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In this article, I test predominant normative approaches to CAH against the notion’s deployment in law. Embarking on this cross-disciplinary project is needed because those the predominant literature fail to address (or were just articulated before) the waves of cases brought before international criminal courts throughout the last decade. I start by examining how international criminal courts have specified the core elements of the definition and then assess if and how the predominant philosophical literature can account for it. I then argue that this legal-empirical inquiry leads to both refining the structure and revisiting the relevant jurisdiction of CAH.As far as structure is concerned, I distinguish a third but neglected element in the structure of CAH, which I identify as the preparatory conditions of the crimes (the ‘PCs’). In relying on Joseph Raz’ concept of authority, I argue that reconstructing the PCs help to specify what it is about states that those crimes deeply pervert. While the PCs strikingly mirror the systematic and pre-emptive role of the state, those patterns are established to massively persecute, terrorize and finally odiously attack. As far as jurisdiction is concerned, I infer that the agent of CAH and the state in which those crimes occur become ‘answerable’ to the normative community of responsible states (following Anthony Duff’s accountability model). By establishing international trials, this normative community does justice not only to the victims by proving the crimes but also to the perpetrators by treating them as responsible members. [ABSTRACT FROM PUBLISHER]

This article reflects upon the potential contribution of the jurisprudence of the Inter- American Court of Human Rights (IACHR) to international law. This is done through an analysis of the debates related to two aspects of the 2007 judgment of the International Court of Justice (ICJ) on the application of the Genocide Convention, judgment which has received a great amount of criticism, in part because the approaches adopted by the ICJ differ from those adopted by human rights courts. The jurisprudence of the IACHR has been used to illustrate these differences and to articulate the challenges that they pose to an understanding of the international legal system as a unified system. This article argues that due consideration of the jurisprudence of the IACHR could have strengthened the persuasive force of the ICJ judgment, because it would have required the ICJ to clearly indicate the arguments relied on for choosing one of the different, and sometimes contradictory, approaches. [ABSTRACT FROM AUTHOR]

By opting for the approach based on the dichotomy of individual criminal responsibility for the act of genocide and the responsibility of the State in both the Bosnian and Croatian Genocide cases, the International Court of Justice enabled the establishment of a jurisprudential connection with the judgments of the International Criminal Tribunal for the Former Yugoslavia. After outlining the reasons for adopting such an approach, which are classified as both positive and negative, the author offers an extensive analysis of the differences between the ICJ and ICTY, stressing the necessity to take these differences into account when considering the interconnection between the "World Court" and the ICTY as a specialized tribunal. The paper focuses on the need for a balanced and critical approach to the jurisprudence of the ICTY as regards genocide, by differentiating between the Tribunal's factual and legal findings. The author insists that a substantive criterion, not a formal one, must be applied with a view to the proper assessment of the factual findings of the Tribunal in accordance with the standards of judicial reasoning of the ICJ. As regards the treatment of the ICTY's legal findings which relate to genocide, it is stressed that their uncritical acceptance would compromise the determination of the relevant rules of the Genocide Convention by the Court. Namely, the law applied by the ICTY as regards the crime of genocide is not equivalent to the relevant law established by the Convention and may be understood as its progressive development rather than its application. [ABSTRACT FROM AUTHOR]

Victims of international crimes, such as genocide, crimes against humanity and war crimes, are considered crucial in establishing the evidence in cases before international criminal tribunals. Yet, due to the geographic, political, ethnic or religious circumstances in the country of origin, the nature of the crimes concerned and the nature of the victims' or accuseds' involvement in the crimes, international cases also bring with them significant risks for victims/witnesses and challenges for tribunals in protecting them. At times, individuals have disclosed identifying information of victims/ witnesses in violation of protection orders of the tribunal, which has led to threats, intimidations and even murders, and ultimately, in a number of cases, the unwillingness of victims/witnesses to testify. Although the tribunals have measures at their disposal to sanction individuals breaching protection orders, the question remains how big the problem of witness interference really is and how to address this issue adequately. [ABSTRACT FROM AUTHOR]

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In recent years, there have been signs of a significant 'anti-imperialist' turn in genocide studies. Challenging what has been described as a hitherto predominantly liberal approach, a number of genocide scholars have adopted a more critical attitude towards the history of imperialism, and projected a broader arc of explanation, linking genocides committed by western states in the construction of their empires to genocides committed in the twentieth and twenty-first centuries. There is too much insight, undoubtedly, in an anti-imperialist approach to contemplate discarding it. It helps us understand why genocides undoubtedly committed by western imperialist states took place in the past. It provides important elements of a vital critique of the international order, fashioned by western imperialist states, within which some postcolonial states have been able to commit genocide. It helps us understand why some western states colluded with or facilitated genocide, as in Indonesia in the 1960s or Guatemala in the 1980s, or blocked intervention to halt or prevent it, as in Bangladesh in the 1970s and Rwanda in the 1990s. But it cannot do everything, and some of the difficulties identified here will arise when it is taken too far, when there is an attempt to fit everything within a framework of analysis that cannot bear the weight put upon it. Imperialism has been at times and in places central to the occurrence of genocide, but not everywhere, not at all times, and to a very large extent not since the Convention. [ABSTRACT FROM AUTHOR]

