoms may resemble a common cold. After several days, the symptoms may progress to severe breathing problems and shock. Inhalation anthrax is usually fatal. Intestinal: the intestinal disease form of anthrax may follow the consumption of contaminated meat and is characterized by an acute inflammation of the intestinal tract. Initial signs of nausea, loss of appetite, vomiting, and fever are followed by abdominal pain, vomiting of blood, and severe diarrhea. Intestinal anthrax results in death in 25 to 60 percent of cases. Junta: paramilitary group that seeks governmental or state control through threat or use of armed force. Just War (jus ad bellum): aside from the rhetorical use of such an expression to characterize any war for the side offering a justification, there is a technical use applicable in addition to war justified on the basis of self-defense (just cause). Just war offers a doctrine in which the use of force is justified to punish wrongs and protect the innocent in order to uphold standards of civilized conduct. Lustration: ritual purification. It was the policy in Eastern and Central European countries of banning individuals who served in former regimes from important governmental posts of the current government. While it was used to insure the success of democratic reforms, it also raised questions of international standards of procedural fairness as individuals were often dismissed solely based on party affiliation or political association. Mercenary: soldier who fights for a country other than his or her own country, and for remuneration rather than out of loyalty and patriotism. Miscegenation: the marriage or cohabitation between a white person and a member of another race or racially distinct group. Paramilitary: armed group not formally part of a state’s military, but often informally affiliated with it. Partisans: irregular troops that are engaged in guerrilla warfare and are often behind enemy lines. During World War II this term was applied to resistance fighters in Nazi-occupied countries. Politicide: the murder of any person or people by a government because of their politics or for political purposes.



Punitive Damages: damages paid by one state to another

state to punish the former state for its actions. Purge: mass expulsion of political opponents from a po-

litical or social movement or political party. Such expulsions sometimes involve the extrajudicial killing of opponents. Ratification: an official confirmation and acceptance of

forcible removal of people from their homes and relocating them in another area for developmental or political reasons. Used in a positive sense, resettlement also refers to the relocation of refugees from their region of origin to countries that accept them as immigrants. Scapegoating: process of one group finding another

a previous act, often referred to in international treaties as the means by which the text negotiated by diplomatics is subsequently approved by the various states and becomes legally binding, making the act valid from the moment it was done.

group blameworthy for the troubles the former group is experiencing. The process excuses the former group of self-blame, allowing it to feel better about itself. The Jews were seen as scapegoats by Nazi Germany shortly before and during the Holocaust.

Resettlement: applies to the relocation of a population.

Status Quo ante: the situation in effect (status quo) be-

Used negatively, the term refers to the policy of

fore a significant event.



fi lm o g r a p hy Film is the twenty-first century’s lingua franca as visual images of daily events are seen around the globe. The power of film to enlighten and inform the public of genocide and crimes against humanity necessitates its inclusion as a research source. The films selected in this filmography were done so on the basis of availability and recognition by the film and human rights communities. The list includes fictional stories based on real events as well as documentaries and television series. Marlene Shelton

Battle of Algiers [1966, 2004 (RE-RELEASE)] d. Gillo Pontecorvo This internationally acclaimed film was banned by the French government for its realistic portrayal of the vicious battle for independence fought by the Algerian resistance fighters in the 1950s. This film is considered a classic for its documentary style of storytelling. It contains a prescient scene of Algerian women planting a bomb in a popular cafe. 1966 Winner of the Golden Lion (Berlin) 1968 Academy Award Nominee: Best Director and Screenplay


Kandahar [2001] d. Mohsen Makhmalbaf This film—part documentary, part fiction—follows a woman’s journey as she searches for her sister in wartorn Afghanistan.

Return to Kandahar [2003] d. Paul Jay and Nelofer Pazira The star of the film, Kandahar, returns to Afghanistan to find her childhood friend, the inspiration for the original film. [ALGERIA]

Chronicle of the Years of Embers d. Mohamed Lakhdar-Hamina


This film deals with Algeria’s struggle for independence from France’s colonial rule. This story follows the journey of a peasant from his impoverished village to his involvement with the Algerian resistance prior to the Algerian war for independence. 1975 Winner of the Palm D’Or (Cannes)

At the Edge of Conquest: The Journey of Chief Wai Wai [1993] d. Geoffrey O’Connor This film follows the leader of the Waiapi Indians of the Amazon region and their extraordinary leader, Chief Wai Wai, as he journeys from isolation to Brazil’s capital to fight for his people. 1993 Academy Award Nominee

Amazon Journal [1996] d. Geoffrey O’Connor This film chronicles events in the Amazon region beginning with the assassination of Chico Mendes in 1988 through 1995 and the impact of the encroaching modern world on the indigenous people of the region. [ANCIENT WORLD]

The Trojan Women [1971] d. Michael Cacoyannis This film, based on the play by Euripides, has an all-star cast led by Katherine Hepburn, Vanessa Redgrave, and [1191]


Irene Pappas. Euripides story of the fall of Troy and the fate of the women as the Greek army approaches. 1971 Best Actress Award, National Board of Review (Irene Pappas)


This film is about a reporter (Gregory Peck) who pretends to be Jewish in order to write a story about antiSemitism in 1940s New York. This film was controversial and thought provoking for its time. 1948 Academy Award Winner: Best Film, Best Director, Best Supporting Actress (Celeste Holm)

The Garden of the Finzi-Continis d. Vittorio de Sica


This beautiful film is set in Italy in 1938. In the town of Ferrara, the Finzi-Contini’s are a wealthy Jewish family (Dominique Sanda) living in luxury and seclusion from the gathering clouds of war outside the walls of their estate. Their fate is inevitable as Mussolini’s racial laws goose-steps in line with Hitler’s. 1971 Academy Award Winner: Best Foreign Language Film

Cabaret [1972] d. Bob Fosse Life is a cabaret old chum, until the Nazi’s come to town. 1930s Berlin at its most decadent with showgirls and naughty banter and a showgirl (Liza Minnelli) who lives life large and uncensored. 1973 Academy Awards Winner: Best Director, Best Actress (Liza Minnelli), Best Supporting Actor (Joel Grey), Best Art Direction, Best Cinematography, Best Film Editing, Best Music Score, Best Sound

Liberty Heights [1999] d. Barry Levinson This coming of age film is about fathers and sons (Adrien Brody), and life in 1954 Baltimore when Jews were not allowed to cross the tracks or swim in the pool. [APARTHEID-NELSON MANDELA]

Cry Freedom [1987] d. Sir Richard Attenborough This is the true story of South African journalist Donald Woods and his friendship with black activist Steve Biko (Denzel Washington). The film covers Woods attempts to get answers to the suspicious death of Biko while in custody and his fleeing the country as a result of his investigation. 1987 Academy Award Nominees: Best Supporting Actor (Denzel Washington), Best Music and Best Song

Cry, the Beloved Country d. Darrell Roodt


This film is about apartheid in South Africa through the experiences of an African Cleric, (James Earl Jones) and [1192]

Mandela and de Klerk d. Joseph Sargent


This made-for-television movie is Nelson Mandela’s (Sidney Poitier) story of his crusade against the repressive apartheid government of F.W. de Klerk (Michael Caine).


Gentlemen’s Agreement d. Elia Kazan

a wealthy, white landowner, (Richard Harris) in the 1940s.


The Official Story d. Luis Puenzo


This is a fictional account of events during Argentina’s Dirty War. High school history teacher Alicia Marnet de Ibanez (Norma Aleandro) lives a comfortable life in Buenos Aires with her husband, Roberto, a lawyer, and their five-year-old adopted daughter. This tranquil life is forever changed when Alicia discovers the truth about her daughter’s adoption. 1986 Academy Award Winner: Best Foreign Language Film

La Amiga [1988] d. Jeanine Meerapfel This film is the story of two girls growing up during the time of Argentina’s Dirty War and the struggles to remain friends as their lives change and go in different directions (Liv Ullmann). The film focuses on the organization of Madres de Plaza de Mayo (Mothers of the Mayo Plaza in Argentina) who marched and demanded the return of their children. 1990 Berlin Film Festival: Peace Film Award— Honorable Mention (Jeanine Meerapfel) 1988 San Sebastian Film Festival: Best Actress Awards (Liv Ullmann and Cipe Lincovsky)

For These Eyes [1998] d. Gonzalo Arijon and Virginia Martinez This film is the story of a young girl named Daniela who thought she was the daughter of an agent of the SIDE, the Argentinean Secret Service but she was in fact, Mariana Zaffaronni, the daughter of two Uruguayan activists who disappeared during Argentina’s Dirty War from 1976 to 1983. This story follows her grandmother’s 16-year search and the legal and emotional outcome of finding her. [ARMENIANS IN OTTOMAN TURKEY]

Ararat [2002] d. Atom Egoyan This film travels between 1915 Turkey and present-day Canada and tells the story of an Armenian-Canadian family and how they come to terms with the history of the 1.5 million Armenians killed during World War I. This film has been criticized by the Turkish government as one-sided and propaganda.



Germany and the Secret Genocide d. Michael Hagopian


This film uses archival footage to document the involvement of Germany in the first genocide of the twentieth century when 1.5 million Armenians were killed by the Ottoman government. [AUSCHWITZ]

Editing, Outstanding Lead Actor in a Limited Series (Michael Moriarty), Outstanding Lead Actress in a Limited Series (Meryl Streep) [KLAUS BARBIE]

Hotel Terminus [1988] d. Marcel Ophuls This documentary details the life and times of Klaus Barbie, the Butcher of Lyon, who was Gestapo chief during the Nazi occupation of France.

Night and Fog [1955] d. Alain Resnais This documentary was filmed in postwar Auschwitz and is stark in its image of what took place during the Nazi regime.

1989 Academy Award Winner, Best Documentary Film [BOSNIA and HERZEGOVIA]

Playing for Time [1980] d. Daniel Mann and Joseph Sargent

Welcome to Sarajevo [1997] d. Michael Winterbottom

This made-for-television film is adapted from Fania Fenelon’s autobiography by Arthur Miller. It tells the story of a group of female prisoners (Vanessa Redgrave, Jane Alexander) at Auschwitz whose lives are spared when they perform music for their captors.

The Bosnian war in Sarajevo is backdrop to a British journalist’s attempt to save an orphaned girl from the brutality of war.

1981 Emmy Award Winner: Outstanding Drama Special, Lead Actress (Vanessa Redgrave), Supporting Actress (Jane Alexander), Outstanding Writing (Arthur Miller). Peabody Award

Shot through the Heart d. David Attwood


Two best friends (Linus Roache and Vincent Perez) end up on opposite sides of the war in Sarajevo with tragic consequences. 1999 Peabody Award

Sophie’s Choice [1982] d. Alan J. Pakula Polish beauty Sophie (Meryl Streep) falls in love with Nathan (Kevin Kline) in postwar America but is haunted by the memories of a decision she made during internment in Auschwitz. 1983 Academy Award Winner: Best Actress, Meryl Streep [AUSTRALIA]

Rabbit-Proof Fence d. Phillip Noyce


This documentary narrated by Bill Moyers tells the story of the massacre in July 1995 of over 7,000 Muslims in Srebrenica, Bosnia, a city that was supposed to be a safe-zone protected by the UN and NATO.

Harrison’s Flowers d. Elie Chouraqui


The wife (Andie MacDowell) of a Newsweek reporter missing in 1991 war-torn Yugoslavia risks her life to find him aided by a fellow journalist (Adrien Brody).


This film set in 1931 is the true story of aborigine Molly Craig who leads her younger sister and cousin over 1,500 miles of the Australian outback to return them safely to their homes after being taken by white settles to become domestic staff. This story deals with the Stolen Generations, a program to civilize the aboriginal population. 2003 Australian Film Institute Winner: Best Film [BABI YAR]

Holocaust, Part 2: The Road to Babi Yar d. Marvin Chomsky

Srebrenica: A Cry From the Grave d. Leslie Woodhead


Inside Burma: Land of Fear d. David Munro


Investigative reporter and award-winning filmmaker John Pilger exposes the brutality and repression inside Burma. Bullfrog Films [CAMBODIA]


Holocaust is a four-part miniseries that aired in 1978. This miniseries follows the fate of two families—the Weiss family, who are Jewish, and Erik Dorf’s (Michael Moriarty), who joins the Nazi party. Part two is set in 1941 and the massacre of Jews at Babi Yar is depicted. 1979 Emmy Award Winner: Best Drama Series, Best Directing (Marvin Chomsky), Best Costumes, Best Film

The Killing Fields d. Roland Joffe


This film is based on the true story of the friendship between Sydney Schanberg (Sam Waterson), a reporter for the New York Times and Dith Pran (Dr. Haing S. Ngor), a translator and assistant. When Pot Pol conducts his cleaning campaign of Year Zero, Dith Pran’s family with Schanberg’s help escape to the United States and he remains behind to help cover the story.




1985 Academy Awards: Best Supporting Actor (Dr. Haing S. Ngor), Best Cinematography (Chris Menges), and Best Film Editing (Jim Clark)


Little Big Man [1970] d. Arthur Penn This film is the story of Jack Crabb looking back on his life from old age and recalling his life spent with the Cheyenne Indians.

Samsara [1989] d. Ellen Bruno Documentary on the devastation of the war in Cambodia and the tragic impact it has had on the country.

New York Film Critics Award for Best Supporting Actor (Chief Dan George)

Sundance Film Festival: Special Jury Award [CHILDREN] [CANADA]

Forbidden Games d. Rene Clement

Kanehsatake [1994] d. Alanis Obomsawin This documentary film by Native American Alanis Obomsawin covers the armed confrontation between the Native American Mohawks and the Canadian government forces during a 1990 standoff in Kanehsatake, a village in the Mohawk nation. Produced by The National Film Board of Canada Best Documentary Film, American Indian Film Festival

A Fight Against Time: The Lubicon Cree Land Rights [1995]

d. Ed Bianchi

This film set in 1940 follows five-year-old Paulette as she witnesses the death of her parents and takes refuge with a family in the countryside. There, she and the farmer’s son take part in ritual burials in a cemetery they create for themselves. 1952 Academy Award for Best Foreign Language Film

Children of War [2000] d. Alan and Susan Raymond This documentary chronicles the effects of war and terrorism on children in four parts of the globe: Bosnia, Israel, Rwanda, and Northern Ireland. 2000 Emmy Award: Outstanding Non-fiction Special

A documentary focusing on the case made by the five hundred Lubicon Lake Cree Indians that logging, gas, and oil companies are profiting from their lands while they become increasingly impoverished.

No Turning Back: The Royal Commission on Aboriginal Peoples [1996] d. Greg Coyes


Missing [1982] d. Constantin Costa-Gavras This film is based on the actual experiences of Ed Horman (Jack Lemmon) and his search for his son, missing in Chile during the Pinochet coup.

