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Freshwater fish assemblage patterns and risks posed by acidic deposition in northeastern British Columbia Murray, Sonia Bennett. 2007

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T A K I N G 2(E) S E R I O U S L Y : FORCIBLE CHILD TRANSFERS A N D THE CONVENTION ON THE PREVENTION A N D P U N I S H M E N T OF T H E C R I M E OF G E N O C I D E . by KURT MUNDORFF J.D., Benjamin N . Cardozo School o f Law, 2004 M . A . , John Jay College o f Criminal Justice, 2001 B . A . , University of Oregon, 1992 .  A THESIS S U B M I T T E D IN P A R T I A L F U L F I L L M E N T OF T H E R E Q U I R E M E N T S FOR T H E D E G R E E OF M A S T E R OF L A W S in T H E F A C U L T Y OF G R A D U A T E STUDIES  T H E U N I V E R S I T Y OF BRITISH C O L U M B I A August 2007  © Kurt Mundorff, 2007  ABSTRACT  The 1948 Convention on the Prevention and Punishment of the Crime of Genocide, Article 2(e) declares that the forcible transfer o f children from a protected group to another group is an act that amounts to genocide when it is conducted "with intent to destroy" the group, "as such," at least " i n part." Although listed co-equally with mass killing and forced sterilizations, and despite what appear to be repeated violations o f this provision, forcible child transfers have received little attention. Utilizing various sources o f international-law, this thesis establishes the prima facie elements that must be satisfied i n alleging an Article 2(e) violation. These sources include the emerging international case law on genocide, general legal principles, scholarly opinions, and the Genocide Convention's preparatory materials. The preparatory materials indicate that the Genocide Convention was intended to provide robust protections to specific types o f human groups, and that protecting the group's right to retain custody and control over its children was considered central to those protections. Recent opinions from the International Court o f Justice, as well as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda also recognize the Genocide Convention's robust group protections. Accordingly, they recognize a group right o f existence and protect groups not as mere collections o f individuals who happen to share similar traits, but as functional "separate and distinct entities." This implies broad and deep protections for the groups that have been targeted for forcible child transfers as it protects each functional subgroup, even where there is no larger intent to destroy the entire group, and protects against the targeting o f a specific segment within a group, such as its leadership or its children. This thesis also considers the mens rea o f genocide, finding that mixed intents or beneficent motivations w i l l not excuse an otherwise genocidal act. Both the general principles o f law and the existing case law on genocide generally prohibit consideration o f the perpetrator's motivation in assessing the criminality o f proscribed actions. Finally, the forcible child transfer programs i n question have been defended on grounds that they could not amount to genocide because they were actually "cultural genocide," which is said to be excused from the Genocide Convention's prohibitions, or because they were conducted to assimilate the children, and therefore cannot constitute genocide. International courts have ratified the International L a w Commission stance that the Genocide Convention does not encompass acts o f cultural genocide. However, applying existing law, it appears that these programs were not instances o f cultural genocide, but instead amounted to physical or biological genocide, categories o f genoicidal destruction that the Genocide Convention certainly prohibits. Similarly, far from excusing these actions, the fact that they were committed in the context o f a broader assimilation scheme may actually help prove genocide. This broader assimilative context is similar to the discriminatory treatment and acts o f cultural destruction from which courts have inferred the specific intent to commit genocide.  n  TABLE OF CONTENTS  ABSTRACT ii TABLE OF CONTENTS Hi ACKNOWLEDGEMENTS v DEDICATION vi CHAPTER 1: INTRODUCTION 1 1.1 A short survey of forcible child transfer 2 1.2 Definitions: Reconsidering genocide 5 1.3 Outline 9 1.4 Interpretive hierarchies: A short note on methodology 10 a) International conventions 12 b) International custom reflected in genocide case law 13 c) General legal principles 15 d) Scholarly opinion 16 e) Preparatory materials 16 CHAPTER 2: ANTECEDENTS AND LEGISLATIVE HISTORY 18 2.1 The Genocide Convention: A short legislative history 19 2.2 Protected Rights and Interests 25 2.3 An "enigmatic" provision 27 2.4 Chapter summary 33 CHAPTER 3: MATERIAL ELEMENTS 34 3.1 The group's the thing: The Genocide Convention as a protector of group viability 34 3.2 From organism to entity 38 3.3 In whole, or in part? 44 3.4 Limiting protections to "biological" groups illuminates the central role of children 45 3.5 There is no minimum duration requirement 48 3.6 Children..... 49 3.7 Chapter summary 51 CHAPTER 4: "WITH INTENT TO": UNRAVELING THE INTENTION DIMENSION 52 4.1 Defining mens rea 53 4.2 Intent 53 4.3 Forcible 57 4.4 Specific intent 61 4.5 Mixed intents are irrelevant 64 4.6 Establishing specific intent 66 4.6.1 The ICJ inferred intent approach 69 4.7 Motivation is not intent as such 71 4.7.1 Motivation is irrelevant 72 4.7.2 Confusing motivations 80  4.7.3 Schabas' "hatred" proposal 81 4.7.4 Policy reasons against a motive element 83 4.7.5 Motive: Summary 83 4.8 Chapter summary 84 CHAPTER 5: A GENOCIDE BY ANY OTHER NAME 86 5.1 Cultural genocide is no excuse: An exploration of the critical matter of destruction 87 5.1.1 The ILC destruction approach 89 5.1.2 The developing case law on culturally mediated destruction 91 a) Selective killing 91 b) Forced Deportations 92 c) Rape 94 5.1.3 Summary: Forcible child transfer amounts to physical and biological genocide 96 5.2 Assimilation is no excuse 97 5.3 Chapter summary 101 CHAPTER 6: CONCLUSION 103 BIBLIOGRAPHY 106  iv  ACKNOWLEDGEMENTS  I'd like to thank Judy Mosoff and Wes Pue, for providing challenging critiques and seemingly endless support. This thesis is much stronger for their efforts. Special thanks also to Joanne Chung, simply the best graduate advisor around. Her compassion and skillful guidance were invaluable in negotiating the process. Most o f all, thanks to A m y Zelson Mundorff, whose encouragement and frequent reassurances made this project possible.  v  DEDICATION  This thesis is dedicated to E . Nathanial Gates (1954-2006), Professor o f L a w , friend and mentor, whose' intellectual acuity, personal warmth, and overwhelming tenacity continue to inspire.  vi  C H A P T E R 1: I N T R O D U C T I O N You first taught me the white man's road. I am now very poor and disconsolate. A l l you gave me is gone, and if you can send me any clothes or something to work in I will be thankful. I have no tools to work with, or plows to work the ground to make corn. Can you send me some? I am again a Comanche. I was compelled to go back to the old road, though I did not want to, but I had no pants and had to take leggings. I never have any money, for I cannot earn it here, and my heart told me to come to you for help, and perhaps you could send these things to me. I have no piece of ground for my own, and now when I want to work the white man's road and learn it, I have nothing to do it with. I am working first on this man's ground, then on somebody else's, and I am never settled in any place. I have made a great many rails so you see I have not forgotten what you told me. I haven't a horse of my own. I am very poor. When you come to see us I shall have nothing to show you - no corn - no house - nothing at all. A poor country and a bad ground. I don't sleep well. I am afraid.'  The 1948 Convention on the Prevention and Punishment Genocide  of the Crime  of  (Genocide Convention), Article 2(e) declares that the forcible transfer o f  children from a protected group to another group is an act that amounts to genocide when it is conducted "with intent to destroy" the group, "as such," at least " i n part."  2  Forcible  child transfer is one o f five acts declared to constitute genocide and is listed co-equally with killing and forced sterilization, among others.  3  Article 2(e) lay dormant for nearly  fifty years and was. generally regarded as a legal anachronism.  However, the 1997  David Wallace Adams, Education for Extinction: American Indians and the Boarding School Experience, 1875-1928 (Lawrence, Kansas: University Press of Kansas, 1995) at 281 citing a letter to Richard Henry Pratt, founder of the U.S. boarding school system from Quoyonah, one of his original students. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277 (entered into force 12 January 1951) [Genocide Convention]. Article 2: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (e) Forcible transferring children of the group to another group. Ibid. Article 2, The other four prohibited actions are: (a) Killing the members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent birth within the group. 1  2  3  1  publication o f the Australian Human Rights and Equal Opportunity Commission report, Bringing  Them Home: Report of the National Inquiry Into the Separation of  and Torres Strait Islander  Children From  Their Families  (Bringing  Aboriginal  Them  Home),  brought new attention to this obscure provision. Bringing Them Home declared "[t]he policy o f forcible removal o f children from Indigenous Australians to other groups for the purpose o f raising them separately from and ignorant o f their culture and people could properly be labeled 'genocidal' in breach o f binding international law. . . . "  4  This  report generated a firestorm o f controversy in Australia. It also generated some scholarly interest on the international level where genocide scholars and legal experts began paying attention to the phenomenon o f forcible child transfer.  Still, despite the apparent  closeness o f fit between the practices alleged and the definition o f genocide contained i n the Genocide Convention, a decade after Bringing Them Home originally thrust the issue o f mass child removal into the collective scholarly consciousness, outside o f Australia the legal implications o f genocidal child transfers have yet to be taken seriously.  1.1 A short survey of forcible child transfer This scholarly neglect is striking given the apparent pervasiveness o f forcible child transfer programs. Accounts o f such programs date at least to the biblical accounts of Moses' childhood, but this practice probably reached its zenith with the age o f modernity.  Presaging modernist removal programs, i n 1656 Oliver  Cromwell's  occupying forces contemplated "taking Irish children away from their parents at the age  Australian Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry Into the Separation of Aboriginal and Torres Strait Islander Children From Their Families (Sydney: Sterling Press Pty. Ltd., 1997) at 275. 4  2  o f ten i n order to bring them up in industry and protestantism." century, Australia, Canada, and  the  In the  mid-nineteenth  United States each began programs that removed  indigenous children to missions or schools where they were stripped o f their group's culture. the  6  These programs continued into the  Swiss  removed  acculturated.  7  Roma  During  children,  World  War  II,  who  1970's. were  F r o m the m i d 1930's to the institutionalized  Heinrich Himmler's N a z i  and forces  1970s,  similarly  de-  scoured  the  occupied eastern lands for "racially valuable" children to export back to Germany, where  Christopher Hill, God's Englishman: Oliver Cromwell and the English Revolution (New York: The Dial Press, 1970) at 152. On the Australian programs see generally Anna Haebich, Broken Circles: Fragmenting Indigenous Families 1800-2000 (Fremantle: Freemantle Arts Centre Press, 2000); Antonio D. Buti, Separated: Aboriginal Childhood Separation and Guardianship Law (Sydney: Sydney Institute of Criminology, 2004). On the Canadian residential school system see generally J.R. Miller, Shingwauk's Vision: A History of Native Residential Schools (Toronto: University of Toronto press, 1997); John S. Milloy, A National Crime: The Canadian Government and the Residential School System: 1879 to 1986 (Winnipeg: University of Manitoba Press, 1999); Roland D. Chrisjohn & Sherri L . Young, The Circle Game: Shadows and Substance in the Indian Residential School Experience in Canada (Penticton, B C , Canada: Theytus Books, 1997); E . Brian Titley, A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada (Vancouver: University of British Columbia Press, 1996); Celia Haig-Brown, Resistance and Renewal: Surviving the Indian Residential School (Vancouver: Tillicum Library, 1989); Dean Neu & Richard Therrien, A ccounting for Genocide: Canada's Bureaucratic Assault on Aboriginal People (Black Point, Nova Scotia: Fernwood Publishing, 2003). On the United States boarding schools see generally Adams, supra note 1; Brenda J. Child, Boarding school Seasons: American Indian Families, 1900-1940 (Lincoln, Nebraska: Bison Books, 2000); K . Tsianina Lomawaima, They Called it Prairie Light: The Story of Chilocco Indian School (Lincoln, Nebraska: University of Nebraska Press, 1994); Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indians: 1880-1920 (Lincoln: University of Nebraska Press, 2001); Richard Henry Pratt, Battlefield and Classroom: Four Decades with the American Indian, 1867-1904, ed. by Robert M . Utley (New Haven: Yale University Press, 1964) (autobiographical account of the founding of the United States' boarding schools). For a comparative perspective see generally Andrew Armitage, Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand (Vancouver: University of British Columbia Press, 1995); Ward Churchill, Kill the Indian, Save the Man: The Genocidal Impact of American Indian Residential Schools (San Francisco: City Lights Books, 2004) (comparing the Canadian and U.S. programs). 5  6  Thomas W. Netter "Swiss Gypsies: A tale of vanishing children" The New York Times (9 June, 1986) p. 9; Caroline Moorehead "Spectrum: The 'stealing' of gypsy children - for almost 50 years, it is claimed the children of Swiss gypsies were forcibly taken from their families" The Times (London) 17 March 1988; Swiss to Compensate "Persecuted' Gypsies / Pro Juventute Foundation charity to make amends for children of the Country Roads programme" The Guardian (London) (8 July 1986); Laurence Jourdan "Past Abuses: Gypsy Hunt in Switzerland: Long Pursuit of Racial Purity," online: European Roma Rights Centre < www.errc.org/cikk.php?cikk=1203>. 7  3  they were either placed in Hitler Youth group homes or adopted by N a z i officials.  8  According to the warped N a z i logic, the aim o f this program was to deprive the targeted groups o f their most "racially valuable" children, which would render the group politically impotent as the group would have no natural leaders to oppose N a z i rule. In 1956, two relatively short-lived removal programs were directed against dissident religious groups in North America. In the first, Arizona state officials removed children from a polygamist M o r m o n group i n the town o f Short Creek. This program is notable 9  in that mothers were allowed to accompany their children into foster placement and because the program ended i n less than two years.  