UN Whitaker Report on Genocide, 1985, paragraphs 42-68 , pages 20-35 [ Table of Contents , Previous Section , Next Section ]
37. One possible solution to the problem of killings of political and other groups which would be considered in the absence of consensus, would be to include this provision in an additional optional protocol.
38. If it is the element of intent to destroy a designated group wholly or partially which raises crimes of mass murder and against humanity to qualify as the special crime of genocide. An essential condition is provided by the words "as such" in Article II, which stipulates that , in order to be characterized as genocide, crimes against a number of individuals must be directed at the collectivity or at them in their collective character or capacity. Motive, one the other hand, is not mentioned as being relevant.
39. Evidence of this element of subjective intent is far harder to adduce than an objective test. Not all genocidal regimes are likely to be as thoroughly documented as the Nazi one was. It is suggested that a court should be able to infer necessary intent from sufficient evidence, and that in certain cases this would include actions or omissions of such a degree of criminal negligence or recklessness that the defendant must reasonably be assumed to have been aware of the consequences of is conduct. The plea of superior orders is dealt with later infra, in paragraph 51 onwards.
6. Acts punishable
40. The conduct listed in Articles II and III of the Convention as being punishable as genocide consists elusively of the commission of certain actions. Similar results, to Article II (b) and (c) for example, however may be achieved by conscious acts advertent omission. In certain cases, calculated neglect or negligence may be sufficient to destroy a designated group wholly or partially through, for instance, famine or disease.
41. The Special Rapporteur therefore proposes that there should be added at the end of Article II of the convention words such as: "in any of the above conduct, a conscious act or acts of advertert omission may be as culpable as an act of commission." Provision for revision of the Convention is set out in Article XVI of the Convention.
42. In the consideration of whether to widen and revise the Convention in other respects, it has rightly been argued that it is necessary not to weaken the over-all governmental support for its central principle. On the one hand, "genocide" in popular modern usage covers many more cases of mass killings than those covered in the Convention. On the other hand, it has also been noted that Article II (b) "Causing serious bodily or mental harm to members of the group" is one wider interpretation than that either in popular usage or in the dictionary. (30) However, in certain cases such an apartheid, the degree of mental and other suffering inflicted may be felt to constitute such a comparable crime; (31) and apartheid generally is considered in more detail next.
43. Apartheid was examined in relation to the Genocide Convention by an Ad Hoc Working Group of Experts established under resolution 2 (XXIII) of the Commission on Human Rights. Their work produced the Study concerning the question of apartheid from the point of view of international penal law. (32) The study listed examples of the practices of apartheid which they regarded as instances of genocide:
"(a) The institution of group areas ('Bantustan policies'), which affected the African population by crowding them together in small areas where they could not earn an adequate livelihood, or the Indian population by banning them to areas which were totally lacking the preconditions for the, experience of their traditional professions; (b) The regulations concerning movement of Africans in urban areas and especially the forcible separation of Africans from their wives during long periods, thereby preventing African births; (c) The population policies in general, which were said to include deliberate malnutrition of large population sectors and birth control for the [Page 21] non-white sectors in order to reduce their numbers, while it was the official policy to favour white immigration; (d) The imprisonment and ill-treatment of nonwhite political (group) leaders and of nonwhite prisoners in general; (e) The killing of the nonwhite population through a system of slave or tied labour, especially in so-called transit camps."
The study (E/CN.4/1074) also states that "In various documents the Ad Hoc Working Group has described how politicians in South Africa, Southern Rhodesia and Namibia commit the crime of genocide directly or indirectly and incite such crimes directly and publicly. Many examples of attempted genocide and of complicity in the crime have been described at length in documents E/CN-4/950; E/CN-4/984/Add.18; E/CN.4/1020; E/CN.4/1020/Add,@2.11 Referring to article IV of the convention, the study also stated that "Persons committing the crime of genocide in South Africa, Southern Rhodesia and Namibia are Heads of State, members of the various Governments, public officials, official agents and 'all other persons responsible for giving effect to the policies of apartheid". In paragraph 161 of the study the Group of Experts repeated its recommendation contained in document E/CN-4/984/Add.18 that the Commission on Human Rights should make specific proposals concerning a revision of the Genocide Convention, in particular to make "inhuman acts resulting from the policies of apartheid" punishable under that Convention. The Group further recommended (in paragraph 163) that acts of "cultural genocide" should be expressly declared crimes against humanity.