The legitimacy of universal jurisdiction over crimes against humanity, genocide and war crimes has generated great attention among policy makers and scholars. This article argues that allowing for the participation of, and being accountable to, the international community, are two requirements of legitimacy that universal jurisdiction domestic statutes and proceedings should strive to meet. These are requirements for the legitimacy of universal jurisdiction regardless which conception of international law and international institutions one adopts — statist, cosmopolitan democracy, natural law, global administrative law or global constitutionalism. This article then analyses the important implications of these principles of international participation and accountability for a number of central debates on universal jurisdiction, namely, the crimes universal jurisdiction statutes and proceedings may include, the definition of these crimes, and which doctrines from the general part of international criminal law should be incorporated. These principles also affect how universal jurisdiction cases should be selected, what the relationship between universal jurisdiction prosecutions and the International Criminal Court should be, and which transparency and participatory requirements proceedings under universal jurisdiction should meet. In so doing, the author takes the German Code of Crimes against International Law as a case study to illustrate the analysis. [ABSTRACT FROM PUBLISHER]

Between 1945 and 1949, American, British, French and Soviet prosecutors, indicted and tried approximately 207 former Nazis for war crimes and crimes against humanity in what has come to be called collectively, ‘The Nuremberg Trials’. This article explores the place of genocide in these trials. It examines the extent to which Raphael Lemkin influenced the Nuremberg prosecutors to incorporate genocide into the indictments, how the crime was prosecuted in the courtroom and, ultimately, how it was understood by the court in their judgments. Although there were thirteen separate trials at Nuremberg, this article focuses mainly on one of these, the SS–Einsatzgruppentrial of 1947–48, in which twenty-two high-ranking SS officers were tried for crimes against humanity. The SS–Einsatzgruppen were the vanguard of the ‘Final Solution’. As ideological soldiers of the Third Reich they had killed one million civilians, mainly Jews, between June 1941 and July 1943, clear evidence of genocide according to Lemkin's definition of the crime that was circulating in Nuremberg at the time. Even though ‘genocide’ had been articulated when this trial began, the Nuremberg prosecutors did not fully employ it at trial. Ultimately, this article explores the tension between the meaning of genocide and its practical application in the post-war courtrooms of Nuremberg. [ABSTRACT FROM PUBLISHER]

This article examines Raphael Lemkin's campaign for the Genocide Convention in the context of other internationalist projects pursued at the UN in the postwar era. Lemkin's papers at the American Jewish Historical Society, as well as at the New York Public Library, testify to his concern that his ambition to establish genocide as a particularly criminal act would be disrupted either by advocates of the Universal Declaration of Human Rights or by international lawyers and civil servants working at the UN Legal Commission, prioritizing the concept of crimes against humanity and the Nuremberg Judgment. While his project to create an internationally recognized law to make genocide a crime was legalistic in its implicit faith in the power of lawmaking, Lemkin cannily sought to distance the Convention from those promoting the renewal of international law in a period defined more by realist skepticism about interwar approaches. Instead, he rooted genocide in a religiously inflected moral idiom that could distance his project from those pursuing a broader agenda of international legal codification, which met with scorn especially from those journalists whom Lemkin successfully recruited to the cause of prohibiting genocide. In order to demonstrate this claim, this article first establishes that Lemkin's concern to preserve the basic idea behind the minority protection treaties set him apart from other international jurists of the period working towards the establishment of binding legal enforcement for the protection of individual human rights. It then contextualizes Lemkin's rivalry with the legalists by examining the effort by UN civil servants and international lawyers to revive the prewar project to expand international law, arguing that it compels a reconsideration of Lemkin's, and the Genocide Convention's, place in the history of international law and legal order more broadly. [ABSTRACT FROM AUTHOR]