A documentary film on the Royal Canadian Commission that traveled and interviewed more than a thousand aboriginal representatives on their history with the Canadian government.

1983 Academy Award: Best Screenplay Based on Material from Another Medium

Chile: Hasta Cuando? d. David Bradbury


The director and film crew captured on film the arrests and murders taking place during the military dictatorship of General Augusto Pinochet.


Amen [2002] d. Constantin Costa-Gavras This film focuses on two characters, one an SS officer (Ullrich Tukar) and the other a Jesuit priest (Mathieu Kassovitz), and makes a case that the Catholic Church collaborated with the Nazis during the war.

1987 Academy Award Nominee

Inside Pinochet’s Prison


This documentary was secretly filmed by East German journalists and filmed in the concentration camps of the Pinochet regime. Journeyman Pictures


Immortal Fortress: A Look Inside Chechnya’s Warrior Culture [1999] d. Dodge Billingsley Dodge Billingsley’s film leads him through down dark alleys and secret meetings to film the Chechen perspective on its fight for independence from Russia. [1194]


Chile: A History in Exile


This documentary records the journey of Cecilia Aranada as she returns to Chile after escaping the bloody Pinochet regime. Cecilia interviews Chileans who lost family members or survived torture at the hands of the military.



1978 Academy Award Winner for Best Supporting Actors (Jason Robards and Vanessa Redgrave), Best Screenplay Based on other Material


To Live [1994] d. Yimou Zhang This story of a married couple (Li Gong and You Ge) struggling to survive and not lose hope through the dramatic changes occurring in communist China. 1994 Winner of Cannes Grand Jury Prize for director Yimou Zhang

Xiu Xiu, The Sent Down Girl d. Joan Chen


A young teenage girl, Xiu Xiu, is sent to a remote area of China to do manual labor. 1999 National Board of Review Freedom of Expression Award for Joan Chen

Morning Sun [2003] d. Carma Hinton, Richard Gordon, Geremie R. Barme This two-hour documentary focuses on events during the Cultural Revolution using newsreels combined with first-hand accounts of members of a then high school generation reflecting back on those disturbing times. [COLLABORATION-RESISTANCE]

Pimpernel Smith [1941] d. Leslie Howard The Scarlet Pimpernel theme is revisited once again by Leslie Howard. This time he plays Professor Horatio Smith who takes his students on an archaeological dig in 1939 Germany where his students discover their professor is smuggling enemies of Hitler out of the country. This film angered the Germans for its lessthan-flattering depiction of them.

In occupied Paris in 1942, a theater director’s wife (Catherine Deneuve), valiantly struggles to manage the Montmartre Theatre, while her husband, a German Jew, is in hiding. 1981 Winner of 10 Cesar awards

Terrorists in Retirement d. Mosco Boucault


This documentary film narrated by Simone Signoret was initially banned by French television. In interviews with the terrorists, the truth is revealed that they were Jewish communists who were resistance fighters during the Nazi occupation of Paris. The film reveals their arrest and torture at the hands of the French police.

Au Revoir Les Enfants d. Louis Malle


This film is based on events in the life of director Louis Malle while he was at a boarding school during World War II. In this story two boys become friends at a Catholic boarding school, one is French and the other is being hidden by the friars because he is Jewish. 1987 Winner of the Golden Lion, Venice Film Festival

Europa Europa [1990] d. Agnieszka Holland A Jewish boy separated from his family in Germany reinvents himself as a German orphan and joins the Hitler Youth. Based on a true story. 1992 Winner of the Golden Globe for Best Foreign Film

Casablanca [1942] d. Michael Curtiz Rick Blaine (Humphrey Bogart), an American nightclub owner in Casablanca during World War II, has his life turned upside down when Ilsa Lund Laszlo (Ingrid Bergman) walks into his. 1942 Academy Award Winner: Best Picture, Best Director (Michael Curtiz), Best Screenplay (Julius and Philip Epstein, Howard Koch)

The Sorrow and the Pity d. Marcel Ophuls

The Last Metro [1980] d. Francois Truffaut

Sisters in Resistance d. Maia Wechsler


This story about four French women who showed amazing resilience and courage during the Nazi occupation by participating in the French resistance. They were arrested by the Gestapo and imprisoned at Ravensbruck concentration camp. They survived to tell their stories in this documentary.


This documentary investigates France’s Vichy government’s collaboration with the Nazis during the occupation. 1972 National Board of Review: Best Foreign Language Film

Julia [1977] d. Fred Zinnemann This film, based on Lillian Hellmann’s (portrayed by Jane Fonda) novel Pentimento, tells of her relationship with a childhood friend, Julia (Vanessa Redgrave), and the devotion she has to her. Their friendship is put to a test when Julia asks Lillian to smuggle money from Paris into Berlin.

Unlikely Heroes [2003] d. Richard Trank This documentary narrated by Sir Ben Kingsley tells the stories of seven previously unknown Jewish heroes whose courageous acts saved thousands of lives from the Nazis. [COMICS]

The Great Dictator d. Charlie Chaplin


Charlie Chaplin plays two roles—that of the dictator of Tomania, named Adenoid Hynkel, and a Jewish barber—in his satire on Nazi Germany.




To Be Or Not To Be d. Ernst Lubitsch

The Music Box [1990] d. Constantin Costas-Gravras


Jessica Lange portrays a Chicago lawyer who defends her father against charges that he was a SS officer for the Nazis. As witnesses come forward she faces a personal crisis as her certainty in his innocence begins to wane.

In Poland during the occupation, two actors (Carole Lombard and Jack Benny) engage in their form of resistance.

The Shop on Main Street (Obchod Na Korze) d. Jan Kadar, Elmar Klos


Set in Slovakia during World War II, a small notions shop run by a Jewish woman, Mrs. Lautman, is given to a good-for-nothing young man named Tono. Mrs. Lautman (Ida Kaminska) is old, deaf, and oblivious to her situation and thinks the young man is looking for a job and hires him. As Tono becomes aware of the fate of Jews, he drunkenly makes an effort to save Mrs. Lautman. 1965 Academy Award for Best Foreign Language Film

To Be Or Not To Be d. Alan Johnson

[REMAKE (1983)]

Death and the Maiden d. Roman Polanski


A woman (Sigourney Weaver) is convinced that the man (Sir Ben Kingsley) her husband has brought home is responsible for the rape and kidnapping she endured by the government. [DEMJANJUK TRIAL]

The State of Israel v. John Ivan Demjanjuk

Ergo Media

This time it is Mel Brooks and Anne Bancroft as the actors fighting the Nazis in occupied Poland.



The Diary of Anne Frank d. George Stevens

Camps of Death


This documentary is about the Cleveland auto mechanic, who was accused of being Ivan the Terrible and supervised the gas chambers of Treblinka.


This film is a collection of actual footage shot by the Allied forces of the death camps of World War II.


A young Jewish girl (Millie Perkins) hides in an attic with her family and their friend’s from the Nazis in occupied Amsterdam. 1959 Academy Award Winner: Best Supporting Actor (Shelley Winters) and Best Set Design


Colors of Courage: Sons of New Mexico, Prisoners of Japan [2002] Produced by Tony Martinez and Scott Henry This film tells the story of the veterans of the New Mexico’s 200th and 515 Coast Artilleries who endured the infamous Death March. A Japanese guard, Yukio Yamabe, who took part in the march is interviewed. Available through Albuquerque’s PBS affiliate, KNMETV Channel 5

A New Mexico Story: From the Bataan Death March to the Atomic Bomb [2003] d. Aaron Wilson This documentary gives the oral histories of the men of the New Mexico National Guard who withstood starvation and brutal treatment by their Japanese captors. McGaffey Films [DENIAL]

The Man in the Glass Booth d. Arthur Hiller

Fire in the Andes d. Ilan Ziv


This documentary investigates the disappearance of thousands of Peruvians targeted as members of the Shining Path by the Peruvian Armed Forces. First Run/Icarus Films [HOLOCAUST DRAMAS]

This Land is Mine d. Jean Renoir


A schoolteacher (Charles Laughton) in German occupied France is drawn into the resistance.

The Pawnbroker [1964] d. Sidney Lumet Rod Steiger plays a holocaust survivor who is shut down emotionally in a self-made prison (he is literally behind bars) in his New York pawnshop.

Ship of Fools [1965] d. Stanley Kramer


Arthur Goldman (Maximilian Schell) lives a good life in Manhattan, but all changes when Israeli agents hurry him out of the country to stand trial a Nazi war criminal. [1196]


A ship traveling to Europe from Mexico in the 1930s provides an opportunity to look at a cross section of society. Starring Vivian Leigh and Oskar Werner. 1965 Academy Award Winner: Best Art Direction and Best Cinematography



The Damned [1969] d. Luchino Visconti

II and the toll it takes on the Henry family. Robert Mitchum stars.

This film tells the story of a wealthy Junker family and their demise under the Third Reich.

The Night Porter [1974] d. Liliana Cavani

A young girl begins to question her town’s Nazi past and finds herself shunned by her community.

A concentration camp survivor (Charlotte Rampling) and her tormentor, now the night porter in a hotel in Vienna, engage in a twisted relationship. This was a controversial film for its time.

Jakob, der Lugner (Jacob the Liar) d. Frank Beyer


This East German film is the original about a Jewish man who invents stories heard on his secret radio to bring hope to the Ghetto.

Voyage of the Damned d. Stuart Rosenberg

1992 BAFTA: Best Foreign Language Film

Alfa’s Wonder [1993] d. Luke Matin This story of a French family’s struggles during the Holocaust focuses on the youngest daughter’s (Natalie Portman) curiosity about the events occurring around her. 1993 Winner of Grand Jury Prize at Cannes

Schindler’s List [1993] d. Steven Spielberg


A ship leaves Hamburg, Germany, with 937 German Jews (Faye Dunaway, Oskar Werner) on board seeking refuge in 1939 Havana, Cuba.

The Boys From Brazil [1978] d. Franklin J. Schaffner Gregory Peck plays Josef Mengele in this tale of a Nazi hunter in South America who uncovers a plot to restore the Third Reich.

Holocaust [1978] d. Marvin J. Chomsky A miniseries detailing the plight of a Jewish family in Nazi Germany contrasted with the rise of a German soldier. Stars Michael Moriarty, Meryl Streep, and Ian Holm.

The Tin Drum [1979] d. Volker Schlonodorff

Oskar Schindler (Liam Neeson) uses Jews from the concentration camps to run his factory in Poland. He becomes increasingly aware of the horrors inflicted upon them by the Nazi commandant Amon Goeth, (Ralph Fiennes) and with the help of his Jewish bookkeeper (Ben Kingsley) devises a plan to save as many Jews as he can. 1993 Academy Awards: Best Picture, Best Director, Best Editing, Best Art Direction, Best Cinematography, Best Music Score, Best Screenplay Based on Other Material

Shine [1996] d. Scott Hicks The life of Australian pianist David Helfgott (Geoffrey Rush), a child prodigy who is driven to the edge by his father, a survivor of the Holocaust. 1996 Academy Award: Best Actor (Geoffrey Rush)

Young Oskar Matzerath (David Bennet) in 1930 Danzig cannot abide the society he is in and so at age three decides not to grow up. 1979 Academy Award: Best Foreign Language Film

Das Boot est Voll (The Boat Is Full) d. Markus Imhoof


German and Austrian refuges arrive in Switzerland and discover even though the Swiss are not involved in the war they do not want any refuges.

Escape from Sobibor d. Jack Gold

The Nasty Girl [1990] d. Michael Verhoeven


This miniseries recreates the escape of Jewish inmates from the Sobibor death camp in Eastern Poland. Stars Rutger Hauer and Alan Arkin.

Bent [1997] d. Sean Mathias Max (Clive Owen) is gay and sent to Dachau where he denies his homosexuality and is given a yellow star for Jews. His friend Horst wears the pink star (for gay) and this story tells of their struggle for survival. Based on the stage play of the same name. Mick Jagger and Sir Ian McKellen co-star.

Life Is Beautiful [1997] d. Roberto Benigni A Jewish man brings his love for life and his sense of humor to a Nazi death camp in order to help his young son survive. 1999 Academy Awards: Best Foreign Language Film, Best Actor, (Roberto Benigni), Best Music Score

1988 Golden Globe: Best Mini-series

War and Rememberance d. Dan Curtis


This 12-part miniseries is based on the Herman Waulk novel. This series covers the events during World War

Left Luggage [1998] d. Jeroen Krabbe A Jewish girl becomes the nanny of a young mentally disabled Jewish boy and becomes very close to him. Stars Isabella Rossellini, Maximilian Schell, and Topol.




Aimee and Jaguar [1999] d. Max Farberbock

First Run/Icarus Films

A Jewish woman (Jaguar) using a false identity falls in love with the wife of a German soldier (Aimee).

The Forbidden Land [1990] d. Daniele Lacourse and Yvan Patry

Sunshine [1999] d. Istvan Szabo This film follows a Jewish family in Hungary through three generations from humble beginnings to wealth and prosperity and loss again. Stars Ralph Fiennes.

Conspiracy [2001] d. Frank Pierson

The human cost of the war for independence is the focus of this film.

Eritea: Hope in the Horn of Africa By Grassroots International


The dawn of a new nation after a long fought war for independence.

The Wannsee Conference where the Final Solution of the Nazi’s Holocaust plan is discussed is told through this film starring Stanley Tucci, Kenneth Branagh, and Colin Firth.

Nowhere in Africa d. Caroline Link


First Run/Icarus Films [ETHNIC CLEANSING]

Genocide [1981] d. Arnold Schwartzman


A German Jewish family moves to Kenya just before the start of World War II to run a farm. The change is difficult to adjust to but events in Germany make it impossible to return. 2002 Academy Award for Best Foreign Language Film

The Pianist [2002] d. Roman Polanski The true story of Polish Jewish pianist, Wladyslaw Szpilman (Adrien Brody), and his struggle to survive after escaping from the Warsaw ghetto during World War II. 2003 Academy Awards: Best Director (Roman Polanski), Best Screenplay Based on Other Material, Best Actor (Adrien Brody)

Film documentary about the Holocaust. Narrated by Elizabeth Taylor and Orson Welles. 1982 Academy Award: Best Documentary

The Genocide Factor d. Robert J. Emery


This documentary covers four periods from the Biblical to the Holocaust through the more recent twentieth century killing fields of Cambodia and East Timor. [ETHNOCIDE/ CULTURAL GENOCIDE]

The Searchers d. John Ford


John Wayne searches for five years for his niece (Natalie Wood), who kidnapped and raised by Comanche Indians.