44. At its twenty-eighth session, the General Assembly by its resolution 3068 (XXVIII) of 30 November 1973, adopted and opened for signature and ratification the International Convention on the Suppression and Punishment of the Crime of Apartheid. 33/(65) This Convention entered into force on 18 July 1976, in accordance with paragraph I of its article XV. -The General Assembly in its resolution 31/80 of 13 December 1976 invited the Commission on Human Rights to undertake the functions set out, in Article X of the Convention, in particular to prepare a list of individuals, organizations, institutions and representatives of States which are alleged to be responsible for the crimes enumerated in article II of the Convention. By the same resolution, the Assembly decided to consider annually, starting with its thirty-second session, the question entitled "Status of the International Convention on the Suppression and Punishment of the Crime of Apartheid". The fifth, sixth and seventh preambular paragraphs of the Convention read as follows:
"Observing that, in the Convention on the Prevention and Punishment of the Crime of Genocide, certain acts which may also be qualified as acts of apartheid constitute a crime under international law, Observing that, in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 'inhuman acts resulting from the policy of apartheid' are qualified as crimes against humanity, Observing that the General Assembly of the United Nations has adopted a number of resolutions in which the policies and practices of apartheid are condemned as a crime against humanity".
[Page 22] According to article I, paragraph I , of the Convention: "I - The States Parties to the present Convention declare that apartheid is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination, as defined in Article II of the Convention, are violating the principles of international law, and in particular the purposes and principles of the Charter of the United Nations, and constituting a serious threat to international peace and security."
45. The previous Study on Genocide concluded that therefore apartheid should be considered more properly as a crime against humanity rather than as genocide. It special Rapporteur also stated that "since the International Convention on the Suppression and Punishment of the Crime of Apartheid has been adopted and has entered into force, it will no longer be necessary to include provisions relating to apartheid in any new international instrument, dealing with genocide". (36)
46. Most recently, the subject together with further evidence about apartheid has been examined by an Ad H Working Group of Experts on Violations of Human Rights in Southern Africa, pursuant to the Commission on Human Rights' resolution 198319 (paragraph 14). The Group considered in particular evidence of capital punishment, large-scale killings, physical and mental violations of non-whites, and apartheid's effects on the African family and the status of women and children. The experts concluded that "the South African racists want to destroy the Africans, sparing only those needed as a slave-labour force" (their paragraph 51); and that "The Working Group interprets the term genocide more broadly to mean any act calculated to destroy the individual or prevent him from participating fully in national life. The latter too should be understood in its more general sense, embracing political, economic and social life" (paragraph 57). The Group also concluded that the degree of mental genocide caused by apartheid was within article II(b) of the Convention (their paragraph 70); and that policies affecting black birth-rates are within articles II(e) and (d) of the Convention. They recommended, inter alia, that "The way in which the South African regime implements the policy of apartheid, should henceforth be considered as a kind of genocide", and requested the Commission "to call on the General Assembly to seek an advisory opinion from the International Court of Justice on the extent to which apartheid as a policy entails criminal effects bordering on genocide." (35)
8 . Propaganda in favour of genocide
47. Certainly for the victims, the preventative measures (see Part III below) to avert or forestall genocide are more useful than lamentation or condemnation after it has occurred. As in all human rights work, the importance of the role to be played by public education cannot be over-estimated It has been suggested that public propaganda aimed at promoting the commission of acts of genocide, or attempts to rewrite history so as either to falsify the truth about or to glorify its occurrence, of which there are examples in more than one country today, should be brought within the terms of the Convention.
48. It should be noted that "direct and public incitement to commit genocide" t is already punishable under Article III(C) of the Convention. A number of nations' laws also ban propaganda or public statements that stir up racial, national or religious hatred. And it can be argued that propaganda for genocide should not be considered as any less grave than propaganda for war, prohibited by Article XX(l) of the Covenant on Civil and Political Rights, or propaganda in favour of racial superiority, prescribed by Article IV of the Convention on the Elimination of All Forms of Racial Discrimination.