On 9 December 1948, the United Nations adopted the Convention for the Prevention and Punishment of the Crime of Genocide. The first humanitarian law of the UN, the Convention was singlehandedly pushed by the jurist Raphael Lemkin, who coined the word genocide in Axis rule in occupied Europe (1944). Using Lemkin's unpublished writings, this essay seeks to correct several misunderstandings of Lemkin's thinking on genocide as the destruction of nations. Lemkin defined nations more broadly than simply a group of people inhabiting a particular state. Instead, Lemkin used the work of an art historian to define nations as ‘families of minds’, arguing that the idea of a nation exists within the minds of people. In doing so, Lemkin broke from the tradition that nations had an objective organic existence defined by language, blood and territory. He took on an understanding of nations that sided with the political thought of Mazzini, who offered the dictum: ‘the Patria is the consciousness of the Patria’. The Genocide Convention, Lemkin wrote, protected the minds of people. Such human groups protected by the convention under the rubric of nations, he continued, could range from religious minorities to criminals—any ‘family of mind’ who genocidists attempted to destroy. The article analyzes Lemkin's ideas using his writings on the Soviet genocide in Ukraine and France's genocide in Algeria. [ABSTRACT FROM PUBLISHER]

This Article's objective is to spark discussion about the standards by which we judge international courts. Traditional justifications for the authority of international courts are based on outmoded assumptions of their role and impact. State consent and procedural fairness to litigants are insufficient to ground the legitimacy of institutions that may adjudicate the international rights and duties of nonlitigants, deeply affect the interests of nonlitigating stakeholders, and shape the law prospectively. These realities mandate a new approach to the legitimacy of international courts. This Article presents alternative or additional approaches for justifying the authority of international courts rooted in both procedure and substance. First, legitimacy requires a reimagining of procedural fairness to include those whose international rights and duties are being adjudicated by international courts. Democratic theory can help to justify the authority of international courts so long as stakeholders are given the opportunity to participate in the formulation of policies that affect them. In addition, international courts must adhere to certain universal standards of justice. They cannot facilitate the violation of a set of core norms, including prohibitions against torture, slavery, racial discrimination, and genocide, and still retain their legitimacy. Finally, the extent to which an international court implements the objectives it was created for also affects its legitimacy. [ABSTRACT FROM AUTHOR]

Convictions for genocide in relation to the war in Bosnia (1992–1995) provide the strongest sense of justice-having-been-done to victims and their families. But at the ICTY, the reputation of which has been marred by a series of controversies, the few perpetrators found guilty of genocide were involved in the Srebrenica massacres of July 1995. Other courts have convicted individuals from a range of different locations (and periods) in the war, giving arguably a more complete sense of justice to victims, and a more accurate contribution to the historical record. It is widely perceived that the Genocide Convention has been narrowly interpreted. As most genocides do not result in total destruction, what counts as “part” of a group, especially when combined with other acts, is a key issue explored here. Two cases (outside Srebrenica) in which genocide indictees were not held responsible for genocide are examined, with the Jelisic case, involving a foot-soldier of genocide, the main focus for critical analysis. Reflection on the implications for Bosnian society are given in conclusion. [ABSTRACT FROM PUBLISHER]

The article discusses the proposed expansion of the Responsibility to Protect (RtoP) international norm to include protections from HIV and AIDS as of June 2013, focusing on international crimes against humanity such as genocide. Other topics include international human rights law, sovereignty, and South African President Thabo Mbeki's views on AIDS. The author argues that RtoP should be used to protect populations from mass loss of life due to HIV and AIDS.

The article discusses several developments involving ad hoc international tribunals as of March 2013, focusing on an analysis of legal cases dealing with former Rwandan Army Commander Aloys Ntabakuze, the crime of genocide, and the liability of former Rwandan politician Édouard Karemera for the deaths of nearly 2,000 Tutsi civilians. Other topics include joint criminal enterprises (JCEs), war crimes, and an international court's discretion in admitting evidence.

This article surveys the use of the term ‘genocide’ before, during and after the war in Bosnia and Herzegovina from 1992 to 1995. The article argues that although ‘genocide’ remains an important legal and analytical concept, an excessive focus on this term represents a misguided and counterproductive approach to the analysis of mass violence. Discussions revolving around a ‘genocide or not’ dichotomy do not further our understanding of the Bosnian war, and are in their essence more connected to desires for past and future international military interventions and to internal Bosnian political struggles than to a scholarly agenda. The ongoing obsession with the label of ‘genocide’ has distortive effects on international criminal justice, because anything less than a genocide conviction is counted as a ‘failure.’ Recent scholarly accusations that international legal findings of crimes other than genocide constitute ‘genocide denial’ are particularly troubling. In Bosnia, the disproportionate attention on genocide helps to perpetuate the zero-sum approach that has informed Bosniak–Serb political negotiations since the end of the war, and more recently the issue of ‘genocide’ has also aggravated relations within the Bosniak community. Ultimately, therefore, it may be more productive to move beyond what has become a myopic focus on genocide. [ABSTRACT FROM PUBLISHER]

The article discusses the legal aspects of the execution of a United Nations (UN) Security Council (SC) Resolution which mandates the use of force as of March 2013, focusing on an analysis of collective action under Chapter VII of the UN Charter, as well as legal protections from genocide, war crimes, and ethnic cleansing. International lawyers and a military intervention in Libya by the North American Treaty Organization forces are addressed, along with the judicial oversight of SC powers.

