By Attorney Morton Sklar, Executive Director of the World Organization for Human Rights USA, Judge of the Administrative (Labor) Tribunal of the Organization of American States

The understanding of the international and human rights communities about the nature of the crime of genocide has been changing radically in recent years, in recognition that the international treaty prohibiting this practice covers a much broader range of abuses than previously believed. The treaty prohibiting genocide and making it an international crime was first adopted in 1948 in direct response to the Holocaust -- a widespread campaign by the government of Germany to eradicate an ethnic and religious minority group through a carefully planned and executed campaign of extermination that resulted in the death of over 6 million Jewish people. What we have come to experience and to understand is that many of the more modern forms of the most serious human rights abuses that have been taking place, for example, in Bosnia, Kosovo, Rwanda, East Timor, Sierra Leone, Burma, China, Mexico and Iraq, do not have to involve the killing of millions of people on the scale of the Holocaust in order to be recognized as involving the international crime of genocide. Nor do they require specific laws and policies of a national government mandating the abuses of the type used by the German government to authorize the interment and execution of Jews. Instead, it is recognized that genocide can be carried out by private and paramilitary groups and individuals, not just government officials.

Fortunately, the Genocide Convention was written broadly enough to cover these newer versions of genocide. The definition was not limited to the extermination or attempted mass extermination of whole groups of people, but covers the abuse or killing of portions of groups as well, with the purpose of seeking their destruction. In addition, the Genocide Convention incorporates a number of other very forward thinking elements not always typical of international human rights instruments, including a specific provision prohibiting immunity claims of heads of state and other officials, and providing for coverage of private as well as governmentally sponsored abuses.

But while the definition of genocide in the treaty is very broad, our understanding of what constitutes genocide certainly has expanded considerably in recent years in response to a wide variety of new types of practices aimed at persecuting and eliminating different groups of people. The concepts of ethnic cleansing and the use of rape as a form of intimidation and population control in Bosnia, forced relocation in Kosovo, the "killing fields" in Cambodia, and the amputation of the arms and hands of suspected political opponents in Sierra Leone may be of more recent vintage, but they must be recognized as acts of genocide.

The evolution in our understanding of what constitutes genocide is important because it allows, indeed requires, the international community and every national government to act to prevent and prosecute an ever expanding range of actions and abuses that must be properly recognized as constituting genocide. National governments and international organizations no longer have the prerogative of sitting idly by while paramilitary groups in former Yugoslavia, Rwanda or East Timor commit atrocities against members of ethnic groups whose views they oppose, or while a campaign of intimidation and executions against ethnic minorities or political opposition groups is carried out in Burma or Sierra Leone. Once these atrocities are recognized as constituting genocide, every government and every international organization is put on notice that under the terms of the Genocide Convention they are responsible to act to prevent and punish these international crimes. The painfully slow response of the Western governments, NATO and the United Nations to the campaign of ethnic cleansing and forced relocation in former Yugoslavia, and the non-response for too long a period of time to the atrocities in Rwanda and Sierra Leone, for example, hopefully will be less likely to be tolerated or repeated, once everyone recognizes that the Genocide Convention is being violated.

Sadly, however, though our understanding of genocide has broadened and evolved over recent years, the difficulties that were experienced in former Yugoslavia and Rwanda in getting governments and the international community to become involved at an early enough stage to prevent these tragedies from taking place still have not been completely overcome. Indeed, this was also a problem in the Holocaust itself, where many national governments, for a variety of reasons, were reluctant to become involved and to speak out against the genocide that was taking place, despite its massive scale, and the clear evidence that a campaign of extermination of the Jewish people was taking place in Germany and the territories they captured. The core of the problem is that a host of political, economic and foreign policy reasons make it difficult for one country, or the international community as a whole, to intervene in the internal affairs of another country, even when the most heinous atrocities are being committed.

