Dr Paul Behrens, University of Leicester
If you send tanks and planes and missiles against your own people, if killing and torture become a pattern of your campaign, you must not be surprised if the International Criminal Court gets interested in you.
On July 25 2011 then, it was Colonel Gaddafi’s turn: together with his son Saif and his intelligence chief Al-Senussi, he is now officially wanted by The Hague. That there would be an arrest warrant sooner or later is not all that surprising. What is surprising is that it is quite a modest document. Only two charges there: murder and persecution, both of them crimes against humanity. When the Prosecution asked for an arrest warrant against Omar Al-Bashir, the President of Sudan, they pulled out all stops: crimes against humanity, war crimes and genocide as well. Why not in the Gaddafi case?
War crimes are tricky, and there is no telling how the Court would have dealt with them. Is there a war in Libya? When did it start? Was this or that crime part of an armed conflict, or was it still an attempt to crush a facebook rebellion?
Genocide is even more difficult – and at this point, the cases of Bashir and of Gaddafi really go in different directions. It’s not merely a matter of numbers – the point is not that Gaddafi hasn’t quite reached the 300,000 deaths for which the Bashir regime is blamed. Genocide, as a legal concept, can exist even if victim numbers are still quite small. But the tragic dimension of the Gaddafi case is this: the people of Benghazi, of Misrata, of Ajdabiya and the other cities were the Colonel’s iron fist is felt, are not considered victims of genocide. Gaddafi could kill thousands of them or a million. And still the Genocide Convention would turn its back on them.
The Genocide Convention is in many regards a restrictive instrument. Only four groups are protected by it: those defined by nationality, ethnicity, race or religion. The atrocities of a Robert Mugabe in Zimbabwe, post-election violence in Kenya, the attacks on an entire population in Libya, are not recognised – because they go “only” against political groups. It gets even more absurd: most of the killings of Pol Pot, commonly called the “architect of genocide” in Cambodia, would not be genocide at all, because his intention was not to destroy one of the protected groups as such. (the Khmer Rouge commanders who are now on trial in Cambodia, are charged with genocide – but only where their acts targeted the Cham and the Vietnamese minorities).
Excuses have certainly been offered for these exclusions. The Convention, according to some, is meant to cover only “stable groups”. But religious groups are included even though their membership and composition are subject to significant fluctuation. Another argument is that the Convention must not be “watered down”. But why should the inclusion of those who fight genocidal maniacs be a dilution? In Rwanda, there is now the strange situation that the Tutsi who died in the 1994 massacres, are recognised as genocide victims, but courageous Hutus who sought to protect them, are not.
The real reason why political groups are excluded is wedded less to logic than to political convenience. When the Convention was drafted, in the late 1940s, one State was particularly opposed to the inclusion of political groups – the Soviet Union: led back then by Josef Stalin, the master of political purges.
This causes unease among genocide scholars, and calls for reform are therefore not uncommon. And it doesn’t stop there – some are starting to wonder if the Convention itself makes sense at all. One of the judges in the Mladic case has asked whether one couldn’t create a different crime, perhaps that of “mass murder”.
But abolishing the genocide concept is a radical solution, and not altogether necessary. The Genocide Convention does fulfil a purpose. For one, it makes sense to have a criminal law which stigmatises acts aiming at the extermination of an entire group. And then, there is more to the convention than just the definition of a crime. The treaty obliges its members (140 States to date), to prevent genocide. The fact that large victim numbers are not required, is a good thing in this regard – it means that the international community can intervene at an early stage and does not have to wait until mass killings have taken place. (The reality is always different: even 800,000 victims in Rwanda did not lead to an appropriate reaction by the international community).
This year marks the 60th anniversary since the Genocide Convention entered into force. Its limitations continue until today and are still utterly indefensible. The solution of this problem can only be a reform which involves all member States – a reform which extends the protection of the Convention to those groups, for whose sufferings it has hitherto been deaf. The Convention does not need to be pensioned off. What it needs, is a hearing aid.
Dr Paul Behrens teaches international law at the University of Leicester. His research interests include Public International Law and Constitutional Law. He has written expert commentaries for leading British and German newspapers (including the Guardian and the Süddeutsche Zeitung). His most recent radio interview (in German) is available online: (click on “WDR5 Politikum Sendung vom 04.07.2011”).