Death of a Nation: The Timor Conspiracy d. John Pilger

Five Centuries Later [1992] d. German Gutierrez


This documentary film covers the genocide in East Timor by the Indonesian army using Western arms. [EICHMANN TRIAL]

The Trial of Adolf Eichmann

First Run/Icarus Films [1997]

This documentary uses actual trial footage as well as the recollections of key witnesses.


Gift of a Girl: Female Infanticide [1997] d. Jo Smith and Mayyassa Al-Malazi


This film examines the practice of female infanticide in southern India.

El Salvador: Another Vietnam [1981] d. Glen Siber and Tete Vasconcellos A documentary that focuses on the civil war in El Salvador.

El Salvador: The Seeds of Liberty [1981] d. Glen Siber and Tete Vasconcellos This film focuses on the four U.S. churchwomen who were raped and murdered by the Slavadoran National Guard in 1980. [1198]

This documentary features Rigoberta Menchu, the 1992 Nobel Peace Prize winner, and focuses on the status of Central American aboriginal cultures five hundred years after the arrival of Europeans.

Matrubhoomi [2003] d. Manish Jha First time writer-director Manish Jha presents a story of an India without enough women due to female infanticide. The result is a rich landlord is forced to buy a young woman from her father for his five sons with tragic consequences.





Triumph of the Will d. Leni Riefenstahl

The Tree That Remembers d. Masoud Raouf


This Nazi propaganda film focuses on the 1934 Nazi Party Congress in Nuremberg for which a well rehearsed, perfectly executed rally and parade was staged. This is considered to be one of the most accomplished propaganda films ever made.

The Eternal Jew d. Fritz Hippler


A young Iranian student hangs himself from a tree outside a town in Ontario, Canada. This film investigates what his life and those who feel betrayed by the 1979 Iranian revolution. Bullfrog Films



Another of the Third Reich’s propaganda films, this one is done in documentary style, giving it a look of authenticity that describes Jews worldwide in terms of an infestation of rats.

The Ducktators [1942] d. Norm McCabe


In the Name of Honour d. Alex Gabbay


This documentary looks at the oppression of the minority Kurds in northern Iraq and how violence is being directed more at women.

[EUGENICS] [1984]

George Orwell’s classic story of a totalitarian society where a man (John Hurt) rewrites history for a living then does the unthinkable and falls in love.


Judgment at Nuremberg d. Stanley Kramer


Under the Gun: Democracy in Guatemala d. Pat Goudvis and Robert Richter


This documentary looks at efforts to rebuild Kosovo under the protection of the UN Interim Administration Mission. First Run/Icarus Films

Mel Blanc provides the voices of Hitler Duck, Hirohito Duck, and Mussolini Duck all trying to take over the barnyard. The Allies are portrayed as the Dove of Peace.

Ninteen Eighty-Four d. Michael Radford

Kosovo: Rebuilding the Dream


A inside look at life in Guatemala where military and civilians fight for control and human rights issues remain. First Run/Icarus films


The trial of the Nazi war criminals by a U.S. court in 1948 Germany. 1961 Academy Awards: Best Screenplay and Best Supporting Actor (Maximilian Schell) [P.O.W. CAMPS]

The Man We Called Juan Carlos [2001] d. Heather MacAndrew and David Springbett

Stalag 17 [1953] d. Billy Wilder

This film tells the story of Wenceslao Armira, a man called Juan Carlos, whose two children were murdered by death squads.

A film about Allied prisoners in a German POW camp, starring William Holden as the cocky American outwitting the Germans.

Bullfrog Films

The Bridge on the River Kwai d. David Lean


British soldiers are forced into labor to build a bridge for their Japanese captors that the Allied forces plan to blow up.

No More Hiroshima [1984] d. Martin Duckworth A documentary of the hibakusha’s (survivors) of Hiroshima.

1957 Academy Awards: Best Picture, Best Director, Best Screenplay Based on other Material, Best Editing and Cinematography, Best Music Score and Best Actor, (Alec Guinness)


Paying the Price: Killing the Children of Iraq d. John Pilger



This film reveals the devastation that the sanctions on Iraq have had on its children.

The Great Escape d. John Sturges


The Allied soldiers in a German POW camp make a daring escape. An all-star cast lead by Steve McQueen.




1978 Academy Award Winner: Best Picture, Best Sound, Best Director, Best Editing and Best Supporting Actor (Christopher Walken).


Diamonds in the Dark d. Olivia Carrescia


Life before and after the Ceausescus regime as told by ten Romanian women. [ROMANIS]

A Cry for Roma [2003] d. Gillian Darling Kovanic A stark look at the continued persecution of Europe’s most reviled minority, the Romani’s. [RWANDA]

Rwandan Nightmare d. Simon Gallimore

A documentary that probes the slaughter of over a million Rwandans.

1997 Academy Award winner: Best Sound, Best Cinematography

The story of a young recruit (Charlie Sheen) in Vietnam and the horrors of war he experiences. 1986 Academy Award winner: Best Picture, Best Director, Best Editing, Best Sound

Chronicle of a Genocide Foretold [1996] d. Daniele Lacourse and Yvan Patry The massacre of 800,000 Tutsi men, women, and children are the focus of this film.

Full Metal Jacket [1987] d. Stanley Kubrick A group of soldiers in Vietnam become dehumanized by their experiences of war.

[STALIN] [1997]

Kim’s Story: The Road From Vietnam d. Shelley Saywell

This film focuses on Stalin’s bloody purges and Shostakovich’s musical response.


This film is the story of the little girl, Kim Phuc, whose photo of her running naked down the street burned from napalm fueled the antiwar movement and what became of her.


The Deer Hunter [1978] d. Michael Cimino Harrowing film of the horrors of war during the Vietnam era. This story follows three friends from a small mining town in Pennsylvania and the impact their tour of duty has on them. Robert de Niro and Christopher Walken star.


This film based on Joseph Conrad’s Heart of Darkness, focuses on a mission assigned to Captain Willard (Martin Sheen) to kill a renegade Green Beret (Marlon Brando).

Platoon [1986] d. Oliver Stone


The War Symphonies d. Larry Weinstein

Apocalypse Now [1979] d. Francis Ford Coppola

The Quiet American d. Phillip Noyce


This film takes place in Vietnam before the war when U.S. interests and a British reporter collide over the love of a woman.


p r im a r y s our c es Table of Contents



Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment and Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . .



Convention on the Prevention and Punishment of the Crime of Genocide . . . . . . . . . . .


Circular Letter from the Orgburo TsK RK(b) Concerning Relations with the Cossacks . . .


Geneva Convention IV: Civilian Persons in Time of War . . . . . . . . . . . . . . . . . . . . . . . . . .


Control Council Law No. 10 . . . . . . . . . . . . . . .


Genocide Convention Implementation Act of 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .



International Convention on the Suppression and Punishment of the Crime of Apartheid (July 18, 1976) . . . . . . . . . . . . . . . . . . . . . . . .


Charter of the International Military Tribunal .....................................

General Lothar Von Trotha Extermination Order against the Herero . . . . . . . . . . . . . . . . January 11, 1994, Cable of General Dallaire to UN Headquarters . . . . . . . . . . . . . . . . . . . . . .


Rome Statute of the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Nazi-Era Identity Cards


Security Council Resolution 808 . . . . . . . . . . . .


Security Council Resolution 827 . . . . . . . . . . . .



Security Council Resolution 955 . . . . . . . . . . . .



Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; September 7, 1956. . . . . . . . . . . . . . . . . . . . . . . .


Universal Declaration of Human Rights





Celebici . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Eichmann . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Filartiga . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Krstic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .



Order by the Commander of the Military Division of the Mississippi, January 15, 1865 . . . Principles of International Law Recognized in the Charter of the Nuremberg Tribunal . . . . Resolution of the Council of People’s Commissars of the Ukrainian Soviet Socialist Republic and the Central Committee of the Communist Party (Bolshevik) of Ukraine on Blacklisting Villages That Mailiciously Sabotage the Collection of Grain . . . . . . . . .


UN General Assembly Resolution on Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


Whitaker Report on Genocide, 1985 . . . . . . . . .






historical texts Charter of the International Military Tribunal The Avalon Project at Yale Law School website. Available from http://www.yale.edu/lawweb/avalon/avalon.htm.


The Charter of the International Military Tribunal was adopted by the London Conference, held from June until early August 1945. Only four countries, the United States, the United Kingdom, France, and the Soviet Union, participated in the conference, although the Charter was subsequently ratified by several other countries. It was the first international criminal tribunal, and the Charter itself included many innovations, including controversial new definitions of war crimes, crimes against peace and crimes against humanity. The concept of crimes against humanity, first elaborated in the Nuremberg Charter, was meant to address atrocities committed by the Nazis against their own civilian populations, and more specifically the attempt to exterminate the Jews. The participants at the London Conference were nervous about establishing a precedent by which gross violations of human rights could be prosecuted under international law, and they consequently limited the concept of crimes against humanity to acts committed in the context of an illegal international war. It was largely in reaction to this that other states, in 1946, proposed a definition of genocide that recognized it could be committed in peacetime as well as during armed conflict.


I. Constitution of the International Military Tribunal

Article 1 In pursuance of the Agreement signed on the 8th day of August 1945 by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United King-

dom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics, there shall be established an International Military Tribunal (hereinafter called “the Tribunal”) for the just and prompt trial and punishment of the major war criminals of the European Axis.

Article 2 The Tribunal shall consist of four members, each with an alternate. One member and one alternate shall be appointed by each of the Signatories. The alternates shall, so far as they are able, be present at all sessions of the Tribunal. In case of illness of any member of the Tribunal or his incapacity for some other reason to fulfill his functions, his alternate shall take his place. Article 3 Neither the Tribunal, its members nor their alternates can be challenged by the prosecution, or by the Defendants or their Counsel. Each Signatory may replace its members of the Tribunal or his alternate for reasons of health or for other good reasons, except that no replacement may take place during a Trial, other than by an alternate. Article 4 (a) The presence of all four members of the Tribunal or the alternate for any absent member shall be necessary to constitute the quorum. (b) The members of the Tribunal shall, before any trial begins, agree among themselves upon the selection from their number of a President, and the President shall hold office during the trial, or as may otherwise be agreed by a vote of not less than three members. The principle of rotation of presidency for successive trials is agreed. If, however, a session of the Tribunal takes place on the territory of one of the four Signatories, the representative of that Signatory on the Tribunal shall preside.



Charter of the International Military Tribunal

(c) Save as aforesaid the Tribunal shall take decisions by a majority vote and in case the votes are evenly divided, the vote of the President shall be decisive: provided always that convictions and sentences shall only be imposed by affirmative votes of at least three members of the Tribunal.

Article 5 In case of need and depending on the number of the matters to be tried, other Tribunals may be set up; and the establishment, functions, and procedure of each Tribunal shall be identical, and shall be governed by this Charter. II. Jurisdiction and General Principles Article 6 The Tribunal established by the Agreement referred to m Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. [1204]

Article 7 The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment. Article 8 The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. Article 9 At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization. After the receipt of the Indictment the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and any member of the organization will be entitled to apply to the Tribunal for leave to be heard by the Tribunal upon the question of the criminal character of the organization. The Tribunal shall have power to allow or reject the application. If the application is allowed, the Tribunal may direct in what manner the applicants shall be represented and heard.

Article 10 In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individual to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned. Article 11 Any person convicted by the Tribunal may be charged before a national, military or occupation court, referred to in Article 10 of this Charter, with a crime other than of membership in a criminal group or organization and such court may, after convicting him, impose upon him punishment independent of and additional to the punishment imposed by the Tribunal for participation in the criminal activities of such group or organization. Article 12 The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence, if he has not been


Charter of the International Military Tribunal

found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence.

Article 13 The Tribunal shall draw up rules for its procedure. These rules shall not be inconsistent with the provisions of this Charter. III. Committee for the Investigation and Prosecution of Major War Criminals.

Article 14 Each Signatory shall appoint a Chief Prosecutor for the investigation of the charges against and the prosecution of major war criminals. The Chief Prosecutors shall act as a committee for the following purposes: (a) to agree upon a plan of the individual work of each of the Chief Prosecutors and his staff, (b) to settle the final designation of major war criminals to be tried by the Tribunal, (c) to approve the Indictment and the documents to be submitted therewith, (d) to lodge the Indictment and the accompany documents with the Tribunal, (e) to draw up and recommend to the Tribunal for its approval draft rules of procedure, contemplated by Article 13 of this Charter. The Tribunal shall have the power to accept, with or without amendments, or to reject, the rules so recommended. The Committee shall act in all the above matters by a majority vote and shall appoint a Chairman as may be convenient and in accordance with the principle of rotation: provided that if there is an equal division of vote concerning the designation of a Defendant to be tried by the Tribunal, or the crimes with which he shall be charged, that proposal will be adopted which was made by the party which proposed that the particular Defendant be tried, or the particular charges be preferred against him. Article 15 The Chief Prosecutors shall individually, and acting in collaboration with one another, also undertake the following duties: (a) investigation, collection and production before or at the Trial of all necessary evidence, (b) the preparation of the Indictment for approval by the Committee in accordance with paragraph (c) of Article 14 hereof, (c) the preliminary examination of all necessary witnesses and of all Defendants,

(d) to act as prosecutor at the Trial, (e) to appoint representatives to carry out such duties as may be assigned them, (f) to undertake such other matters as may appear necessary to them for the purposes of the preparation for and conduct of the Trial. It is understood that no witness or Defendant detained by the Signatory shall be taken out of the possession of that Signatory without its assent. IV. FAIR TRIAL FOR DEFENDANTS

Article 16 In order to ensure fair trial for the Defendants, the following procedure shall be followed: (a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial. (b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him. (c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands. (d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel. (e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution. V. POWERS OF THE TRIBUNAL AND CONDUCT OF THE TRIAL

Article 17 The Tribunal shall have the power (a) to summon witnesses to the Trial and to require their attendance and testimony and to put questions to them (b) to interrogate any Defendant, (c) to require the production of documents and other evidentiary material, (d) to administer oaths to witnesses, (e) to appoint officers for the carrying out of any task designated by the Tribunal including the power to have evidence taken on commission.



Charter of the International Military Tribunal

Article 18 The Tribunal shall (a) confine the Trial strictly to an expeditious hearing of the cases raised by the charges, (b) take strict measures to prevent any action which will cause reasonable delay, and rule out irrelevant issues and statements of any kind whatsoever, (c) deal summarily with any contumacy, imposing appropriate punishment, including exclusion of any Defendant or his Counsel from some or all further proceedings, but without prejudice to the determination of the charges.

