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The term genocide was first coined in 1944 when Lemkin an advisor to the United States War Department perceived the terms of 'mass murder' and 'war crimes' to be not relevant enough to illustrate and explain what had taken place in Nazi Germany (McLaughlin, 2006 Cited in McLaughlin & Muncie, 2006:183). The term itself is used to describe and refer to behaviour which has the intention of eradicating a national, ethnic, racial or religious group (Gooch & Williams, 2007). The United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948) expands on this further by outlining a number of acts which will constitute genocide if they were committed with the intention of eradicating a group be it in its entirety or in part (Newburn, 2007). These acts include killing the members of the group, causing some form of mental or physical harm on members of the group, taking measures which would prevent child birth such as sterilisation as well as a number of other acts (ibid). Genocide can be distinguished from other crimes such as ethnic cleansing by the fact that it is state organised (Mclaughlin, 2006 Cited in Mclaughlin & Muncie, 2006:183). The original definition of genocide was also made much more specific by the Genocide convention, in particular it should be highlighted that political groups were excluded from the definition as was the aspect of destroying a culture by requiring them to integrate into a dominant culture (ibid). The definition has a attracted much scrutiny in particular that the definitions use of the word 'intent' left an opening to which perpetrators could argue their actions were 'accidental and/or unplanned' taking place in the heat of a battle (ibid). Additionally there is scepticism as to what is included in the definition, for example in 1966 General Suharto took power in Indonesia, it is estimated he had between 500,000 and one million people murdered, however it is argued that according to the definition by the Genocide Convention this would not constitute genocide as the two parties involved were of the same ethnic group (ibid). This has however been partly attributed to the fact that in order not to take away any of the seriousness of the holocaust there is a wish for the term not to be over-used (ibid). This report aims to examine and evaluate the UKs legislation implemented in order to support this international legislation.
Significance of this issue;
The International Criminal Court (ICC) has command over four types of crimes; these are genocide, crimes against humanity, aggression and war crimes (Schabas, 2001 Cited in Dixon & McCorquodale, 2003:228-229). These crimes are considered to be the 'most serious crimes of concern to the international community as a whole' as well as being described as inconceivable atrocities (ibid). The fact that these crimes fall under the jurisdiction of the ICC is more so a result of the fact that they are in their nature a concern to the international community as a whole, rather than the fact that the collaboration of international community's is needed in order to tackle the crimes (ibid). These four crimes were also dealt with prior to the International Criminal Court statute which came into effect in 2002 via the Nuremberg Tribunal and other post war courts, although they were referred to under different names; these were crimes against humanity, crimes against peace and war crimes (ibid). As part of this Tribunal genocide was prosecuted under the charge of crimes against humanity, despite the fact that the term of Genocide had already been coined by that time and was already in use by the prosecutors at the tribunal (ibid). The main intention of the ICC and the Genocide Convention was to prevent genocide and indeed other abuses from happening again, however we have but to look at history in order to see the acts of genocide which have occurred since the holocaust (Newburn, 2007). In 1991 Rwanda had an estimated population of over eight million, this consisted of eight to ten per cent being Tutsi and ninety to ninety two percent Hutu (ibid). The divides between the two groups came in the form of social status and occupation with the Hutu being the proletariat and the Tutsi being the bourgeoisie; however divisions between the groups began to expand as a result of marriage generally being restricted to those of the same group (ibid). However after the First World War Rwanda became a Belgium colony, under this rule the Tutsi were placed in charge and the Hutu were blocked from being able to take official positions (ibid). As a result of this it became necessary for everyone to be registered as to the group they belonged to, which acted to further increase the divide between the groups (ibid). Eventually the Hutu majority seized power from the Tutsi, resulting in Rwanda becoming a one party state (ibid). The genocide itself took place in 1994 after the death of the president in a plane crash, with him gone it allowed those who had planned the genocide to take control of the state (ibid). It should be noted that whilst some of the massacre was committed by police and soldiers, the majority was at the hands of Hutu civilians, who took part either willingly or as a result of being bribed or threatened (ibid). This is by no means the only case of genocide since the holocaust as acts of genocide have taken place in places such as Cambodia and Bosnia (ibid). Thus it can be argued that although genocide may not occur in all places the severity of the crime makes it significant at an international level and action needs to be taken in order to prevent such atrocities from reoccurring.
How is this issue being tackled?