In the second program, provincial  officials in British Columbia removed children from the Sons o f Freedom, a dissident, terroristic faction o f the Doukhobors, a Christian group o f Russian origin that espoused the anti-materialist beliefs o f Leo Tolstoy.  10  The Sons o f Freedom children were held in  a dormitory where they were prohibited from speaking Russian and practicing their group's religious ceremonies. Forcible child transfer also does not appear to be peculiar to western liberal democracies. The Soviet Union began removing indigenous Siberian  8  See generally Isabel Heinmann, "Until the Last Drop of Good Blood" in A . Dirk Moses, ed., Genocide  and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History trans, by Andrew H . Beattie (New York: Bergham Books, 2004) 244; Marc Hillel & Clarissa Henry, Of Pure Blood trans, by Eric Mossbacher (New York: McGraw Hill, 1976) at 150-203. 9  See generally Martha Sontag Bradley, Kidnapped From That Land: The Government Raids of the Short  Creek Polygamists (Salt Lake City, University of Utah Press, 1993). See generally Margaret Hill, "The Detention of Freedomite Children, 1953-59" (1986) 18:3 Canadian Ethnic Studies 47. John McLaren, "The State, Child Snatching, and the Law: The Seizure and indoctrination of Sons of Freedom Children in British Columbia, 1950-60" in John McLaren, Robert 1 0  Menzies & Dorothy E. Chunn eds., Regulating Lives: Historical Essays on the State, Society, the Individual and the Law (Vancouver: University of British Columbia Press, 2002) 117; John McLaren, "The Doukhobor Belief in Individual Faith and Conscience and the Demands of the Secular State" in John  McLaren & Harold Coward eds., Religious Conscience, the State and the Law: Historical Contexts and Contemporary Significance (Albany: State University of New York Press, 1999).  4  children i n the 1920's, to place them i n distant boarding schools, conducted child removals during their invasion o f Tibet.  12  11  and the Chinese  This list is not exhaustive and  we could expect other programs to come to light as attention is focused on Article 2(e).  1.2 Definitions: Reconsidering genocide  These programs are now almost uniformly regarded as horrible mistakes, but are they genocide?  13  Certainly, the idea that large-scale child removals might amount to  genocide does not accord with popular understandings o f genocide.  However, lay  understandings o f genocide are often at odds with genocide's legal definition, as codified in the Genocide Convention's  Convention.  14  Popular conceptions commonly ignore the Genocide  group orientation, associating genocide only with the most brutal incidents  o f mass killing, regardless o f whether the killings were committed against a discernable human group. Most people are also unaware that the Genocide Convention prohibits not just mass killings, but a range o f group-destroying actions - including the forcible transfer o f children.  15  Instead, when they consider genocide they picture the dried  corpses o f Auschwitz, the meticulously stacked skulls o f the Cambodian k i l l i n g fields, or  '' See generally Alexia Bloch, Red Ties and Residential Schools: Indigenous Siberians in a Post-Soviet  State (Philadelphia: University of Pennsylvania Press, 2004) at 94-146; Piers Vitebsky, The Reindeer People: Living with Animals and Spirits in Siberia (Boston: Houghton Mifflin, 2005).  See Marjorie M. Whiteman, ed., Digest of International Law vol. 11 (Washington: U.S. Dept. of State Publication 8354, 1968) at 872; International Commission of Jurists, The Question of Tibet and the Rule of Law (Geneva, 1959) at 68-71, citing evidence that the Chinese "sent more thanfivethousand [Tibetan] boys and girls ... to China proper, ..." and that the aim of these transfers "was to get the children to 'revolt against their own culture, traditions and religion.'" These practices may violate a number of other provisions of international law as well. See generally Sonja Starr & Lea Brilmayer, "Family Separation as a Violation of International Law" (2003) 21 Berkeley J. Int'l L. 213, arguing that a constellation of international law provisions combine to indicate an emerging norm against forced family separations. See Roger S. Clark, "Does the Genocide Convention Go Far Enough? Some Thoughts on the Nature of Criminal Genocide in the Context of Indonesia's Invasion of East Timor" (1981) 8 Ohio N.U.L. Rev. 321 at 327, distinguishing between "the two distinct ways" genocide is used, in everyday speech and as a legal term of art. 12  13  14  15  Genocide Convention, supra note 2.  5  the more recent mass graves o f the Srebrenica massacre.  16  Against these images it seems  incongruous, perhaps even obscene, to place forcible child transfers i n the same category o f crime as these more horrific incidents.  However, the Genocide  Convention  was  established not only to punish the worst forms o f violence, but to protect human groups. Although they may lack the power to seize our imagination i n the manner o f mass murder, forcible child transfers are an effective means o f group destruction. I w i l l argue that although there is no equivalency between forcibly transferring 600 R o m a children and killing 6,000,000 European Jews, both acts amounted to genocide.  Both involved the intentional annihilation o f a group, the latter through an  immediate campaign o f outright killing and the former through a sustained program o f forcible child transfers spanning four decades.  Designating both the forcible transfer o f  600 R o m a children and the murder o f six million European Jews as genocide may rankle many who are concerned with inevitable comparisons within the continuum o f human brutality.  A s C o l i n Tatz put it, though the Genocide Convention does not account for  "grades or levels" o f genocide, "for all o f us, death is absolute: serious bodily or mental harm is something else; children forced into conversion may w e l l become coerced Catholics or Muslims, but they l i v e . "  17  In fact, once they had been transferred from their  communities, the children detained i n several o f these programs suffered staggering  1 have borrowed this imagery from Colin Tatz, "Genocide in Australia" (1999) 1 J. of Genocide Research 315 at 315. Colin Tatz, With Intent to Destroy: Reflecting on Genocide (Verso: London, 2003) at 146 [Tatz, Intent to Destroy]. At least two scholars have proposed amending the Genocide Convention to include "gradations" or a "scale" of genocide akin to the ranking of unlawful killings from aggravated murder to involuntary manslaughter. See Tatz, "Genocide in Australia," supra note 16 at 316; Ward Churchill, A Little Matter of Genocide: Holocaust and Denial in the Americas 1492 to the Present (San Francisco: City Lights Books, 1997) at 431-37. 16  17  6  mortality rates, surpassing fifty percent i n some facilities.  18  But, Tatz's point is apt.  Whatever the effects o f these programs, they were not constructed to k i l l individuals, an important distinction. The  purpose o f this thesis is avowedly normative; to establish genocidal child  transfer as a crime under international law so protected groups might prevent interventions and affected groups might seek redress. Convention  The earliest draft o f the  future  Genocide  contained a provision that would have created a genocide tort, and w o u l d  have assessed "redress o f a nature and i n an amount to be determined by the United Nations." Genocide  19  Although this provision was not included i n subsequent  Convention,  drafts o f the  affected groups should be able to bring suit i n national courts  against the perpetrators o f genocidal forcible child transfers.  20  The primary aim o f this  thesis is to establish and explain the basic elements that must be satisfied i n bringing such  The indigenous programs in Australia, the United States, and Canada were characterized by poor conditions resulting in startlingly high mortality rates. See Miller, supra note 6 at 133, documenting Canada's under-funding of the First Nations residential schools system. At one point Canada's Deputy Superintendent General of Indian Affairs stated: "It is quite within the mark to say that fifty percent of the children who passed through these schools did not live to benefit from the education which they had received therein." (ibid.). See also Draft Convention on the Crime of Genocide, UN ESCOR UN Doc. E/447 (1947)["Secretariat's Draft"]: "Obviously, if members of a group of human beings are placed in concentration camps where the annual death rate is thirty percent to forty percent, the intention to commit genocide is unquestionable." Secretariat's Draft, Article XIII, supra note 18. See also PieterN. Drost, The Crime of State: II Genocide (Leyden: A.W. Swythoff, 1959) at 16-18; William A. Schabas, Genocide in International Law (Cambridge: University of Cambridge Press, 2000) at 54 [Schabas, Genocide]. According to Schabas, despite this rejection, the delegates demonstated "widespread support for State civil liability" for acts of genocide (ibid, at 420-21). However, this is not to say that such cases will be unproblematic. Attempts by Aboriginal Australian victims of forcible child transfer to seek redress for genocide in the Australian national courts have been stymied. See Kruger and Others v. Commonwealth ofAustralia (1997) 146 A.L.R. 126 (H.C.A.) [Kruger] discussed below. Following Kruger cases based on the removal of Aboriginal children have been brought on grounds other than genocide and have been unsuccessful. See Ben Saul, "The International Crime of Genocide in Australian Law" (2000) 22 Sydney L. Rev. 527 at 570, discussing the "thousands" of civil suits resulting from Australia's forcible child transfers. See also Michael Legg, "Indigenous Australians and International Law: Racial Discrimination, Genocide and Reparations" (2002) 20 Berkley J. Int'l L. 387 at 413-18; Robert Van Krieken, "Is Assimilation Justicable?" Case Note on Lorna Cubillo & Peter Gunner v. Commonwealth" (2001) 23 Sydney L. Rev. 239; Starr & Brilmayer, supra note 13 at 237-41 discussing the Australian cases. 18  19  2 0  7  a claim.  21  Additionally, the perpetrator states involved i n most o f the forcible child  transfer schemes listed above, while admitting that these programs were often harmful, continue to deny the genocidal implications o f such actions. A subsidiary aim o f this thesis is to make such denials more difficult.  It is, as Martha M i n o w points out, an  exercise i n remembering where the predominant urge is to forget.  22  This type o f moral  claim is typically pursued outside the legal system but, i f successful, may still yield important benefits for the victimized group. The Genocide Convention was framed to fulfill dual purposes, to stigmatize the *  •  23  worst forms o f violence and to provide affirmative protections for group viability. Stigmatization has drawn the better share o f attention, as genocide scholars have been horrorstruck by the recent brutality humanity has repeatedly inflicted on itself. However, four o f the five acts prohibited i n Article 2 o f the Genocide Convention deal not with mass killing, but with the nuts and bolts o f preventing the destruction o f human groups.  24  In fact, genocide can be successfully completed without killing even a single individual. Genocide Convention supra note 2. See also Report of the Preparatory Commission for the International Criminal Court, Addendum, Finalized Draft Text of the Elements of Crimes, 2000 U.N. Doc. PCNICC/2000/INF/3Add.2 [Elements of Crimes]: Article 6(e) Genocide by Forcibly transferring Children: 1. The perpetrator forcibly transferred one or more persons. 2. Such persons belonged to a particular national, ethnical, racial or religious group. 3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. 4. The transfer was from that group to another group. 5. The persons were under the age of 18 years. 6. The perpetrator knew, or should have known, that the person or persons were under the age of 18 years. 7. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction. Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (Boston: Beacon Press, 1998) atl 19. Reservations to the Convention on the Prevention of the Crime of Genocide [1951] I.C.J. Reports 15 at 23 [Reservations]. "It is indeed difficult to imagine a convention that might have this dual character to a greater degree, since its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality." Genocide Convention, supra note 2. Only one of the five prohibited acts addresses killing. 21  2 2  23  24  8  Throughout this thesis I w i l l argue for a new reading o f the Genocide Convention, one that looks beyond mass killing and centers instead on its deeper purpose, the protection of human groups.  I w i l l argue that the control o f reproduction and child rearing is not  foreign or peripheral to the Genocide Convention, as it was understood by the delegates who composed it and voted for it. Rather, I w i l l point out that the protection o f group viability occupies a central place i n the Genocide Convention and that its framers realized that a racial, ethnic, religious, or national group's ability to reproduce depends on control of its children.  1.3 O u t l i n e Interpretive debates frequently devolve into discussions o f the intent o f the Genocide Convention's framers, and a basic understanding o f the ratification process is invaluable i n parsing these arguments. The first chapter o f this thesis covers the drafting process and is provided to ground the subsequent analysis in an understanding o f the Genocide Convention's context and history.  The crime o f genocide is commonly  understood as being comprised o f two major components, the physical act, or actus reus, and the mental state accompanying that act, or mens rea.  25  The second chapter addresses  the physical elements, while the third delves the murky issue o f mens rea. Mens rea is pivotal in any discussion o f genocide for it is intent to destroy the group that distinguishes genocide from all other crimes. However, in the discussion surrounding forcible  child transfers  misunderstood  the significance o f genocidal intent has been  or misrepresented.  The third chapter  attempts to  frequently  correct  these  But see George P. Fletcher, The Grammar of the Criminal Law: Volume 1: Foundations (Oxford: Oxford University Press, 2007) at 55 [Fletcher, Grammar], criticizing this division as resting "on an oversimplified Cartesian understanding of the mind/body problem." 2 5  9  inaccuracies by grounding the discussion o f genocidal intent i n an understanding o f the role mens rea plays in the criminal law generally thereby demonstrating that "good" intentions toward children simply w i l l not save an otherwise genocidal act o f forcible child transfer from amounting to genocide. The fourth chapter addresses two arguments that have been invoked to absolve forcible child transfer programs from accusations o f genocide. According to the first argument, most forcible child transfers cannot amount to genocide because the resultant destruction was o f a cultural nature, a category o f destruction the Genocide argument,  Convention  forcible child transfers  is said not to cover.  