Gendering the Khmer Rouge period: last Friday’s judgment

Rosemary Grey, University of Sydney Postdoctoral Fellow (Sydney Law School & Sydney Southeast Asia Center)

PP cambodia

Photo: Phonm Penh, November 2018 (author)

On 17 April 1975, Khmer Rouge troops poured into Phnom Penh and began forcing its population into the countryside, marking the start of an oppressive regime that left around 2 million people dead in just under four years.

Last Friday in that same city, the Extraordinary Chambers in the Courts of the Cambodia (ECCC) convicted two leaders of that regime for grave breaches of the Geneva Conventions, crimes against humanity, and genocide.

Thus concluded the trial phase of the ECCC’s second case, which due to its enormity and the fading health of the accused, has been run in two segments (known as ‘Case 002/1’ and ‘Case 002/2’).

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On Holocaust Remembrance Day, gratitude for archives preserving histories of post-WWII war crimes trials


LOS ANGELES – On this International Holocaust Remembrance Day, I am honored to be spending this month at the USC Shoah Foundation, reviewing testimonies of persons who did their part to set right one of history’s terrible wrongs.

Seventy-three years ago today, Soviet troops liberated Auschwitz-Birkenau, the infamous Nazi concentration camp located about 45 miles west of Kraków, Poland. Liberations of other camps by other Allied forces soon followed; among them, the U.S. liberation of Buchenwald on April 11, 1945, and the British liberation of Bergen-Belsen 4 days later.

Sixty years later, a 2005 U.N. General Assembly resolution set this date aside for commemoration of World War II atrocities; to quote the resolution, of

“… the Holocaust, which resulted in the murder of one third of the Jewish people, along with countless members of other minorities …”

The resolution further:

  • honored “the courage and dedication shown by the soldiers who liberated the concentration camps”;
  • rejected “any denial of the Holocaust as an historical event”;
  • envisaged the Holocaust as “a warning to all people of the dangers of hatred, bigotry, racism and prejudice”;
  • denounced “all manifestations of religious intolerance, incitement, harassment or violence against persons or communities based on ethnic origin or religious belief, wherever they occur”; and
  • encouraged initiatives designed to “inculcate future generations with the lessons of the Holocaust in order to help to prevent future acts of genocide.”

Among the many such initiatives are memorial centers and foundations throughout the world – 2 of which have helped me in my own research into the roles that women played during postwar international criminal trials at Nuremberg.

In December, the Holocaust Memorial and Tolerance Center of Nassau County, located in Glen Cove, New York, opened its archives to me. Special thanks to Helen  Turner, archivist and Director of Youth Education, for her assistance.

This month, as the inaugural Breslauer, Rutman and Anderson Research Fellow, I am in residence at the University of Southern California, examining documents in USC Shoah Foundation’s Visual History Archive. It has been a fruitful and moving scholarly experience, and I look forward to sharing my research at a public lecture on campus at 4 p.m. this Tuesday, Jan. 30 (as I was honored to do last week at UCLA Law’s Promise Institute for Human Rights; video here). Special thanks to all at the foundation’s Center for Advanced Research – Wolf Gruner, Martha Stroud, Badema Pitic, Isabella Evalynn Lloyd-Damnjanovic, and Marika Stanford-Moore – and to the donors who endowed the research fellowship. (Fellowship info here.)

As reflected in the 2005 General Assembly resolution, the work of such institutions helps to entrench – and to prevent backsliding from – states’ promises to ensure and respect human rights and dignity norms, set out in instruments like the 1945 Charter of the United Nations, the 1948 Convention on the Prevention and Punishment of Genocide, the 1948 Universal Declaration of Human Rights, and the 1966 International Covenant on Civil and Political Rights. To this list I would add the many documents establishing international criminal fora to prosecute persons charge with violating such norms – from  the Nuremberg-era tribunals through to today’s International Criminal Court.

(Cross-posted from Diane Marie Amann; image credit)

Yazidi Women and Girls’ Resistance Against Genocide, Enslavement and Sexual Violence: Report from the First International Yazidi Women’s Conference

Those awaiting help from others are condemned to disappear.” – International Yazidi Women’s Conference participant, quoting a proverb.

Last weekend, on March 11 & 12, 2017, I led a researcher and two students from the Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic to accompany Patricia Viseur Sellers, Special Adviser to the Office of the Prosecutor of the ICC to the first International Yazidi Women’s Conference in Bielefeld, Germany. Our Clinic has been working with Ms. Sellers for the past two years on criminal accountability for the gender dimension of atrocity crimes, especially as these crimes affect children, in several national and regional cases. Our collaboration currently is focused on the sexual enslavement and other gender-based crimes against the Yazidis.