49. Regarding attempts to falsify the historical truth about genocide, it has already been noted in paragraph 23 supra that the Government of the Federal Republic of Germany has pledged official action to prosecute any person who seeks to deny or minimize the truth about the Nazi crimes. Many Governments on the other hand believe strongly that there should be no constraint either on legitimate historical debate or upon freedom of expression. In certain other - States however no such freedom of expression or scholarship is permitted. Sincere differences of,opinion exist as to whether this problem is best dealt with by education and constant vigilance or by the influence of legislation.(36)
9. Culpability and superior orders.
50. Concern has been expressed whether the exhaustive list of People stated to be those punishable for genocide in article IV of the Convention is adequate to cover leaders or rulers in de facto but unconstitutional control of a territory, for example after a coup d'etat or during civil strife, since these might be considered to be neither "constitutionally responsible rulers" nor "private individuals'. But the Special Rapporteur is of the opinion that such persons would be likely to be held by a court to be "public officials" or, if not, then to be "private individuals". However, if certainty is required, consideration could be given to inserting words as "whether de jure or de facto" in Article IV if and when the Convention comes to be revised.
51. Wider concern has been ex law genocide under the command of a superior or to comply with a national may escape punishment through a plea that they lacked the intent necessary under Article 11, despite all-embracing list of culpability in Article IV.
52. In fact the international practice at least since the Second World War has consistently applied to the principle of individual criminal responsibility for crimes of international law, including those of genocide. Thus article 6 [Page 24]of the Charter of the International Military Tribunal of Nuremberg gave the the power to try and punish persons who, acting in the interests of the Axis countries, had committed any of the following crimes, as defined in the article: crimes against peace, war crimes and crimes against humanity. In applying these provisions, the Tribunal made pronouncements concerning the fundamental principle involved: the criminal responsibility of individuals under international law. (37) In its judgement the Tribunal affirmed inter alia, that individuals could be punished for violations of international law and continued: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced."(38) The Charter of the International Tribunal for the Far East also provided, in its article 5, for individual criminal responsibility, (39) and the judgement of that Tribunal applied the same principle, Principle I in the document Principles of international law recognized in the Charter of the Nüremberg Tribunal and in the Judgement of the Tribunal adopted by the International Law Commission at its second session (1950) reads as follows:
"Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment." (40)
Article 1 of the draft code of offences against the peace and security of mankind, which was adopted by the International Law Commission at its sixth session (1954), similarly provides that:
"Offences against the peace and security of mankind, as defined in this code, are crimes under international law, for which the responsible individuals shall be punished." (41)
Article 25 of the draft statute for an international criminal court, which was adopted in 1951 by the Committee on International Criminal Jurisdiction established by General Assembly resolution 489 (V) of 12 December 1950, provides:
"The Court shall be competent to judge natural persons only, including persons who have acted as Head of State or agent of government."(42)
The 1953 Committee on International Criminal Jurisdiction, set up under General Assembly resolution 687 (VII) of 5 December 1952, in the revised draft statute for an international criminal court, adopted -the following wording for the draft article 25: "The Court shall be competent to judge natural persons, whether they are constitutionally responsible rulers, public officials or private individuals.'(43)
In its report, the Committee stated that this text was based on article IV- of the Convention on Genocide.(44)
Article III of the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by General Assembly resolution 3068 (XXVIII) of 30 November 1973, provides inter alia that:
"International criminal responsibility shall apply, irrespective of the motive involved, to individuals, members or organizations and institutions-and representatives of the State, whether residing in the territory of the State In which the acts are perpetrated or in some other State, whenever they: (a) Commit ... the acts mentioned in article II of the present Convention."
Article 8 of the Nuremberg Charter' made clear that no defendant could claim the protection of having obeyed orders from a superior, though superior orders might be considered by the Tribunal as a mitigating factor in sentencing. The denial of the defence of superior orders has often been called the "Nuremberg Principle". It was not, however, new at the trial. It was perfectly familiar in national legal systems - and indeed, it should have been even more familiar to the German military than to anyone, because every German soldier's paybook contained 'Ten Commandments ', one of which stated that no soldier should obey an illegal order (45) Only in 1944 did the Americans and British clarify their military [Page 27] legal manuals to emphasize that any soldier is personally responsible for the acts he commits. The defence of superior orders had also not been allowed by German judges of the Leipzig trials after the First World War, and this doctrine was therefore not one that was invented de novo by the victors at Nuremberg.
