Category Archives: genocide

A Commentary on The ICJ Croatia v. Serbia Genocide Case (part II): Judge Cancado Trindade’s dissent and thoughts on natural justice

Yesterday, I published my thoughts on the 3 February ICJ Judgment in the Croatia v. Serbia Genocide case. I had initially planned to propose a few short concluding views on Judge Cancado Trindade dissenting opinion, but this proved unrealistic, given its length, and it certainly “deserves” its own post.

The dissent, which was to be expected, did not dissapoint. In a marginally shorter opinion than the actual judgment, the Brazilian judge expands his now predictable own view of international law as based on the principle of Humanity.

I doubt, as many before me (see notably Marko Milanovic here), the efficiency of these long rambling dissents, frankly badly written in parts, sometimes repetitive, where legal points are laced with philosophical musings and extensive literary quotes. In fact, I don’t how it didn’t strike me before, but reading the dissent here, I had the impression of reading some of Seselj’s motions at the ICTY (and for those unfamiliar with those, this is definitely not a compliment…).

Beyond my own predictable general disagreement with the Judge’s views, approach to law and methodology, I want to focus here on how he addresses the question of specific intent and how one proves it.

  • The “object” of the Genocide Convention as a justification for a lower evidentiary threshold

Cancado Trindade of course disagrees with what he considers to be too high a threshold put forward by the majority on the proof of the mental element of genocide (he does this in two different parts of the dissent (125-148 and 460-471), which is one example of how the document could have been shortened…).

He relies on the case law of the ad hoc tribunals where intent was inferred from a number of circumstantial factors to make his point, and unoriginally refers to the object of fighting impunity of the Genocide Convention to justify a lower threshold (§143).

I’m not sure I agree with Judge Cancado Trindade. I’ve always found that the “object and purpose” approach to interpretation in human rights and ICL has been shorthand for judges to make texts say something that they do not actually say, based on “superior” moral considerations and I find that disturbing (see below). Moreover, from a deontological perspective, you could also argue that the moral stigma attached to a finding of genocide means that we should be very cautious in making such a finding, rather than the reverse.

On the other hand, I can see how civil proceedings such as those before the ICJ could warrant a somewhat lower standard of evidence than in a criminal court, which would justify perhaps the Judge’s approach to inference.

So I think that on that level, there is somewhat of an argument to be made both ways. Where I part ways completely is on the other justification that he gives for disagreeing with the majority.

  • Standards of proof as an unacceptable “diktat”

This is what Judge Cancado Trindade has to say about this, and it is worth quoting more or less in full (§468-470):

The Court cannot simply say […] that there has been no intent to destroy, in the atrocities perpetrated, just because it says so. This is a Diktat, not a proper handling of evidence. This Diktat goes against the voluminous evidence of the material element of actus reus under the Convention against Genocide (Article II), wherefrom the intent to destroy can be inferred. This Diktat is unsustainable, it is nothing but a petitio principii militating against the proper exercise of the international judicial function. Summum jus, summa injuria. Mens rea, the dolus specialis, can only be inferred, from a number of factors.

In my understanding, evidential assessments cannot prescind from axiological concerns. Human values are always present, as acknowledged by the historical emergence of the principle, in process, of the conviction intime (livre convencimento / libre convencimiento / libero convincimento) of the judge. Facts and values come together, in evidential assessments. The inference of mens rea / dolus specialis, for the determination of responsibility for genocide, is undertaken as from the conviction intime of each judge, as from human conscience.

Ultimately, conscience stands above, and speaks higher than, any wilful Diktat.