According to the second  cannot amount to genocide because they  were  conducted as part o f larger assimilation efforts, which are said to be similarly excused from the Genocide Convention's  prohibitions. However, as we w i l l see, the fact that the  perpetrators frequently intended to destroy the children's group through culturally mediated processes does not excuse these programs from amounting to genocide. Similarly, far from negating culpability, the fact that perpetrators sometimes labeled these programs "assimilative" may actually help prove genocide.  1.4 Interpretive hierarchies: A short note on methodology  According to Theo van Boven, genocide is among the gravest violations o f international human rights law and: the obligations resulting from State responsibility for breaches o f international human rights law entail corresponding rights on the part o f individual persons and groups o f persons who are under the jurisdiction o f the offending State and who are victims o f those breaches. The principle right these victims are entitled to under international law is the right to effective remedies and just reparations. 26  Theo van Boven, Special Rapporteur, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, UN CHROR, 2 6  10  However, w h i l e the right to remedy and reparation is established i n international law, there is no international forum for adjudicating the type o f c l a i m envisaged i n this thesis.  27  Therefore, the goal is to construct a c l a i m that can be applied on the national  level using international law,  and understanding the sources o f international law and the  manner i n w h i c h they interact is central to this thesis. International  Court  of  Justice  (ICJ  Statute)  is  A r t i c l e 38 o f the Statute of the  regarded  as  providing  "authoritative statement" on the sources o f international public l a w .  2 9  the  most  A r t i c l e 38(1) lists  these sources as: a.  international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;  b.  international custom, as evidence o f a general practice accepted as law;  c.  the general principles o f law recognized b y c i v i l i z e d nations;  d.  subject to the provision o f Article 59, j u d i c i a l decisions and the teachings o f  45 Sess., U N Doc. E/CN.4/Sub.2/1993/8 (1993) at para. 45. van Boven further states that, "[u]nder international law, a State that has violated a legal obligation is required to . . . make reparation, including in appropriate circumstances restitution or compensation for loss or injury" (ibid, at para. 46). For instance, the International Court of Justice (ICJ) does not allow citizens to bring suit against states. (Statute of the International Court ofJustice, Article 34 [ICJ Statute]). The International Criminal Court (ICC) can only adjudicate crimes committed following the court's creation, addresses only individual criminal responsibility, and can order "a convicted person" to pay reparations, but cannot order a state to do the same. (Rome Statute of the International Criminal Court U N Doc. A / C O N F . 183/9; 37 I L M 1002 (1998); 2187 U N T S 90, Articles 12(1), 25(4), 75(1) and 93(l)(k) [Rome Statute]). The ICC does establish a "victim's fund," to compensate victims, but it is unclear whether this will ever develop into an effective means of assistance (Rome Statute, Article 43(6)). See William A Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2001) atl49-50; Claude Jorda & Jerome de Hemptinne, "The Status and Role of the Victim" in Antonio Cassese, Paola Gaeta & John R.W.D. Jones, eds., The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) vol. 2, 1387 at 1415, cataloguing the shortcomings of the victim's compensation trust fund. th  Chistian Tomeschat, "Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position of the General International law" in Albrecht Randelzhofer & Christian Tomuschat, eds., State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (The Hague: Martinus Nijhoff Publishers, 1999) 1 at 11-16. Although individuals, and presumably groups, possess a primary right in international law to be free from acts of genocide, they possess no secondary right to redress against their own state at the international level. They also do not possess international legal personality and therefore "as a general rule, the individual has no standing to appear before international tribunals" (ibid, at 14). 2 8  William A . Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006) at 75 [Schabas, Criminal Tribunals]. 2 9  11  the most highly qualified publicists o f the various nations, as subsidiary 30  means for the determination o f rules o f law. Each o f these sources o f international law has proven important i n interpreting the Genocide Convention and each w i l l be utilized i n the discussion b e l o w .  a)  57  International conventions  O n most issues, interpretation o f the Genocide  Convention  is governed b y the 32  Vienna Convention  on the Law of Treaties (Vienna Convention).  A c c o r d i n g to the  Vienna Convention, treaties should be interpreted according to their "ordinary meaning" unless such a reading "leaves the meaning ambiguous or obscure."  33  Therefore, the  actual text o f the Genocide Convention should be considered preeminent i n assessing the criminality o f forcible  child transfers.  However, like  any statute, the  Genocide  Convention is unclear i n parts and even where the language appears clear, is often subject to conflicting interpretations.  A s such, recourse to other interpretive sources, including  the drafting materials, scholarly opinions, and genocide case law, is permitted i n some 26 June 1945, 3 Bevans 1179, T.S. 993, Article 38(1). See David L. Nersessian, "The Contours of Genocidal Intent: Troubling Jurisprudence for the International Criminal Tribunals" (2002) 37 Tex. Int'l L.J. 231 at 241, providing a detailed discussion of the hierarchy of interpretive sources relevant to an interpretation of the Genocide Convention [Nersessian, "Contours"]. Vienna Convention on the Law of Treaties 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980) [Vienna Convention]. See also Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (2007) No. 91 online: The International Court of Justice <http://www.icjcij.org/icjwww/idocket/ibhy/ ibhyjudgment/ibhy_ijudgment_20070226_frame.htm> at para. 161 [Bosnia v. Serbia]. According to the International Court of Justice (ICJ) the interpretive rules set out in the Vienna Convention "are well recognized as part of international law." Therefore, the rules embodied in Articles 31 & 31 of the Vienna Convention guide interpretation of the Genocide Convention, though the latter predates the former by nearly twenty years. See also Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) [2006] I.C.J. Rep. 1 at 107-08 [Congo v. Rwanda]. According to the ICJ, Retroactive application of the Vienna Convention to the Genocide Convention is precluded except where the Articles in question are "declatory of customary international law." 3 0  31  3 2  33  Vienna Convention, Article 31, ibid.  12  circumstances.  b) International custom reflected in genocide case law  The growing body o f international case law on genocide serves as evidence o f the customary international law o f genocide.  Little o f the existing case law directly  addresses Article 2(e) o f the Genocide Convention?  5  In addition, this case law primarily  involves criminal prosecutions while the primary aim o f this thesis is to establish the elements necessary to bringing a civil or moral claim.  Despite these drawbacks, the  genocide case law emerging from the International Court o f Justice (ICJ) as w e l l as the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia ( I C T Y ) does add nuance to current scholarly interpretations o f Article 2(e). It establishes broad principles o f interpretation specific to the Genocide Convention that form general principles o f international law and indicate how future courts might approach certain issues.  Moreover, whether adjudicated in a  c i v i l , moral, or criminal context, the defining characteristic o f genocide is "intent to destroy the group, as such."  36  genocide also remain the same.  The basic elements that must be established to prove Therefore, there is substantial overlap between these  Bosnia v. Serbia, supra note 32 at para. 160. According to the ICJ, obligations under the Genocide Convention depend: on the ordinary meaning of the terms of the Convention read in their context and in the light of its object and purpose. To confirm the meaning resulting for that process or to remove ambiguity or obscurity or a manifestly absurd or unreasonable result, the supplementary means of interpretation to which recourse may be had include the preparatory work of the Convention and the circumstances of its conclusion (ibid.). But see Kruger, supra note 20, also discussed below, rejecting claims by Aboriginal Australians based on Article 2(e). Genocide Convention, supra note 2, Article 2. Because of the intent emphasis, it is unlikely that a successful genocide claim of any sort could be brought for negligent destruction of a protected group (see below §4.2). See also Schabas, Genocide, supra note 19 at 433, 443, discussing the difficulty of creating civil liability from a criminal statute. 35  36  13  types o f claims, as each must satisfy the same basic elements and each must prove groupdestroying intent. I C J decisions provide the most authoritative interpretations o f the Convention.  Genocide  A s David Nersessian points out, "[fjhe I C J is the only judicial body that can  authoritatively interpret the Convention itself because the I C J is the primary forum empowered under international law to directly interpret treaty obligations between states."  37  The I C J has issued several decisions that address the Genocide  Convention,  including the recently decided opinion i n Bosnia v. Serbia, which shape the analysis presented b e l o w .  38  However, while the ICJ's decisions are considered authoritative, they  do not bind other courts, either national or international.  In the words o f one  commentator: A t the international level, . . . , there is no . . . organized and centralized [judicial] structure; there is no "integrated judicial system operating i n an orderly division o f labour" among the tribunals. In international law and justice, every tribunal is a self-contained system (unless otherwise provided): there is no hierarchical relationship between the International Criminal Tribunals for the Former Yugoslavia . . . and Rwanda the International Criminal Court (ICC) and the ICJ. The statutes o f the former do not provide for any such hierarchy, nor even for any formal relationship.  The I C T R and I C T Y continue to adjudicate accusations o f genocide and have built a working body o f case law on the subject. The statutes o f the International Criminal Court  Nersessian, "Contours," supra note 31 at 242. The cases most pertinent to the analysis in this thesis are: Bosnia v. Serbia, supra note 32; Reservations, supra note 23. The ICJ also commented on the Genocide Convention in Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, [1996] I.C.J. Rep. 226 at 37-38. See also Congo v. Rwanda, supra note 32. See also Case Concerning Legality of Use of Force (Yugoslavia v. Belgium) (Preliminary Objections, Judgment) [2004] I.C.J. Rep. 279 (Dismissing jurisdiction) and companion cases: Yugoslavia v. Canada, France, Germany, Italy, Netherlands, Portugal, United Kingdom. Yves Beigbeder, International Justice Against Impunity: Progress and New Challenges (Boston: Martinus Nijhoff Publishers, 2005) at 212. 3 8  3 9  14  (ICC),  40  the I C T Y  Convention,  and the I C T R  4 1  4 2  each incorporate relevant portions o f the Genocide  but i n each instance its provisions form only part o f a broader statutory  scheme, providing jurisdiction and procedure to prosecute a variety o f international crimes.  This broader statutory context exerts subtle interpretive pressures on the  Genocide  Convention  such that this case law cannot be said to directly interpret the  Genocide Convention itself.  It should also be noted that like I C J opinions, I C T Y and  43  I C T R opinions would not bind future courts.  44  c) G e n e r a l legal principles  General legal principles are the bedrock principles o f law that are common between most o f the world's major legal system.  45  They form the background against  which international law is evaluated and aid i n the interpretation o f treaties such as the Genocide  Convention.  46  In addition, since the Genocide  Convention  should be read  according to its "ordinary meaning," these general principles become vital i n establishing that meaning.  I have considered the basic tenets o f law o f the major legal systems i n  explaining how concepts like mens rea function within the Genocide Convention.  I have  Rome Statute, supra note 27 Statute to the International Criminal Tribunal for the Former Yugoslavia, annexed to Resolution 827, SC Res 827, UN SCOR, 48 sess, 3217 mtg, UN Doc S/RES/927 (1993), Article 4. Statute to the International Criminal Tribunal for Rwanda, annexed to Resolution 955, SC Res 955, UN SCOR, 49 sess, 3453 mtg, UN Doc S/RES/955 (1994), Article 2. Nersessian, "Contours," supra note 31 at 276. According to Nersessian, "[t]he mission of the tribunals is to apply international law as it is, not to develop new principles of international law humanitarian law. The tribunals interpret their reciprocal provisions on genocide co-extensively with the clearest public formulation of customary international law, rather than according to the Genocide Convention itself." See generally Schabas, Criminal Tribunals, supra note 29 at 107-112, discussing the role of precedent in the Ad Hoc Tribunals. The Trial Chambers of the ICTY and ICTR treat Appeals Chamber decisions as authoritative. However, other courts including the ICJ or the ICC would regard them as merely persuasive. See M. Cherif Basiouni, Crimes Against Humanity In International Criminal Law (The Hague: Kluwer Law International, 1999) at 284-89. Rudolf Schlesinger, "Research on the General Principles of Law Recognized by Civilized Nations" (1957) 51 AJIL 734 at 736. 41  th  th  4 2  th  rd  4 3  4 4  4 5  4 6  15  also cited legal dictionaries at several points in establishing the ordinary meaning o f key phrases in the Genocide  Convention.  d) Scholarly opinion  Scholarly opinions not only guide the interpretive debate surrounding provisions of international law, they are regarded "as subsidiary means for the determination o f rules of law."  47  Scholarly opinion is canvassed throughout this thesis and major areas o f  disagreement within the academic literature are discussed.  Because scholarly opinion  can play such an important role in forming international law, I have devoted extensive consideration to what I feel are important scholarly missteps.  