Th e Genocide Convention Th e Genocide Convention Th e Legacy of 60 Years edited by H.G. van der Wilt, J. Vervliet, G.K. Sluiter and J.Th .M. Houwink ten Cate LEIDEN • BOSTON 2012 If the Whole Body Dies, by Robert Skloot, copyright Parallel Press. Reproduced with permis- sion. Library of Congress Cataloging-in-Publication Data Th e genocide convention : the legacy of 60 years / edited by H.G. van der Wilt ...[et al.]. p. cm. Includes bibliographical references. ISBN 978-90-04-15328-8 (hardback : alk. paper) -- ISBN 978-90-04-22131-4 (e-book) 1. Convention on the Prevention and Punishment of the Crime of Genocide (1948) 2. Genocide. I. Wilt, Harmen van der, 1955- KZ7180.A61948G46 2012 345’.0251--dc23 2012015174 isbn 978 9004 15328 8 (hardback) isbn 978 9004 22131 4 (e-book) Copyright 2012 by Koninklijke Brill nv, Leiden, Th e Netherlands. Koninklijke Brill nv incorporates the imprints brill, Global Oriental, Hotei Publishing, idc Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to Th e Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. Th is book is printed on acid-free paper. Table of Contents Foreword ix Johannes Houwink ten Cate and Harmen van der Wilt Raphael Lemkin (1900-1959) and the Genocide Convention of 1948. Brief Biographical and Bibliographical Notes xi Jeroen Vervliet About the Authors xvii Keynote Addresses xxi General 1 1. Genocide and Crimes against Humanity: Clarifying the Relationship 3 William Schabas 2. The Drafting and Development of the 1948 Convention on Genocide and the Politics of International Law 15 Matthew Lippman 3. Understanding the Milošević Case: Legacy of an Unfi nished Trial 27 Nena Tromp Procedure and Substance 39 4. Between Hate Speech and Mass Murder: How to Recognize Incitement to Genocide 41 Harmen van der Wilt vi Table of Contents 5. The Meaning of the Word “Destroy” and its Implications for the Wider Understanding of the Concept of Genocide 51 Larissa van den Herik 6. Criminologically Explained Reality of Genocide, Structure of the Off ence and the ‘Intent to Destroy’ Requirement 59 Kai Ambos 7. Defending the ‘Undefendable’? Taking Judicial Notice of Genocide 81 Göran Sluiter and Koen Vriend Victims 95 8. Compensating Victims of Genocide 97 Liesbeth Zegveld 9. Why Compensation is a Mixed Blessing 105 Selma Leydesdorff 10. Some Measure of Justice. The Holocaust Era Restitution Campaign of the 1990s 115 Michael Marrus Denial 143 11. On the Outlawing of Genocide Denial 145 Johannes Houwink ten Cate 12. Les Fleurs du Mal, The Need to Confront Holocaust Distortion 159 Hagen Fleischer Countries 171 13. The United States and the Genocide Convention: The Sovereignty Package in Perspective 173 Lawrence LeBlanc 14. The Soviet Perspective on the Drafting of the UN Genocide Convention 187 Anton Weiss-Wendt Table of Contents vii Archives 199 15. Truths, Memories and Histories in the Archives of the International Criminal Tribunal for the Former Yugoslavia 201 Eric Ketelaar 16. Truths, Memories and Historians in the Archives of the International Criminal Tribunal for the Former Yugoslavia 223 Robert Donia Education 229 17. Sixty Years UN Genocide Convention – New Challenges for Genocide Education 231 Martin Mennecke 18. Genocide and Education 247 Dirk Mulder Appendix 253 If the Whole Body Dies: Raphael Lemkin and the Treaty Against Genocide Robert Skloot Foreword Johannes Houwink ten Cate and Harmen van der Wilt On 7 and 8 December 2008 the Centre for Holocaust and Genocide Studies, the Peace Palace Library and the Amsterdam Centre for International Law held a con- ference in commemoration of the 60th birthday of the Genocide Convention. It is common knowledge that the Genocide Convention has largely been modeled after the archetypical genocide, the mass murder of the Jews by the Nazi-regime. Ever since, the world has wrestled with the concept. Th ere is an undisputable gap be- tween the popular perception and rigid legal analysis of genocide. It is of paramount importance to achieve a proper balance between infl ation of the concept (calling each and every massacre ‘genocide’) and making the concept practically redundant. Solid academic analysis and dissemination of the results are key instruments to ac- complish this goal. Th e organizers were of the opinion that an encounter between historians and lawyers would serve this purpose. Now historians and lawyers do not speak the same languages, nor do they share an epistemological framework. Historians try to reconstruct partial truths and reali- ties and they do not eschew open-ended narratives. Lawyers, straitjacketed by rigid evidentiary standards and requirements of legal certainty, on the other hand, search for mathematical outcomes. Hannah Arendt’s