I don’t want to misinterpret a Judge’s words, but the bottom line of what he is saying seems to be that a judge ultimately decides a case based on his own morality. Now some of you will say: “what’s the big deal, we all know that to be what happens!”, and in some sense, you would be right. But, it is very well for us to say that, as commentators, I find it somewhat scandalous that a sitting judge says it in a judicial opinion. INdeed, Judge Trindade is essentially negating the whole idea of standards of proof, burdens of proof, or even procedure, with everything, including the assessment of facts being dependent on the conscience of the judge. In other words, it is natural justice at its most extreme… and its most worrying. L’ “intime conviction” of the judge is not a license for him to do what he wants with a case, it operates within a particular legal and procedural framework which cannot simply be ignored on the basis of “human conscience”.

What annoys me most about this kind of discourse is that it seems to oppose the “axiological” “diktats” of procedure and substantive justice. But this is so narrow minded. Procedure is a moral choice as well! What distinguishes democracies from dictatorship is not the prohibition of such and such conduct, it is the guarantees (procedures!) put in place to determine responsibility. It is exactly to protect people from the “conscience of judges” and their arbitrary (or religious, which is the same) moral judgements that societies fought to get safeguards that are at the heart of our procedure. Standards of proof are one of those: it is unfair to make someone pay (or send him to jail) if you have not proven what he has done. Of course, we can discuss the correct standard to adopt, but we cannot just negate all of them as “diktats”! Indeed, the Spanish Inquisition was also natural justice at its best, where a deep sense of “doing the right thing” trumps any other consideration. The French Terreur was done in the name of Universal Rights.Those experiences turned out just peachy for everyone involved.

In fact, what is ironic here is that the whole dissenting opinion laments the genocidal past of human societies prone to destruction, without noting that most of those experiences were done by people who believed they were doing what their conscience (or religion, or god(s)) dictated, just as Judge Cancado Trindade does. What he is advocating is not the rule of law, it is the contrary of the rule of law. This is illustrated by his quote of the latin maxim: “summum jus, summum injuria”, which more or less translates as  “an excessive application of law leads to injustice”. So, in a nutshell Cancado Trindade always seems to want more law… except when it does not go his way, not seeing that the quote could also apply to him! All in all, it is somewhat worrying to note how the most fervent (and well-intentioned) natural law human rights advocates are simply blind in seeing the intellectual connection they in fact share which those they oppose the most.

And apparently, the “principle of humanity” does not need to be applied consistently. Judge Cancado Trindade only deals with Croatia’s claim and not Serbia’s counter-claim. Indeed, he only dissented on the rejection of the former, not the latter. However, I would have expected his “principle of humanity” to apply equally to Serb victims, in light of the ICJ’s findings that acts that might constitute the actus reus of genocide were committed by Croatia. Maybe I missed something in the dissent and welcome any clarification from more careful readers and interpreters of the Cancado Trindade prose.

  • Conclusion: two clarifications and a musing on the future

First of all, just to be clear, because I already hear the argument of some, the preceding rant is not one of a positivist with a stiff upper lip who refuses progress because the “law is the law”. I am one of those as well, but in this case I am making a moral argument in defense of procedure to counterbalance the moral argument being made to attack it.

Second of all, my previous comments should not be seen as a attack on Judge Cancado Trindade as an individual, an intellectual and a person dedicated to noble values. I have the utmost respect for his intellectual integrity and his sincere desire to make the world a better place. What I am challenging is the judge and what I am expressing is a profound disagreement on what I consider to be the limits of the judicial function, which I think he systematically oversteps.

Of course, on a broader level, nobody really cares what I have to say about this. Maybe in 20 years, my blog posts will have been relegated to the dustbin of internet archiving (if even that) and Judge Cancado Trindade’s dissents will probably be lauded by a new generation of lawyers who will be attributing to him the revolutionary shifts in international law that will undoubtedly have taken place, under his influence, during that time, just as we applaud the impact of Grotius or Cassese. By that time, I’ll be even more of a dinosaur than I seem to some people now, but I will not care, because having witnessed the death of (international) law, I will be mumbling vague positivist mantras in some mental institution somewhere, where I will have been interned against my will for my seditious views about human rights and human nature…

A Commentary on The ICJ Croatia v. Serbia Genocide Case (part I): Some thoughts on an Anti-Climatic Result

On 3 February 2015, the ICJ issued its Judgment in the Genocide claim and counter-claim between Serbia and Croatia and rejected both. Essentially, while finding evidence of the actus reus of genocide (murder, bolidy harm, etc.), directed at croats or serbs, the ICJ could not find evidence of genocidal intent, i.e, the specific intent to destroy in whole or in part a particular group.

