UN Whitaker Report on Genocide, 1985, paragraphs 85-90, pages 43-45 [ Table of Contents , Previous Section , Next Section ]

PART III: FUTURE PROGRESS: POSSIBLE WAYS FORWARD,

C) Proposals

3. An international body to deal with genocide

85. Cogent support has been expressed for the establishment of a new impartial and respected international body whose special concern would be to deal over-all with genocide. Such a body could perhaps be created under the "competent organs" Article VIII of the Convention. Support for such a body has been expressed, inter alia, by the Government of Spain. A constructive possible formulation for such a body has been proposed by a non-governmental organization, the Baha'i International:

"We believe that, at the present time, the most effective means of preventing and controlling genocide is through the establishment by the United Nations of a new international body dealing exclusively with genocide and charged with responsibility for considering allegations of genocide, carrying out investigations in connection with those allegations and taking urgent steps to put a stop to genocide wherever it is known to be taking place. Since secrecy is the greatest ally of any Government that seeks to engage in genocide, and international publicity and condemnation the greatest enemy, it might be expected that the opprobrium that would attach to any Government which was identified as a violator of the Convention by a high-level international body of known competence and impartiality would, on its own, act as a deterrent to that Government, quite apart from any action that the international body itself was able to generate. We accordingly suggest that consideration be given to revising the existing Convention by adding to it appropriate provisions for the creation of a Committee on Genocide whose existence would derive directly from the Convention and which would concern itself exclusively with the subject-matter contained in its parent Convention.

We envisaged that this Committee would concern itself primarily with questions of fact rather than with questions of law. It would, we envisage, hold a 'watching brief' on genocide: it would be the body to which any allegations of genocide were automatically referred and it would be responsible for investigating those allegations. In order to enable it to react effectively in cases where there were strong and reliable indications that genocide was, in fact, taking place, the Committee should, we suggest, be empowered to (a) invite the State party concerned to submit its observations with regard to the allegations of genocide; and (b) if it decided that the situation warranted it, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently. In short, we envisage the Committee being given powers in this regard similar to those proposed for the Torture Committee in the Convention against torture and other cruel, inhuman or degrading treatment or punishment.

We envisage that the Committee on Genocide, in common with other bodies created under the provisions of international human rights instruments (which it would very closely resemble in membership and procedures), would report annually to the General Assembly, but we suggest that the Committee should also be empowered to bring any situations of urgency to the immediate attention of the Secretary-General of the United Nations. We believe that the advantages of establishing a Committee under the provisions of the Convention would be:

(a) To remove the subject of genocide as far as possible from the political arena;

(b) To attract a high-calibre 'independent expert' membership;

(c) To speed the international response to genocidal situations by obviating the necessity for cases of genocide to proceed through the hierarchical mechanisms of the United Nations human rights system;

(d) To provide the high-profile, international focus for genocide that is currently lacking.

We are, of course, aware that any proposed revision of the existing Convention must be requested by a State party and must then win the approval of the United Nations General Assembly and we are fully conscious of the difficulties attendant upon obtaining such approval. Nevertheless, we feel that it is appropriate to consider this course of action, bearing in mind the status of genocide as the major 'crime against humanity', the disturbing fact that genocide persists in the contemporary world, and the urgent need for determined international action to combat it. Failing agreement on the creation of a Committee on Genocide under the provisions of the Convention, we would suggest that a Working Group on Genocide be established under the aegis of the Commission on Human Rights."

4. An International Human Rights Tribunal or Court

86. Support has been expressed by, inter alia, the Government of El Salvador that: "Regarding the possibility of setting up an international penal tribunal as proposed in article VI of the Convention on the Prevention and Punishment of the Crime of Genocide, the Government of El Salvador considers that, in view of the international importance of this crime, it would be appropriate to set up an international penal court competent to judge this and similar crimes. However, the binding and enforceable character of the decisions of such a court would require to be formally stated in the international instrument establishing it."

The Government of Morocco also suggests "the establishment of a full—scale international court with a prosecutor’s office and an investigating arm". The Government of Chad likewise supports the idea of an international penal tribunal and an international body entrusted with carrying out investigations. It might obviate much argument about which massacres technically are, or are not, genocide, if such a Tribunal or Court dealt with all major crimes against humanity.

87. Other opinion and replies indicate a preference for instituting universality of jurisdiction, or for both proposals to provide a "fail—safe" or double system of safeguard.

88. The previous study (E/CN.4/Sub.2/416) concluded with a recommendation for universal jurisdiction:

"... since no international criminal court has yet been established, the question of universal punishment should be considered again if it is decided to prepare new international instruments for the prevention and punishment of genocide, since in practice, even if a Government were to commit serious acts of genocide there would be, as there has always been, some doubt as to the possibility of indicting it, unless it were replaced by a regime that would take the necessary legal action. While recognizing the political implications of the application of the principle of universal punishment for the crime of genocide, the Special Rapporteur remains convinced that the adoption of this principle would help to make the Genocide Convention more effective. Moreover, the adoption of the principle should not automatically entail the obligation to prosecute persons guilty of genocide. It would merely be an option that could be used, particularly in the case of Governments, in the light of all the circumstances and of the advisability of taking appropriate action. Moreover, a new international instrument on genocide, establishing the principle of universal jurisdiction, would offer the choice between extradition and the punishment of the crime by the State on whose territory the guilty person was found."

89. The one indefensible course would be to adopt neither option.

90. Such a reform would of course not preclude stronger measures in each nation’s own laws against genocide, which should also be urged.

UN Whitaker Report on Genocide, 1985, paragraphs 85-90, pages 43-45 [ Table of Contents , Previous Section , Next Section ]