stern admonition that courts should stick to their core business of distinguishing the guilty from the innocent and should not indulge in writing history is well known. Nonetheless, international criminal tribunals have brushed these warnings aside. And indeed, ‘history in the courtroom’ is less of an anathema than in Arendt’s days. It is more widely acknowledged that his- torical records in judgments may serve the purpose of putting international crimes in a broader context, will help to keep the memory alive and may even have some cathartic eff ect. Th e participants and speakers of the conference found the encounter productive and rewarding. Th is volume contains a number of contributions, refl ecting a wide variety of social, legal and political aspects of the crime of genocide. A special place is dedicated to the founding father of the Genocide Convention, Raphael Lemkin, who succeeded in reconciling the socio-political framework of genocide with its le- gal elements. Both the short biography by Jeroen Vervliet and Bob Skloot’s stage play ‘If the Whole Body Dies’ pay tribute to this remarkable man. x Johannes Houwink ten Cate and Harmen van der Wilt Th e play ‘If the Whole Body Dies’ was actually performed during the conference. Th e event made a deep impression on the audience, as the play reveals Lemkin’s per- sonal struggles as he refl ected on the dismal topic. Th e play is reproduced – free from charges - with kind permission of the original publisher, Parallel Press. Raphael Lemkin (1900-1959) and the Genocide Convention of 1948. Brief Biographical and Bibliographical Notes Jeroen Vervliet 1. Biographies on Raphael Lemkin Samantha Power’s “A Problem from Hell. America and the Age of Genocide” 1 has been the fi rst publication to introduce to a wider audience the jurist Raphael Lemkin and his infl uential eff ort to settle the new word ‘genocide’ and its intrinsic adoption in international legal cases, to the establishment of the Genocide Convention and to the ratifi cation thereafter by members states of the United Nations. Samantha Power discusses as well Cambodia, Iraq, Bosnia, Rwanda, Srebrenica and Kosovo, and “Lemkin’s Courtroom Legacy”.2 Raphael Lemkin and the Struggle for the Genocide Convention 3 by John Cooper is the most extensive biography. Th e book also touches upon Raphael Lemkin’s more personal life and his endeavours in the province of the history of genocides, but the main focus is Lemkin’s struggle for the Genocide Convention. It draws on Lemkin’s archival heritage. William Korey, a human rights scholar and former director of International Pol- icy Research for B’nai B’rith, authored the fi rst Lemkin biography, An Epitaph for Raphael Lemkin 4 – making reference to Lemkin’s dearest wish with respect to the Genocide Convention, namely to be “an epitaph on my mother’s grave”.5 It contains as well chapters leading to the appreciation of the ‘Lemkin-heritage’ in the United States of America and more contemporary international criminal law issues. Th is Samantha Power, A Problem from Hell. America and the Age of Genocide, New York , viz. Chapters -, pp. -. Id., Chapter , pp. -. John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention, London . William Korey, An Epitaph for Raphael Lemkin. A Publication of the Jacob Blaustein Institute for the Advancement of Human Rights. s.l., . URL: http://www.ajcarchives. org/AJC_DATA/Files/A.PDF + http://www.ajcarchives.org/AJC_DATA/Files/A. PDF + http://www.ajcarchives.org/AJC_DATA/Files/A.PDF + http://www.ajcarchives. org/AJC_DATA/Files/A.PDF + http://www.ajcarchives.org/AJC_DATA/Files/A. PDF , accessed June . Id., p. xii Jeroen Vervliet book is ‘A publication of the Jacob Blaustein Institute for the Advancement of Hu- man Rights of the American Jewish Committee’; its goal, according to the ‘Fore- word’ by Robert S. Rifkind, is to describe that “the Convention on the Prevention and Punishment of the Crime of Genocide is one of the fruits of” … “the eff ort to fi nd legal mechanisms to restrain at least the more extreme manifestations of state barbarism” and it serves as “an homage to the man who was father and midwife to the word genocide, and brought into being the Genocide Convention”, and who “tire- lessly worked to give a name and legal existence to a new crime” and “[b]y the force of his own will, […] functioned as a one-person non-governmental organization to change the landscape of international law”.6 Lemkin was seven times unsuccessfully proposed as a Nobel Peace Prize laureate between 1950 and 1959.7 Whenever a nomination had been endorsed, Lemkin had not been relegated to obscurity, best examplifi ed by the very few attenders to Lem- kin’s funeral in 1959.