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From left: Kerrijane John, Jocelyn Getgen Kestenbaum, Leyla Boran, Patricia Viseur Sellers, Alexandra Insinga and Samantha Hechler.

Days after International Women’s Day, the Yazidi Women’s Council, the Kurdish Women’s Peace Office (Cenî), and the Platform for Struggle for Women Held in Captivity gathered over 200 participants and prominent Yazidi organizations to denounce the atrocities—including, among others, the crimes of genocide, enslavement, rape, and torture—that have been and continue to be perpetrated against Yazidi women and girls. The attendees—all women—predominantly hailed from the Yazidi and Kurdish refugee and diaspora communities. After the German government did not grant several speakers visas to attend, they participated via Skype from Shengal (Sinjar) in Northern Iraq.

Experts from the legal, political, historical, medical and psychosocial fields contributed to the panel presentations, which centered on the concepts of genocide and femicide, enslavement, sexual violence, trauma, and resistance. Prominent Yazidi and Kurdish women’s human rights lawyers, including Leyla Boran and Faika Deniz Pasha, the first Turkish Kurdish woman parliamentarian, Feleknas Uca, and allies among women’s rights activists in Germany led the discussions, which included arguments supporting the link between genocide and femicide and the legal requirements of intent under international law. In addition, historians contextualized the current genocide against the Yazidis with previous genocides that have occurred against the group and in the region. Importantly, first-hand survivor accounts of genocide, sexual violence and enslavement bore witness to the crimes as well as to this community’s experience when ISIS invaded their homeland. The voices of the powerful speakers from Shengal also stressed the multiplicity of ways in which Yazidi women are organizing and resisting ongoing attacks on their people and homeland in northern Iraq. All the speakers stressed that they will take whatever steps are necessary to prevent the continued kidnapping, enslavement and sale of Yazidi girls and women.

Ms. Viseur Sellers keynoted the conference and provided the international human rights and criminal law frameworks to name the atrocities being committed against Yazidi women and girls by ISIS. Sellers explained the value in protecting group identities as well as preserving racial, religious, national, and ethnic differences. The international community’s prohibition against the intentional destruction of such groups under the Genocide Convention, she stated, was evidence of such values of diversity. In addition, Ms. Sellers detailed what the crimes of enslavement and slave trading are; she emphasized that these international crimes, along with genocide, are regarded the most heinous crimes under international law. She asserted that, undeniably, ISIS has and continues to perpetrate acts of genocide, enslavement and slave trading against Yazidi women and girls in violation of treaties and jus cogens norms. Sellers concluded by recognizing the intergenerational harms of genocide and enslavement while giving language, voice and operational tools to assist the Yazidi women and girls’ continuing struggle and resistance.

According to the Yazidi community, the August 2014 massacre in Shengal was the 74th recorded genocide against the religious minority group. The United Nations International Independent Commission of Inquiry on the Syrian Arab Republic, among others, has provided evidence and analysis of the crimes here. As the struggle for group survival continues, Yazidi women have organized themselves to resist multiple threats, including ISIS. Accountability for past, present and future crimes is recognized as a necessary component of justice for the Yazidis. The group’s concerns for survival, safety and return of thousands of their women and children held in captivity or forced to join ISIS forces, however, necessarily overshadowed these discussions.

What the future holds is unclear, especially given the military actions against ISIS in Syria and Iraq and the implications of the military solution for the remaining estimated 3000 Yazidi women and girls in captivity—some already sold by ISIS to slave-holders outside the contested areas. What our team did find is the need for dialogue between international lawyers familiar with the issues and representatives of these communities to develop and refine creative, pragmatic and comprehensive legal strategies to open avenues of accountability and justice for the atrocity crimes committed in the past and still being perpetrated against Yazidi women and girls. The time to act is now. Our Clinic, in concert with Patti Sellers, will continue our work on these issues and would welcome the opportunity to coordinate with others in the IntLawGrrls network who are working on the Yazidi genocide or on the gender dimensions of these atrocity crimes.

 

Announcements

New Grants Available

Two EU grants advertised for work relating to children’s rights, specifically focusing on children’s rights in the context of migration/asylum and children-centred approaches to child victims of violence. Please forward on to European colleagues you think might be interested. For a link to the grants, click here.