e) Preparatory materials  The Vienna Convention prescribes limited circumstances under which preparatory materials may be relied upon i n treaty interpretation.  48  Under Article 32 o f the Vienna  Convention: Recourse may be had to supplementary means o f interpretation, including the preparatory work o f the treaty and the circumstances o f its conclusion, in order to confirm the meaning ..., or to determine the meaning when the interpretation ... leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable. 49  A n d according to an International L a w Commission (ILC) commentary, an exception like this "must be strictly limited, i f it is not to weaken unduly the authority o f the ordinary  47  ICJ Statute, Article 59(1), supra note 27. See also Schabas, Criminal Tribunals, supra note 29 at 112,  asserting that although the ad hoc tribunal judges rarely cite scholarly opinion, "the judges and their assistants [do] consult these authorities in the preparation of their opinions." 48  49  Vienna Convention, supra note 32, Articles 31 & 32. Ibid. Article' 32.  16  However, like any statute, the Genocide Convention is unclear  meaning o f the terms."  in parts and even where the language appears clear, is often subject to conflicting interpretations.  Because the Vienna  Convention  permits recourse  to preparatory  materials only under very limited circumstances, these materials are covered below with the caveat that they w i l l rarely be dispositive i n establishing or adjudicating the law o f genocide. The documents and proceedings from the earlier stages o f the drafting process, while conceptually interesting, were frequently criticized and ignored i n subsequent stages.  Therefore, although I w i l l present an overview o f the entire drafting process,  when interpreting the Genocide Convention's  ambiguities, I w i l l rely on the later stages,  especially the U . N . Third Session Sixth (Legal) Committee proceedings, produced the unanimously adopted final draft.  52  51  which  However, as w i l l be clear from the  discussion below, the Sixth Committee debates were  fraught  with conflict and  compromise and as a result, the preparatory documents are often ambiguous and are likely to cause their own interpretive controversies.  While I w i l l use the preparatory  materials to add texture to various interpretive issues, I w i l l continue to stress the actual text o f the Genocide Convention as the primary interpretive source i n defining the crime of genocidal forcible child transfer.  International Law Commission, "Draft Code of Crimes Against the Peace and Security of Mankind with Commentaries" in Report of the International Law Commission on the Work of its Forty-Eighth Session (1996) at 45 at 223 [ILC, "Draft Commentary"]. Sixth Committee, Summary Records of Meetings UN GAOR, 3d Sess. UN Doc. A/C.6/SR.63-134 (1948) [6 Comm. Summary Records]. Genocide: Draft Convention and Report of the Economic and Social Council, Report of the Sixth Committee, UN GAOR, 3 Sess., UN Doc. A/760 (1948). 5 0  51  th  52  rd  17  CHAPTER 2: ANTECEDENTS AND LEGISLATIVE HISTORY The Genocide  Convention was born abruptly o f the historical rupture that  followed W o r l d W a r II, but its antecedents can be found i n much earlier provisions o f international law. Although the atrocities o f W o r l d War II focused new attention on the dangers internal minorities faced from the states within which they lived, international 53  protections for internal minorities actually date to the 1648 Treaty of Westphalia.  This  treaty, and subsequent treaties, granted rights o f religious freedom to internal religious minorities.  54  M o r e extensive protections o f minority group autonomy were codified  following W o r l d W a r I.  55  The minority treaties o f Versailles, signed between 1919 and  1920, required many o f the conquered states to guarantee certain rights to internal religious, linguistic and ethnic minorities.  56  A m o n g these were protections against state  discrimination based on group membership, as well as provisions placing an affirmative burden on the state to provide resources that promote group viability.  F o r instance,  Article 9 o f the treaty with Poland stated: 53  Peace Treaty Between the Holy Roman Emperor and the King of France and Their Respective Allies (24  Oct. 1648). Natan Lerner, Group Rights and Discrimination in International Law (Dordrecht: Martinus Nijhoff Publishers, 1991) at 7. Ibid. According to Lerner: The history of the international protection of groups - domestic protection is to a large extent the result of international protection - can be divided into three major periods: (1) an early period of non-systematic protection consisting mainly of the incorporation of protective clauses, particularly in favor of religious minorities, in international treaties; (2) the system established after Word War I, within the framework of the League of Nations; and (3) developments following World War II, in the United Nations era." Early treaties protecting minorities included "the Treaty of Olivia (1660), in favor of the Roman Catholics in Livonia, ceded by Poland to Sweden; the treaty of Nimeugen (1678), between France and Spain; the Treaty of Ryswick (1697), protecting Catholics in territories ceded by France to Holland; and the Treaty of Paris (1763) between France, Spain and Great Britain, in favor of Roman Catholics in Canadian territories ceded by France. Carol Weisbrod, Emblems of Pluralism: Cultural Differences and the State (Princeton, Princeton University Press, 2002) at 119-37. 5 4  5 5  56  Ibid, at 120.  18  Poland [must] provide in the public educational system in towns and districts in which a considerable proportion of Polish nationals of other than Polish speech are residents adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of such Polish nationals through the medium of their own language. 57  These Minorities Treaties were "forerunners of the modern international human rights legal system," providing a rough prototype for those who would later advocate the international criminalization of genocide. 2.1 T h e Genocide C o n v e n t i o n : A short legislative history  Working in the dark shadow of Nazi atrocities, the United Nations began debate on the issue of genocide in 1946 and unanimously ratified the Genocide Convention on 9 December 1948.  59  The Genocide Convention stands out among international human  rights provisions in that its origin can be traced to the work of just one individual; the Jewish, Polish expatriate legal scholar Raphael Lemkin.  60  In 1933, Lemkin had  submitted a proposal to the League of Nations' International Conference for the Unification of Criminal Law "arguing that the destruction of any racial, social, or religious collectivity should be declared a 'crime of barbarity' under the Laws of  The Treaty with Poland, June 28, 1919 chap. 1 art. 2, 225 Consul TS. 412 (entered into force 10 Jan 1920) cited in ibid, at 121. In this provision we see early recognition that group viability depends on acculturation of its children.  57  See Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (New York: Howard Fertig, 1973) (reprint) at 90-92 [Lemkin, Axis Rule]. 5 8  Raphael Lemkin, "Totally Unofficial Man: The Autobiography of Raphael Lemkin" in Steven L. Jacobs & Samuel Totten eds., Pioneers of Genocide Studies (New Brunswick, NJ: Transaction Books, 2002) 371 at 386 [Lemkin, "Unofficial Man"]. Lemkin declares that the Legal Committee, in discussing the ratification of Res. 96(1) was, "swimming in a sea of humanitarian enthusiasm. They were trying to outdo one another. ..." See Samantha Power, A Problem From Hell: America and the Age of Genocide (New York: Harper Perennial, 2002) at 17-78 documenting Lemkin's tireless struggle in pursuit of an international prohibition on genocide. 59  60  19  Nations."  61  Fleeing the N a z i advance that eventually killed most o f his f a m i l y ,  62  Lemkin  left Poland i n 1941 for the United States where he published Axis Rule in Occupied Europe  67,  i n 1944, coining the word "genocide."  64  For Lemkin, genocide was not a crime  committed against individuals because they belonged to a particular group, but was instead a crime committed against the group itself. Lemkin viewed this phenomenon as "an old practice i n its modern development," that has always been a factor i n human existence.  65  T o Lemkin, "[generally speaking, genocide does not necessarily mean the  immediate destruction o f a nation, . . . . " but, "is intended rather to signify a coordinated plan o f different actions aiming at the destruction o f the essential foundations o f the life o f national groups, with the aim o f annihilating the groups themselves."  66  In addition to  destroying the group's social and political institutions, genocide might also destroy "the personal security, liberty, health, dignity, and even the lives o f the individuals belonging to such groups."  67  T o Lemkin, genocide was not restricted to incidents o f mass killing,  Leo Kuper, Genocide: Its Political Uses in the Twentieth Century (New Haven: Yale University Press, 1981) at 22. See also Lemkin, "Unofficial Man," supra note 59 at 372. In 1933 Lemkin also submitted a report to the secretariat of the Bureau for the Unification of Criminal Laws, outlining two crimes, "barbarity" and "vandalism." Vandalism: "consisted in destroying works of culture, which represented the specific genius of (these) national and religious groups. Thus, I wanted to preserve both the physical existence and the spiritual life of these collectivities." See Power, supra note 60 at 49. The only members of Lemkin's family to survive were his brother, his brother's wife, and their two children. Forty-nine others were killed. Lemkin described the GenocideConvention as an "epitaph on his mother's grave" (ibid, at 60). Lemkin, Axis Rule, supra note 58 ; Lemkin, "Unofficial Man," supra note 59 at 373-79, recounting his harrowing flight from Poland as the German army advanced. Lemkin, Axis Rule, supra note 58 at 79. "[T]his new word, coined by the author to denote an old practice in its modern development, is made from the ancient Greek word genos (race, tribe) and the Latin cide (killing)." See also Steven Leonard Jacobs, "Genesis of the Concept of Genocide According to its Author From the Original Sources" Hum. Rts. Rev. (Jan.-March, 2002). Lemkin, ibid. Ibid. 61  6 2  6 3  6 4  6 5  66  20  but also included non-lethal acts that would erode group viability.  A m o n g these  "techniques o f genocide," L e m k i n described acts o f "political, social, cultural, economic, biological, physical, religious and moral" genocide.  69  Under L e m k i n ' s broad protections,  nearly any step taken with the aim o f destroying a protected group would amount to genocide. Genocide is also unique for the speed with which it developed from one man's conception to become fixed within the popular lexicon  and codified i n international  law. O n 11 December 1946, the first session o f the United Nations General Assembly unanimously adopted Resolution 96(1) condemning genocide, a mere two years after L e m k i n had coined this neologism. The United Nations General Assembly Resolution 96(1) affirmed: Genocide is a denial o f the right o f existence o f entire human groups, as homicide is the denial o f the right to live o f human beings; such denial o f the right o f existence shocks the conscience o f mankind, results i n great losses to humanity i n the form o f cultural and other contributions represented b y these human groups, and is contrary to moral law and to the spirit and aims o f the United Nations. 71  The resolution is notable in that it does not include a list o f proscribed genocidal acts, but seems to include any act that denies the "right o f existence" to a human group.  72  A t this point, the framers began a speedy but convoluted process o f formulating  Ibid. According to Lemkin: "Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group." Ibid, at 82-90; Lemkin, "Unofficial Man," supra note 59 at 391. Acts of political genocide should not be confused with acts taken against political groups, which Lemkin opposed protecting under the Genocide Convention. See Power, supra note 60 at 40-45 tracing international acceptance of the concept of genocide. United Nations General Assembly, Fifty-Fifth Plenary Meeting, Resolution 96(1), (11 December 1946) at 188-189. [Res. 96(1)] 68  69  7 0  71  21  and ratifying an international convention against genocide.  /J  Resolution 96(1) instructed  the Economic and Social Council to conduct studies on a draft convention on the crime o f genocide.  74  In its fourth session, the Economic and Security Council, in turn,  instructed the Secretary General to seek assistance from a group o f international law experts i n preparing a draft convention.  75  The Secretary General instructed the Director  o f the Secretariat's Division of Human Rights to consult with experts in preparing the draft convention and to submit comments on that draft convention.  76  In conjunction with  the Secretariat's staff, three international law experts, including Raphael Lemkin, compiled and submitted a draft convention with substantial commentary.  77  In his  instructions, the Secretary General requested that genocide be defined so that it remained conceptually distinct from other international instruments, including existing prohibitions on "crimes against humanity," as well as proposed measures including the  Universal  78  Declaration  of Human Rights.  He also requested that the draft convention be broad  enough to "embrace all points likely to be adopted, it being left to these [United Nations]  See Yearbook of the United Nations: J947-J948, (Lake Success, NY: United Nations Department of Public Information, 1949) at 216-20 (addressing ratification of U.N. Res. 96(1) and addressing the early stages of drafting the Genocide Convention (Ibid, at 595-99)); Yearbook of the United Nations: 1948-1949,  (Lake Success, NY: United Nations Department of Public Information, 1950) at 953-961. See also Drost, supra note 19 at 1-7, providing a concise overview of the ratification process; Schabas, Genocide, supra note 19 51-101; Mathew Lippman, "The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide" (1984) 3 B.U. Int'l L.J. 1 [Lippman, "Drafting"]. Res. 96(1) supra note 71 Drost, supra note 19 at 2, citing UNESC Res. 47(IV) (1947). Lippman, "Drafting" supra note 73 at 9. "Secretariat's Draft," supra note 18 at 15. The other two experts were Mr. Donnedieu de Vabres, Professor at the Paris Faculty of Law and His Excellency, Professor Pella, President of the International Association for Penal Law. 7 4 7 5  7 6 7 7  7 8  Schabas, Genocide, supra note 19 at 52.  Universal Declaration of Human Rights GA Res. 217 (III) UN  GAOR 3d Sess. Supp. No. 13 UN Doc.A/810 (1948) 71.  22  organs to eliminate what they wished." Following completion o f the Secretariat's Draft, the issue o f genocide was taken up the b y the United Nations General Assembly, Sixth Committee, which requested that the Economic and Security Council provide a report and draft convention to the third regular session o f the General A s s e m b l y .  