53. There therefore should be little doubt, that courts today would hold that the concept of individual responsibility will override any defence of superior orders. Nevertheless, since wider public education about this doctrine in highly crucial for the aversion of future genocide, the Special Rapporteur recommends that explicit wording should be added to the Convention, perhaps at the end of Article III, that "In judging culpability a plea of superior orders is not an excusing defence". Similarly wider publicity should be given to this principle in national codes governing armed forces, prison staffs,police officer, doctors and others, to advise and warn them that it is not only their right to disobey orders violating human rights, such as to carry out genocide or torture, but their, legal duty so to disobey. Such precepts should also be taught in all schools, and the United Nations Educational, Scientific and Cultural Organization might be asked to encourage this internationally.
54. Individuals responsibility however need not necessarily exclude in appropriate cases a State's collective responsibility also toward the victims, including sometimes liability for damages and restitution. The French representative argued in the debate preparing the Convention:
"The theoreticians of nazism and fascism, who had taught the doctrine of the superiority of certain races, could not have committed their crimes if they, had not had the support of their rulers; similarly, pogroms had occurred frequently only in countries where no severe legal measures were taken against the perpetrators. Thus the experience of history showed the way it was that human groups should be exterminated while the Government remained indifferent; it was inadmissible that the central authority should be powerless to out a stop to mass assassination when homicide was the first of punishable crimes. When the crime of genocide was committed, it was committed either directly by the Governments themselves or at their behest; alternatively, they remained indifferent and failed to use the power which every Government should have in order to ensure public order. Thus, whether an perpetrator or as accomplice, the Government's responsibility-was in all cases implicated. (47)
Germany has subsequently paid substantial reparations for genocidal crimes against t:he Jews. It is therefore recommended, to deter pour encourager les autres, that when the Convention is revised, consideration shall be given to including provision for a State's responsibility for genocide together with reparations.
55. Although the Convention despite its title concentrates almost exclusively on the punishment rather than the prevention of Genocide, it is in the field of the former that its lack of effect has been most marked"' As Professor Leo Kuper comments: 'A major obstacle to effective enforcement arose from the unwillingness to accept any limitation ('infringement') of national sovereignty, or diminution in the scope of domestic jurisdiction, as well as from fear of outside interference in domestic affairs." (48)
56. Enforcement principle of universal enforcement, permitting a State whose authorities had arrested those charged with the crime, to exercise jurisdiction, regardless of the nationality of the accused or of the place where the offence was committed. There nationality of the accused or of the place where the offence wage committed. There was also a provision that the contracting parties might call on the competent organs of the United Nations to take measures for the prevention and suppression of the crime in any part of the world, in which case the parties would do everything in their power to give full effect to the intervention of the United Nations. This latter provision was retained in the final text, but the principle of universal jurisdiction was eliminated, save to the extent that the United Nations may take action within its general competence. The Secretariat's draft also imposed on the parties the obligation to provide in their national laws for acts of genocide and their punishment, and to commit all persons guilty of genocide for trial by an international court, when (1) they are themselves unwilling to try such offenders or to grant extradition to another country, (2) if the acts of genocide were committed by individuals acting as organs of the State. The provision in regard to an international penal court aroused controversy, though the resolution was closely contested. Later, when political groups were denied the protection of the Convention, it became feasible to reinstate the jurisdiction of an international penal tribunal, though in an optional and conditional form. The Convention now provides for trial 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." (49) No international penal court has as yet been established. In the General Assembly, discussion of a Revised Draft Statute for an international tribunal was made contingent upon satisfactory drafting of the Code of Offences against the Peace and Security of Mankind, which in turn, was made contingent upon a satisfactory definition of "aggression", which problem was assigned to a Special Committee in 1954, and to a further Committee of 35 States in 1967, which has met repeatedly since that time. A definition of aggression was finally arrived at in 1974, but the project for an international penal tribunal to try charges of genocide still remains in abeyance. In examining the problem of the enforceability of the Convention, it is necessary also to take account of reservations made by signatories when ratifying the Convention as, for example, reservations regarding [Page 28] submissions to the International Court of Justice of disputes concerning interpretation, application or fulfillment of the Covenant. These may have the effect of further weakening its provisions. Acting in the opposite direction is the impact of the Convention on national legislation incorporating the crime of genocide in penal code or laws. It should also of course be noted that genocide remains a crime under international law, as is expressly stated at the start of the Convention, irrespective of a country's signature or not, though the Convention itself is binding only on Contracting Parties. Although 96 States have ratified the Convention, among those which have not yet ratified are Burundi, Equatorial Guinea, Paraguay, South Africa, Uganda and the United States of America. (See paragraph 69 infra).