As said by Marko Milanovic (here and here) there was no real doubt as to what the final conclusion of the court would be. I think that overall, this case was a complete waste of time and energy and, as astutely noted by Janet Anderson, “Maybe, in the end, only the lawyers win cases like this.”

This being said, reading through the judgment, I noted a number of points I found of interest. I will also devote a separate post to Judge Cancado Trindade’s dissenting opinion which will be posted later.

  • The use of ICTY Practice and case law

Hearing the summary of the Judgment and reading it afterwards, it is striking to note how much it is essentially a digest of ICTY case law, as was the 2007 genocide Judgment in the Bosnia case. This is of course not surprising, as the ICTY has just spent 20+ years documenting this conflict and the commission of crimes during it and making findings on these in lengthy judgments. It would be weird if the ICJ did not take notice of this. Beyond this, two specific points struck me in the Judgment.

First of all, it interesting to note how the ICJ took into account the ICTY Prosecutor’s charging policy, more particularly the fact that he has not charged genocide for a number of senior officials (such as Milosevic) in relation to events in Croatia. Following the logic of the 2007 Genocide judgment, the Court said that this could be taken into consideration, while acknowledging that his was not not necessarily decisive proof that there had not been genocide (Judgment, §187).

This makes sense to me on the face of it. Indeed, the higher up the officials the more link there is between claims of individual responsibility and considerations of state policy that are relevant for the determination of state responsibility. To the extent that one takes the view that charging policy is first and foremost a logical decision guided by available evidence, one can therefore see the logic of the claim that no genocide charge equals no evidence of genocide.

However, Croatia does have a point when it said that charging policy is guided by many other factors than availability of evidence (judgment, §185), for example expediency, the existence of a plea bargain from the accused, or simple preference. The Lubanga case at the ICC comes to mind in that respect, where the decision not to charge anything else than the use of child soldiers says nothing about the availability of evidence in relation to other crimes (such as sexual violence), as the trial process painfully showed. I therefore think that before attributing any weight to a decision not to charge, there needs to be a broader evaluation of the charging practice of the Prosecutor of a given tribunal. In this sense, I think that the ICJ was far more justified in attributing weight to the ICTY Prosecutor’s decision, given the often “everything but the kitchen sink” approach adopted there, than it would have been if it had done the same with the ICC, given the sometimes apparently random or inomplete choices made in relation to charging.

Second of all, there is a discussion on the weight to be given to decisions of different chambers of the ICTY. More particularly, are Trial Chamber decisions more persuasive than Appeal Chamber decisions? This question was important for Serbia’s counter-claim because it obviously wished to rely on the Gotovina et al. Trial Judgment rather that the contested Appeals Judgment which acquitted everyone. Serbia’s reasoning in that respect was the following:

Serbia argued that the findings of an ICTY Appeals Chamber should not necessarily be accorded more weight than those of a Trial Chamber. Indeed, according to Serbia, the members of the Appeals Chamber are appointed at random and vary from one case to another, so that they have no greater experience or authority than those of the Trial Chamber having ruled on the same case. Serbia argues that the main difference between the two benches appears to be that the former consists of five judges, whilst the latter is composed of three judges. Moreover, the decision of the Trial Chamber was unanimous when it convicted Gotovina and Markač, whereas the Appeals Chamber reached its decision to acquit them by a majority of three against two. Serbia points out that, overall, the majority of the judges having sat in the Gotovina case were of the view that the Croatian forces did engage in indiscriminate shelling of the four above-mentioned Krajina towns.