Article 19 The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value. Article 20 The Tribunal may require to be informed of the nature of any evidence before it is entered so that it may rule upon the relevance thereof. Article 21 The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and of records and findings of military or other Tribunals of any of the United Nations. Article 22 The permanent seat of the Tribunal shall be in Berlin. The first meetings of the members of the Tribunal and of the Chief Prosecutors shall be held at Berlin in a place to be designated by the Control Council for Germany. The first trial shall be held at Nuremberg, and any subsequent trials shall be held at such places as the Tribunal may decide. Article 23 One or more of the Chief Prosecutors may take part in the prosecution at each Trial. The function of any Chief Prosecutor may be discharged by him personally, or by any person or persons authorized by him. The function of Counsel for a Defendant may be discharged at the Defendant’s request by any Counsel professionally qualified to conduct cases before the Courts of his own country, or by any other person who may be specially authorized thereto by the Tribunal. [1206]

Article 24 The proceedings at the Trial shall take the following course: (a) The Indictment shall be read in court. (b) The Tribunal shall ask each Defendant whether he pleads “guilty” or “not guilty.” (c) The prosecution shall make an opening statement. (d) The Tribunal shall ask the prosecution and the defense what evidence (if any) they wish to submit to the Tribunal, and the Tribunal shall rule upon the admissibility of any such evidence. (e) The witnesses for the Prosecution shall be examined and after that the witnesses for the Defense. Thereafter such rebutting evidence as may be held by the Tribunal to be admissible shall be called by either the Prosecution or the Defense. (f) The Tribunal may put any question to any witness and to any defendant, at any time. (g) The Prosecution and the Defense shall interrogate and may crossexamine any witnesses and any Defendant who gives testimony. (h) The Defense shall address the court. (i) The Prosecution shall address the court. (j) Each Defendant may make a statement to the Tribunal. (k) The Tribunal shall deliver judgment and pronounce sentence.

Article 25 All official documents shall be produced, and all court proceedings conducted, in English, French and Russian, and in the language of the Defendant. So much of the record and of the proceedings may also be translated into the language of any country in which the Tribunal is sitting, as the Tribunal is sitting, as the Tribunal considers desirable in the interests of the justice and public opinion. VI. JUDGMENT AND SENTENCE

Article 26 The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review. Article 27 The Tribunal shall have the right to impose upon a Defendant, on conviction, death or such other punishment as shall be determined by it to be just.


Control Council Law No. 10

Article 28 In addition to any punishment imposed by it, the Tribunal shall have the right to deprive the convicted person of any stolen property and order its delivery to the Control Council for Germany. Article 29 In case of guilt, sentences shall be carried out in accordance with the orders of the Control Council for Germany, which may at any time reduce or otherwise alter the sentences, but may not increase the severity thereof. If the Control Council for Germany, after any Defendant has been convicted and sentenced, discovers fresh evidence which, in its opinion, would found a fresh charge against him, the Council shall report accordingly to the Committee established under Article 14 hereof, for such action as they may consider proper, having regard to the interests of justice. VII. EXPENSES

Article 30 The expenses of the Tribunal and of the Trials, shall be charged by the Signatories against the funds allotted for maintenance of the Control Council of Germany.

Circular Letter from the Orgburo TsK RK(b) Concerning Relations with the Cossacks During World War II Stalin ordered the deportation of a large part of this population which was incorporated in Russia since 1654, accusing the Cossacks to sympathize with Germany.


1. To carry out mass terror against wealthy Cossacks, exterminating them to a man; to carry out merciless mass terror in relations to all Cossacks have taken part in any way directly or indirectly in the struggle with the Soviet power. Against the middle Cossacks it is necessary to take all those measures which give a guarantee against any attempt on their part [to join] a new attack on Soviet power. 2. To confiscate grain and force [them] to gather all surpluses in designated points; this applies both to grain and all other agricultural products. 3. To take all measures assisting the resettlement of newly arrived poor, organizing this settlement where possible. 4. To equalize newly arrive Inogorodnie with the Cossacks in land and in all other relations. 5. To carry out complete disarmament, shooting those who after the time of handing over are found to have arms. 6. To give arms only to reliable elements from the Inogorodnie. 7. Armed detachments are to be stationed in Cossack stanitsas henceforward until the establishment of complete order. 8. To order all commissars appointed to this or that Cossack settlement to show maximum firmness and to carry out the present orders unswervingly. TsK imposes the obligation on Narkomzem to work out quickly practical measures concerning the mass resettlement of poor on Cossack land to be carried out through the corresponding soviet institutions. Central Committee RKP RGASPI f.17, op.4. d. 7, l.5.

Control Council Law No. 10 24 January 1919 Circular. Secret. The latest events on different fronts in the Cossack regions — our advance into the interior of the Cossack settlements and the disintegration among the Cossack hosts — compels us to give instructions to party workers about the character of their work during the reestablishment and strengthening of Soviet power in the said regions. It is necessary to recognize, based on the experience of the civil war with the Cossacks, that the most merciless struggle with all the upper layers of the Cossacks through their extermination to a man is the only correct policy. No compromises or halfheartedness whatsoever are acceptable. Therefore it is necessary:

The Avalon Project at Yale Law School. Available from http://www.yale.edu/lawweb/avalon/avalon.htm


After the victory over the Nazis, a government of occupation was established under what was known as the Control Council. Although the International Military Tribunal at Nuremberg was responsible for prosecuting the major Nazi war criminals, the Control Council issued Law No. 10 to provide a legal framework for the trials of ‘lesser’ Nazis. Many prosecutions were subsequently carried out, the most well-known being a series of specialized trials organized by the United States. These were held in the same courthouse at Nuremberg where the trial of the major criminals had taken place. Collective trials were held of Nazi judges and prosecutors, businessmen, military commanders, civilian administrators, and leaders of the SS. Control Council Law No. 10 is broadly similar to the Charter of the Nuremberg Tribunal.




Control Council Law No. 10

PUNISHMENT OF PERSONS GUILTY OF WAR CRIMES, CRIMES AGAINST PEACE AND AGAINST HUMANITY In order to give effect to the terms of the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945, and the Charter issued pursuant thereto and in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal, the Control Council enacts as follows:

Article I The Moscow Declaration of 30 October 1943 “Concerning Responsibility of Hitlerites for Committed Atrocities” and the London Agreement of 8 August 1945 “Concerning Prosecution and Punishment of Major War Criminals of European Axis” are made integral parts of this Law. Adherence to the provisions of the London Agreement by any of the United Nations, as provided for in Article V of that Agreement, shall not entitle such Nation to participate or interfere in the operation of this Law within the Control Council area of authority in Germany. Article II 1. Each of the following acts is recognized as a crime: (a) Crimes against Peace. Initiation of invasions of other countries and wars of aggression in violation of international laws and treaties, including but not limited to planning, preparation, initiation or waging a war of aggression, or a war of violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. (b) War Crimes. Atrocities or offenses against persons or property constituting violations of the laws or customs of war, including but not limited to, murder, ill treatment or deportation to slave labour or for any other purpose, of civilian population from occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity. (c) Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated. [1208]

(d) Membership in categories of a criminal group or organization declared criminal by the International Military Tribunal. 2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or (f) with reference to paragraph 1 (a) if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, cobelligerents or satellites or held high position in the financial, industrial or economic life of any such country. 3. Any persons found guilty of any of the crimes above mentioned may upon conviction be punished as shall be determined by the tribunal to be just. Such punishment may consist of one or more of the following: (a) Death. (b) Imprisonment for life or a term of years, with or without hard labor. (c) Fine, and imprisonment with or without hard labour, in lieu thereof. (d) Forfeiture of property. (e) Restitution of property wrongfully acquired. (f) Deprivation of some or all civil rights. Any property declared to be forfeited or the restitution of which is ordered by the Tribunal shall be delivered to the Control Council for Germany, which shall decide on its disposal. 4. (a) The official position of any person, whether as Head of State or as a responsible official in a Government Department, does not free him from responsibility for a crime or entitle him to mitigation of punishment. (b) The fact that any person acted pursuant to the order of his Government or of a superior does not free him from responsibility for a crime, but may be considered in mitigation. 5. In any trial or prosecution for a crime herein referred to, the accused shall not be entitled to the benefits of any statute of limitation in respect to the period from 30 January 1933 to 1 July 1945, nor shall any immunity, pardon or amnesty granted under the Nazi regime be admitted as a bar to trial or punishment.


Control Council Law No. 10

Article III 1. Each occupying authority, within its Zone of Occupation, (a) shall have the right to cause persons within such Zone suspected of having committed a crime, including those charged with crime by one of the United Nations, to be arrested and shall take under control the property, real and personal, owned or controlled by the said persons, pending decisions as to its eventual disposition. (b) shall report to the Legal Directorate the name of all suspected criminals, the reasons for and the places of their detention, if they are detained, and the names and location of witnesses. (c) shall take appropriate measures to see that witnesses and evidence will be available when required. (d) shall have the right to cause all persons so arrested and charged, and not delivered to another authority as herein provided, or released, to be brought to trial before an appropriate tribunal. Such tribunal may, in the case of crimes committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons, be a German Court, if authorized by the occupying authorities. 2. The tribunal by which persons charged with offenses hereunder shall be tried and the rules and procedure thereof shall be determined or designated by each Zone Commander for his respective Zone. Nothing herein is intended to, or shall impair or limit the Jurisdiction or power of any court or tribunal now or hereafter established in any Zone by the Commander thereof, or of the International Military Tribunal established by the London Agreement of 8 August 1945. 3. Persons wanted for trial by an International Military Tribunal will not be tried without the consent of the Committee of Chief Prosecutors. Each Zone Commander will deliver such persons who are within his Zone to that committee upon request and will make witnesses and evidence available to it. 4. Persons known to be wanted for trial in another Zone or outside Germany will not be tried prior to decision under Article IV unless the fact of their apprehension has been reported in accordance with Section 1 (b) of this Article, three months have elapsed thereafter, and no request for delivery of the type contemplated by Article IV has been received by the Zone Commander concerned. 5. The execution of death sentences may be deferred by not to exceed one month after the sentence

has become final when the Zone Commander concerned has reason to believe that the testimony of those under sentence would be of value in the investigation and trial of crimes within or without his zone. 6. Each Zone Commander will cause such effect to be given to the judgments Of courts of competent jurisdiction, with respect to the property taken under his control pursuant thereto, as he may deem proper in the interest of Justice.

Article IV 1. When any person in a Zone in Germany is alleged to have committed a crime, as defined in Article II, in a country other than Germany or in another Zone, the government of that nation or the Commander of the latter Zone, as the case may be, may request the Commander of the Zone which the person is located for his arrest and delivery for trial to the country or Zone in which the crime was committed. Such request for delivery shall be granted by the Commander receiving it unless he believes such person is wanted for trial or as a witness by an International Military Tribunal, or in Germany, or in a nation other than the one making the request, or the Commander is not satisfied that delivery should be made, in any of which cases he shall have the right to forward the said request to the Legal Directorate of the Allied Control Authority. A similar procedure shall apply to witnesses, material exhibits and other forms of evidence. 2. The Legal Directorate shall consider all requests referred to it, and shall determine the same in accordance with the following principles, its determination to be communicated to the Zone Commander. (a) A person wanted for trial or as a witness by an International Military Tribunal shall not be delivered for trial or required to give evidence outside Germany, as the case may be, except upon approval by the Committee of Chief Prosecutors acting under the London Agreement of 8 August 1945. (b) A person wanted for trial by several authorities (other than an International Military Tribunal) shall be disposed of in accordance with the following priorities: (1) If wanted for trial in the Zone in which he is, he should not be delivered unless arrangements are made for his return after trial elsewhere; (2) If wanted for trial in a Zone other than that in which he is, he should be delivered to that Zone in preference to delivery outside Germany unless arrangements are made for his return to that Zone after trial elsewhere;



General Lothar Von Trotha Extermination Order against the Herero

(3) If wanted for trial outside Germany by two or more of the United Nations, of one of which he is a citizen, that one should have priority;

October 2, 1904 I the great General of the German troops send this letter to the Herero people.

(4) If wanted for trial outside Germany by several countries, not all of which are United Nations, United Nations should have priority;

The Herero are no longer German subjects. They have murdered and stolen, they have cut off the ears, noses and other body parts of wounded soldiers, now out of captain will receive 1000 Mark, whoever delivers Samuel will receive 5000 Mark. The Herero people must however leave the land. If the populace does not do this I will force them with the Groot Rohr [cannon]. Within the German borders every Herero, with or without a gun, with or without cattle, will be shot. I will no longer accept women and children, I will drive them back to their people or I will let them be shot at.

(5) If wanted for trial outside Germany by two or more of the United Nations, then, subject to Article IV 2 (b) (3) above, that which has the most serious charges against him, which are moreover supported by evidence, should have priority.

Article V The delivery, under Article IV of this law, of persons for trial shall be mades on demands of the Governments or Zone Commanders in such a manner that the delivery of criminals to one jurisdiction will not become the means of defeating or unnecessarily delaying the carrying out of justice in another place. If within six months the delivered person has not been convicted by the Court of the Zone or country to which he has been delivered, then such person shall be returned upon demand of the Commander of the Zone where the person was located prior to delivery. Done at Berlin, 20 December 1945. (Signed) Joseph T. McNarney JOSEPH T. MCNARNEY General, U. S. Armyt (Signed) Bernard B. Montgomery BERNARD B. MONTGOMERY Field Marshall (Signed) Louis Koeltz, General d’Corps de Armee for PIEIRR KOENIG General d’Armee (Signed) Georgi Zhukov GEORGI ZHUKOV Marshall of the Soviet Union

General Lothar Von Trotha Extermination Order against the Herero Gewalt, Jan-Bart, trans. (1999). Herero Heroes. Oxford, U.K.: James Currey. See pages 172–173. Also available from Namibian National Archives Windhoek, ZBU (Zentralbureau) D.1.a Band 3–4, leaf 165.


The order given by General Lothar von Trotha is one of the first documented instances of a policy of genocide. The order was ruthlessly carried out and resulted in the extermination of nearly 90 percent of the Herero. The descendants of the the survivors are seeking reparations for the genocide.

These are my words to the Herero people. The great General of the mighty German Kaiser.

January 11, 1994, Cable of General Dallaire to UN Headquarters Available from http://www.gwu.edu/~nsarchiv/ NSAEBB/NSAEBB53/rw011194.pdf.


