CHAPTER ONE

1.1 Background of the Study

Genocide as an experience of human behavior throughout history is old, but our concern and understanding about it are relatively new. Humans have probably been committing genocide since the beginning of our species. Killing in mass and committing crimes against other human groups is not new to human history. Human groups have considered, and unfortunately still consider genocide as a viable political course of action, contemplating the intentional destruction of other groups national, ethnic, racial or religious, in whole or in part, in such a way as defined by the UN Convention on the Prevention and Punishment of the Crime of Genocide.

However, it is only in recent years that we have come to acknowledge genocide more systematically, trying to articulate understandings that were simply unavailable to our ancestors. There was a long delay in recognizing genocide as a crime despite its recurrence throughout human history. As a human race, we did not even have a name to describe genocidal violence before the World War II when Raphael Lemkin coined the term “genocide. ” Until then, it was a crime without a name in the words of Prime Minister Winston Churchill. The systematic mass murder of millions of people in the Holocaust, however, forced us to recognize that humans were killing other humans in systematic ways, with the intent to destroy groups in whole or in part, with terrifying results .

The UN Genocide Convention of 1948 emerged as the legal response, stipulating a detailed and quite technical definition as a crime against the law of nations which then engendered debates among scholars for decades to follow . Yet wilful neglect prevailed in spite of numerous genocides in the later half of the 20th century, the world‟s leaders were mindful of what was unfolding and yet stood by and negligently let the crimes transpire. This indifference was partly justified by political calculations that made sense to the perpetrators and was tolerated by a desire to avoid intervention in violent strife by leaders of other countries who were desensitized by ideology to the Violence inflicted on the mass of victims and their communities. Genocide and mass atrocities also threaten the core of state interest. The reason of this research is to create an awareness of what happened in the past centuries and also what is obtainable presently. Some countries have witnessed violations of human rights which was premised on the fact that the perpetrators of such massive attacks were left unpunished. Also it is a sacred duty to be shared by all States to protect others from wanton destruction but this is impracticable as States shy away from their prerogatives to these violations.

The perpetrators of genocide feed on and fuel other threats in weak and corrupt states, with dangerous spillover effects that know no boundaries. Engaging in an early prevention of these crimes will be the smart move to do, states inevitably bear greater costs in feeding millions of refugees and trying to manage long lasting regional crises. In addition, States‟ credibility and leadership are compromised when they fail to work with international partners to prevent genocide and mass atrocities. Preventing genocide is an achievable goal, genocide is not the

inevitable result of “ancient hatreds” or irrational lead, it requires planning and is carried out systematically. There are ways to recognize its signs and symptoms, and viable options to prevent it at every turn if we are committed and prepared. Preventing genocide is a goal that can be achieved with the right organizational structures, strategies, and partnerships. The Convention confirms that genocide, whether committed in time of peace or war, is a crime under international law which parties to the Convention undertake to prevent and to punish .

The primary responsibility to prevent and stop genocide lies with the State in which this crime takes place. Genocide often occurs in societies in which different national, racial, ethnic or religious groups become locked in identity related conflicts. However, it is not the differences in identity per se that generate conflict, but rather the gross inequalities associated with those differences in terms of access to power and resources, social services, development opportunities and the enjoyment of fundamental rights and freedoms. It is often the targeted group‟s reactions to these inequalities, and counter-reactions by the dominant group, that generate conflict that can escalate to genocide. Given that no country is perfectly homogeneous, genocide is truly a global challenge. Genocide may occur in times of peace, where groups are intentionally subjected to long term policies and practices affecting their ability to exist as an identity group, as well as in the context of both intra-State and inter-State conflicts. Decades after the World War II, several Tribunals were established to deal with various state sponsored crimes, part of these tribunals were the International Criminal Tribunal for Rwanda, International Criminal Tribunal for Former Yugoslavia which were established in the early nineties. However due to the inadequacies embedded in these International Criminal Tribunals the International Criminal Court was later created to deal with the inadequacies in these courts.,

1.2 Statement of the Research Problem

Genocide forms part of the international crimes which is a crime that results to serious violations of Human Rights. Various Groups of different societies because of how vulnerable they need to be protected, it is now six decades since the Convention was enacted and all effort to prevent and halt systematic campaigns, massacres, forced displacements and mass rapes have proved abortive. All these problems are premised on the fact that we are still lacking the necessary institutions, policies and strategies in the prevention and punishment of the crime of Genocide.

After the World War II, it marked the turning point when finally the United Nations enacted the Convention on the Prevention and Punishment of Genocide of 1948.The provision of the Convention are far from being adequate to cure the challenges posed to the Convention, clearly there are inadequacies and weakness apparent in the Convention which could be seen as part of the problems faced by this research work as could be seen in ethnic crises as a result of which tribes annihilate other tribes as in the case of the Serbians and the Bosnian Muslims in Yugoslavia.

There is no clear, direct and effective judicial response to the prevention and punishment of the crime of Genocide. There is no nexus between the Convention and the State parties in combating the crime of Genocide. These problems have brought to the fore the imperativeness of an indepth research of this nature for Constructive and legal reforms.

1.3 Aim and Objectives of the Research

The aim of this research work is to critically analyze and appraise the contributions of the international community in the prevention and punishment of the crime of genocide. This research work aims at realizing the following objectives;

a. To critically examine the nature and scope of the concept of Genocide under

International Law.

b. Establishing a significant Relationship between the crime of genocide and the works of International Criminal Tribunals in the prevention and punishment of the crime of Genocide.

c. To proffer viable and relevant suggestions on how best the problems, challenges and inadequacies of the 1948 Genocide Convention could be resolved.