This reasoning was not accepted by the ICJ, the judges considering that:

Irrespective of the manner in which the members of the Appeals Chamber are chosen— a matter on which it is not for the Court to pronounce — the latter’s decisions represent the last word of the ICTY on the cases before it when one of the parties has chosen to appeal from the Trial Chamber’s Judgment. Accordingly, the Court cannot treat the findings and determinations of the Trial Chamber as being on an equal footing with those of the Appeals Chamber. In cases of disagreement, it is bound to accord greater weight to what the Appeals Chamber Judgment says, while ultimately retaining the power to decide the issues before it on the facts and the law.

I must admit that I am of two minds here. From an institutional point of view, the ICJ is right to say that the final word on an issue for the ICTY (taken as a whole) has to logically be the Appeal Judgment. However, the ICJ is not following what the ICTY, as an institution, has to say about something, but rather reading individual decisions produced by the institution in order to help assess the facts. As a result, what should be relevant is whether a particular decision is convincing or not, irrespective of whether it was overturned on appeal, based on standard of proof and evidence which are anyway not relevant for the ICJ’s purposes. In this sense, Serbia’s point on the fact that a majority of equally professional ICTY judges who dealt with the Gotovina case agreed that there was a violation of IHL somewhat more useful than the ICJ thinks it is, because it could, from a probative point of view, tip the balance towards the facts being sufficiently established for the purposes of ICJ litigation.

  • The link between IHL and the Genocide Convention

One question which arose during the proceedings is the link between International Humanitarian Law and the Genocide Convention. More particularly, both Serbia and Croatia seem to have argued that acts which would be legal under IHL could not be considered as acts that would constitute the actus reus of genocide (Judgment, §152). In response to this, the ICJ refused to “rule, in general or in abstract terms, on the relationship between the Convention and international humanitarian law” (§153).

However, later in the Judgment, the ICJ notes that the legality of the shelling of certain Serbian villages by Croatian forces during Operation Storm meant that there was not the required mental element to establish killing as one of the actus reus of genocide (Judgment, §474-475). In this particular case, I think this makes sense: if the willful targetting of civilians is not established under IHL, this means that there is no intent to kill necessary for a particular killing to be considered n actus reus of genocide.

More generally however, I’ve always felt unease at claims that all bodies of law can apply in all contexts (Human Rights Law, IHL, ICL, etc…) and within ICL, that particular acts can be charges as several crimes at the same time (genocide, Crimes against humanity and war crimes) and that individuals can even be convicted cumulatively in that respect. Of course, I can see how technically this would work: if you have a “checklist approach”, you can easily see how one act could in theory tick all the boxes of the elements of different crimes. The problem is that for me, a crime (and probably even more an international crime) is a particular story or narrative, and more importantly in a particular context. The contextual element of the crime tells us the story that conditions our view of the particular acts. If there is a situation of armed conflict and a particular act is linked to that conflict, I think that analysis should prevail over the other legal qualifications.  This does not mean that other crimes (CaH and genocide) could not be committed in an armed conflict. It just means that different particular acts could not fall under the different categories.

  • Enforced disappearances as genocide?

A third area where the ICJ seems to have made some interesting statements is in relation to the link between enforced dissapearances and genocide. Indeed, Croatia claimed that “causing serious mental harm to members of the groups” includes (judgment, §159):

the psychological suffering caused to their surviving relatives by the disappearance of members of the group. [Croatia] thus argues that Article II (b) has been  the subject of a continuing breach in the present case, since insufficient action has been initiated by Serbia to ascertain the fate of individuals having disappeared during the events cited in support of the principal claim.

