THE CRIME OF ALL CRIMES: GENOCIDE’S PRIMACY IN INTERNATIONAL CRIMINAL LAW A Thesis submitted to the Faculty of the Graduate School of Arts and Sciences of Georgetown University in partial fulfillment of the requirements for the degree of Masters of Arts in Conflict Resolution By Chloe R. Edmonds, B.A. Washington, DC April 25, 2016 Copyright 2016 by Chloe R. Edmonds All Rights Reserved ii THE CRIME OF ALL CRIMES: GENOCIDE’S PRIMACY IN INTERNATIONAL CRIMINAL LAW Chloe R. Edmonds, B.A. Thesis Advisor: Molly Inman, PhD. ABSTRACT In the International Criminal Tribunal for Rwanda’s final judgment of Prosecutor v. Akayesu, genocide was declared to be “the crime of all crimes.” Since Raphael Lemkin’s conceptualization of the crime of genocide in Axis Rule in Occupied Europe (1944), the crime of genocide has gained primacy within international law. Taking into account the historical and political incentives of the creation of the United Nations Genocide Convention, the research conducted analyzes how genocide gained primacy in both international and national tribunals, and how this primacy impacts witnesses, victims, and defendants in genocide tribunals. Case studies examined include the ad hoc UN tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), as well as the national tribunals in Cambodia and Argentina. Using both statistical and qualitative analysis, the research strongly suggests that genocide’s primacy is imbedded within international criminal law, and as such, is prosecuted with more fervor and seen to be of greater importance than other crimes. The impact of genocide’s primacy on defendants include altered duration of trial proceedings and lengthened sentences. Additionally, civil societies seek prosecution of genocide rather than crimes against humanity or war crimes for their suffering to be validated. This paper ascertains that legally genocide has primacy over other crimes, but further explores if genocide should have primacy over crimes against humanity. iii The research and writing of this thesis is dedicated to everyone who helped along the way. A special thanks to my thesis committee, Dr. Molly Inman, Dr. Douglas Irvin-Erickson, Brian Kritz, J.D., and Dr. Gregory Stanton, J.D., for shaping the creation of this thesis and inspiring me to pursue justice in the darkest of places. Many thanks, Chloe R. Edmonds iv TABLE OF CONTENTS INTRODUCTION ....................................................................................................................................... 1 Literature Review .........................................................................................................................2 Theory .......................................................................................................................................10 Methodology ..............................................................................................................................12 Analysis .....................................................................................................................................15 Results ........................................................................................................................................16 THE EFFECT OF GENOCIDE’S PRIMACY ON DEFENDANTS ............................................18 THE EFFECT OF GENOCIDE’S PRIMACY ON VICTIMS AND WITNESSES .....................35 CONCLUSION ..............................................................................................................................43 WORKS CITED ............................................................................................................................51 v LIST OF FIGURES Figure 1: Frequency of Charges in the ICTY and ICTR...………………………………………22 Figure 2: Frequency of Charges between ICTY and ICTR……………….……………...……...22 Figure 3: Difference in Means Test for Trial Days (ICTY)……………………………………...23 Figure 4: Difference in Means Test for Trial Days (ICTR)……………………………………...23 Figure 5: Momir Nikolic, ICTY………………………………………………………………….28 Figure 6: Zdravko Tolimir, ICTY…………………………………….………………………….28 LIST OF TABLES Table 1: Conviction Frequency in the ICTY and ICTR……………………………...………….19 Table 2: Frequency of Conviction Comparison………………………….………………………20 Table 3: Days Arrest to Appearance in Court (ICTY)………………………………….………..24 Table 4: Days Arrest to Appearance in Court (ICTR).…………………………………………..24 Table 5: Difference in Means Test (Trial Days for ICTY)...…………………………………….25 Table 6: Difference in Means Test for Initial Sentence in Years………………………...……...26 Table 7: Difference in Means Test for Appealed Sentence in Years…………………………….27 vi INTRODUCTION With the creation of the Genocide Convention of 1948 came a new phase of international law: a phase that protected the autonomy of group life and the right of individuals to exist and identify as a part of a group. As the crime of genocide was implemented into legal frameworks outside of the treaty into international and national tribunals, the original intent of the crime of genocide began to shift, prioritizing criminalizing genocide as the most heinous crime, rather than to expand international criminal law to protect the rights of group autonomy. This research is not concerned with debating if there is a perception that genocide has primacy over other crimes; the international community at large has already accepted genocide to be what the International Criminal Tribunal of Rwanda (ICTR) calls “the crime of all crimes.” Rather, this paper seeks to question whether this primacy has embedded itself in international criminal law and case law through United Nations ad hoc tribunals and by the perceptions of civil society involved with national genocide tribunals. It equally seeks to explore if and how this primacy impacts witnesses, victims, and defendants in genocide trials. A literature review will expand upon the origins of this perception and its implementation into international criminal law through case studies in both international and national tribunals. International tribunals essential to this study include the International Criminal Tribunal of the Former Yugoslavia (ICTY), where it is argued that genocide’s primacy among other international criminal laws began to present itself in trial and through sentence durations. The second is the ICTR, where Case No. ICTR-96-4-T, Prosecutor v. Akayesu included in its statements that genocide is the “crime of all crimes.” National tribunals for this study include both the tribunals in Cambodia and Argentina, and portray the impact of genocide’s primacy at a 1 national level. These national case studies both have a civil party presence in their court system, allowing this paper to explore the connotations of genocide’s primacy and its impact of civil society. Three key actors in the legal system will be addressed: witnesses, victims, and defendants. Explored in this research is the impact of genocide’s primacy on parties directly affected by the violence and the retributive justice system. The perceived moral weight of genocide as opposed to crimes against humanity establishes its primacy in international criminal law extending the proceedings and significantly increasing sentence duration for any genocide conviction in comparison to individuals convicted of crimes against humanity. The research conducted strongly suggests that genocide’s primacy is imbedded within international criminal law, and as such, is prosecuted with more fervor and seen to be of greater importance than other crimes. LITERATURE REVIEW Raphael Lemkin’s book Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, was published in 1944 at the same time as the liberation of many of the concentration and extermination camps in Poland. It was the first literature to introduce the term genocide as “an old practice in its modern development” (Lemkin 79). Using the Greek word genos meaning race or tribe and the Latin word cide for killing, Lemkin coined the term genocide. In his publication, he defines genocide as follows: … a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political 2 and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups (Lemkin 79). Genocide was created to protect against the destruction of group life, ensuring that all individuals have the right to belong to a group without fear of persecution and to provide space for cultural diversity and tolerance in international law (Irvin-Erickson 156). By doing so, Lemkin defined a crime that protected people within a group as well as the social fabric and culture of the group. Different from other international crimes, it “is organisation, training, practice, legitimation and consensus that distinguish genocide as a social practice from other more spontaneous or less intentional acts of killing and mass destruction” (Feierstein 14). Lemkin was not the only one known to champion the fight against human rights abuses in international law. Herschel Lauterpacht, the Polish lawyer known for the creation of the concept of crimes against humanity, also sought to protect against similar forms of destruction. In fact, both