80  The Economic and Social Council appointed  an A d H o c Committee comprised o f representatives o f China, France, Lebanon, Poland, the United States, the Soviet Union, and Venezuela.  81  The A d H o c Committee was the  scene o f vigorous debate, but eventually produced a draft convention, which was submitted to the General Assembly's Sixth Committee for consideration.  82  The Sixth  Committee also held spirited and contentious debates, rejecting most o f the A d H o c Committee's work and compiling its own draft. This report was submitted to the General Assembly where it was considered i n two plenary meetings.  83  The General Assembly  84  unanimously approved it without change on 9 December 1948. Several issues recurred regularly throughout advocacy and vehement opposition.  the debates, inspiring fervent  Possible protections for political groups were  debated at several points, but were finally cut.  85  There was general disagreement over  "Secretariat's Draft," supra note 18 at 16. "In doing so the Secretary-General did not intend to recommend one political solution rather than another, but wished to offer a basis for full discussion and bring out all the points deserving of notice." Drost, supra note 19 at 3-4 citing GA Res. 180 (II). Ibid, at 4. Ad Hoc Committee on Genocide, Report to the Economic and Social Council on the Meetings of the Committee Held at Lake Success, New York, From 5 April to 10 May 1948 UN ESC 3d Sess., Supp. No. 6. UN Doc. E/794 (1948) [Ad Hoc Committee Draft]. UN GAOR 3d Sess. 178 and 179 Plen. Mtg. (1948). Convention for the Prevention and Punishment of the Crime of Genocide GA Res. 260(111) A, U N GAOR. 3d Sess., 179* plen. Mtg. At 174, UN Doc. A/810 (1948). See Schabas, Genocide, supra note 19 at 134-45. According to Schabas, "[rjigorous examination of the iravaux fails to confirm the popular impression in the literature that the opposition to inclusion of political genocide was some Soviet machination." See also Lawrence J. LeBlanc, The United States and the Genocide Convention (Durham: Duke University Press, 1991) at 74 [LeBlanc, "The United States"]: "The 8 0  sx  8 2  8 3  th  th  84  8 5  23  jurisdictional matters including whether to create an international criminal court to prosecute genocide.  86  A Soviet proposal to place a statement in the Preamble linking  genocide to Nazism-Fascism was voted down by a wide margin.  Instead, the Preamble  87  continued to state that genocide had long historical roots and that "international cooo  operation is required" to "liberate mankind from such an odious scourge." Whether or not to include prohibitions on cultural genocide also deeply divided the delegates.  According to the U N Yearbook (1947-1948): "[fjhe Canadian, French,  United States and United K i n g d o m representatives  opposed the inclusion i n the  Convention o f a provision relating to 'cultural' genocide, holding that this crime was not on par with physical genocide and should be dealt with separately, and that too wide a definition o f genocide would render the Convention meaningless."  89  Cultural genocide is  generally considered to consist o f prohibitions on the use o f a protected  group's  language, restrictions on religious practice, and destruction o f cultural institutions including places o f worship and libraries.  90  Physical genocide, on the other hand, is  generally regarded as entailing the extermination o f the group by killing its individual  Soviet delegation did oppose listing political groups among those to be protected under Article II, but other delegations advanced much more persuasive and widely accepted arguments than the Soviets." See Lippman, "Drafting," supra note 73 at 52-54. See also, LeBlanc, The United States at 151-74 (ibid.). While the United States was a primary proponent of an International Criminal Court throughout the drafting process, this proposal met with considerable opposition in the U.S. Senate ratification debates and was one of the key issues in leading to the U.S. delay in ratification. Mathew Lippman, "Genocide: The Crime of the Century. The Jurisprudence of Death at the Dawn of the New Millennium" (2001) 23 Hous. J. Int'l L. 467 at 472[Lippman, "Crime of the Century"]. Genocide Convention, Preamble, supra note 2. The second paragraph reads: "Recognizing that at all periods of history genocide has inflicted great losses on humanity." See also Mathew Lippman, "The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty-Five Years Later" (1994) 8 Temp. Int'l & Comp. L.J. 1 at 18 [Lippman, "1948 Convention"]. By rejecting the language directly linking genocide to the Nazis, the parties indicated their intention to "prevent and punish the repetition of such state-sponsored genocide. ..." Supra note 73 at 598. The legislative history of the proposed cultural genocide provisions is discussed below. 8 6  8 7  88  89  24  members, while biological genocide consists o f measures intended to prevent births within the group, including forced sterilizations and separation o f the sexes. Genocide  Convention's  91  The  final draft did not attempt to categorize genocide at all, but  simply listed the five prohibited acts.  92  A s compared with the original draft, the result  was a rather narrow definition o f genocide, coupled to a very difficult  enforcement  scheme.  2.2 Protected Rights and Interests The Genocide Convention has been interpreted as protecting several rights or interests.  93  First, it protects the community o f nations' traditional interest i n international  stability b y prohibiting acts that might provoke inter-state hostilities where one state is aligned with a victimized group within another state's borders and might feel the need to defend that group against host-state aggressions.  Additionally, it protects individuals  from being singled out for mistreatment o f the type proscribed i n Article 2, paragraphs (a) - (e) due to their identification with a protected group. But it also protects two more innovative sets o f interests and rights; the right o f protected groups to their continued  Genocide Convention, supra note 2. Final Report of the United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674 (1994) para. 88 [Expert's Report]. According to the commission: "The convention was manifestly adopted for humanitarian and civilizing purposes. Its objectives are to safeguard the very existence of certain human groups and to affirm and emphasize the most elementary principles of humanity and morality." See also Gerhard Werle, Principles of International Criminal Law (The Hague: T M C Asser Press, 2005) at 193, determining that the Genocide Convention protects two rights, the right of the group to continued existence and the right of individuals of protected groups to be free from genocidal attacks, which constitute "serious violations of... human dignity" and depersonalize the individual, reducing them "to a mere object." See also Helmut Gropengei(3er, "The Criminal Law of Genocide: the German Perspective" (2005) Int'l Crim. L. R. 329 at 333-335, discussing the German concept of "rechtsgut," which roughly translates as "protected interest," and its importance in German criminal law. Gropengei(3er, cites KreP, who finds "three different interests, the existence of the group, the 'Rechtsgut' of the individual (for example his or her life) and international peace" (in Wolfgang Joecks & Klaus Miebach, eds., Munchener Kommentar zum Strafgesetzbuch (2003) § 220.a StGB/ § VStGB para. 1). 93  25  existence  and humanity's interest i n maintaining unique human groups. United Nations  Resolution 96(1), which holds its own status as international l a w incorporated b y reference into the Genocide Convention?  6  9 5  and has been  states that the loss o f any  human group "results i n great losses to humanity i n the form o f cultural and other contributions represented by these human groups."  97  In endorsing the inherent value o f  all human groups, the General Assembly again reflected the views o f L e m k i n who wrote, "[t]he world represents only so much culture and intellectual vigor as are created by its component national groups."  98  L e m k i n viewed the phenomenon o f genocide as a struggle  between nations - organic collections o f like individuals - and states. H e went on to say: [essentially the idea o f a nation signifies constructive cooperation and original contributions, based upon genuine traditions, genuine culture, and a well-developed national psychology. The destruction o f a nation, therefore, results i n the loss o f its future contributions to the world. . . . A m o n g the basic features which have marked progress i n civilization are the respect for and appreciation o f the national characteristics and qualities contributed to world culture by the different nations - characteristics and qualities which, as illustrated in the contributions made by nations weak i n defense and poor i n economic resources, are not to be measured i n terms o f national power and wealth. 99  In Resolution 96(1), the U N ratified Lemkin's views that the loss o f any human group works to the detriment o f the whole o f humanity and that the international community may intervene not only to protect the rights held b y a protected group - to continue its existence as a group - but may intervene on its own behalf to protect humanity's interest Reservations, supra note 23 at 23. See also David Alonzo-Maizlish, Note: "In Whole Or In Part: Group Rights, the Intent Element of Genocide, and the 'Quantitative Criterion'" (2002) 77 N.Y.U.L. Rev. 1369 at 1376, discussing the right of existence and its evolution during the inter-war period. See Schabas, Genocide, supra note 19 at 4, referring to Res. 96(1), supra note 71, as an "important positive [source] of the law of genocide." See Genocide Convention, Preamble, supra note 2. See also Bosnia v. Serbia, supra note 32 at para. 161. Supra note 2. See Lemkin, Axis Rule, supra note 58 at 91.  94  9 5  9 6  97  9 8  26  in maintaining diverse human groups.  2.3 A n "enigmatic" provision The contracting parties acceded to Article 2(e)'s inclusion with very little discussion and even less realization that their longstanding practices might violate this provision.  A l l three experts collaborating on the Secretariat's Draft agreed that the  Genocide Convention should prohibit forcible child transfers.  100  Despite this unanimity,  prohibitions on the forcible transfer o f children were temporarily swept away i n the early stages o f drafting, only to be added again by Greece to the final draft o f the convention.  101  A number o f objections were made to the amendment. According to M r .  Lachs o f Poland, "though the transfers carried out b y the Germans during the Second W o r l d War were certainly to be condemned, . . . " the word "transfer" might also be taken to mean evacuations during a time o f w a r .  102  M r . Morozov o f the U . S . S . R . asserted that  there was no historical evidence " o f forced transfer constituting genocide, . . . "  1 0 3  H e also  insisted that the amendment went beyond the scope o f the other offenses enumerated i n Article 2 .  1 0 4  The Belgian representative felt the amendment was too vague and  additionally objected on grounds that population transfers did not necessarily entail the  "Secretariat's Draft," supra note 18: The separation of children from their parents results in forcing upon the former at an impressionable and receptive age a culture and mentality different from their parents'. This process tends to bring about the destruction of the group as a cultural unit in a relatively short time. The experts agreed that this point should be covered by the convention on genocide, but their agreement did not go further than that. Greece: Amendment to the Enumeration in Article II on the Draft Convention (E/794) UNGAOR C6, 3 ' Sess., U.N. Doc. A/C.6/242 (1948). 6 Comm. Summary Records, UN Doc. A/C.6/SR.82 supra note 51. Ibid. Ibid. 1 0 0  101  1 0 2  r  th  103 m  27  group's destruction.  105  Because the Secretariat's Draft had originally categorized the prohibition on forcible child transfers as cultural genocide,  106  the Sixth Committee delegates favoring  this provision attempted to dissociate it from the ill-fated cultural genocide provisions. The Greek delegate asserted that forcible child transfer was: "not primarily an act o f cultural genocide. Although it could i n certain cases be considered as such, it could be perpetrated rather with the intent to destroy or to cause serious physical harm to members of a g r o u p . "  107  The Uruguayan delegate concurred, stating that, since measures to  prevent live births had been included, "there was also reason to condemn measures to destroy a new generation through abducting infants, forcing them to change their religion and educating them to become enemies of their own people."  108  M r . Maktos o f the  United States stressed (twice) that, " i n the eyes o f a mother, there was little difference between the prevention o f a birth by abortion and the forcible abduction shortly after its birth."  109  H e pointed out that forcible child transfers seemed to be out o f place when  considered alongside the other measures o f cultural genocide, which concerned the preservation o f religion, language, and monuments.  110  H e also felt the Greek amendment  "should stand on its own merits and not be too closely associated with cultural genocide," asserting that, "a judge considering a case o f the forced transfer o f children would still  Ibid. (Mr. Kaeckenbeeck). Supra note 18, at Article 1(3). 6 Comm. Summary Records, UN Doc. A/C.6/SR.82 supra note 51 (Mr. Vallindas). Ibid. (Mr. Manni y Rios, Uruguay). Ibid. (Mr. Maktos, U.S.) also asked "the Committee to consider what difference there was from the point of view of the destruction of a group between measures to prevent birth half an hour before the birth and abduction half an hour after the birth." lui 106  107  th  108 109  28  have to decide whether or not physical genocide were i n v o l v e d . "  111  The Greek delegate  supported this stance, emphasizing that his proposed amendment "was not connected 112  with cultural genocide, but with the destruction o f a group - with physical genocide." It is significant that the United States, France, and the other states that had opposed the 113  cultural genocide provisions, did not oppose the prohibition on forcible child transfers. Later, while debating the proposed cultural genocide provisions, Perez Perozo, a Venezuelan diplomat who was influential i n the ratification debates, gave Article 2(e) yet another gloss: Sub-paragraph 5 o f article II had been adopted because the forced transfer o f children to a group where they would be given an education different from that o f their own group, and would have new customs, a new religion and probably a new language, was in practice tantamount to the destruction o f their group, whose future depended on that generation o f children. Such transfer might be made from a group with a low standard of civilization and living conditions both unhealthy and primitive, to a highly civilized group as members o f which the children would suffer no physical harm, and would indeed enjoy an existence which was materially much better; i n such a case there would be no question o f mass murder, torture or malnutrition; yet i f the intent o f the transfer were the destruction o f the group, a crime o f genocide would undoubtedly have been committed. 