On January 10, 1994, General Romeo Dallaire, the Force Commander for UNAMIR in Rwanda, received the most important information from the Chief Trainer of the Interahamwe, the militia of the MRND party, indicating a plot to subvert the peace agreement, slaughter Tutsis at the rate of 1,000 Tutsis every 20 minutes, and kill ten Belgian soldiers to induce the Belgian government to withdraw its peacekeeping contingent. He also informed UNAMIR of four large stocks weapons. In addition, he said that there was a spy on the UN Secretary-General’s Special Representative’s (Jacques Roger Booh-Booh) staff. In return for revealing the locations of the arms caches, the informer requested that he and his family be provided with asylum in the West. When General Dallaire informed New York headquarters (see the cable below) of his plans to go after the arms caches, the plan was immediately vetoed. Further, Dallaire was instructed to inform President Habyarimana immediately about the information. In investigations afterwards, and in spite of plenty of information that the cable was seen as a crucial item, Riza and Annan first claimed not to have any recollection of the cable, and later said that they received so much information that they did not realize its significance. However, they never ordered any further investigation. The suppression of the cable and follow-up action was the most blatant example of a missed early warning opportunity so necessary to the prevention and mitigation of genocide.




Date: 11 January 1994 To: Baril/DPKO/UNATIONS NEW YORK From: Dallaire/UNAMIR/KIGALI Subject: Request for protection for informant


Nazi-Era Identity Cards

Attn: MGen Baril Room No.2052 Force commander put in contact with informant by very very important government politician. Informant is a top level trainer in the cadre of Interhamwearmed militia of MRND. He informed us he was in charge of last Saturday’s demonstrations which aims were to target deputies of opposition parties coming to ceremonies and Belgian soldiers. They hoped to provoke the RPF BN to engage (being fired upon) the demonstrators and provoke a civil war. Deputies were to be assassinated upon entry or exit from Parliament. Belgian troops were to be provoked and if Belgians soldiers resorted to force a number of them were to be killed and thus guarantee Belgian withdrawal from Rwanda. Informant confirmed 48 RGF CDO and a few members of the Gendarmerie participated in demonstrations in plain clothes. Also at least one minister of the MRND and the Sous-Prefect of Kigali were in the demonstration. RGF and Interhamwe provided radio communications. Informant is a former security member of the president. He also stated he is paid RF150,000 per month by the MRND party to train Interhamwe. Direct link is to Chief of Staff RGF and president of the MRND for financial and material support. Interhamwe has trained 1700 men in RGF military camps outside the capital. The 1700 are scattered in groups of 40 throughout Kigali. Since UNAMIR deployed he has trained 300 personnel in three week training sessions at RGF camps. Training focus was discipline, weapons, explosives, close combat and tactics. Principal aim of Interhamwe in the past was to protect Kigali from RPF. Since unamir mandate he has been ordered to register all Tutsi in Kigali. He suspects it is for their extermination. Example he gave was that in 20 minutes his personnel could kill up to 1000 Tutsis. Informant states he disagrees with anti-Tutsi extermination. He supports opposition to RPF, but cannot support killing of innocent persons. He also stated that he believes the president does not have full control over all elements of his old party/faction. Informant is prepared to provide location of major weapons cache with at least 135 weapons. He already

has distributed 110 weapons including 35 with ammunition and can give us details of their location. Type of weapons are G3 and AK47 provided by RGF. He was ready to go to the arms cache tonight—if we gave him the following guarantee. He requests that he and his family (his wife and four children) be placed under our protection. It is our intention to take action within the next 36 hours with a possible H-Hr of Wednesday at dawn (local). Informant states that hostilities may commence again if political deadlock ends. Violence could take place day of the ceremonies or the day after. Therefore, Wednesday will give greatest chance of success and also be most timely to provide significant input to ongoing political negotiations. It is recommended the informant be granted protection and evacuated out of Rwanda. This HQ does not have previous UN experience in such matters and urgently requests guidance. No contact has as yet been made to any embassy in order to inquire if they are prepared to protect him for a period of time by granting diplomatic immunity in their embassy in Kigali before moving him and his family out of the country. Force Commander will be meeting with the very very important political person tomorrow morning in order to ensure that this individual is conscious of all parameters of his involvement. Force Commander does have certain reservations on the suddenness of the change of heart of the informant to come clean with this information. Recce of armed cache and detailed planning of raid to go on late tomorrow. Possibility of a trap not fully excluded, as this may be a set-up against the very very important political person. Force Commander to inform SRSG first thing in morning to ensure his support.

Nazi-Era Identity Cards The Nazi regime introduced laws and regulations designed to classify all persons by race, making it easier to target Jews and other disfavored minorities. The ultimate result was genocide. The identity documents here distinguish between “Aryan” and “Jew.”




Nazi-Era Identity Cards

The identity card required by the Nazis soon singled out all Jews living in Germany and other countries invaded by the Third Reich. (top). False identification card issued in name of Stanislawa Wachalska, that was used by Feigele Peltel (now Vladka Meed) while serving as a courier for the Jewish underground in Warsaw (bottom). [ U S H M M ]



Order by the Commander of the Military Division of the Mississippi, January 15, 1865

Order by the Commander of the Military Division of the Mississippi, January 15, 1865 General Sherman issued the following order to General Rufus Saxton to divide land confiscated from rebellious landowners in Southern States into forty-acre tracts and distribute them to slaves freed under President Abraham Lincoln’s Emancipation Proclamation. The government was to loan out mules to help work the land. The order and land titles were rescinded by President Andrew Johnson after the assassination of President Lincoln, despite the fact that some 40,000 free men had been provided with homes under the Order’s provisions. Many of those who had received land were later forcibly removed. General Sherman’s Order and its implementation remain in discussion as one basis of claims for slave reparations.


THE FIELD, SAVANNAH, GA., January 16th, 1865. SPECIAL FIELD ORDERS, No. 15. I. The islands from Charleston, south, the abandoned rice fields along the rivers for thirty miles back from the sea, and the country bordering the St. Johns river, Florida, are reserved and set apart for the settlement of the negroes now made free by the acts of war and the proclamation of the President of the United States. II. At Beaufort, Hilton Head, Savannah, Fernandina, St. Augustine and Jacksonville, the blacks may remain in their chosen or accustomed vocationsbut on the islands, and in the settlements hereafter to be established, no white person whatever, unless military officers and soldiers detailed for duty, will be permitted to reside; and the sole and exclusive management of affairs will be left to the freed people themselves, subject only to the United States military authority and the acts of Congress. By the laws of war, and orders of the President of the United States, the negro is free and must be dealt with as such. He cannot be subjected to conscription or forced military service, save by the written orders of the highest military authority of the Department, under such regulations as the President or Congress may prescribe. Domestic servants, blacksmiths, carpenters and other mechanics, will be free to select their own work and residence, but the young and able-bodied negroes must be encouraged to enlist as soldiers in the service of the United States, to contribute their share towards maintaining their own freedom, and securing their rights as citizens of the United States. Negroes so enlisted will be organized into companies, battalions and regiments, under the orders of the

United States military authorities, and will be paid, fed and clothed according to law. The bounties paid on enlistment may, with the consent of the recruit, go to assist his family and settlement in procuring agricultural implements, seed, tools, boots, clothing, and other articles necessary for their livelihood. III. Whenever three respectable negroes, heads of families, shall desire to settle on land, and shall have selected for that purpose an island or a locality clearly defined, within the limits above designated, the Inspector of Settlements and Plantations will himself, or by such subordinate officer as he may appoint, give them a license to settle such island or district, and afford them such assistance as he can to enable them to establish a peaceable agricultural settlement. The three parties named will subdivide the land, under the supervision of the Inspector, among themselves and such others as may choose to settle near them, so that each family shall have a plot of not more than (40) forty acres of tillable ground, and when it borders on some water channel, with not more than 800 feet water front, in the possession of which land the military authorities will afford them protection, until such time as they can protect themselves, or until Congress shall regulate their title. The Quartermaster may, on the requisition of the Inspector of Settlements and Plantations, place at the disposal of the Inspector, one or more of the captured steamers, to ply between the settlements and one or more of the commercial points heretofore named in orders, to afford the settlers the opportunity to supply their necessary wants, and to sell the products of their land and labor. IV. Whenever a negro has enlisted in the military service of the United States, he may locate his family in any one of the settlements at pleasure, and acquire a homestead, and all other rights and privileges of a settler, as though present in person. In like manner, negroes may settle their families and engage on board the gunboats, or in fishing, or in the navigation of the inland waters, without losing any claim to land or other advantages derived from this system. But no one, unless an actual settler as above defined, or unless absent on Government service, will be entitled to claim any right to land or property in any settlement by virtue of these orders. V. In order to carry out this system of settlement, a general officer will be detailed as Inspector of Settlements and Plantations, whose duty it shall be to visit the settlements, to regulate their police and general management, and who will furnish personally to each head of a family, subject to the approval of the President of the United States, a possessory title in writing, giving as near as possible the description of boundaries;



Principles of International Law Recognized in the Charter of the Nuremberg Tribunal

and who shall adjust all claims or conflicts that may arise under the same, subject to the like approval, treating such titles altogether as possessory. The same general officer will also be charged with the enlistment and organization of the negro recruits, and protecting their interests while absent from their settlements; and will be governed by the rules and regulations prescribed by the War Department for such purposes. VI. Brigadier General R. SAXTON is hereby appointed Inspector of Settlements and Plantations, and will at once enter on the performance of his duties. No change is intended or desired in the settlement now on Beaufort [Port Royal] Island, nor will any rights to property heretofore acquired be affected thereby. BY ORDER OF MAJOR GENERAL W. T. SHERMAN: Special Field Orders, No. 15, Headquarters Military Division of the Mississippi, 16 Jan. 1865, Orders & Circulars, ser. 44, Adjutant General’s Office, Record Group 94, National Archives.

Principles of International Law Recognized in the Charter of the Nuremberg Tribunal The Nuremberg Principles were adopted by the International Law Commission, acting under instructions from the United Nations General Assembly. They confirm a number of important principles, including the prohibition of the defense of superior orders, the denial of immunity for heads of state, and the liability of accomplices. In the Eichmann trial, the Israeli Supreme Court said that the Nuremberg Principles have become part of the law of nations and must be regarded as having been rooted in it also in the past.


Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal

Principle I Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment. Principle II The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. Principle III The fact that a person who committed an act which constitutes a crime under international law acted as [1214]

Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IV The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. Principle V Any person charged with a crime under international law has the right to a fair trial on the facts and law. Principle VI The crimes hereinafter set out are punishable as crimes under international law: (a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). (b) War crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory; murder or ill treatment of prisoners of war, of persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. (c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

Principle VII Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law. * Text adopted by the Commission at its second session, in 1950, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session. The report, which also contains commentaries on the principles, appears in Yearbook of the International Law Commission, 1950, vol. II.


UN General Assembly Resolution on Genocide

Resolution of the Council of People’s Commissars of the Ukrainaian Soviet Socialist Republic and the Central Committee of the Communist Party (Bolshevik) of Ukraine on Blacklisting Villages That Mailiciously Sabotage the Collection of Grain Addendum to the minutes of Politburo [meeting] No. 93. In view of the shameful collapse of grain collection in the more remote regions of Ukraine, the Council of People’s Commissars and the Central Committee call upon the oblast executive committees and the oblast [party] committees as well as the raion executive committees and the raion [party] committees: to break up the sabotage of grain collection, which has been organized by kulak and counterrevolutionary elements; to liquidate the resistance of some of the rural communists, who in fact have become the leaders of the sabotage; to eliminate the passivity and complacency toward the saboteurs, incompatible with being a party member; and to ensure, with maximum speed, full and absolute compliance with the plan for grain collection. The Council of People’s Commissars and the Central Committee resolve: To place the following villages on the black list for overt disruption of the grain collection plan and for malicious sabotage, organized by kulak and counterrevolutionary elements: 1. village of Verbka in Pavlograd raion, Dnepropetrovsk oblast. 5. village of Sviatotroitskoe in Troitsk raion, Odessa oblast. 6. village of Peski in Bashtan raion, Odessa oblast. The following measures should be undertaken with respect to these villages: 1. Immediate cessation of delivery of goods, complete suspension of cooperative and state trade in the villages, and removal of all available goods from cooperative and state stores. 2. Full prohibition of collective farm trade for both collective farms and collective farmers, and for private farmers. 3. Cessation of any sort of credit and demand for early repayment of credit and other financial obligations. 4. Investigation and purge of all sorts of foreign and hostile elements from cooperative and state institutions, to be carried out by organs of the Workers and Peasants Inspectorate.

5. Investigation and purge of collective farms in these villages, with removal of counterrevolutionary elements and organizers of grain collection disruption. The Council of People’s Commissars and the Central Committee call upon all collective and private farmers who are honest and dedicated to Soviet rule to organize all their efforts for a merciless struggle against kulaks and their accomplices in order to: defeat in their villages the kulak sabotage of grain collection; fulfill honestly and conscientiously their grain collection obligations to the Soviet authorities; and strengthen collective farms. CHAIRMAN OF THE COUNCIL OF PEOPLE’S COMMISSARS OF THE UKRAINIAN SOVIET SOCIALIST REPUBLIC – V. CHUBAR’. SECRETARY OF THE CENTRAL COMMITTEE OF THE COMMUNIST PARTY (BOLSHEVIK) OF UKRAINE – S. KOSIOR. 6 December 1932.

UN General Assembly Resolution on Genocide Available from http://www.un.org/documents/ga/res/1/ ares1.htm.


General Assembly Resolution 96(I) elevated the term genocide, first proposed by Raphael Lemkin in a scholarly work published two years earlier, to an internationally recognized crime. Resolution 96(I) mandated the United Nations to prepare a convention on the subject, and this process was completed two years later, in December 1948. The Resolution was initially proposed by Cuba, India, and Panama, who expressed their frustration with the definition of crimes against humanity used at Nuremberg. They argued that such serious atrocities should be punishable in peacetime as well as during war. Moreover, they urged the principle of universal jurisdiction over genocide, allowing its prosecution even by states with no direct link to the crime through either territory or nationality. The Resolution eliminated the troubling limitation to armed conflict that had been applied at Nuremberg, but failed to endorse the principle of universal jurisdiction. For reasons that remain obscure, the definition of genocide included political groups, but this was subsequently removed in the 1948 Convention.


Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of man-



Whitaker Report on Genocide, 1985

kind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United nations. Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part. The punishment of the crime of genocide is a matter of international concern. The General Assembly, therefore, Affirms that genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices — whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds — are punishable; Invites the Member States to enact the necessary legislation for the prevention and punishment of this crime; Recommends that international co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end, Requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly. Fifty-fifth plenary meeting, 11 December 1946.

Whitaker Report on Genocide, 1985 Prevent Genocide International. Available from http:// www.preventgenocide.org/prevent/UNdocs/whitaker/.