The article discusses what the author refers to as Indigenous expendability in relation to the anniversary of the U.S.-Dakota War of 1862, genocide under the framework of the United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide and the 2007 UN Declaration on the Rights of Indigenous Peoples, and the historical treatment of Minnesotans. U.S. government policies are examined in relation to the Dakota people, colonial processes, and settler claims in America.

In order to qualify as a war crime, an offence must have a nexus with an armed conflict. This contextual element serves to distinguish war crimes from both ordinary crimes and other international crimes such as crimes against humanity and genocide. The case law of the international criminal tribunals reveals that this nexus requirement is an open concept, resulting in diverging interpretations by both international and domestic criminal courts. Starting from the assumption that such strong divergences are problematic from the perspective of legal certainty, this article seeks to define the nexus requirement more precisely. Those general theories that predicate the right of intervention by the international community upon the default by a state on its primary obligation to provide a certain basic level of security, offer a sound conceptual framework to identify international crimes. However, such theories are less suitable to define war crimes as a separate category within the realm of international crimes. Instead, the author proposes to reflect upon the quintessential nature of war crimes as serious violations of the laws and customs of war. By considering war crimes as perversions of accepted and legitimate conduct in warfare, it is possible to reconstruct the content and meaning of the nexus requirement. [ABSTRACT FROM PUBLISHER]

Specific intent is acknowledged as one of the defining characteristics of genocide. Motives on the other hand, are often considered irrelevant for the consideration of the crime. Yet, there is reason to be more discerning. To begin with, the question whether dolus specialis of genocide can itself be considered a motive, has been subject of debate since the drafting of the Genocide Convention. A further significance of motives arises when the view is followed that genocide requires specific underlying motives, such as hatred of the protected group. Then there is the question whether the presence of certain motives might exclude the co-existence of genocidal intent. The author argues that motives have a direct impact on the evaluation of the substantive law of genocide, and that specific motives can occupy so strong a place in the mind of the perpetrator that they may even replace genocidal intent. [ABSTRACT FROM PUBLISHER]

The article discusses several developments involving ad hoc international criminal tribunals as of May 2012, including information on legal cases involving topics such as genocide, aiding and abetting, and the superior responsibility international law principle. The potential admission of the prior testimony of a witness is addressed in the International Criminal Court Trial Chamber case Haradinaj et al.

The Martens Clause continues to provide resources for a free-standing norm of customary law prohibiting acts of genocide that are free from many of the restrictions concerning, for example, protected groups contained in the original 1948 Genocide Convention's definition. This article addresses post-war developments of the Martens Clause and the codification of crimes against humanity applicable to acts of genocide. It suggests an alternative way of examining how the idea of humanity originated from the Nuremberg and post-Nuremberg developments. We also explore the historical developments of the 1948 Genocide Convention, and its application within ad hoc tribunals that have adopted a narrow definition and application. Finally, we conclude that through an expansive and sympathetic judicial interpretation and legislative reception, the Martens Clause has operated as one of the key milestones along the path that culminated in the international criminalisation of genocide. [ABSTRACT FROM AUTHOR]

The article discusses genocide and the discovery of a propaganda document in Butare, Rwanda which calls for the use of an accusation in a mirror (AiM) method to incite people to commit acts of genocide as of January 2012. The provisions of the United Nations' Convention on the Prevention and Punishment of the Crime of Genocide are also addressed, including a prohibition against incitement.

The article refers to the judgment of the International Court of Justice in the case of Bosnia and Herzegovina v. Serbia and Montenegro, in which Serbia (Federal Republic of Yugoslavia, FRY) was accused of having committed genocide through troops of the Republic Srpska in Srebrenica. It considers the Convention on the Prevention and Punishment of the Crime of Genocide, the meaning of "total or partial destruction of a group", and if those troops could be considered de jure or defacto organs of the FRY, a basic definition for attributing responsibility to it. The purpose is to point out the differences between the jurisprudences of the International Court of Justice and of the International Criminal Tribunal for the Former Yugoslavia and to conclude that the international judicial organs cannot attribute responsibility to a State if the acts were committed by persons or groups which are not de jure or de facto organs of the State. [ABSTRACT FROM AUTHOR]