In response to this, the ICJ said that:

In the Court’s view, the persistent refusal of the competent authorities to provide relatives of individuals who disappeared in the context of an alleged genocide with information in their possession, which would enable the relatives to establish with certainty whether those individuals are dead, and if so, how they died, is capable of causing psychological suffering. The Court concludes, however, that, to fall within Article II (b) of the Convention, the harm resulting from that suffering must be such as to contribute to the physical or biological destruction of the group, in whole or in part.

The Court therefore seems to accept, on principle, Croatia’s argument, even if later on in the Judgment it rejects the application to the present case because Croatia failed to provide any evidence of psychological suffering sufficient to constitute serious mental harm within the meaning of the Genocide Convention (§356). For a more lengthy discussion on the idea, see Judge Cancado Trindade’s dissent (§§296-320). To my knowledge, this is the first time I see this argument mentioned and it is an intriguing one.

To be honest, I find this finding somewhat disturbing, because it not only opens the door to a broadened view of the actus reus of genocide, but more importantly, it imports the notion of “continuing crime” in the genocide question. Indeed, accepting enforced dissapearance as a material element of genocide, even indirectly through the “mental harm” category, means that as long as individuals are not told of the fate of their relatives, the crime (here genocide) could be considered to be ongoing. This would as a result trump any temporal considerations in the application of the genocide convention. Last year, in an article on the Armenian Genocide and the ICC, I rejected the idea of genocide as a continuing crime simply based on the fact that the later generations would still be suffering the consequences of the genocide. By that standard, all crimes could be deemed to be continuing crimes, which makes no sense. The enforced dissapearance approach is a somewhat more subtle version of that which I have my doubts about for exactly the same reasons.

  • Applying Monetary Gold to extinct States?

Finally, moving away from ICL, I was intrigued by Serbia’s claim that the Monetary Gold principle would preclude the Court from making any findind in relation to the now extinct SFRY. Indeed, the Monetary Gold principle, in a nutshell, means that the ICJ cannot make findings in a judgment that might have an impact on the responsibility of another state not present in the proceedings.

I’ve always had my doubts on the exact scope of this principle, but in any case, it certainly does not apply for states which no longer exists because, as put by the ICJ, such state “no longer possesses any rights and is incapable of giving or withholding consent to the jurisdiction of the Court” (§116). If such a an argument were to be accepted, it would mean that no successor state would ever be able to be held responsible for conduct of the preceding State, which is not, as far as I know, the current state of international law today.

  • A concluding thought on the content of the judgment

While the judgment is arguably of reasonable length, one can wonder whether it could not have been much shorter. Indeed, given the finding that the mental element of genocide (specific intent) was absent, what was the legal relevance of spending such a large chunk of the judgment on listing the crimes that were committed? I can see why the ICJ did it of course, it gives the symboblic impression of addressing some of the concerns of the victims, by documenting their suffering, even when rejecting all the claims. But one can wonder whether this is the role of the ICJ from a judicial point of view.

Which brings me to my next post, a critique of some aspects of Judge Cancado Trindade’s dissent, which will follow shortly…

Khaddafi Arrest Warrant: Some Thoughts on the arrest "obligations" and Crimes against humanity as the new "crime of crimes"

In my last post, I considered one of the political aspects of the indictment against Khaddafi in relation to the Peace vs. Justice debate.
Today, some quick thoughts on the legal dimension of the request for arrest warrants. The situation in Libya indeed raises a number of interesting issues which I am particularly fond of. I won’t delve  into the question of the actual legality of security council referrals. I’ve said in the past that I was skeptical about the mechanism as a whole, because i don’t believe the SC has the power to bind a state not party to a treaty to that treaty, and more particularly discussed the legality of Resolution 1973 here (don’t forget to read the comments section, it raises some quite interesting ideas on the extent of Security Council powers. 
I also will not insist on the issue of head of state immunity that is raised here, for the second time at the ICC after the Bashir case. Dapo Akande, over at EJIL Talk! argues that because SC resolution binds Libya to the Statute of the ICC, it must abide by article 27 which removes immunity. Needless to say, given my previous remarks, that I disagree with this analysis. At best, SC 1973 obliges Libya to cooperate with the Court, but within the limits of its international rights and is not bound by the actual content of the Statute.
  • Third State obligations in relation to arrest warrants