What the Genocide Convention and the growing body of experience the international community has developed since the 1950s in the adoption and enforcement of international human rights standards has taught us is that the traditional principle in international law of non-intervention in the internal affairs of governments does not apply to questions involving major violations of human rights, and most specifically to the prevention and prosecution of genocide. The reason the principle of non-intervention does not apply, as the situation in former Yugoslavia and Rwanda demonstrated so well, is that major human rights abuses no longer can be considered purely internal or domestic matters. They necessarily involve and threaten international peace and security because the consequences and reactions to these atrocities inevitably spill over beyond the borders of the country where they are taking place. Genocide in Bosnia or Iraq or Rwanda threatens the peace in neighboring states, and is highly likely to cause reactions and problems on a much broader international basis.

But, while the international community understands and recognizes this reality, and in fact has used it as the basis for very tardy interventions in former Yugoslavia, Rwanda and elsewhere, including military action and the establishment of international criminal tribunals to prosecute the oppressors, we still are intolerably slow to recognize and act to prevent genocide and other major human rights abuses in their early stages, when we still may have an opportunity to prevent their progression to the massive proportions of the Holocaust, the ethnic cleansing campaign in former Yugoslavia, and the mass executions in Rwanda.

A case in point is what is taking place right now in the People's Republic of China regarding the campaign of persecution that has been mounted there against the Falun Gong spiritual movement and its practitioners. It is a campaign of persecution that has involved the arbitrary arrest, unlawful imprisonment and torture of many thousands of Falun Gong practitioners, and their execution in substantial numbers, in an organized effort by some of the highest officials of the Chinese Communist Party, including former President Jiang Zemin, to end and exterminate the Falun Gong movement because it is seen as a threat to the hegemony of the communist system. These policies and practices very clearly meet the definition of genocide as set out in the Genocide Convention, because they seek the extermination or elimination of all or part of a group of people based on their religious and spiritual beliefs and practices. Yet most governments, while condemning these actions as human rights violations, as the United States Department of State has done for example in its annual country reports on human rights and on international religious persecution, have not met their obligations under the Genocide Convention by recognizing this campaign of persecution for what it is - a campaign of genocide prohibited under the Genocide Convention. In fact, the U.S. government, while condemning these abuses in its human rights reports, has actually come to the defense of some of the key perpetrators of the genocide by seeking dismissal of civil lawsuits that have been filed against them in U.S. courts by victims of the persecution seeking civil damages and restitution for the abuses.

The reason why the U.S. and other governments have not recognized the persecution as genocide, and why they have defended the abusers in court, in violation of their obligations under the Genocide Convention is the same reason that the international community has been so slow to respond to other instances of genocide in former Yugoslavia, Rwanda and elsewhere. There are strong political and economic reasons why moving against the government of the People's Republic of China is considered undesirable. For example, in the case of the United States, trade with China has become such a major element of the U.S. economy that the U.S. government is reluctant to take any action that would jeopardize these economic relations. On the political side, on more than one occasion, regarding the situation in Afghanistan and Iraq, for example, the U.S. has found itself dependent upon China's good will and support in the U.N. Security Council to prevent their veto or resolutions authorizing military action against supporters of terrorism. China also is seen as a vital ally in the effort to deal with the problem of nuclear proliferation in North Korea.

These are the geo-political realities that we face in trying to obtain a more effective response to the campaign of genocide taking place in China, or major human rights violations taking place in other parts of the world. The key question is: How do we overcome these economic and political reasons that prevent the U.S. and other governments from taking more concrete and effective action to prevent and punish genocide?

Two key parts of the answer are to:

1. Support compliance efforts that can be initiated directly by the victims of genocide and other major human rights abuses themselves, so that we do not have to rely solely on individual governments or international organizations to take action in circumstances that may be politically or economically difficult; and,
2. Clarify and institutionalize the emerging understanding that many of the newer forms of persecution and repression, such as ethnic cleansing and the persecution of Falun Gong in China, constitute forms of genocide prohibited by the Genocide Convention that must be therefore be universally condemned, prevented and punished.