There have been two major United Nation documents on genocide, the Ruhashyankiko report of 1978 and the Whitaker report of 1985. Both are major studies of genocide from the standpoint of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (presently the Sub-Commission on Promotion and Protection of Human Rights), with the second report intended as a corrective to the former. Due to political pressure, the Ruhashyankiko report had been forced to delete any mention of the Armenian genocide. The Whitaker report, in contrast, concluded that the Armenian massacres had constituted genocide. The official cites for the reports are: Nicodeme Ruhashyankiko, “Report to the UN SubCommission on Prevention of Discrimination and Protection of National Minorities: Study of the Question of the Prevention and Punishment of the Crime of Genocide” (E/CN.4/ Sub. 2/416, 4 July 1978), 186 pages; Ben Whitaker, “Re-

vised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide” (E/CN.4/ Sub. 2/416/1985/6, 2 July 1985), 62 pages.

The Report on genocide prepared by Ben Whitaker in 1985, for what is now called the United Nations SubCommission on the Promotion and Protection of Human Rights is one of the major contributions to the evolving law in this area. The Sub-Commission is an expert body which operates very much as a ‘think tank’ for the Commission on Human Rights. In the early 1970s, it mandated Nicodeme Ruhashyankiko to prepare a study on genocide that was to focus on the application and interpretation of the 1948 Convention. Ruhashyankiko’s final report, presented in 1979, was very controversial because he had buckled to Turkish pressure and removed all references to the genocide of the Armenians. Subsequently, the Sub-Commission appointed Whitaker to prepare a revised and updated version, that rectified the omission of the Armenian genocide and also made many other innovative proposals. Whitaker’s suggestion that the reference in the definition of genocide to destruction of a group ‘in whole or in part’ might refer not only to a numerically substantial proportion of the group, but also to a ‘significant’ part of the group, such as its intellectual, political or religious and cultural leadership, has been endorsed in subsequent judicial decisions. PART I: HISTORICAL SURVEY

A. The crime of genocide and the purpose of this study 14. Genocide is the ultimate crime and the gravest violation of human rights it is possible to commit. Consequently, it is difficult to conceive of a heavier responsibility for the international community and the Human Rights bodies of the United Nations than to undertake any effective steps possible to prevent and punish genocide in order to deter its recurrence.



15. It has rightly been said that those people who do not learn from history, are condemned to repeat it. This belief underpins much of the Human Rights work of the United Nations. In order to prescribe the optimal remedies to prevent future genocide, it can be of positive assistance to diagnose past cases in order to analyse their causation together with such lessons as the international community may learn from the history of these events. 16. Genocide is a constant threat to peace, and it is essential to exercise the greatest responsibility when discussing a subject so emotive. It is certainly not the intention of this Study in anyway to comment on poli-


Whitaker Report on Genocide, 1985

tics or to awaken bitterness or feelings of revenge. The purpose and hope of this Study is exactly the opposite: to deter future violence by strengthening collective international responsibility and remedies. It would undermine this purpose, besides violating historical truth as well as the integrity of United Nations Studies, were anybody guilty of genocide to believe that international concern might be averted or historical records changed because of political or other pressure. If such an attempt were to succeed, that would serve to encourage those in the future who may be contemplating similar crimes. Equally, it is necessary to warn that nothing in these historical events should be used to provide an excuse for further violence or vendettas: this Study is a warning directed against violence. Its object is to deter terrorism or killing of whatever scale, and to encourage understanding and reconciliation. The scrutiny of world opinion and an honest recognition of the truth about painful past events have been the starting point for a foundation of reconciliation, with, for example, post-war Germany, which will help to make the future more secure for humanity.

B. The concept of genocide 17. Amongst all human rights, the primacy of the right to life is unanimously agreed to be pre-eminent and essential: it is the sine qua non, for all other human rights (apart from that to one’s posthumous reputation) depend for their potential existence on the preservation of human life. Every right can also only survive as a consequence of the exercise of responsibilities. The right of a person or people not to be killed or avoidably left to die depends upon the reciprocal duty of other people to render protection and help to avert this. The concept of this moral responsibility and interdependence in human society has in recent times received increasing international recognition and affirmation. In cases of famine in other countries, for example, the States parties to the International Covenant on Economic, Social and Cultural Rights in “recognizing the fundamental right of everyone to be free from hunger” have assumed responsibility to take “individually and through international co-operation” the measures required “to ensure an equitable distribution of world food supplies in relation to need”.(1) The core of the right not to [Page 6] starve to death is a corollary of the right not to be killed, concerning which the duty of safeguarding life is recognized to extend not just to the individual’s or group’s own Government but to the international community as well. 18. More serious problems arise when the body responsible for threatening and causing death is — or is in complicity with — a State itself.(2) The potential victims in such cases need to turn individually and col-

lectively for protection not to, but from, their own Government. Groups subject to extermination have a right to receive something more helpful than tears and condolences from the rest of the world. Action under the Charter of the United Nations is indeed specifically authorized by the Convention on the Prevention and Protection of the Crime of Genocide, and might as appropriate be directed for example to the introduction of United Nations trusteeship. States have an obligation, besides not to commit genocide, in addition to prevent and punish violations of the crime by others; and in cases of failure in this respect too, the 1948 Convention recognizes that intervention may be justified to prevent or suppress such acts and to punish those responsible “whether they are constitutionally responsible rulers, public officials or private individuals”. 19. The Convention on Genocide was unanimously adopted by the United Nations General Assembly on 9 December 1948, and therefore preceded albeit by one day the Universal Declaration of Human Rights itself. While the word “genocide” is a comparatively recent neologism for an old crime,(3) the Convention’s preamble notes that “at all periods of history genocide has inflicted great losses on humanity, and being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required”. 20. Throughout recorded human history, war has been the predominant cause or pretext for massacres of national, ethnic, racial or religious groups. War in ancient and classical eras frequently aimed to exterminate if not enslave other peoples. Religious intolerance could also be a predisposing factor: in [Page 7] religious wars of the Middle Ages as well as in places in the Old Testament, some genocide was sanctioned by Holy Writ. The twentieth century equally has seen examples of “total wars” involving the destruction of civilian populations and which the development of nuclear weapons makes an almost inevitable matrix for future major conflicts. In the nuclear era, indeed the logical conclusion of this may be “omnicide”. 21. Genocide, particularly of indigenous peoples, has also often occurred as a consequence of colonialism, with racism and ethnic prejudice commonly being predisposing factors. In some cases occupying forces maintained their authority by the terror of a perpetual threat of massacre.(5) Examples could occur either at home or overseas: the English for example massacred native populations in Ireland, Scotland and Wales in order to deter resistance and to “clear” land for seizure, and the British also almost wholly exterminated the indigenous people when colonizing Tasmania as late as the start of the nineteenth century. Africa, Australasia and the Americas witnessed numerous other examples.



Whitaker Report on Genocide, 1985

The effect of genocide can be achieved in different ways: today, insensitive economic exploitation can threaten the extinction of some surviving indigenous peoples. 22. But genocide, far from being only a matter of historical study, is an aberration which also is a modern danger to civilization. No stronger evidence that the problem of genocide has — far from receding — grown in contemporary relevance is required than the fact that the gravest documented example of this crime is among the most recent, and furthermore occurred in the socalled developed world. Successive advances in killingpower underline that the need for international action against genocide is now more urgent than ever. It has been estimated that the Nazi holocaust in Europe slaughtered some 6 million Jews, 5 million Protestants, 3 million Catholics and half a million Gypsies. This was the product not of international warfare, but a calculated State political policy of mass murder that has been termed “a structural and systematic destruction of innocent people by a State bureaucratic apparatus”.(6) The Nazi intention to destroy particular human nations, races, religions, sexual groups, classes and political opponents as a premeditated plan was manifested before the Second World War. The war later offered the Nazi German leaders an opportunity to extend this policy from their own country to the peoples of occupied Poland, parts of the Soviet Union and elsewhere, with an intention of Germanizing their territories. The “final solution” included (as evidenced at the Nuremberg trial), “delayed-action genocide” aimed at destroying groups’ biological future through sterilization, castration, abortion, and the forcible transfer of their [Page 8] children.(7) The term genocide, with also its concept as an international crime, was first used officially at the subsequent International Tribunal at Nuremberg. The indictment of 8 October 1945 of the major German war criminals charged that the defendant had: “conducted deliberate” (8) The concluding speech by the British Prosecutor stated that: “Genocide was not restricted to extermination of the” (9) 23. The present two German Governments have been unflinching in their acknowledgment and condemnation of these guilty events, in their efforts to guard against any repetition of them or of Nazism. The Government of the Federal Republic of Germany had stated that official action will be taken, without the need for complaint from any member of the public, to prosecute people who seek to deny the truth about the Nazi crimes. President von Weizsacker in a forthright recent speech to the Bundestag made clear his belief that his countrymen must have known during the war [1218]

of the fate of the Jews: “The genocide of the Jews is without example in history . . . at the end of the war, the whole unspeakable truth of the holocaust emerged. Too many said they knew nothing, or had only an inkling of it. There is no guilt or innocence of a whole people because guilt, like innocence, is not collective but individual. All those who lived through that time with full awareness should ask themselves today, quietly, about their involvement.”(10) 24. Toynbee stated that the distinguishing characteristics of the twentieth century in evolving the development of genocide “are that it is committed in cold blood by the deliberate fiat of holders of despotic political power, and that the perpetrators of genocide employ all the resources of present-day technology and organization to make their planned massacres systematic and complete”. (11) The Nazi aberration has unfortunately not been the only case of genocide in the twentieth century. Among other examples which can be cited as qualifying are the German massacre of Hereros in 1904, (12) the Ottoman massacre of Armenians in 1915–1916, (13) the Ukrainian pogrom of Jews in 1919, (14) the Tutsi massacre of Hutu in Burundi in 1965 and 1972, (15) the Paraguayan massacre of Ache Indians prior to 1974, (16) the Khmer Rouge massacre in Kampuchea between 1975 and 1978, (17) and the contemporary Iranian killings of Baha’is. (18) Apartheid is considered separately in paragraphs 43–46 below. A number of other cases may be suggested. It could seem pedantic to argue that some terrible masskillings are legalistically not genocide, but on the other hand it could be counter-productive to devalue genocide through over-diluting its definition.


D. Conclusions 91. The reforms recommended will, like most things worthwhile in human progress, not be easy. They would however be the best living memorial to all the past victims of genocide. To do nothing, by contrast, would be to invite responsibility for helping cause future victims.

PART IV: LIST OF RECOMMENDATIONS 92. The principal recommendations of the present Special Rapporteur are contained in paragraphs 50, 55, 57, 41, 55, 54, 64, 70, 79, 80, 81, 82, 83–84, 85, 86–8), 90 and 91 supra.


Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

international texts Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment The Avalon Project at Yale Law School. Available from http://www.yale.edu/lawweb/avalon/avalon.htm


This treaty was adopted by the UN General Assembly on December 10, 1974 and is designed to prevent and punish torture when committed with the involvement of public officials, whether directly acting or acquiescing or condoning the acts when committed by private parties. The Convention adds to international law by defining precisely the act of torture and setting forth the obligations of states parties to combat it. The Convention declares expressly that there are “no exceptional circumstances whatsoever” that would justify torture and that no orders from superior officers may provide a justification. The Convention also sets forth a set of measures and institutions at the international level to supervise compliance by states with the legal obligations contained in the agreement.


The States Parties to this Convention, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that those rights derive from the inherent dignity of the human person, Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms, Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment, Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975 (resolution 3452 (XXX)), Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world, Have agreed as follows:

Part I

Article 1 1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 2 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 3 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 4 1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.



Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Article 5 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

(b) When the alleged offender is a national of that State; (c) When the victim os a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures aa may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article. 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

Article 6 1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted. 2. Such State shall immediately make a preliminary inquiry into the facts. 3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, to the representative of the State where he usually resides. 4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction.

Article 7 1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence [1220]

3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.

Article 8 1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them. 2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offenses. Extradition shall be subject to the other conditions provided by the law of the requested State. 3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested state. 4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1.

Article 9 1. States Parties shall afford one another the greatest measure of assistance in connection with civil proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings. 2. States Parties shall carry out their obligations under paragraph 1 of this article in conformity with any treaties on mutual judicial assistance that may exist between them.


Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Article 10 1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. 2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons.

Article 11 Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture. Article 12 Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction. Article 13 Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given. Article 14 1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation. 2. Nothing in this article shall affect any right of the victim or other person to compensation which may exist under national law.

Article 15 Each State Party shall ensure that any statement which is established to have been made as a result of

torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

Article 16 1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment. 2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion. Part II Article 17 1. There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of 10 experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience. 2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and are willing to serve on the Committee against Torture. 3. Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. 4. The initial election shall be held no later than six months after the date of the entry into force of this



Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties. 5. The members of the Committee shall be elected for a term of four years. They shall be eligible for reelection if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3. 6. If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him shall appoint another expert from among its nationals to serve for the remainder of his term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment. 7. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties.

Article 18 1. The Committee shall elect its officers for a term of two years. They may be re-elected. 2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that (a) Six members shall constitute a quorum; (b) Decisions of the Committee shall be made by a majority vote of the members present. 3. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention. 4. The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure. 5. The State Parties shall be responsible for expenses incurred in connection with the holding of meetings of the States Parties and of the Committee, including reimbursement of the United Nations for any [1222]

expenses, such as the cost of staff and facilities, incurred by the United Nations pursuant to paragraph 3 above.

Article 19 1. The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of this Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken, and such other reports as the Committee may request. 2. The Secretary-General shall transmit the reports to all States Parties. [3. Each report shall be considered by the Committee which may make such comments or suggestions on the report as it considers appropriate, and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee. 4. The Committee may, at its discretion, decide to include any comments or suggestions made by it in accordance with paragraph 3, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph 1.]

Article 20 1. If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned. 2. Taking into account any observations which may have been submitted by the State Party concerned as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently. 3. If an inquiry is made in accordance with paragraph 2, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State Party, such an inquiry may include a visit to its territory. 4. After examining the findings of its member or members submitted in accordance with paragraph 2,


Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

the Committee shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation. 5. All the proceedings of the Committee referred to in paragraphs 1 to 4 of this article shall be confidential, and at all stages of the proceedings the cooperation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24.

Article 21 1. A State Party to this Convention may at any time declare under this article 3 that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:

with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention. (d) The Committee shall hold closed meetings when examining communications under this article. (e) Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in the present Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission. (f) In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information. (g) The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing. (h) The Committee shall, within 12 months after the date of receipt of notice under subparagraph (b), submit a report.

(a) If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, references to domestic procedures and remedies taken, pending, or available in the matter.

(i) If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached.

(b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee by notice given to the Committee and to the other State.

2. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already trans-

(c) The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity

(ii) If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. In every matter, the report shall be communicated to the States Parties concerned.



Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

mitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

Article 22 1. A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party to the Convention which has not made such a declaration. 2. The Committee shall consider inadmissible any communication under this article which is anonymous, or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention. 3. Subject to the provisions of paragraph 2, the Committee shall bring any communication submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph 1 and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. 4. The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned. 5. The Committee shall not consider any communication from an individual under this article unless it has ascertained that: (a) The same matter has not been, and is not being examined under another procedure of international investigation or settlement; (b) The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention. 6. The Committee shall hold closed meetings when examining communications under this article. 7. The Committee shall forward its views to the State Party concerned and to the individual. 8. The provisions of this article shall come into force when five States Parties to this Convention have [1224]

made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit parties thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

Article 23 The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under article 21, paragraph 1 (e), shall be entitled to the facilities, privileges and immunities of experts on missions for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations. Article 24 The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations. Part III

Article 25 1. This Convention is open for signature by all States. 2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 26 This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations. Article 27 1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession. 2. For each State ratifying this Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession.


Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Article 28 1. Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20. 2. Any State Party having made a reservation in accordance with paragraph 1 of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations.

Article 29 1. Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to this Convention with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the State Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance. 2. An amendment adopted in accordance with paragraph 1 shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes. 3. When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted.

Article 30 1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court. 2. Each State may at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound by the preceding

paragraph. The other States Parties shall not be bound by the preceding paragraph with respect to any State Party having made such a reservation. 3. Any State Party having made a reservation in accordance with the preceding paragraph may at any time withdraw this reservation by notification to the Secretary-General of the United Nations.

Article 31 1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General. 2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective. Nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective. 3. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State.

Article 32 The Secretary-General of the United Nations shall inform all members of the United Nations and all States which have signed this Convention or acceded to it, or the following particulars: (a) Signatures, ratifications and accessions under articles 25 and 26; (b) The date of entry into force of this Convention under article 27, and the date of the entry into force of any amendments under article 29; (c) Denunciations under article 31.

Article 33 1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. 2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States. On February 4, 1985, the Convention was opened for signature at United Nations Headquarters in New York. At that time, representatives of the following countries signed it: Afghanistan, Argentina, Belgium,



Convention on the Prevention and Punishment of the Crime of Genocide; December 9, 1948

Bolivia, Costa Rica, Denmark, Dominican Republic, Finland, France, Greece, Iceland, Italy, Netherlands, Norway, Portugal, Senegal, Spain, Sweden, Switzerland and Uruguay. Subsequently, signatures were received from Venezuela on February 15, from Luxembourg and Panama on February 22, from Austria on March 14, and from the United Kingdom on March 15, 1985.

Convention on the Prevention and Punishment of the Crime of Genocide; December 9, 1948 The Avalon Project at Yale Law School. Available from http://www.yale.edu/lawweb/avalon/avalon.htm


The Genocide Convention was adopted by the General Assembly of the United Nations on 9 December 1948, only hours before it passed the Universal Declaration of Human Rights. Its preparation had been mandated by the General Assembly in Resolution 96(I), which was adopted two years earlier. Although there were several stages in its preparation, most of the detailed work, and the final decisions, was carried out by the Sixth Committee of the General Assembly in late 1948. After its adoption, the Convention soon obtained the requisite twenty ratifications for its entry into force, which occurred in early 1951. The definition of genocide in article II is a narrow one, and for this reason it has frequently been criticized. Nevertheless, both international bodies and national lawmakers have been loathe to tamper with it. Article II is repeated verbatim in many treaties, as well as in the criminal codes of many countries.


Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948. The Contracting Parties, Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world; Recognizing that at all periods of history genocide has inflicted great losses on humanity; and Being convinced that, in order to liberate mankind from such an odious scourge, international cooperation is required; Hereby agree as hereinafter provided. Art. 1. The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. [1226]

Art. 2. 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; (e) Forcibly transferring children of the group to another group. Art. 3. The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide. Art. 4. Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. Art. 5. The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article 3. Art. 6. Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction. Art. 7. Genocide and the other acts enumerated in Article 3 shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force. Art. 8. Any Contracting Party may call upon the competent organs of the United Nations to take such action


Convention on the Prevention and Punishment of the Crime of Genocide; December 9, 1948

under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article 3. Art. 9. Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article 3, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. Art. 10. The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948. Art. 11. The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly. The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations. After 1 January 1950, the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations. Art. 12. Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible. Art. 13. On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a process-verbal and transmit a copy of it to each Member of the United Nations and to each of the non-member States contemplated in Article 11. The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession. Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth

day following the deposit of the instrument of ratification or accession. Art. 14. The present Convention shall remain in effect for a period of ten years as from the date of its coming into force. It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period. Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations. Art. 15. If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective. Art. 16. A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General. The General Assembly shall decide upon the steps, if any, to be taken in respect of such request. Art. 17. The Secretary-General of the United Nations shall notify all Members of the United Nations and the nonmember States contemplated in Article 11 of the following: (a) Signatures, ratifications and accessions received in accordance with Article 11; (b) Notifications received in accordance with Article 12; (c) The date upon which the present Convention comes into force in accordance with Article 13; (d) Denunciations received in accordance with Article 14; (e) The abrogation of the Convention in accordance with Article 15; (f) Notifications received in accordance with Article 16. Art. 18. The original of the present Convention shall be deposited in the archives of the United Nations. A certified copy of the Convention shall be transmitted to all Members of the United Nations and to the non-member States contemplated in Article 11.



Geneva Convention IV: Civilian Persons in Time of War (August 12, 1949)

Art. 19. The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

Art. 2. In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

Geneva Convention IV: Civilian Persons in Time of War (August 12, 1949)

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

The Avalon Project at Yale Law School. Available from http://www.yale.edu/lawweb/avalon/avalon.htm


The four Geneva Conventions were adopted on August 12, 1949. For many years, they have enjoyed nearuniversal ratification, and they are often spoken of as a codification of customary international law. The other three conventions deal with different categories of war victims, namely the wounded on land (I), the wounded at sea (II) and prisoners of war (III). The first Convention was inspired by a Swiss businessman, Henry Dunant, in the midnineteenth century. The fundamental principle underlying Convention IV is that when a territory is occupied during an international armed conflict, civilians are to be protected from abuse and persecution. The Convention provides only limited coverage to noninternational armed conflicts, or civil wars, although this shortcoming was partially rectified in a protocol to the Convention adopted in 1977.


CONVENTION (IV) RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR Signed at Geneva, 12 August 1949 Table of Contents Part I. General Provisions Part II. General Protection of Populations against certain consequences of war Part III. Status and Treatment of Protected Persons Part IV. Execution of the Convention Annex I: Draft Agreement relating to Hospital and Safety Zones and Localities Annex II: Draft Regulations concerning Collective Relief Annex III: Cards Correspondence [not included] The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from 21 April to 12 August 1949, for the purpose of establishing a Convention for the Protection of Civilians in Time of War, have agreed as follows: PART I GENERAL PROVISIONS Article 1. The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances. [1228]

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner what-


Geneva Convention IV: Civilian Persons in Time of War (August 12, 1949)

soever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. The provisions of Part II are, however, wider in application, as defined in Article 13. Persons protected by the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, shall not be considered as protected persons within the meaning of the present Convention. Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State. Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention. In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be. Art. 6. The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2. In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations.

In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, 143. Protected persons whose release, repatriation or re-establishment may take place after such dates shall meanwhile continue to benefit by the present Convention. Art. 7. In addition to the agreements expressly provided for in Articles 11, 14, 15, 17, 36, 108, 109, 132, 133 and 149, the High Contracting Parties may conclude other special agreements for all matters concerning which they may deem it suitable to make separate provision. No special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, not restrict the rights which it confers upon them. Protected persons shall continue to have the benefit of such agreements as long as the Convention is applicable to them, except where express provisions to the contrary are contained in the aforesaid or in subsequent agreements, or where more favourable measures have been taken with regard to them by one or other of the Parties to the conflict. Art. 8. Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be. Art. 9. The present Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power with which they are to carry out their duties. The Parties to the conflict shall facilitate to the greatest extent possible the task of the representatives or delegates of the Protecting Powers. The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under the present Convention. They shall, in particular, take account of the imperative necessities of security of the State wherein they carry out their duties. Art. 10. The provisions of the present Convention constitute no obstacle to the humanitarian activities



Geneva Convention IV: Civilian Persons in Time of War (August 12, 1949)

which the International Committee of the Red Cross or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of civilian persons and for their relief.

of disagreement between the Parties to the conflict as to the application or interpretation of the provisions of the present Convention, the Protecting Powers shall lend their good offices with a view to settling the disagreement.

Art. 11. The High Contracting Parties may at any time agree to entrust to an international organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present Convention.

For this purpose, each of the Protecting Powers may, either at the invitation of one Party or on its own initiative, propose to the Parties to the conflict a meeting of their representatives, and in particular of the authorities responsible for protected persons, possibly on neutral territory suitably chosen. The Parties to the conflict shall be bound to give effect to the proposals made to them for this purpose. The Protecting Powers may, if necessary, propose for approval by the Parties to the conflict a person belonging to a neutral Power, or delegated by the International Committee of the Red Cross, who shall be invited to take part in such a meeting.

When persons protected by the present Convention do not benefit or cease to benefit, no matter for what reason, by the activities of a Protecting Power or of an organization provided for in the first paragraph above, the Detaining Power shall request a neutral State, or such an organization, to undertake the functions performed under the present Convention by a Protecting Power designated by the Parties to a conflict. If protection cannot be arranged accordingly, the Detaining Power shall request or shall accept, subject to the provisions of this Article, the offer of the services of a humanitarian organization, such as the International Committee of the Red Cross, to assume the humanitarian functions performed by Protecting Powers under the present Convention. Any neutral Power or any organization invited by the Power concerned or offering itself for these purposes, shall be required to act with a sense of responsibility towards the Party to the conflict on which persons protected by the present Convention depend, and shall be required to furnish sufficient assurances that it is in a position to undertake the appropriate functions and to discharge them impartially. No derogation from the preceding provisions shall be made by special agreements between Powers one of which is restricted, even temporarily, in its freedom to negotiate with the other Power or its allies by reason of military events, more particularly where the whole, or a substantial part, of the territory of the said Power is occupied. Whenever in the present Convention mention is made of a Protecting Power, such mention applies to substitute organizations in the sense of the present Article. The provisions of this Article shall extend and be adapted to cases of nationals of a neutral State who are in occupied territory or who find themselves in the territory of a belligerent State in which the State of which they are nationals has not normal diplomatic representation. Art. 12. In cases where they deem it advisable in the interest of protected persons, particularly in cases [1230]


GENERAL PROTECTION OF POPULATIONS AGAINST CERTAIN CONSEQUENCES OF WAR Art. 13. The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war. Art. 14. In time of peace, the High Contracting Parties and, after the outbreak of hostilities, the Parties thereto, may establish in their own territory and, if the need arises, in occupied areas, hospital and safety zones and localities so organized as to protect from the effects of war, wounded, sick and aged persons, children under fifteen, expectant mothers and mothers of children under seven. Upon the outbreak and during the course of hostilities, the Parties concerned may conclude agreements on mutual recognition of the zones and localities they have created. They may for this purpose implement the provisions of the Draft Agreement annexed to the present Convention, with such amendments as they may consider necessary. The Protecting Powers and the International Committee of the Red Cross are invited to lend their good offices in order to facilitate the institution and recognition of these hospital and safety zones and localities. Art. 15. Any Party to the conflict may, either direct or through a neutral State or some humanitarian organization, propose to the adverse Party to establish, in the regions where fighting is taking place, neutralized zones intended to shelter from the effects of war the following persons, without distinction: (a) wounded and


Geneva Convention IV: Civilian Persons in Time of War (August 12, 1949)

sick combatants or non-combatants; (b) civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character. When the Parties concerned have agreed upon the geographical position, administration, food supply and supervision of the proposed neutralized zone, a written agreement shall be concluded and signed by the representatives of the Parties to the conflict. The agreement shall fix the beginning and the duration of the neutralization of the zone. Art. 16. The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect. As far as military considerations allow, each Party to the conflict shall facilitate the steps taken to search for the killed and wounded, to assist the shipwrecked and other persons exposed to grave danger, and to protect them against pillage and ill-treatment. Art. 17. The Parties to the conflict shall endeavour to conclude local agreements for the removal from besieged or encircled areas, of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions, medical personnel and medical equipment on their way to such areas. Art. 18. Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack but shall at all times be respected and protected by the Parties to the conflict. States which are Parties to a conflict shall provide all civilian hospitals with certificates showing that they are civilian hospitals and that the buildings which they occupy are not used for any purpose which would deprive these hospitals of protection in accordance with Article 19. Civilian hospitals shall be marked by means of the emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, but only if so authorized by the State. The Parties to the conflict shall, in so far as military considerations permit, take the necessary steps to make the distinctive emblems indicating civilian hospitals clearly visible to the enemy land, air and naval forces in order to obviate the possibility of any hostile action. In view of the dangers to which hospitals may be exposed by being close to military objectives, it is recommended that such hospitals be situated as far as possible from such objectives. Art. 19. The protection to which civilian hospitals are entitled shall not cease unless they are used to com-

mit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded. The fact that sick or wounded members of the armed forces are nursed in these hospitals, or the presence of small arms and ammunition taken from such combatants which have not yet been handed to the proper service, shall not be considered to be acts harmful to the enemy. Art. 20. Persons regularly and solely engaged in the operation and administration of civilian hospitals, including the personnel engaged in the search for, removal and transporting of and caring for wounded and sick civilians, the infirm and maternity cases shall be respected and protected. In occupied territory and in zones of military operations, the above personnel shall be recognizable by means of an identity card certifying their status, bearing the photograph of the holder and embossed with the stamp of the responsible authority, and also by means of a stamped, water-resistant armlet which they shall wear on the left arm while carrying out their duties. This armlet shall be issued by the State and shall bear the emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949. Other personnel who are engaged in the operation and administration of civilian hospitals shall be entitled to respect and protection and to wear the armlet, as provided in and under the conditions prescribed in this Article, while they are employed on such duties. The identity card shall state the duties on which they are employed. The management of each hospital shall at all times hold at the disposal of the competent national or occupying authorities an up-to-date list of such personnel. Art. 21. Convoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying wounded and sick civilians, the infirm and maternity cases, shall be respected and protected in the same manner as the hospitals provided for in Article 18, and shall be marked, with the consent of the State, by the display of the distinctive emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949. Art. 22. Aircraft exclusively employed for the removal of wounded and sick civilians, the infirm and maternity cases or for the transport of medical personnel and equipment, shall not be attacked, but shall be respected while flying at heights, times and on routes