57. Some encouragement nevertheless may be drawn from the recent national prosecutions by Kampuchea and Equatorial Guinea.(50) Another interesting analogous precedent has,been set by the case of Filartiga versus Pena, where an action for $10.4 million damages in a New York court was upheld against an alien torturer who was on a temporary visit within the jurisdiction. But it was partly the failure to make progress internationally that caused Israel to take unilateral measures to seize and try Eichmann.
58. During discussion by the Legal Committee in 1948, the subject of international penal jurisdiction was considered carefully. As a result, the idea is envisaged and provided for in Article VI of the Convention. Further, in addition to the Convention, the Assembly adopted a resolution which made three provisions:
First, it recognized that "in the course of development of the international community there will be an increasing need of an international judicial organ for the trial of certain crimes under international law".
Second, it invited the International Law Commission to study both the desirability and the possibility of establishing such an international judicial organ "for the trial of persons charged with genocide, or other crimes over which jurisdiction will be conferred upon that organ by international conventions".
Third, it required the International Law Commission, in carrying out its task, to give attention to the possibility of establishing a Criminal Chamber of the International Court of Justice.
After studying that question, the International Law Commission concluded that an international criminal court was both possible and desirable but recommended it be a separate institution rather than a Criminal Chamber of the International Court.
59. In debates at the Sub-Commission it has been argued, in favour of setting up an international penal tribunal, that the perpetrators of acts of genocide are generally national authorities against whom national legislation is often least likely to be applied; and that the establishment of the International Court of Justice has shown that new international bodies to enforce respect for human rights, though not easy, was feasible. A State could, for example, take the [Page 29] initiative of requesting the Court to investigate alleged cases of genocide in the territory of a State party to the Genocide Convention. Other experts doubted how realistic or likely this is, and point to the limited number of States which have accepted the compulsory jurisdiction. Some argued it would be better to set up an international investigatory body, to act not only on the basis of majority decisions by political organs of the United Nations but also on its own initiative, in cases where there was evidence that genocide was being or was about to be committed.(51) In the 1984 Sub-Commission, an expert suggested there might be advantages in looking the courts of all countries competent to judge the perpetrators of the crime of genocide who had taken refuge abroad. Since one of the obstacles is the problem of bringing such culprits before courts on a mandatory basis, it was argued that consideration should be given to amending the International Court of Justice's statutes to give it penal jurisdiction, because it was better to improve the use of existing international bodies rather than to proliferate new ones. Another expert went so far as to state that the Convention will be worthless unless positive action to implement it is taken, and proposed an additional protocol extending jurisdiction to courts other than those of the country where the crime of genocide has been committed. Another expert stated means of implementation of any resultant judgement were also important,.-,to deal with the problem of a verdict being ignored, since those States and individuals most likely to commit genocide are the ones least likely to co-operate, whereas more civilized co-operators will probably not be in the dock. Some experts urged the establishment of international, early-warning and fact-finding systems, and emphasized the part that accurate and impartial publicity could play in deterrence. Several experts commented on the problem of extradition, discussed in paragraphs 62-63 below. Renewed proposals were also made concerning the constructive role which a United Nations High Commissioner for Human Rights could contribute to preventing and investigating allegations of genocide, and in coordinating remedial work. Several commentators as well strongly emphasized the crucial task of wider-public education in order to make the Convention more effective.(52)
II. The question of time-limitation
60. In 1965, the question arose in some countries of applying the statute of limitations provided for in their national laws::to cut off the further prosecution of war crimes and of crimes against humanity after a certain time limit. The Commission on Human Rights requested- the Secretary-General to undertake a study of the problems raised in international law by war crimes and crimes against humanity and a study of legal procedures to ensure that no period of limitation should apply to such crimes. On the basis of that study, the Commission began, in 1966, to prepare a draft Convention.