One notable point that comes up in relation to the request for the arrest warrants is what they would, if granted, require of other states. As I have argued before, I don’t believe that the issuance of an arrest warrant automatically creates an obligation for state parties to the ICC to arrest the person in the absence of a specific request under 89(1). Moreover, I have also argued that the general requests to all states under 89(1), irrespective of actual knowledge of the presence of the accused on the state’s territory, seemed contrary to the drafting of that article. This argument seemed to me like a shot in the dark, given the practice of the court in wholesale notifications… But apparently the ICC Prosecutor agrees with me (which also means that for once, I agree with the ICC Prosecutor…)! Indeed, in the request for arrest warrants, the Prosecutor points out in the request that : 

65. The Office submits that, if this Application is granted and the Court proceeds to issue warrants of arrest, the Court should exclusively transmit a request for the arrest of the suspects to Libyan authorities.
66. This would conform with the requirements of Article 89(1) which provides “The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person”. Addressing a request at this stage to other States on whose territory, according to the information available, the suspects are not physically present would appear superfluous and contrary to the express scheme foreseen in Part 9. 

Dapo Akande finds this position strange, because it suggests that the approach adopted in the Bashir case was contrary to the statute. But I think that the Prosecutor is perfectly right in his reading of article 89(1) and that indeed, the previous practice of the court was contrary to the statute. Apparently, someone at the OTP is reading this blog and some credit would have been nice…
  • Crimes against Humanity as the new crime of choice?

A second notable point is the crimes for which the warrants are sought. The “Tripoli Three”, as Mark Kersten has aptly named them, would be charged, according to the request, for two counts of crimes against humanity. This raises a number of questions. The first one relates to the question of whether counts of war crimes could also have been possible (see Dapo Akande’s discussion of whether there was in fact an armed conflict in Libya at the relevant times for the acts under consideration). 
More generally, I think it shows a recent trend towards crimes against humanity becoming the new ideal crime of international justice. Indeed, it seemed that crimes against humanity had lost their appeal, more particularly in relation to genocide, as the debate surrounding the Bashir arrest warrant showed. But now, it is back in fashion, especially in the new context of wanting the ICC to deal with the “arab spring” and more generally with situations of internal crack down of political opposition. 
Indeed, Crimes against humanity have the benefit of not needing the special intent of genocide (and generally being more adequate for criminal law than genocide, as I’ve argued elsewhere). Moreover, they don’t require an armed conflict, which are usually hard to identify in the situations of popular uprising that we are witnessing now. 
Of course, there still remains the question of establishing the widespread and systematic nature of the attacks (with the corresponding knowledge), as required by article 7(1) of the Statute. But even this is turning out to be not so much of a problem if the threshold is lowered, as was the case in the Kenya situation, thus allowing for systematic human rights violations to be “caught” under the umbrella of crimes against humanity. I had strong doubts about the Pre-Trial Chamber’s approach back then, and still do, but if the trend is confirmed, then Crimes against Humanity have found a new youth and may even becoming the new “crime of crimes”.

Bashir and Genocide in Sudan: Second time lucky for the OTP

Yesterday, Pre-Trial Chamber I issued a second decision on the prosecution’s application for an arrest warrant against Omar Al Bashir for charges of genocide. This decision follows the March 2009 decision by PTC I, which had initially rejected the genocide charges, and the February 2010 Appeals Chamber judgment overturning the decision, because the wrong standard of proof had been applied. In effect, the first PTC I decision had considered that genocidal intent had to be the only reasonable conclusion. The AC held that this was too stringent a standard at this stage of the proceedings, and that the OTP only needs to show that genocidal intent is one reasonable conclusion.