Although not a victim of genocide itself the UK as part of the International Criminal Court (ICC) Statute has a duty to intervene and act in cases of genocide. As a result of this obligation the International Criminal Court Act (2001) was brought into effect in order to aid the ICC and to incorporate the crimes within the jurisdiction of the ICC into the domestic law of the UK (Cryer & Bekou, 2007:1). In October of 2001 the UK consented to the 'Rome Statute of The International Criminal Court' (ICC Statute), as a result of this upon the statute coming into effect in 2002 the UK became party to its requirements. In order to maintain and ensure the cooperation of the UK with these requirements parliament passed the International Criminal Court Act in 2001, with a similar piece of legislation being passed in Scotland (ibid). In response to the act in Scotland in particular Baroness Scotland noted that the purpose of the acts were to avoid the UK being seen as or indeed becoming a place of safety for war criminals (ibid). The acts main aim is to ensure that the UK is able to fulfil the two main requirements placed on them as parties of the ICC statute (ibid). These requirements were to firstly give power to its authorities in order to cooperate with the ICC and secondly to ensure that prosecution could take place if any British citizen committed genocide or genocide was committed within its territory (ibid). Prior to this act the UK had made provisions for incorporating international law within the criminal justice system with the introduction of three act, these were the Geneva Conventions Act (1957), the Genocide Act (1969) and the War Crimes Act (1991) (ibid). However it can be argued that these pieces of legislation were less than successful with only the War Crimes Act (1991) ever bringing a conviction and that was only on one occasion (ibid). In terms of sentencing the ICC Act follows the general British law of a mandatory life sentence as the punishment for murder, however according to the ICC statute a life sentence may only be given if it is justified by the severity of the crime (Cryer & Bekou, 2007:4).
Evaluation of the success of such strategies;
Despite a number of countries being a part of the ICC statute it does not necessarily mean that they fulfil their obligations to it. The USA failed to intervene in the case of Rwanda which is now seen as perhaps one of most preventable mass crimes of the century (Morrison, 2005). At the time a number of interventions ended in failure which was in part a result of the unwillingness of the USA to intervene due to the fact they hadn't received the proper information regarding the situation (ibid). However this was later to be proved false and in actual fact the USA knew exactly what was going on (ibid). In particular what was so shocking was that president Clinton had in fact ordered that the term genocide not be used as the ramifications of this would prompt calls for the USA to intercede as they were obliged to do as a result of ratifying to the Genocide Convention (1948) (ibid). Thus it can be argued that in choosing to purposely ignore the situation it was one of the primary factors which resulted in the deaths of over seventy five percent of the Tutsi population in Rwanda (Newburn, 2007) which equates to the total number of homicides in the USA between the 1950 and 2000 (Morrison, 2005). Despite this deliberate overlook of the situation in Rwanda it would incomprehensible that President Clinton would receive any penal punishment in connection with these deaths, owing to the fact that it was a grey area as whether he had in fact committed a crime (ibid). However in some ways he was punished by expensive legal proceedings for the majority of his second term as president (ibid). Ironically the cost of these proceedings cost more than it would have cost to have sent a force into Rwanda to try and deter and maybe even limit the massacre of the genocide (ibid). It should be noted that this event took place prior to the ICC Statute but the USA was still obliged to intervene as a part of the Genocide Convention (1948). Additionally most of those who committed murder during the genocide were Hutu civilians (Newburn, 2007) so it raises questions as to who should be prosecuted those who masterminded the crime or those who commit the crime or indeed both. In terms of the UKs legislation to accommodate the ICC Statute in general it can be said that the ICC act either appears to be consistent with the ICC Statute or follows the ICC Statute directly (Cryer & Bekou, 2007:8). However it has been argued that the only need for the act would come from the legislation on cooperation with the ICC for the foreseeable future, which would possibly mean they would fall into disuse as was the case with the previous legislation (ibid). However this act has been used to bring about the prosecution of British service- members, leading to criticism in describing British Troops as war criminals (Cryer & Bekou 2007:9) In terms of the sentencing part of the ICC act criticism has been made about the severity of the mandatory life sentence in cases of murder, which conflicts with the ICC Statute as only serious enough crimes can receive a life sentence (Cryer & Bekou, 2007:4). Additionally if this part of ICC act can be seen as too severe then it can also be criticised for being not severe enough on other crimes (ibid). Other than murder or an ancillary offence a convicted person cannot be given a prison sentence of more than thirty years thus crimes such as rape wouldn't attract a life sentence as a result of the act regardless of whether it causes genocide (ibid).
To conclude the crime of genocide is very severe in its nature and it is true that every attempt possible should be made in order to prevent such atrocities from happening. The ICC statute goes some way towards tackling the issue however we have but to look at how the ratified countries act to see that maybe some sort of review should be made. In terms of the UK although legislation is in place in order to fulfil its requirements to the ICC statute that only covers UK intervention if one of its citizens is involved in committing genocide or genocide takes place within its territories, thus if genocide took place outside the UK then the UK would not be obliged to intervene. However perhaps due to the severity of the crime ratified countries should be required or at least advised to make more of an intervention. However care should be taken with legislation as it can lead as is the case in the UK to troops being branded as war criminals if they were to intervene.