The matter was taken up in 1967 by the General Assembly,'which on 26 November 1968 completed and adopted the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. The Convention entered into force on 11 November 1970.
Convention on the Non-Applicability of Statutory Limitations
to War Crimes and Crimes against Humanity.
The States Parties to the present Convention,
Recalling resolutions of the General Assembly of the United Nations 3 (I) of 13 February 1946 and 170 (II) of 31 October 1947 on the extradition and punishment of war criminals, resolution 95 (I) of 11 December 1946 affirming the principles of international law recognized by the Charter of the International Military Tribunal, Nurnberg, and the judgement of the Tribunal, and resolutions 2184(XXI) of 12 December 1966 and 2202(XXI) of 16 December 1966 which expressly condemned as crimes against humanity the violation of the economic and political rights of the indigenous population on the one hand and the policies of apartheid on the other,
Recalling resolutions of the Economic and Social Council of the United Nations 1074 D (XXXIX) of 28 July 1965 and 1158 (XLI) of 5 August 1966 on the punishment of war criminals and of persons who have committed crimes against humanity,
Noting that none of the solemn declarations, instruments or conventions relating to the prosecution and punishment of war crimes and crimes against humanity made provision for a period of limitation,
Considering that war crimes and crimes against humanity are among the gravest crimes in international law,
Convinced that the effective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtherance of co-operation among peoples and the promotion of international peace and security,
Noting that the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitation for ordinary crimes is a matter of serious concern to world public opinion, since it prevents the prosecution and punishment of persons responsible for those crimes,
Recognizing that it is necessary and timely to affirm in international law, through this Convention, the principle that there is no period of limitation for war crimes and crimes against humanity, and to secure its universal application,
Have agreed as follows:
No statutory limitation shall apply to the following crimes, irrespective of the date of their commission: [Page 31]
(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (1) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the "grave breaches" enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;
(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.
If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.
The States Parties to the present Convention undertake to adopt all necessary domestic measures, legislative or otherwise, with a view to making possible the extradition, in accordance with international law, of the persons referred to in article II of this Convention.
The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles 1 and 2 of this Convention and that, where they exist, such limitations shall be abolished.
This Convention shall, until 31 December 1969, be open for signature by any State Member of the United Nations or member of any of its specialized agencies or of the International Atomic Energy Agency, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention.
This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.
This Convention shall be open to accession by any State referred to in article 5. Instruments of accession shall be deposited with the Secretary- General of the United Nations.
1. This Convention shall enter into force on the ninetieth day after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession.
2. For each State ratifying this Convention or acceding to it after the deposit of the tenth instrument of ratification or accession, the Convention shall enter into force on the ninetieth day after the date of the deposit of its own instrument of ratification or accession. Article 9
1. After the expiry of a period of ten years from the date on which this Convention enters into force, a request for the revision of the Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General of the United Nations. 2. The General Assembly of the United Nations shall decide upon the steps, if any, to be taken in respect of such a request.
1. This Convention shall be deposited with the Secretary-General of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States referred to in article 5.
3. The Secretary-General of the United Nations shall inform all States referred to in article V of the following particulars:
(a) Signatures of this Convention, and instruments of ratification and accession deposited under articles 5, 6 and 7;
(b) The date of entry into force of this Convention in accordance with article 8;
(c) Communications received under article 9.
This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 26 November 1968.
IN WITNESS WHEREOF the undersigned, being duly authorized for that purpose, have signed this Convention.
[Page 33] To date, the following 28 States have ratified or acceded to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity: Afghanistan, Albania, Bolivia, Bulgaria, Byelorussian SSR, Cuba, Czechoslovakia, Democratic People's Republic of Korea, Gambia, German Democratic Republic, Guinea, Hungary, India, Kenya, Lao People's Democratic Republic, Mongolia, Nigeria, Philippines, Poland, Romania, Rwanda, Saint Vincent and the Grenadines, Tunisia, Ukrainian SSR, Union of Soviet Socialist Republics, .Republic of Cameroon, Vietnam and Yugoslavia. Mexico has signed the Convention but has not become a party to it.