Given this state of affairs, it is not surprising that PTC I amended its original decision to include three charges of genocide, which are to be the subject of a separate warrant of arrest. As I had argued back in February, I think that this is the correct standard to be applied at this stage of the proceedings, so there is nothing much to add on the decision itself. I would nonetheless like to raise one point before I consider other issues: the binding effect of Appeal Chamber decisions. Indeed, the PTC considers that:

1. It must be established at the outset that the key findings of the Appeals Decision [sic] are binding on the Chamber in this case and determine the scope of the present decision.

Stare decisis makes sense as a rule of thumb, but I couldn’t find it anywhere in the Statute or the RPE (it was a cursory reading, so please correct me if I missed it). Also, the PTC gives no source for its statement, when it is usual for it to refer to the relevant provisions of the Statute. So I wonder whether there is in fact a rule of binding precedent at the ICC and what would be the consequences of its absence if a PTC were to systematically decide not to follow a debatable AC interpretation of the Statute.

Beyond this, the decision touches upon some other broader considerations, which have been raised elsewhere. 
For one I agree with William Schabas, that the Prosecutor will still need to prove genocide during trial (if it ever takes place) and the case-law of the ICTY shows how hard that can turn out to be. More generally, this over-reliance on genocide as a political tool is problematic, and in my view also counter-productive. Regular readers of this blog will already know my criticism of the haphazard use of the “genocide label” and the fact that I actually call (with little chance of success) for the removal of genocide as an international crime.
I also agree with Dapo Akande, that the Court is systematically not dealing with the issue of Head of State immunity, given the fact that Sudan is not a State party. His way to deal with that is to apply the reading of the Genocide Convention done by the ICJ in the Genocide Case, according to which a party to the Convention would have an obligation which would call for State Parties of the ICC to cooperate with the ICC in Bashir’s arrest, as an international court dealing with Genocide the jurisdiction of which they have accepted, as provided by Article VI of the Convention, and this would apply irrespective of immunities which are explicitly removed by article IV of the Convention. 
I’m personally a little weary of all those “new” elements being read into the genocide convention over the years (like the claim that it gives rise to State responsibility for genocide…). More specifically, I would say that given that the Convention does not enact universal jurisdiction, the obligation to cooperate with an international tribunal can only rest on a State which actually has a duty to prosecute under the Convention, i.e, the territorial State. In any case, I think this reasoning cannot be applied to non-State parties to the ICC, given that they won’t have accepted the jurisdiction of the Court. 
The question of immunity is just one of many that arise from the application of the Security Council referral to a non-State party. I remain convinced that the whole mechanism, which basically gives power to the Security Council to make a treaty binding on a State which is not a party to it, is contrary to international law… but I fear that in this case, just as when I argue for the end of genocide as an international crime, I am fighting a already lost war…

When metaphors ruin the argument: Rwanda, Israel and negationism

Famous genocide scholar and Rwanda expert, Gerald Caplan, recently published an op-ed on the events surrounding the arrest of both Victoire Ingabire and Peter Erlinder in Rwanda on charges of “genocidal ideology”. The article highlights some interesting aspects of the situation, denouncing the lack of perspective of those who criticize the Rwandan government without taking into account the entire situation. However, the author falls into the same trap in the other direction and his article is problematic in many ways, despite its good intentions.

For one, he embarks in a haphazard comparison with holocaust denial in Israel. Here’s how that works:

An enigmatic, controversial woman returns to Israel after decades away and announces she’s running for Prime Minister.
She regrets the Holocaust, but after a tour of Yad Vashem, the country’s main memorial to the genocide of the Jews, she can’t help asking why no one bothers recalling all those good people that were killed by Jews resisting the Nazis. In fact she says not even sure whether more Germans or more Jews were murdered.
The Israeli authorities decide to take her seriously. She’s imprisoned, awaiting trial.
Soon her lawyer appears, from another country. He proves to be one of the world’s most notorious Holocaust deniers. The Law Society of Upper Canada (i.e. Ontario) writes to remind the Israeli government that UN protocols protect the right of a lawyer to perform his/her professional functions without hindrance. The responsibility of the Law Society, its website tells us, is to ensure that “the people of Ontario are served by lawyers and paralegals who meet high standards of learning, competence and professional conduct”. And the people of the world, as well. Their letter fails to mention the lawyer’s views on the Holocaust.
The Israeli government unceremoniously throws the lawyer-denier out of the country. Despite UN protocols, the world cheers.