114  The Greek amendment abstentions.  115  was adopted by twenty votes to thirteen, with  thirteen  M a n y o f those voting against the amendment stated that they did so  because it was vague, and the intervening years have done little to clarify this very short debate.  116  Ibid. (Mr. Vallindas). Ibid.. 6 Comm. Summary Records, UN Doc. A/C.6/SR.83 supra note 51 Ibid. UN Doc. A/C.6/SR.82. Ibid. Prince Wan Wiathayakon of Siam, Mr. Stephen of Haiti, Mr. Kaeckenbeeck of Belgium, and Mr. Zourek of Czechoslovakia each voted against the amendment because they found it to be vague. Mr. 1X2  1X3  1 1 4  th  115 116  29  William  A . Schabas  calls Article 2(e) "enigmatic,"  117  pointing out  that,  "[pjaragraph (e), '[fjorcibly transferring children o f the group to another group' was added to the Convention almost as an afterthought, with little substantive debate or consideration."  118  According to LeBlanc:  It is the one provision that seems strangely out o f place i n the convention. This is not to say that the acts Article II (e) aims to prevent and punish are not reprehensible. Surely they are. But it is debatable whether or not they should be considered to fall within the meaning o f genocide. Experience suggests that perpetrators o f genocide w i l l not consider children o f groups worthy o f survival any more than adults." 119  However, although Article 2(e) received little debate, it was formulated i n the direct aftermath o f W o r l d War II, when awareness o f the importance o f groups remained high and memories o f Himmler's campaign to steal children for the Reich had not yet faded. Several recent trials had drawn attention to the N a z i child-stealing scheme specifically and to issues o f child custody and group viability more generally. The war crimes trial o f United States v. Greifelt (the R u S H A case) involved numerous defendants  Bartos of Yugoslavia voted against it because he felt it to be an issue of cultural genocide. Mr. Lachs of Poland "voted against the amendment because he considered that the way in which it had been presented suggested implications which he deemed out of place." Schabas, Genocide, supra note 19 at 175 finds 2(e) "enigmatic, because the drafters clearly rejected the concept of cultural genocide." He also mistakenly claims that Himmler's vows to kidnap racially valuable children to raise them as Germans "were, apparently only threats" (ibid, at 178). See also Robert van Krieken "Rethinking Cultural Genocide: Aboriginal Child Removal and Settler-Colonial State Formation" (2004) 75 Oceania 125 at 136 [van Krieken, "Cultural Genocide"] criticizing Schabas for considering forcible child transfers enigmatic and arguing that it had been re-framed as "biological" genocide before it was included in the final draft. William A. Schabas, Genocide, supra note 19 at 175. Henry Reynolds, Indelible Stain: The Question of Genocide in Australia's History (Victoria, Australia: Viking, 2001) at 173 [Reynolds, Indelible Stain]. Reynolds and Schabas cite roughly the same evidence, but Reynolds states: "The practice of removing children from one group and transferring them to another was taken very seriously during the debates that led up to the Genocide Convention." See also 6 Comm. Summary Records, supra note 51. Although the debates run to more than 500 pages, only six pages address forcible child transfers. LeBlanc, supra note 85 at 115. 117  1 1 8  th  1 1 9  30  associated with Himmler's R u S H A and Lebensborn organizations.  120  Several defendants  were convicted of genocide for, among other actions, removing "racially valuable" Polish children from their families and placing them i n German orphanages, until old enough to serve i n the German army, or with German families, to be raised as Germans.  In In re  Greiser the Supreme National Tribunal o f Poland convicted the defendant o f genocidal acts including the "germanization o f Polish children racially suited to i t . " Velpke Children's  122  A n d , i n the  Home Case, the British Military Court convicted several defendants o f  separating children from their Polish worker mothers "to advance the work on nearby farms in order to maintain the supply o f food in the year 1 9 4 4 . "  123  Following the  removal, the children were kept in a state o f extreme deprivation, causing eighty o f the children to die within six months.  124  Moreover, at the time o f drafting, the Greek government was involved i n an intractable diplomatic struggle to repatriate Greek children from the Balkans. A c c o r d i n g to LeBlanc, "the Greek amendment ... addressed the abduction o f thousands (by some estimates 28,000) o f Greek children by communists at the close o f W o r l d War II and their transfer to several countries in Eastern Europe under communist c o n t r o l . "  125  The  United States v. Greifelt (the RuSHA case) 10 March 1948 reprinted in Trials of War Criminals Before the Nuernburg Military Tribunals Under Control Council Law No. 10: October 1946 — April 1949 vol. 5 (Washington: United States Printing Office, 1950) at 1-173. 120  121  Ibid.  In re Greiser the Supreme National Tribunal of Poland (7 July 1946) reprinted in Annual Digest and Reports of Public International Law Cases: Year 1946 Sir John Fisher Williams & H. Lauterpacht, eds., (London: Butterworths & Co., Ltd., 1951) at 387 - 91. Trial ofHeinrich Gerike and Seven Others (the Velpke Children's Home Case) 3 April 1946 British Military Court, Brunswick, reprinted in Law Reports of Trials of War Criminals, The United Nations War Crimes Commission vol. VII (London, HMSO, 1948). Ibid. These actions would not be considered genocidal because the removals were conducted for reasons of expediency and not with intent to destroy the group, but this case does demonstrate that the Allies were paying attention to issues of children and their custody as they sought justice following the war. Lawrence LeBlanc, The United States, supra note 85 at 114. 122  123  124  1 2 5  31  Greeks hoped to use the genocide charge in this struggle to retrieve children from the Balkans and the political agenda behind this amendment was c l e a r .  126  Therefore, while  the origins o f Article 2(e) may now seem "enigmatic," the N a z i abduction cases and the Greek repatriation struggle indicate that the delegates must have been aware o f intersecting issues o f group viability and child custody. It is curious that several parties involved i n drafting the Genocide  Convention  clearly understood forcible child transfers to be genocidal, but apparently failed to realize that their own longstanding practices might violate Article 2(e). F o r instance, the United States, which rallied parties against the cultural genocide provisions, lobbied for including forcible child transfers among the prohibited actions without seeming to realize that this might implicate its American Indian residential school program, which b y 1948 had been operating for eighty years. The United States objected to Paragraph 3, Article 2 o f the Secretariat's Draft (the cultural genocide provision) "except to paragraph (a) "forced transfer o f children to another human group.'"  1 2 7  In its own draft convention,  the United States included forcible transfers under a broader provision addressing "compulsory restriction o f births."  128  Other potentially culpable states also apparently  Ibid, at 114. See also 6' C o m m . Summary Records, U N D o c . A / C . 6 / S R . 8 2 supra note 51. A c c o r d i n g to M r . Vallindas: "the Greek delegation had in m i n d not only a specific case such as the forced transfer o f Greek children. H i s t o r y recorded cases i n w h i c h Christian children were abducted and taken to the Ottoman E m p i r e . A discussion o f the Greek case was not, however, appropriate i n a committee engaged i n drafting a convention." See also M r . Lachs, Poland: " B y referring to the abduction o f Greek children, the Greek representative had given the matter a rather distinct political bent" (ibid.). 1 2 6  1 2 7  See Prevention and Punishment of Genocide: Comments by Governments on the Draft Convention  Prepared by the Secretariat, U N G A O R C 6 , 3 Sess., U . N . D o c . E/623 (1948) at 35. Opposing the cultural genocide provision in the A d H o c Committee meetings, the United States stated: "The prohibition o f the use o f language, systematic destruction o f books, and destruction and dispersion o f documents and objects o f historical or artistic value, commonly k n o w n i n this Convention to those who w i s h to include it, as 'cultural genocide' is matter w h i c h certainly should not be included in this C o n v e n t i o n " ( A d H o c Committee Report, supra note 82 at 7). A d H o c Committee Report, Ibid. r d  1 2 8  32  129  •  failed to notice their ongoing violations and opposition to Article 2(e) was t e p i d . ' " In the Sixth Committee debates, M r . De Beus o f the Netherlands did question whether compulsory attendance at schools, which would immerse children i n a "different language or religion", would constitute genocide, but the other delegates did not respond to his i n q u i r y .  130  2.4 Chapter summary Although Article 2(e) is "enigmatic," in that the framers left little material by which to interpret this provision, it is easily locatable within the context o f the Genocide Convention.  While the  Genocide  Convention  represents a broad expansion o f  international human rights law, it also taps several hundred years o f increasing international protections for internal minority groups. Affirmative protections for group viability are central to the Genocide Convention and the framers recognized that assuring a group's right o f custody over its children is important to those protections. Genocide Convention's  The  framers also believed that a convention prohibiting measures  intended to prevent live births within the group, could not then allow perpetrators to forcibly remove children shortly after birth.  In addition, contemporaneous  events,  including the N a z i abduction trials and the Greek child repatriation struggle, would have informed the framers' understanding o f the importance o f child custody i n assuring group viability.  Thus, although some may now consider Article 2(e) to be out o f place  alongside the other acts prohibited by the Genocide Convention,  the delegates would  have seen it as a logical step in protecting groups.  1 2 9  6 Comm. Summary Records, U N Doc. A/C.6/SR.82 supra note 51. th  33  CHAPTER 3 : MATERIAL ELEMENTS For organizational reasons I have divided the analysis o f genocide into act and intention, but the line between the two is indistinct. Genocide's status as a specific intent crime means that there is i n fact no clear dividing line between act and intention. W h i l e each o f the material elements must be satisfied, it must also be proved that each element was carried out with a further intent o f destroying a protected group, at least i n part. F o r instance, i f a perpetrator does not realize that the targeted group is one o f the types o f groups protected by the Genocide Convention, or i f the perpetrator mistakenly believes that the transferred are not children but adults, then they lack the intent toward that particular element and genocide w i l l not be found. For this reason, i n any analysis o f genocide, the issue o f intent is never far away, but for now we w i l l consider the more concrete material elements.  3.1 The group's the thing: The Genocide Convention as a protector of group viability For Article 2's prohibited acts to amount to genocide, they must be carried out against a discernable, protected human group, not merely against a number o f individuals who  belong to a protected group.  131  Under the Genocide Convention, actions taken  against a number o f individuals belonging to a protected group precisely because o f their membership in that group still would not amount to genocide unless these actions were accompanied b y intent to destroy their group, at least in part. For instance, selectively killing individuals because o f their race is certainly homicide and may well be a hate 1 3 1  Bosnia v. Serbia, supra note 32 at para. 193. A c c o r d i n g to the court, for a group to be protected under  the Genocide Convention, it "must have particular positive characteristics - national, ethnical, racial, or religious . . . "  34  crime, but only becomes genocide when the perpetrator possesses the requisite groupdestroying intent.  132  The Genocide Convention's preparatory materials indicate a clear intention by the framers to establish robust protections for human groups.  United Nations Resolution  96(1) states: "Genocide is a denial o f the right o f existence o f entire human „i33  pj  v o t a  groups,  i Sixth Committee debates also indicate that the delegates assumed the  instrument they were drafting would protect groups, not merely individuals who happened to be members o f protected groups. M r . Amado o f Brazil believed "[g]enocide should be defined stricto sensu that is, it should be considered as a specific crime against groups o f human beings. , . . "  1 3 4  According to M r . A z k o u l , o f Lebanon, "while genocide,  like the other crimes, resulted i n the physical destruction o f one or more individuals, it 135  involved a new factor, namely, the intention to destroy a group as such."  M r . Bartos o f  Yugoslavia stated his belief that: "[fjhe main characteristic o f genocide lay in the intent to attack a group. That particular characteristic should be brought out, as i n it lay the difference between an ordinary crime and genocide."  136  M r . Chaumont o f France held a  Kristic, infra note 154 (Trial Chamber) at para. 553. See also ILC, "Draft Commentary," supra note 50 at 45: "the intention must be to destroy the group 'as such', meaning as a separate and distinct entity, and not merely some individuals because of their membership in a particular group." Supra note 71 [emphasis added]. 6 Comm. Summary Records, UN Doc. A/C.6/SR.63 supra note 51. He went on to state, "in view of the vagueness about the concept of crimes against humanity, it would be well to define genocide as a separate crime committed against certain groups of human beings as such." Ibid. He went on to say: [fjhe draft convention had the further advantage that, for the first time in an international or constitutional document, mention was made in it of the protection of the human group as such and not only of the individual, whether or not he belonged to a minority. The inherent value of the human group had at last been recognized as well as its contribution to the cultural heritage of the human race. Ibid. UN Doc. A/C.6/SR.63. See also (Mr. Manini Y Rios, Uruguay) genocide was "a special crime consisting in the destruction of an entire group,..." (ibid.); (Mr. Kaeckenbeeck, Belgium) "[t]he main feature of genocide was the intent to destroy a certain group" (ibid.); (Mr. Abdoh, Iran) similarly stated, "the crime consisted in the destruction or attempt at destruction of a group of human beings ..." (ibid.). 