61. In the first 20 years after the Second World War, the Federal Republic of Germany instituted legal proceedings against 0'7,716 persons suspected of complicity in Nazi and war crimes. (53) All Nazi crimes were due to become statute-barred by then existing German law on 31 December 1979. Due to public protest in Germany and elsewhere, however, the statutory limitations were abolished for the crimes of genocide and murder in 1979. The prosecution of a number of remaining major Nazi leaders for genocide, if they are discovered, remains possible. i2. Extradition
62. On 3 December 1973 the General Assembly passed resolution 3074 (XXVIII), whose text is as follows:
"The General Assembly,
Recalling its resolutions 2583 (XXIV) of 15 December 1969, 2712 (XXV) of 15 December 1970, 2840 (XXVI)of 18 December 1971 and 3020 (XXVII) of 18 December 1972,
Taking into account the 'special need for international action in order to ensure the prosecution and punishment of persons guilty of war crimes and crimes against humanity,
Having considered the draft principles 6f international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity,
Declares that the United Nations, in pursuance of the principles and purposes set forth in the Charter concerning the promotion of cooperation between peoples and the maintenance of international peace and security, proclaims the following principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity;
1. War crimes and crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment
2 . Every State has the right to try its own nationals for war crimes or crimes against humanity.
3. States shall co-operate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity, and shall take the domestic and international measures necessary for that purpose.
4. States shall assist each other in detecting, arresting and bringing to trial persons suspected of having committed such crimes and, if they are found guilty, in punishing them.
5 . Persons against whom there is evidence that they have committed war crimes and crimes against humanity shall be subject to trial and, if found guilty, to punishment, as a general rule in the countries in which they committed those crimes. In that connection, States shall cooperate on questions of extraditing such persons.
6. States shall cooperate with each other in the collection of information and evidence which would help to bring to trial the persons in paragraph 5 above and shall exchange such information.
7. In accordance with article 1 of the Declaration on Territorial Asylum of 14 December 1967, States shall not grant asylum to any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity.
8. States shall not take any legislative or other measures which may be prejudicial to the international obligations they have assumed in regard to the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity.
9. In co-operating with a view to the detection, arrest and extradition of persons against whom there is evidence that they have committed war crimes and crimes against humanity and, if found guilty, their punishment, States shall act in conformity with the provisions of the Charter of the United Nations and of the Declaration on Principles of International Law concerning Friendly Relations and Co--operation among States in accordance with the Charter of the United Nations."
63. A number of experts have pointed to what they see as basic flaws in Article VII of the Convention, because it allows each contracting State to interpret its own laws in a given case. Mass murderers, in recent experience, have taken care to seek refuge in sympathetic countries where all too often they have been hidden or safe. Many bilateral treaties and national laws fail to declare genocide to be an extraditable offence. Furthermore, most countries do not permit the extradition of their own nationals, so that the perpetrator of a crime, once he had returned to his own country, would not be extradited. To date, as far as is known, no extradition for genocide under the convention has occurred [Page 35] at all. The Special Rapporteur therefore believes that countries or at least States parties should be required to amend their domestic laws to permit such extradition if they do not prosecute offenders themselves.
64. Genocide, alternatively, could be made a matter of universal jurisdiction: "aut dedere aut punire", as is the case for crimes of piracy. Article 8 of the new Convention against Torture of 10 December 1984 54/ reads as follows:
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 offences. 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."
Since genocide may be held at least no less serious a matter than torture, the Special Rapporteur recommends that similar provision to the above be made for offences of genocide.
13. Calls upon the United Nations to take action
65. No use equally is known to have been made to date of Article VIII of the Genocide Convention, whereby:
"Any Contracting Party may call upon the competent organs of the United Nations to take such action 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 III."
66. Article VIII of the Convention, while adding nothing new to the United Nations Charter, is of some importance in that it states explicitly the right of States to call upon the United Nations with a view to preventing-and suppressing genocide and the responsibility of the competent organs of the 54/ 36/46, Official Documents of the General Assembly, thirty-ninth session, supplement No. 51. See-Appendix. [Page 36] United Nations in the matter. Furthermore, it is the only article in the Convention for the Prevention and Punishment of Genocide which deals with prevention of that crime, referring to the possibility of preventive action by United Nations organs called upon by Parties to the Convention. It should be noted, further, that such action by United Nations organs is particularly of a humanitarian nature, the need and justification nobody should deny. It would be desirable for the organs of the United Nations, in pursuance of article VIII of the Convention, to exercise their powers in this field actively.