And the conclusion is that:

This story never happened in Israel. It is happening right now, with minor situational variations, in Rwanda. But the world’s reaction is entirely different. 

Gerald Caplan says there are “minor situational variations”… But, I fail to see how the differences are not “major”. The comparison with Israel does not really work. For the comparison to work, you would need a jew to actually fight and win a bloody civil war in Germany and gain power there, thus becoming the leader of a majority population that is considered to have in large numbers contributed to the genocide. Surely that makes the political reality and sociological evaluation far more complex. The comparison as it stands is certainly flashy, but is not really helpful. It looks like a variation of world-famous Godwin’s Law, according to which any debate will end up with a reference to Hitler or the Nazis. In this case the variation is that there will always be a holocaust reference to advance an argument, however irrelevant this is…

On the substance, I find it disturbing that an academic gives so little thought for the real question of the link between criminally prohibiting revisionist discourse and the freedom of expression. The arguments for free expression are strong and can’t so easily be brushed aside, even if one does need to take into account the fragile situation of a country, only some years after such a scar on its history. And it is not really an answer to say that such discourse is banned in other countries. Mere examples do not constitute an argument. The fact is that one can legitimately consider that there is always a risk when law has a say on the content of history, with Orwell’s 1984 as a extreme, but perfect example. Some at least lip service for this would be the minimum to expect for an honest intellectual assessment of the issue.

A second point is the totally one-sided view of the political situation. As I’ve had the opportunity of saying several times in this blog, the genocide totally obscures the reality of the situation in the great lakes. For one, it is well documented that the FPR was involved in large scale massacres in their conquest of the country in 1994. This doesn’t justify Ms. Ingabire gross exaggeration of the numbers, but one should at least have the right to say it. In the same way, in relation to Erlinder, I had sort of understood that the scope of the genocidal plan has been circumscribed by the ICTR itself, the intent not necessarily attributable to some parts of government and the military. As for today’s situation, maybe Ms. Ingabire is linked to extremist Hutu in Eastern Congo, as the author suggests, but it is also true that Kagame, with the support of Uganda, has been an integral part of the destabilisation in the region, for equally pragmatic reasons as taking over areas rich in minerals. There is a general leniency towards the Kagame regime that is most problematic, and on the long run, not necessarily helpful. It must be possible to condemn the genocide at the same time criticize the excesses of the regime and denounce the crimes committed by the FPR.

Finally, Gerald Caplan concludes with this remark:

But then, why would he listen to an outsider like me? I did nothing in 1994 to try to stop the genocide. Why would he listen to any of those who support Erlinder’s rights without even alluding to Erlinder’s inflammatory views? Why should the ban on genocide denial not apply to him? Who has earned the right to tell this Rwandan nation, abandoned and betrayed by the world a mere 16 years ago, how to deal with the fear of renewed genocide? Who would dare lecture Israel on the rights of Holocaust deniers?

 This seems to make sense on the face of it, but doesn’t really. For one, does past conduct mean that one can never say anything again? this means, given the history of all countries, that nobody is legitimate to express outrage about anything that happens in the present. Secondly, and more importantly, it is an ontological no brainer for anyone working in ICL, human rights and genocide prevention, and more generally for any outsider. Who are we ever to say anything about anything? who are we to even condemn a genocide? If the author really believes in what he says, he should consider a career change…