133  1 3 4  th  135  136  35  contrary view, that "[t]he group was an abstract concept; it was an aggregate o f individuals; it had no independent life o f its own; it was harmed when the individuals composing it were harmed."  137  However, the French delegate appears to have been i n the  minority, with most delegates clearly expressing their assumption that group destruction is the hallmark o f genocide. International tribunals have also recognized the Genocide Convention's  group  orientation. In Akayesu, the I C T R determined: the victim is chosen not because o f his individual identity, but rather on account o f his membership o f a national, ethnical, racial or religious group. The victim o f the act is therefore a member o f a group, chosen as such, which, hence, means that the victim o f the crime o f genocide is the group itself and not only the i n d i v i d u a l . 138  In Prosecutor  v. Niyitegeka the Trial Chamber similarly determined that, "the victim is  the group itself, not merely the i n d i v i d u a l . "  139  In Prosecutor v. Rutaganda, the tribunal  stated "the victim o f the crime o f genocide is the group itself and not the individual alone."  140  The I C T Y in Brdjanin stated "[fjhe ultimate victim o f genocide is the group,  although destruction necessarily requires the commission o f crimes against its members, that is, against the individuals belonging to that group."  141  A n d , the I C J recently weighed  in, declaring that, "[fjhe words 'as such' emphasize the intent to destroy the protected  Ibid. UN Doc. A/C.6/SR.73. Prosecutor v. Akayesu (1998) Case No. ICTR-96-4-T (International Criminal Tribunal for Rwanda, Trial Chamber 1) at para. 521 [Akayesu]. Prosecutor v. Niyitegeka (2003) Case No. ICTR-96-14 (International Criminal Tribunal for Rwanda, Trial Chamber) at para. 410. Prosecutor v. Rutaganda (1999) Case No. ICTR-96-3-T (International Criminal Tribunal for Rawanda, Trial Chamber) at para. 165. Prosecutor v. Brdjanin (2004) Case No. IT-99-36-T (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) Judgment at para. 698 citing Prosecutor v. Sikirica (2001) Case No. IT-95-8-T (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber). 137 138  139  140  141  36  group...."  1 4 2  Finally, but most importantly, Article 2 o f the Genocide  Convention  states,  "genocide means any o f the following acts committed, with intent to destroy, i n whole or i n part, a national, ethnical, racial, or religious group, as s u c h . "  143  Individual "members  o f the group" are mentioned, but only in connection with the enumerated acts, only by means o f measuring the loss to a group through its members' mistreatment.  144  Taken  together, the preparatory materials, the case law from the I C J , I C T R and I C T Y , and the Genocide Convention itself, clearly establish the group as one o f two possible victims o f genocide.  Therefore, although the Genocide  Convention  has yet to be  explicitly  interpreted i n this manner, the victimized group, and not merely its constituent members, should be regarded as a primary rights holder and should have standing to sue on the grounds o f genocidal acts.  In addition, because genocidal acts affect the group's long-  term viability, the group should have standing to seek redress after the directly affected individual members o f the group have passed a w a y .  145  Bosnia v. Serbia, supra note 32 at para. 187. See also Reservations supra note 23 at 23. "The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as 'a crime under international law' involving a denial of the right of existence of entire human groups. ..." Genocide Convention, Article 2, supra note 2 [emphasis added]. Ibid, paras, (a) and (b). See also ILC, "Draft Commentary", supra note 50: "The group itself is the ultimate target or intended victim of this type of massive criminal conduct. The action taken against the individual members of the group is the means used to achieve the ultimate criminal objective with respect to the group." The recognition accorded to group rights and group standing should help victim groups escape the hurdle presented by traditional standing doctrine. (See In re African-American Slave Descendants Litigation 2006 U.S. App. LEXIS 30524 (7 Cir.) denying standing to descendants of American slavery because: "there is a fatal disconnect between the victims and the plaintiffs. When a person is wronged he can seek redress, and if he wins, his descendants may benefit, but the wrong to the ancestor is not a wrong to the descendants" (ibid, at 5). To achieve standing under the Genocide Convention, the aggrieved group, rather than an individual, would need to show harm. And, there should be no time limitation on genocide claims. (See Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity 26 November 1968, 754 U.N.T.S. 73; van Boven, supra note 26 at para. 135). It is also worth noting that in Mississippi Band of Choctaw Indians v. Holyfield 490 U.S. 30 (1989) the United States Supreme Court recognized that group rights can be statutorily created, that such rights exist independent of 142  143  144  1 4 5  th  37  3.2 F r o m o r g a n i s m to entity R o b y n Charli Carpenter points out that, to the framers, "human grouping[s] came to be seen as analogous to an individual organism, which could come under attack or be deprived o f life itself."  146  It would have been unremarkable for the delegates to view  groups i n this manner. According Bertrand Russell, in the late nineteenth century: The conception o f organism came to be thought the key to both scientific and philosophical explanations o f natural laws, and the atomic thinking o f the eighteenth century came to be regarded as out o f date. . . . In politics it leads naturally to emphasis on the community as opposed to the individual. This is i n harmony with the growing power o f the State; also with nationalism, which can appeal to the Darwinism doctrine o f survival o f the fittest applied not to individuals, but to nations. 147  The "organismic analogy"  148  is probably best expressed b y Durkheim, who determined  that "advanced" societies are characterized by increasing divisions o f labor, which i n turn increases interdependence and social ("organic") solidarity.  149  According to Durkheim,  the strength o f the societal whole far exceeds the sum o f its parts, each constituent part  the rights of individual group members (ibid, at 49), and that "massive" removal of a group's children can harm the group and trigger rights protections (ibid, at 34). Robyn Charli Carpenter, "Forced Maternity, Children's Rights and the Genocide Convention: A Theoretical Analysis" (2000) 2 J. Genocide Research 213 at 216. Bertrand Russell, The History of Western Philosophy (New York: Simon & Schuster, 1945) at 727. See Paul A Erickson & Liam D. Murphy, A History of Anthropological Theory 2 ed. (Peterborough, Ontario: Broadview Press, 2003) at 100. According to the organismic analogy, societies, like biological organisms, had both structures and functions. The scientific study of society should therefore include both social morphology and social physiology. See generally Emile Durkheim, The Division of Labor in Society trans, by W. D. Halls (New York: The Free Press, 1984). This is not to say however, that Durkheim would have been an advocate of the Genocide Convention or its goals. Rather, he, like his contemporaries, viewed the destruction of "less advanced" groups as inevitable, stating: It is indeed a general law that the partial aggregates that make up a more extensive aggregate see their individuality as growing less and less distinctive. At the same time as the family organization, local religions have disappeared forever, yet local customs continue to exist. Gradually these merge into one another and unify, at the same time as dialects and patios dissolve into a single national language ... (ibid, at 136). 146  147  1 4 8  nd  1 4 9  38  becoming important to the organism's (society's) continued function.  1SU  In The Division  of Labor in Society, he writes that "advanced" societies: are constituted, not by the replication o f similar homogenous elements, but by a system o f different organs, each one o f which has a special role and which themselves are formed from differentiated parts. The elements i n society are not o f the same nature, nor are they arranged i n the same manner. They are neither placed together end-on, as are the rings o f an annelida worm, nor embedded i n one another, but co-ordinated and subordinated to one another around the same central organ, which exerts o f the rest o f the organism a moderating effect. 151  Thus, to Durkheim, group solidarity is achieved through intra-group role specialization. However, while this grounds group cohesion, it also makes the group vulnerable as an attack on a key "different organ," which played a specialized and vital role, would weaken the group making it susceptible to outside attack. In Axis Rule, L e m k i n wrote that, "[gjenocide is directed against the national group as an entity...."  152  Following L e m k i n ' s lead, interpreters  o f the  Genocide  Convention have been drawn to the "entity" language and protection has been extended to groups as "separate and distinct entities."  153  According to the Trial Chamber i n  Ibid, at 132. Ibid. Lemkin, Axis Rule, supra note 58 at 79. See Prosecutor v. Blagojevic & Jokic (2005) Case No. IT-02-60-T (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) at para. 665 [Blagojevic]: "The Trial Chamber recalls that the specific intent for the crime of genocide must be to destroy the group as a separate and distinct entity." See also Prosecutor v. Jelisic (1999) Case No. IT-95-10-T (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) Judgment at para. 79 [Jelisic]; Brdanin, supra note 141; Prosecutor v. Bagilishema (2001) Case No. ICTR-95-1A-T (International Criminal Tribunal for Rwanda, Trial Chamber) Judgement at para. 64 [Bagilishema]. See also ILC, "Draft Commentary" supra note 50 at 45, "as such" in Article 2 of the Genocide Convention taken to mean "as a separate and distinct entity." Interestingly, "entity" possesses a highly relevant definitional duality. In its original, abstract sense, entity meant: "Being, existence, as opposed to non-existence; the existence, as distinguished from the qualities or relations, of anything." (Oxford English Dictionary Online 2d 1989 s.v. "entity"). But, in modern usage, "entity" has come, as well, to mean: "[s]omething that has a separate and distinct existence and objective or conceptual reality; an organization (as a business or governmental unit) that has an identity separate from those of its members." (Merriam-Webster's II Collegiate Dictionary, s.v. "entity"). Thus, "entity" seems 150  151  1 5 2 1 5 3  th  39  Kristic, [t]he intent to destroy a group, even i f only i n part, means seeking to destroy a distinct part o f the group as opposed to an accumulation o f isolated individuals within it. Although the perpetrators o f genocide need not seek to destroy the entire group protected by the Convention, they must view the part o f the group they wish to destroy as a distinct entity which must be eliminated as s u c h . 154  This focus on the group as an entity again emphasizes the Genocide Convention's  aim to  protect not only individual lives, but also human groups. Protecting the group as an entity has meant protecting groups from the selective k i l l i n g o f important group members, including cultural, political, or religious leaders, or military-aged m e n .  155  Applying Durkheim's terms, these group members would be  considered "different organs," which have a "special role" in forming the w h o l e .  156  It has  also meant protecting small, geographically isolated segments o f a larger group, even where there is no intent to destroy the larger group.  157  Finally, it has meant that  protection does not stop at categories o f persons, but covers "the prohibited acts when 158  committed with the necessary intent against members o f a tribal group." with the Genocide Convention's  This accords  purpose o f protecting the unique cultural resources  possessed by each human group, but is often contrary to dominant group perceptions, apropos to the discussion of genocide as it encompasses both the emphasis on existence and the grouporientation of genocide. Prosecutor v. Kristic (2001) Case No. IT-98-33-T (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) Judgment at para. 590 [Kristic]. Kristic, (Trial Chamber) supra note 154 at para. 595; Jelisic, (Trial Chamber) supra note 153 at para. 82. See also discussion below. Durkheim supra note 149 at 132. See Brdanin, supra note 141 at para. 703; Kristic, (Trial Chamber) supra note 154 at paras. 589-590; Prosecutor v. Kristic (2004) Case No. IT-98-33-A (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber) at para. 13; Prosecutor v. Stakic (2003) Case No. IT-97-24-T (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II) Judgment at para. 523-24 [Stakic]; Jelisic, supra note 153 at para. 83. I L C "Draft Commentary," supra note 50 at 45. 154  155  1 5 6 1 5 7  158  40  which tend to lump discrete groups into meta-groups of, for instance, "Indians," or "Aboriginals." A . Dirk Moses refers to this lumping tendency as a "homogenizing discourse,"  159  and, as he points out, allowing a perpetrator to escape culpability by broadly defining the targeted group would heap perversity on top o f atrocity. According to Moses: If somehow Aborigines had colonized Europe and attempted to exterminate, say, the Slovenians, every subsequent European scholar o f genocide would visit ridicule and scorn on the proposition that no genocide had i n fact taken place, and that it was just an isolated incident because no intention could be identified to exterminate all Europeans. 160  Therefore, i n assessing allegations o f Australian genocide, it is proper to inquire not whether all o f Australia's indigenous inhabitants were targeted, but whether any o f the discrete tribal groups had been targeted, at least in part. Despite the clear emphasis on group protection, Russell McGregor asserts that because the perpetrators o f Australia's post-war Aboriginal policies lauded Aboriginal population increases, their behavior was "incompatible with genocidal intent."  161  However, there is simply no requirement that a perpetrator intend for the number o f individual descendants o f the group to decline. Rather, the group is the victim and while a decline i n the number o f its individual members is o f evidentiary interest, an increase i n these numbers does not negate genocidal intent. Accordingly, the I C T R and I C T Y have determined that systemic rape and forced deportations can amount to genocide when  A. Dirk Moses, "An Antipodean Genocide? The Origins of the Genocidal Moment in the Colonization of Australia" (2000) 2 J. Genocide Research 89 at 93. 1 5 9  1 6 0  Ibid.  Russell McGregor, "Governance, Not Genocide: Aboriginal Assimilation in the Post War Era" in A. Dirk Moses, ed., Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History (New York: Berghan Books, 2004) 290 at 296. 