67. The International Convention on the Suppression and Punishment of the Crime of Apartheid (adopted by General Assembly resolution 3068 (XXVIII)) uses the text of article VIII of the Convention on Genocide, with some slight drafting changes. Article VIII of the Convention on the Crime of Apartheid reads:
"Any State party to the present Convention may call upon any competent organ of the United Nations to take such action under the Charter of the United Nations as it considers appropriate for the prevention and suppression of the crime of apartheid.''
68. The value of an article specifying the role of the United Nations in the prevention and suppression of genocide is especially evident, because until some special agency is set up, there is no other international organization to see to the implementation of the Convention.
30. e.g. "Extermination of a race" in the Concise Oxford Dictionary.
31. See E/CN-4/1985/14, paragraphs 22-26.
32. E/CN.4/1075, Chapter VI(b).
33 Official Records of the General Assembly, Twenty-eighth Session, Supplement No. 30 (A/9030), pp.75-77.
34. E/CN-4/Sub.21416, paragraphs 404-5.
35..EICN-4/i985/14. See also the Study on Implementation and International Jurisdiction to suppress and punish apartheid (E/CN-4/1426) of 19 January 1981. E/CN-4/Sub.2/1981.
36. See, inter alia, statement by Dr. Daniel Lack of the World Jewish Congress to the 1984 Sub-Commission E/CN.4/Sub.2/1984/SR.4.
37 The Charter and Judgement of the Nüremberg Tribunal: history and analysis", memorandum submitted to the Secretary-General (A/CN.4/5), pp. 39
38 Trial of the Major War Criminals before the International Military Tribunal Proceedings, vol. I Nüremberg, 1947, p. 234.
39 Trial of Japanese War Criminals; Documents (Washington, United States Government Printing Office, 1946), p. 40.
40 Report of the International Law Commission covering its second session, 5 June to 29 July 1950 (A/1316), p. 12. The Commission had been asked by the general Assembly, in resolution 177 (II) of 21 November 1947, to formulate the Nuremberg principles. By resolution 488 (V) of 12 December 1950, the General Assembly decided to send that formulation to the Governments of Member States for their observations and requested the Commission to take account of them in preparing the draft code of offences against the peace and security of mankind.
41 Report of the International Law Commission covering the work of its sixth session, 3 June - 28 July 1954 (A/2693), p. 11
42. Report of the Committee on International Criminal Jurisdiction on its session held from 1 to 31 August 1951 (A/2136), annex 1, p. 23.
43. Report of the 1953 Committee on International Criminal Jurisdiction, 27 July - 20 August 1953 (A/2645), P. 25.
44. Ibid., para. 87.
45. Article 47 of the German Military provided that: "If the execution of a military order in the course of duty violates the criminal law, then the superior officer giving the order will bear the sole responsibility therefore. However, the obeying subordinate will share the punishment of the participant (1) if he has exceeded the order given to him, or (2) if it was within his knowledge that the order of his superior officer concerned an act by which it.was intended to commit a civil or military crime or transgressions".
46. A. Ruckerl, The Investigation 1985/6 page 27
47. A/C.6/78, p. 146.
48. L. Kuper, International Action Against Genocide (London, Minority Rights Group, 1984).' . .
49. See N. Robinson, The Genocide Convention (New York, Institute of Jewish Affairs, 1960); L. Kuper, Genocide (London, Penguin, 1981) chapter 2;- and "--'- E/CN-4/Sub.2/416, paragraphs 190-249.
50. There have also been non-governmental tribunals, such as the Permanent People's Tribunal held in Paris on the Armenians case in 1984, whose evidence and verdict is published as A Crime of Silence (London, Zed Press, 1985).
51. E/CN.4/Sub.2/SR.658, 684 and 736.
52. E/CN.4/Sub.2/1984/SR.3, SR.4, SR.5 and Corrigendum.
53. A. Ruchert, op. cit., p. 75; and see replies of the Federal Republic and the German Democratic Republic Governments to the Questionnaire for the present study. Elsewhere however it has been suggested that even if Josef Mengele, for example, had been discovered in Paraguay, his extradition, would have been barred because of a 20 year time-limit in Paraguay for criminal prosecution.