Geneva Convention IV: Civilian Persons in Time of War (August 12, 1949)

specifically agreed upon between all the Parties to the conflict concerned. They may be marked with the distinctive emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949. Unless agreed otherwise, flights over enemy or enemy occupied territory are prohibited. Such aircraft shall obey every summons to land. In the event of a landing thus imposed, the aircraft with its occupants may continue its flight after examination, if any. Art. 23. Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases. The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing: (a) that the consignments may be diverted from their destination, (b) that the control may not be effective, or (c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods. The Power which allows the passage of the consignments indicated in the first paragraph of this Article may make such permission conditional on the distribution to the persons benefited thereby being made under the local supervision of the Protecting Powers. Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free passage shall have the right to prescribe the technical arrangements under which such passage is allowed. Art. 24. The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that their maintenance, the exercise of their religion and their education are facilitated in all circumstances. Their education shall, as far as possible, be entrusted to persons of a similar cultural tradition. The Parties to the conflict shall facilitate the reception of such children in a neutral country for the dura[1232]

tion of the conflict with the consent of the Protecting Power, if any, and under due safeguards for the observance of the principles stated in the first paragraph. They shall, furthermore, endeavour to arrange for all children under twelve to be identified by the wearing of identity discs, or by some other means. Art. 25. All persons in the territory of a Party to the conflict, or in a territory occupied by it, shall be enabled to give news of a strictly personal nature to members of their families, wherever they may be, and to receive news from them. This correspondence shall be forwarded speedily and without undue delay. If, as a result of circumstances, it becomes difficult or impossible to exchange family correspondence by the ordinary post, the Parties to the conflict concerned shall apply to a neutral intermediary, such as the Central Agency provided for in Article 140, and shall decide in consultation with it how to ensure the fulfilment of their obligations under the best possible conditions, in particular with the cooperation of the National Red Cross (Red Crescent, Red Lion and Sun) Societies. If the Parties to the conflict deem it necessary to restrict family correspondence, such restrictions shall be confined to the compulsory use of standard forms containing twenty-five freely chosen words, and to the limitation of the number of these forms dispatched to one each month. Art. 26. Each Party to the conflict shall facilitate enquiries made by members of families dispersed owing to the war, with the object of renewing contact with one another and of meeting, if possible. It shall encourage, in particular, the work of organizations engaged on this task provided they are acceptable to it and conform to its security regulations. PART III

STATUS AND TREATMENT OF PROTECTED PERSONS SECTION I Provisions Common to the Territories of the Parties to the Conflict and to Occupied Territories Art. 27. Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.


Geneva Convention IV: Civilian Persons in Time of War (August 12, 1949)

Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war. Art. 28. The presence of a protected person may not be used to render certain points or areas immune from military operations. Art. 29. The Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred. Art. 30. Protected persons shall have every facility for making application to the Protecting Powers, the International Committee of the Red Cross, the National Red Cross (Red Crescent, Red Lion and Sun) Society of the country where they may be, as well as to any organization that might assist them. These several organizations shall be granted all facilities for that purpose by the authorities, within the bounds set by military or security considerations. Apart from the visits of the delegates of the Protecting Powers and of the International Committee of the Red Cross, provided for by Article 143, the Detaining or Occupying Powers shall facilitate, as much as possible, visits to protected persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons. Art. 31. No physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties. Art. 32. The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents. Art. 33. No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are prohibited.

Art. 34. The taking of hostages is prohibited.

SECTION II Aliens in the Territory of a Party to the Conflict Art. 35. All protected persons who may desire to leave the territory at the outset of, or during a conflict, shall be entitled to do so, unless their departure is contrary to the national interests of the State. The applications of such persons to leave shall be decided in accordance with regularly established procedures and the decision shall be taken as rapidly as possible. Those persons permitted to leave may provide themselves with the necessary funds for their journey and take with them a reasonable amount of their effects and articles of personal use. If any such person is refused permission to leave the territory, he shall be entitled to have refusal reconsidered, as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. Upon request, representatives of the Protecting Power shall, unless reasons of security prevent it, or the persons concerned object, be furnished with the reasons for refusal of any request for permission to leave the territory and be given, as expeditiously as possible, the names of all persons who have been denied permission to leave. Art. 36. Departures permitted under the foregoing Article shall be carried out in satisfactory conditions as regards safety, hygiene, sanitation and food. All costs in connection therewith, from the point of exit in the territory of the Detaining Power, shall be borne by the country of destination, or, in the case of accommodation in a neutral country, by the Power whose nationals are benefited. The practical details of such movements may, if necessary, be settled by special agreements between the Powers concerned. The foregoing shall not prejudice such special agreements as may be concluded between Parties to the conflict concerning the exchange and repatriation of their nationals in enemy hands. Art. 37. Protected persons who are confined pending proceedings or subject to a sentence involving loss of liberty, shall during their confinement be humanely treated. As soon as they are released, they may ask to leave the territory in conformity with the foregoing Articles. Art. 38. With the exception of special measures authorized by the present Convention, in particularly by Article 27 and 41 thereof, the situation of protected persons shall continue to be regulated, in principle, by



Geneva Convention IV: Civilian Persons in Time of War (August 12, 1949)

the provisions concerning aliens in time of peace. In any case, the following rights shall be granted to them: (1) they shall be enabled to receive the individual or collective relief that may be sent to them. (2) they shall, if their state of health so requires, receive medical attention and hospital treatment to the same extent as the nationals of the State concerned. (3) they shall be allowed to practise their religion and to receive spiritual assistance from ministers of their faith. (4) if they reside in an area particularly exposed to the dangers of war, they shall be authorized to move from that area to the same extent as the nationals of the State concerned. (5) children under fifteen years, pregnant women and mothers of children under seven years shall benefit by any preferential treatment to the same extent as the nationals of the State concerned. Art. 39. Protected persons who, as a result of the war, have lost their gainful employment, shall be granted the opportunity to find paid employment. That opportunity shall, subject to security considerations and to the provisions of Article 40, be equal to that enjoyed by the nationals of the Power in whose territory they are. Where a Party to the conflict applies to a protected person methods of control which result in his being unable to support himself, and especially if such a person is prevented for reasons of security from finding paid employment on reasonable conditions, the said Party shall ensure his support and that of his dependents. Protected persons may in any case receive allowances from their home country, the Protecting Power, or the relief societies referred to in Article 30. Art. 40. Protected persons may be compelled to work only to the same extent as nationals of the Party to the conflict in whose territory they are. If protected persons are of enemy nationality, they may only be compelled to do work which is normally necessary to ensure the feeding, sheltering, clothing, transport and health of human beings and which is not directly related to the conduct of military operations. In the cases mentioned in the two preceding paragraphs, protected persons compelled to work shall have the benefit of the same working conditions and of the same safeguards as national workers in particular as regards wages, hours of labour, clothing and equipment, previous training and compensation for occupational accidents and diseases. If the above provisions are infringed, protected persons shall be allowed to exercise their right of complaint in accordance with Article 30. Art. 41. Should the Power, in whose hands protected persons may be, consider the measures of control [1234]

mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of Articles 42 and 43. In applying the provisions of Article 39, second paragraph, to the cases of persons required to leave their usual places of residence by virtue of a decision placing them in assigned residence, by virtue of a decision placing them in assigned residence, elsewhere, the Detaining Power shall be guided as closely as possible by the standards of welfare set forth in Part III, Section IV of this Convention. Art. 42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary. If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, he shall be interned by the Power in whose hands he may be. Art. 43. Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power. Art. 44. In applying the measures of control mentioned in the present Convention, the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not, in fact, enjoy the protection of any government. Art. 45. Protected persons shall not be transferred to a Power which is not a party to the Convention. This provision shall in no way constitute an obstacle to the repatriation of protected persons, or to their return to their country of residence after the cessation of hostilities.


Geneva Convention IV: Civilian Persons in Time of War (August 12, 1949)

Protected persons may be transferred by the Detaining Power only to a Power which is a party to the present Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the present Convention. If protected persons are transferred under such circumstances, responsibility for the application of the present Convention rests on the Power accepting them, while they are in its custody. Nevertheless, if that Power fails to carry out the provisions of the present Convention in any important respect, the Power by which the protected persons were transferred shall, upon being so notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the protected persons. Such request must be complied with. In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs. The provisions of this Article do not constitute an obstacle to the extradition, in pursuance of extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offences against ordinary criminal law. Art. 46. In so far as they have not been previously withdrawn, restrictive measures taken regarding protected persons shall be cancelled as soon as possible after the close of hostilities. Restrictive measures affecting their property shall be cancelled, in accordance with the law of the Detaining Power, as soon as possible after the close of hostilities.

SECTION III Occupied Territories Art. 47. Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory. Art. 48. Protected persons who are not nationals of the Power whose territory is occupied, may avail themselves of the right to leave the territory subject to the provisions of Article 35, and decisions thereon shall be taken in accordance with the procedure which the Occupying Power shall establish in accordance with the said Article.

Art. 49. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated. The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place. The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand. The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies. Art. 50. The Occupying Power shall, with the cooperation of the national and local authorities, facilitate the proper working of all institutions devoted to the care and education of children. The Occupying Power shall take all necessary steps to facilitate the identification of children and the registration of their parentage. It may not, in any case, change their personal status, nor enlist them in formations or organizations subordinate to it. Should the local institutions be inadequate for the purpose, the Occupying Power shall make arrangements for the maintenance and education, if possible by persons of their own nationality, language and religion, of children who are orphaned or separated from their parents as a result of the war and who cannot be adequately cared for by a near relative or friend. A special section of the Bureau set up in accordance with Article 136 shall be responsible for taking all necessary steps to identify children whose identity is in doubt. Particulars of their parents or other near relatives should always be recorded if available.



Geneva Convention IV: Civilian Persons in Time of War (August 12, 1949)

The Occupying Power shall not hinder the application of any preferential measures in regard to food, medical care and protection against the effects of war which may have been adopted prior to the occupation in favour of children under fifteen years, expectant mothers, and mothers of children under seven years. Art. 51. The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted. The Occupying Power may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country. Protected persons may not be compelled to undertake any work which would involve them in the obligation of taking part in military operations. The Occupying Power may not compel protected persons to employ forcible means to ensure the security of the installations where they are performing compulsory labour. The work shall be carried out only in the occupied territory where the persons whose services have been requisitioned are. Every such person shall, so far as possible, be kept in his usual place of employment. Workers shall be paid a fair wage and the work shall be proportionate to their physical and intellectual capacities. The legislation in force in the occupied country concerning working conditions, and safeguards as regards, in particular, such matters as wages, hours of work, equipment, preliminary training and compensation for occupational accidents and diseases, shall be applicable to the protected persons assigned to the work referred to in this Article. In no case shall requisition of labour lead to a mobilization of workers in an organization of a military or semi-military character. Art. 52. No contract, agreement or regulation shall impair the right of any worker, whether voluntary or not and wherever he may be, to apply to the representatives of the Protecting Power in order to request the said Power’s intervention. All measures aiming at creating unemployment or at restricting the opportunities offered to workers in an occupied territory, in order to induce them to work for the Occupying Power, are prohibited. Art. 53. Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative or[1236]

ganizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations. Art. 54. The Occupying Power may not alter the status of public officials or judges in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them, should they abstain from fulfilling their functions for reasons of conscience. This prohibition does not prejudice the application of the second paragraph of Article 51. It does not affect the right of the Occupying Power to remove public officials from their posts. Art. 55. To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the food and medical supplies of the population; it should, in particular, bring in the necessary foodstuffs, medical stores and other articles if the resources of the occupied territory are inadequate. The Occupying Power may not requisition foodstuffs, articles or medical supplies available in the occupied territory, except for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been taken into account. Subject to the provisions of other international Conventions, the Occupying Power shall make arrangements to ensure that fair value is paid for any requisitioned goods. The Protecting Power shall, at any time, be at liberty to verify the state of the food and medical supplies in occupied territories, except where temporary restrictions are made necessary by imperative military requirements. Art. 56. To the fullest extent of the means available to it, the public Occupying Power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics. Medical personnel of all categories shall be allowed to carry out their duties. If new hospitals are set up in occupied territory and if the competent organs of the occupied State are not operating there, the occupying authorities shall, if necessary, grant them the recognition provided for in Article 18. In similar circumstances, the occupying authorities shall also grant recognition to hospital personnel and transport vehicles under the provisions of Articles 20 and 21. In adopting measures of health and hygiene and in their implementation, the Occupying Power shall take


Geneva Convention IV: Civilian Persons in Time of War (August 12, 1949)

into consideration the moral and ethical susceptibilities of the population of the occupied territory. Art. 57. The Occupying Power may requisition civilian hospitals of hospitals only temporarily and only in cases of urgent necessity for the care of military wounded and sick, and then on condition that suitable arrangements are made in due time for the care and treatment of the patients and for the needs of the civilian population for hospital accommodation. The material and stores of civilian hospitals cannot be requisitioned so long as they are necessary for the needs of the civilian population. Art. 58. The Occupying Power shall permit ministers of religion to give spiritual assistance to the members of their religious communities. The Occupying Power shall also accept consignments of books and articles required for religious needs and shall facilitate their distribution in occupied territory. Art. 59. If the whole or part of the population of an occupied territory is inadequately supplied, the Occupying Power shall agree to relief schemes on behalf of the said population, and shall facilitate them by all the means at its disposal. Such schemes, which may be undertaken either by States or by impartial humanitarian organizations such as the International Committee of the Red Cross, shall consist, in particular, of the provision of consignments of foodstuffs, medical supplies and clothing. All Contracting Parties shall permit the free passage of these consignments and shall guarantee their protection. A Power granting free passage to consignments on their way to territory occupied by an adverse Party to the conflict shall, however, have the right to search the consignments, to regulate their passage according to prescribed times and routes, and to be reasonably satisfied through the Protecting Power that these consignments are to be used for the relief of the needy population and are not to be used for the benefit of the Occupying Power. Art. 60. Relief consignments shall in no way relieve the Occupying Power of any of its responsibilities under Articles 55, 56 and 59. The Occupying Power shall in no way whatsoever divert relief consignments from the purpose for which they are intended, except in cases of urgent necessity, in the interests of the population of the occupied territory and with the consent of the Protecting Power. Art. 61. The distribution of the relief consignments referred to in the foregoing Articles shall be carried out

with the cooperation and under the supervision of the Protecting Power. This duty may also be delegated, by agreement between the Occupying Power and the Protecting Power, to a neutral Power, to the International Committee of the Red Cross or to any other impartial humanitarian body. Such consignments shall be exempt in occupied territory from all charges, taxes or customs duties unless these are necessary in the interests of the economy of the territory. The Occupying Power shall facilitate the rapid distribution of these consignments. A