Jobs

Manager, Ferencz International Justice Initiative

The United States Holocaust Memorial Museum is looking for a dedicated and passionate individual to join the Museum’s team and help support our mission. The Simon-Skjodt Center for the Prevention of Genocide works to ensure that the United States government, governments around the world, and multilateral organizations institutionalize structures, tools, and policies to effectively prevent and respond to genocide and mass atrocities.

The Simon-Skjodt Center is seeking a Manager, Ferencz International Justice Initiative whom will work under the supervision of the Simon-Skjodt Center’s Deputy Director and work with the Ferencz International Justice Initiative Senior Consultant on a day-to-day basis in developing and implementing the Initiative’s objectives. The purpose of this position is to provide leadership in planning and implementing the work of the newly established Benjamin Ferencz International Justice Initiative. This initiative was established by a gift from Benjamin Ferencz, the last surviving prosecutor from the Nuremberg Tribunal, to strengthen the rule of law and the legal architecture for atrocity prevention and response; promote justice and accountability for atrocities committed in countries of concern; and establish a significant new locus for policy and research on the use of international justice mechanisms to deter, prevent, and respond to mass atrocities.

This is a full-time donated position (non-Federal) paid with the Museum’s donated funds. Salary is commensurate with experience.

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Radovan Karadzic Convicted by ICTY Trial Chamber

Yesterday, the Trial Chamber of the International Criminal Tribunal for Yugoslavia convicted Radovan Karadzic, former leader of the Bosnian Serbs during the 1990’s, of numerous crimes committed during the conflict.  Karadzic received a 40-year sentence; because he is 70 years old, the sentence essentially amounts to life imprisonment (unless he is released on compassionate grounds at some future point in time, but in all likelihood, even if that were to happen, he will be in his late 80’s or early 90’s by then).  The trial verdict is over 2,000 pages long and is available here.  A shorter summary of the verdict is available here, and an excellent analysis of the verdict by Marko Milanovic on EjilTalk! is available here.

This post will highlight some of the most interesting points from the Karadzic verdict.  While the fact that Karadzic was found guilty is not surprising to anyone in the academic community, a few more nuanced points from the verdict are worthy of interest.  First, Karadzic had been charged with several counts of genocide, one of which (count 1) was for genocide committed against different municipalities in Bosnia.  Karadzic was acquitted of that charge.  While the acquittal in this context should not mean much – because even if he did not commit genocide in the legal sense, Karadzic still committed other numerous crimes, such as crimes against humanity, war crimes, etc., which are equally reprehensible – the acquittal on the genocide charge may be interpreted by some (Serb nationalists, in particular) as a legitimization of Republika Srpska and of some of its heinous policies.  Marko Milanovic has already made this point, and I simply repeat and emphasize it here.  What I would add though is that the Karadzic case can serve as guidance to future international criminal tribunals’ prosecutors in the following sense: the crime of genocide is notoriously difficult to prove, and prosecutors would be much better off, in many cases, if they charge defendants with crimes against humanity and win “easy” convictions.  An acquittal on the charge of genocide can be much more harmful to the affected region and can contribute toward fueling nationalistic tensions and hatred.  Trying to win a genocide conviction simply because of the symbolic value that this type of conviction and “label” may carry is not worth the risk of acquittal on the same charge, especially in places like Bosnia where resentments still linger and where true reconciliation may be decades away.

Second, the Karadzic case is interesting because of the genocide conviction on a separate count – Karadzic was actually convicted of genocide because of his role in the Srebrenica massacre.  The trial chamber held that Karadzic was a participant of a joint criminal enterprise “who agreed to the expansion of means so as to encompass the killing of the men and boys intended to kill all the able-bodied Bosnian Muslim males, which intent in the circumstances is tantamount to the intent to destroy the Bosnian Muslims in Srebrenica.” (para 5741).  The trial chamber then established that Karadzic had the requisite intent to commit genocide at Srebrenica, as a participant in the said joint criminal enterprise, based on conversations which Karadzic had with Miroslav Deronjic, an official appointed earlier as a civil administrator of Srebrenica.  From these conversations, the trial chamber infers that Karadzic both knew that the massacre was about to happen, and had the intent for it to occur.  The relevant language, which Marko Milanovic quoted in his post already, and which I choose to reproduce here, because of its legal significance is as follows:

“The Chamber therefore takes particular note of the fact that, despite his contemporaneous knowledge of its progress as set out above, the Accused agreed with and therefore did not intervene to halt or hinder the killing aspect of the plan to eliminate between the evening of 13 July and 17 July. Instead, he ordered that the detainees be moved to Zvornik, where they were killed. Moreover, once Pandurević reported on 16 July that he had opened a corridor to allow members of the column who had not yet been captured or surrendered to pass through, Karišik was promptly sent to investigate and the corridor was closed within a day. Finally, the Chamber recalls that although he touted the opening of the corridor when speaking to the international press, in a closed session of the Bosnian Serb Assembly held weeks later, the Accused expressed regret that the Bosnian Muslim males had managed to pass through Bosnian Serb lines. Accordingly, the Chamber considers that the only reasonable inference available on such evidence is that the Accused shared with Mladić, Beara, and Popović the intent that every able-bodied Bosnian Muslim male from Srebrenica be killed, which, in the Chamber’s view, amounts to the intent to destroy the Bosnian Muslims in Srebrenica.”

This is significant for the purposes of defining the requisite mens rea for genocide.  Genocide is notoriously difficult to prove because a defendant must have the highest mens rea, intent, to kill or harm in other ways members of protected groups, because of their membership in such groups.  Here, the trial chamber seems willing to infer such intent, presumable because Karadzic knew that the massacre was about to be committed but did nothing to stop it, and because, according to the trial chamber, he must have shared the genocidal intent with other participants of this joint criminal enterprise.  If one accepts the idea that one of the most fundamental goals of international criminal justice is to secure the highest level of convictions against those who commit atrocities, and that the most significant conviction is that of genocide, then one would support the argument that the definition of genocide should be interpreted more loosely, to allow for inferences of this sort.  If one thinks, on the other hand, that rule of law is the most important thing and that legal definitions should be interpreted strictly, then one may take issue with the trial chamber’s liberal approach in finding a genocidal intent based on inferences.

What is almost certain is that the Karadzic team will appeal the verdict on some of these grounds and will hope for a partial reversal and a reduction of the sentence.  What is also certain is that Karadzic participated in the commission of some of the worst atrocities in Bosnia and that his conviction in general is a victory for international criminal justice.

Incendiary Media Use and The Failure of the Rwandan Case

Use of the media is a powerful tool in crimes against humanity for the following reasons: it allows the wielder to shape contemporary discourse, it helps desensitise and marginalise those who are not being targeted, and it can successfully contribute to the generation, entrenchment and wholesale acceptance of dangerous demographic stereotypes, which often serve as the premise for ensuing violence.

The Rwandan Genocide is a prime example of how influential persons in control of sources of information, such as radio broadcasts and newsletters, can distort and filter the material that the public can access. The International Criminal Tribunal for Rwanda (ICTR), which was tasked with prosecuting various violations of international humanitarian law during the genocide, handed down a landmark judgment on this use of the media. This judgment, along with two significant cases of incendiary media use during the Third Reich in Germany, constitute a large part of the law on attribution of responsibility to the perpetrators.

I will analyse each case in order to arrive at an appropriate standard for responsibility, and to demonstrate why I think the Appeals Chamber of the ICTR did not do a good job.

I. The Case of Julius Streicher 

The Nazi regime in Germany is well-known for its careful, manipulative use of the media. Julius Streicher was the founder and editor of an anti-Semitic newsletter called Der Stürmer, translatable to ‘The Attacker’. He made various far-fetched and malicious claims about Jews in the cartoons and articles he published in this newsletter scapegoating them for Germany’s economic problems and criminal happenings. In an article published in a 1939 edition of Der Stürmer, the author decried the idea of a ‘decent Jew’, stating his intention to make the public of the Third Reich understand why it was a “shameless lie”.

Streicher was tried by a military chamber at Nuremberg. The Tribunal found no direct causality between his acts and specific acts of killing Jews.  He had issued no direct orders to anybody to exterminate the Jews and had not actually participated in the Holocaust. However, his circulation of vitriolic messages was noted as a “poison” which infiltrated the citizenry’s minds and made them subscribe to the general atmosphere of anti-Semitism. It quoted the following statement from Der Sturmer to illustrate Streicher’s ill-intentions: “A punitive expedition must come against the Jews in Russia. A punitive expedition which will provide the same fate for them that every murderer and criminal must expect. Death sentence and execution. The Jews in Russia must be killed. They must be exterminated root and branch.”  The Tribunal considered that his efforts, in line with this sentiment, constituted incitement to murder and extermination of Jews.

In other words, Streicher had successfully contributed to desensitizing the non-Jewish population and was held responsible for crimes against humanity.

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