Especially important is the need to support the development and use of private remedies -- that is, methods that allow victims of genocide and their representatives to initiate complaints and compliance actions in their own behalf rather than relying on government action. The history of the development of human rights law in the past several decades demonstrates the vital role that private remedies, and the right of victims to initiate compliance actions, play in promoting human rights compliance. Over the years a variety of steps have taken place broadening the enforcement options, and giving private individuals more of a role in the process. Initially only governments or international organization monitoring agencies could initiate compliance actions. Now, private individuals are empowered to file complaints and initiate legal action before the Inter-American Commission on Human Rights, the European Court on Human Rights, and under many of the major human rights treaties. The Genocide Convention is one of the few human rights treaties that still keeps enforcement primarily in the hands of governments and international agencies, and does not authorize private victims to initiate compliance action. This oversight needs to be remedied by the adoption of a protocol, similar to the ones adopted as part of the European Convention on Human Rights and the Torture Convention, for example, that authorize private complaints as an alternative means for initiating compliance action.

As part of this strengthened private enforcement approach, methods for expanding the ability of private victims and their representatives to file legal actions seeking civil damages and restitution against their abusers in national courts should be supported. Right now the United States is one of the few countries that has adopted legislation authorizing this type of private civil remedy for major human rights abuses taking place in foreign countries that can be accessed in national courts. Even in the U.S., the government has been seeking to restrict the availability of this type of remedy. These private legal actions provide an important means for victims not only to obtain civil damage awards against their abusers, but to hold persecutors accountable for their actions. They therefore provide an important supplement to the more traditional forms of international enforcement mechanisms that are more dependant upon support from national governments and international agencies.

The principle of restitution for victims, and their right to initiate action to secure restitution, needs to be supported and expanded, instead of being restricted as the U.S. government has been trying to do recently.

In summary, the international community has begun to recognize and understand that genocide as a type of human rights violation is taking place on a much broader basis than originally believed, and that persecution does not have to take place on the scale of the Holocaust to be considered genocide. This broader understanding needs to be supported with more prompt and effective enforcement action to help assure that national governments and international organizations will act to prevent and punish genocide violations. One of the key methods for promoting these reforms is to strengthen the ability of victims of genocide violations and other major human rights abuses to initiate compliance and enforcement actions in their own right, instead of having to rely on governments or international agencies to begin the compliance process, which is the more traditional approach. Expanding the availability of civil damage or restitution remedies in national courts is one step that can be taken. Another is to include restitution remedies and the right of victims to initiate complaints as part of the international compliance mechanisms. The Genocide Convention needs to be amended to include this option, or at least interpreted to make clear that these types of privately initiated remedies are covered by the provision of the Convention (Article V) authorizing national legislation "to provide effective penalties for persons guilty of genocide...."

In a very real and dramatic way, the plight of Falun Gong practitioners in China provides a very effective example of why these reforms are needed, and how they can help promote compliance with core international human rights standards. It has taken too long for the campaign of persecution against Falun Gong in China to be recognized for what it is by national governments and the international agencies - a system of genocide prohibited under the Genocide Convention. Given the reluctance of the United States and other governments, for political and economic reasons, to properly call the responsible officials of the government of the People's Republic of China to account for these violations, the victims of the persecution, through private legal actions and other means, have initiated a number of very creative efforts to secure international attention and compliance with Genocide Convention requirements. These efforts, most especially the private legal actions filed in national courts seeking restitution from the abusers, should be supported.

Genocide continues to be a major problem in many countries of the world, taking many new forms different in scope and form from the original Holocaust model. If we are to effectively prevent and punish these major abuses, the international community needs to recognize them as genocide, and to take action against them more quickly. A key element in this process is to strengthen and expand the ability of victims of genocide to bring attention to the problems and to seek redress for violations in their own right, without having to rely solely on national governments and international enforcement agencies to initiate enforcement action. Whether this is done by amending the Convention with a protocol to this effect, or more simply by somehow making clear that Article V of the existing Convention authorizes these private approaches, the right of victims to initiate enforcement actions needs to be recognized and made more widely available.

Posting date: 2/28/2004
Original article date: 2/27/2004
Category: Open Forum

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