1.4 Scope of the Research

The scope of this research is limited to an examination of the prevention and punishment of the crime of genocide under International Law. This work is centered on some genocidal experiences that have occurred in the past and also those that are ongoing presently. The research work will also cover some of the Statutes relating to Genocide e.g Statutes of the International Criminal Tribunal for former Yugoslavia, Rwanda which were time bound. Similarly, the research work will extend to the Rome Statute as it relates to the Crime of Genocide. Most importantly this research work will also revolve around the provisions of the Genocide

Convention of 1948 which is the primary instrument regulating the crime of Genocide.

1.5 Justification

There are Justifications for conducting a research work of this nature with a view to making an analysis of the legal problems relating to combating impunity particularly on the prevention and punishment of the crime of genocide which is prevalent in our societies today. The target group of this research work are the vulnerable groups in a given society. They are subject of an attack in an arm conflict situation or non conflict situation based on their race, religion, ethnicity, gender. The duty to prevent and halt genocide lies first and foremost with the State, but the individual subjects of the State also have a role that cannot be blocked by the invocation of sovereignty. Individuals also carry the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement. So also individuals have the responsibility to encourage and assist States in fulfilling this responsibility.

This research work can be justified towards its aim in the prevention of mass atrocities and Genocide, as well, it demands also the efforts of the subjects of other states in particular to protect target groups and also promote peace building, not just relying on state efforts in the areas of human rights, humanitarian affairs, peacekeeping and political affairs. This research work will embark on a voyage in contributing how best it can to see that it recommends and proffer solutions to help such group of persons aimed at promoting the prevention and punishment of the crime of Genocide. This research can be justified for its uniqueness and its tremendous contribution to legal institutions as stated below:

That is the research work will therefore attempt to breach the gap in the existing literatures in the area of Genocide, which will dwell on the origin of the crime of genocide, taking us back to Pre- World War I by conventionally tracing the history of ancient genocide through dwelling on the historical and political turmoil, underwent by genocidal victims up till the period when a convention to regulate the crime was enacted and also dwell on the possibility of how well this instrument has contributed in the prevention and punishment of the crime of genocide.

1.6 Research Methodology

Doctrinal method is adopted whereby an analysis of relevant laws, review of articles, journals, and books relating to the subject matter of this research work were consulted. Visits shall be made to Law libraries, and some public libraries for collection of relevant laws to be analyzed. Websites of existing criminal Tribunals namely Former Yugoslavia, and Rwanda shall also be consulted, so also others like International Criminal Court and Sierra-leone Court among others.

Accordingly, all books, journals, law reports, internet references and materials, consulted were sufficiently acknowledged. Finally the bibliography of all references, writers, scholars and materials consulted was provided for at the end of the research work.

1.7 Literature Review

There are increasing numbers of materials and analysis in the area of the crime of genocide, yet as far as these materials exist more are still emerging on the same subject matter. This research work wholly depends on textbooks, internet materials journal articles, which the researcher has reviewed below. Elihu and Gregory submit that dictionaries describe „ethnic cleansing‟ as genocide. They made a comparison of the accepted United Nations definition of genocide with a suggested definition for „ethnic cleansing‟ they pointed out the differences. Genocide is defined as Any of following acts committed with intent to destroy a national racial, or religious group, as such; Killing members of group, Causing serious bodily or mental harm to the group, Deliberately inflicting on the group conditions calculated to bring its physical destruction in whole or in part, Imposing measures to prevent births within the group Forcibly transferring children of the group to another group.

While „ethnic cleansing‟ is defined as Murder, Extrajudicial killing, sexual assault, Torture, confinement of civilians to ghetto areas, initiation of attacks or threats or threats of attacks on civilians and civilian areas deliberately.

They argued that proof of genocide does not depend on the number of victims but on evidence of “the intent to destroy, in whole or in part” by the perpetrators. It is hard to see how the genocidal outcomes of „ethnic cleansing‟ can occur without similar perpetrator intent. They equally submit that in the International Court of Justice’s ruling there was no proof of genocidal intent by the Serbian leadership was a result of its failure to obtain and examine evidence that might have pointed to inference of intent.

Accordingly, they analyzed Tabeau and Bijak‟s view in estimating „war related deaths, described their estimates as conservative based on minimum number of unique records, incomplete, and interim and they further submit that all war related deaths, including disturbances in the reproduction process should be considered as components of war-related distortions of population development. They argued that it is not clear whether their estimates include deaths from morbidity and injuries not directly from war as well as premature mortality among Bosnian émigrés.

They questioned earlier estimates as suggesting a “political motivation” and have reservations concerning their reliability. They equally agreed that minimization of numbers of victims is one of the most common tactics of genocide denial.

They pointed out many atrocities directed against ethnic Serbs in the Krajina region of Croatia and ethnic Albanians in Kosovo and that Bosnian Muslims suffered the greatest losses in absolute numbers. The writers argued that acts of genocide were restricted to Srebrenica and ignored the evidence of Serbian intentions going back to 1991–1992. In 1991, Serbian forces were compiling lists of Bosnian and Croatian intellectuals, and began rounding up, beating, and executing non-Serbs, and Radovan Karadzic by annihilating the Bosnian Muslims, warning that Sarajevo will vanish and there will be 500 000 dead, Muslims will disappear from Bosnia and their leadership be killed in hours. The fact that acts of genocide occurred during a civil war does not diminish their genocidal character.