161  41  carried out with intent to destroy the group, though neither is necessarily lethal to group members.  162  In Kruger v. Commonwealth of Australia, misunderstood the Genocide Convention's  the H i g h Court o f Australia similarly  group protections.  163  According to the H i g h  Court o f Australia, allegations o f post-1951 Article 2(e) violations fail because powers under 1918 Aboriginals  Ordinance}  64  which authorized the forcible child transfers,  "were required to be exercised in the best interests o f the Aboriginals concerned or o f the Aboriginal population generally."  165  Under this logic, any acts intended to harm  Aboriginals were committed outside the authority o f this legislation and therefore the Commonwealth bears no responsibility for those acts. According to Justice Toohey: each o f the "acts" which spells out genocide is qualified by the opening words "with intent to destroy." There is nothing in the Ordinance, according to the ordinary principles o f construction, which would justify a conclusion that it authorized acts "with intent to destroy, i n whole or i n part" the plaintiffs' racial group. 166  However, as we have seen, the Genocide Convention  extends protections not just to  individuals or to the racial groups to which they belong, but also to groups "as separate  See below §5.1.2. Kruger, supra note 20. The Northern Territory of Australia, An Ordinance Relating to Aboriginals No. [9] of 1918 [1918 Aboriginals Ordinance]. Kruger, supra note 20, Dawson J p. 31. Ibid. p. 44; See also Gaudron J. at 58: Although it may be taken that the Ordinance authorised the forcible transfer of Aboriginal children from their racial group, the settled principles of statutory construction ... compel the conclusion that it did not authorise persons to remove those children "with intent to destroy, in whole or in part, ... [their] racial ... group as such" (ibid.). But see Desmond Manderson, "Apocryphal Jurisprudence" (2001) 23 Studies in Law, Politics and Society 81 at 106, critiquing Kruger for, among other things, imposing a "radical separation of meaning and practice." See also Mathew Storey, "Kruger v. The Commonwealth: Does Genocide Require Malice" (1998) 21 U.N.S.W.L.J. 224 at 230, arguing that, "[a] beneficial motive can coexist with a genocidal intent." 1 6 2  163  1 6 4  165  166  42  and distinct entities."  167  Therefore, it should extend to each separate and distinct tribal  group, not just to Aboriginals as a "racial group."  Group-destroying actions like  removing children from their communities could be thought, according to the standards o f the times, to be i n the interests o f Aboriginal individuals, or even the Aboriginal "population" or "racial group" as a whole. According to this thinking, Aboriginals were harmed by contact with their group culture and actions that removed the individual from the group, thereby destroying the group, were thought to be in the individual's, or even the population's, interest.  168  However, group destruction can never be in the interests o f  the affected group itself, which according to the Genocide Convention holds a right o f and interest i n its own existence. The 1918 Aboriginals  Ordinance does not require that  actions under its authority must be carried out in the interests o f the many Aboriginal groups indigenous to Australia. In fact, it authorizes actions that obviously threaten the group.  169  Supra, note 93. See Stuart Bradfield, "From Empires to Genocide Chic: Coming to Terms with the Stolen Generations in Australia" in Colin Tatz, Peter Arnold & Sandra Tatz eds., Genocide Perspectives II: Essays on Holocaust and Genocide (Sydney: Brandl & Schlesinger, 2003) 243 at 254. As Bradfield points our: "Paradoxically, the destruction of Aboriginality was seen to be 'in the best interests of Aboriginal people. ... Removing Aboriginal children with some "European blood' was to ensure their 'emancipation' from the prison of Aboriginality." The 1918 Aboriginals Ordinance, supra note 164, gave Australia's Administrator and Chief Protectors wide powers over Aboriginals. Those specifically facilitating the forcible transfer of Aboriginal children include: § 7.- (1.) The Chief Protector shall be the legal guardian of every aboriginal and halfcaste child, notwithstanding that the child has a parent or other living relative, until the child attains the age of eighteen years, ... § 67. - (1.) The Administrator may make regulations, not inconsistent with this Ordinance ... in particular (b) providing for the care, custody and education of the children of aboriginals and half-castes; (c) enabling any aboriginal or half-caste child to be sent to and detained in an Aboriginal Institution or Industrial School; (d) providing for the control, care and education of aboriginals or half-castes in aboriginal institutions and for the supervision of such institutions; 167  1 6 8  1 6 9  43  3.3  In whole, or in part?  A perpetrator may commit genocide even though they lack the intent to destroy a protected group in toto; so long as a perpetrator acts with intent to destroy the group at least " i n part," genocide can be found. The phrase " i n whole or i n part" was added to the convention as the result o f a Norwegian initiative.  170  According to Schabas, "[w]hat the  [term does] is undermine pleas from criminals that they did not intend the destruction o f the group as a w h o l e . "  A s he points out, during the Armenian genocide the Turkish  171  government only intended to destroy Armenian groups within its borders, not the entire Diaspora, and not even the Nazis were deluded enough to believe they could eliminate every Jew on E a r t h . intend  an  entire  controversy.  173  172  Although there is wide agreement that perpetrators need not  group's  destruction, the  passage  is vague  and  has  generated  During ratification debates i n the United States Senate, many expressed  fear that " i n part" might include cases where "a single individual was attacked as a member o f a group."  174  But according to the dominant interpretation, " i n part" requires  the targeting o f a substantial part o f the group. Special Rapporteur Benjamin Whitaker stated that: "'[i]n part' would seem to imply a significant number, relative to the group as  (f) prescribing the conditions on which aboriginal and half-caste children may be apprenticed to or placed in the service of suitable people; Note, § 7 was amended under the 1953 Welfare Act to read, "The Director is the legal guardian of all aboriginals." Lippman, "Crime of the Century," supra note 87 at 475 citing 6 Comm. Summary Records, UN Doc. A/C.6/SR.73 (Mr. Wikborg, Norway) supra note 51. Schabas, Genocide, supra note 19 at 235. Ibid. See also Kristic (Appeals Chamber) supra note 154 at para. 13. See Kristic, (Trial Chamber) supra note 154 at paras. 581-599 summarizing the ongoing controversy and finding that this controversy left it with "a margin of discretion in assessing what is destruction 'in part' of the group" (ibid, at 590). See Lawrence LeBlanc, "The Intent to Destroy Groups in the Genocide Convention: The Proposed U.S. Understanding" 78 Am J. Int'l L. 369 (1984) [LeBlanc, "Groups"]. 1 7 0  th  171  172  1 7 3  1 7 4  44  a whole, or else a significant section o f a group such as its leadership."  3.4  Limiting protections to "biological" groups illuminates the central role of children Whether protected groups should be enumerated and, i f so, which ones should be  protected was one o f the most divisive issues the framers f a c e d .  176  The groups  mentioned i n this thesis, as having been targeted for forcible child transfers, have a l l fallen into the final list o f protected groups and their right to protection is not i n doubt. However, exploring the rhetoric i n the debate over which groups should be protected clarifies the central, i f often implied, role that children play i n the Genocide  Convention.  While all previous documents including Resolution 96(1), the Secretariat's Draft, and the A d H o c Committee Draft had provided protection to political groups, after long debate, the Sixth committee limited protections to "national, ethnical, racial or religious" groups, leaving political groups unprotected. the Genocide  Convention  177  Delegates favoring exclusion argued that  should only protect those groups possessing immutable  characteristics, those in which membership tended to be hereditary and involuntary. M r . A b d o h o f Iran explained the rationale for excluding political groups, asserting  Benjamin Whitaker, Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide UNESCOR, 38 Sess. UN Doc. E/CN.4/Sub.2/1985/6 (1985) at 16. See also ILC, "Draft Commentary," supra note 50 at 45. "It is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe. None the less the crime of genocide by its very nature requires the intention to destroy at least a substantial part of a particular group." William A. Schabas, "Groups Protected by the Genocide Convention: Conflicting Interpretations From the International Criminal Tribunal for Rwanda" (1999) 6 ILSA J, Int'l & Comp. L. 375 [Schabas, "Groups"]; Beth Van Schaack, "The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot" (1997) 106 Yale L.J. 2259 at 2264. The United States was a main proponent of inclusion while the Soviet Union fervently opposed. The eventual excision of political groups was viewed as a political compromise, without which the convention would not have been ratified. Compare, Res. 96(1), supra note 71; Ad Hoc Committee Draft, Article 2, supra note 82;Genocide Convention, supra note 2 , Article 2. See also Lemkin, "Unofficial Man," supra note 59 at 391. Lemkin also vehemently opposed the inclusion of political groups. th  176  177  1 7 8  45  that because: there was a distinction between those groups, membership o f which was inevitable, such as racial, religious or national groups, whose distinctive features were permanent; and those, membership o f which was voluntary, such as political groups, whose distinctive features were not permanent, it must be admitted that the destruction o f the first type appeared most heinous in the light o f the conscience o f humanity, since it was directed against human beings whom chance alone had grouped together.  179  M r . Wikbourg o f Norway was also: "opposed to the inclusion o f political groups on the ground that such groups were never so clear-cut or stable as national, racial, or religious groups.  Membership o f a religious group could be renounced, but with much greater  difficulty than that o f a political party."  180  M r . Lachs o f Poland similarly asserted that:  "[t]he object o f the convention was to outlaw genocide. That was the crime consisting i n the destruction o f groups o f human beings which were the product o f circumstances beyond the control o f their members," and that those needing "protection the most were those who could not alter their status."  181  According to M r . Perozo, the Venezuelan  delegate, the convention could not encompass "any and every group; i f that were the case, other groups o f workers, artists, scientists, etc. should also be taken into consideration."  182  H e also pointed out the realpolitik o f the situation; a number o f states  were so deeply opposed to including political groups that inclusion would threaten  UN Doc. A/C.6/SR.74, supra note 51; see also Schabas, "Groups," supra note 176 at 382, asserting that "three of the four categories in the Convention enumeration, national groups, ethnic groups, and religious groups seem to be neither stable nor permanent." 6* Comm. Summary Records, UN Doc. A/C.6/SR.69, supra note 51. See also UN Doc. A/C.6/SR.74 (Mr. Morozov, U.S.S.R.), drawing a distinction between objective and subjective markers of group membership (ibid). According to Morozov, only groups bearing objective markers were likely to be subjected to genocide and therefore there was no need to include the other types of groups. Religious affiliation was not an objective marker, but was supported by the U.S.S.R. because in their estimation all incidents of religious genocide has also been motivated by race or nationality. Ibid. UN Doc. A/C.6/SR.75. Ibid. UN Doc. A/C.6/SR.69. 1 7 9  1 8 0  181  182  46  ratification.  183  Those arguing for inclusion were just as adamant and divisions deepened along geopolitical lines.  Sir Shawcross o f Britain emerged to lead inclusion  efforts,  acknowledging, "no one should be persecuted because o f the accident o f his birth within a certain group."  184  He went on to question "whether a fascist state, for instance, should  be able to destroy the lives o f persons because they happened to be members o f a communist group. , . . "  1 8 5  He also pointed out that while political groups clearly " d i d not  have the same stable characteristics as racial or national groups," this would not stop "certain States" from attacking them as i f they d i d .  1 8 6  M r . Medeiros o f B o l i v i a agreed,  asserting that all o f the proposed groups were held together by a common ideology or belief and there was therefore no logical reason for excluding political and economic groups.  187  M r . Demesmin o f Haiti argued that all genocide is political and that one must:  "realize that strife between nations had now been superseded by strife between ideologies. M e n no longer destroyed for reasons o f national, racial or religious hatred, but in the name o f ideas and the faith to which they gave b i r t h . "  188  Ultimately these  powerful arguments failed and political groups were voted out o f the convention.  189  Ibid. See also UN Doc. A/C.6/SR.74 (Mr. Abdoh, Iran), arguing that only those matters on which consensus had been reached should be included in the final draft (ibid.). 6 Comm. Summary Records, UN Doc. A/C.6/SR.69 supra note 51. Ibid. Ibid. Ibid. UN Doc. A/C.6/SR.74. Bolivia proposed a non-restrictive group approach whereby: "the word genocide' meant the destruction of a group without implying any distinction between various groups." Ibid. Ibid. UN Doc. A/C.6/SR.75. In favor: Netherlands, New Zealand, Norway, Panama, Paraguay, Philippines, Saudi Arabia, Siam, Sweden, Syria, Turkey, United Kingdom, United States, Yemen, Australia, Bolivia, Burma, Canada, Chile, China, Cuba, Denmark, Ecuador, Salvador, France, Haiti, Iceland, India, Luxembourg. Against: Poland, Ukrainian Soviet Socialist Republic, Union of South Africa, Unions of Soviet Socialist Republic, Uruguay, Venezuela, Argentina, Belgium, Brazil, Byelorussian Soviet Socialist Republic, Czechoslovakia, Dominican Republic, Iran. Abstaining: Nicaragua, Peru, Yugoslavia, Afghanistan, Egypt, Ethiopia, Greece, Lebanon. 183  8 4  th  85  86  87  88  89  47  B y focusing on immutable characteristics, the framers distinguished "biological" groups, those that propagate through vital "biological" processes (i.e. childrearing), from ascriptive groups, which tend to reproduce through recruitment. Through this distinction, they highlighted the central role children play i n the Genocide Convention as only those groups reproducing themselves  through child rearing were accorded protection.  190  Admittedly, the line between ascriptive groups and those that propagate through recruitment is oftentimes  fuzzy.  A s Helen Fein points out, "[b]eing  an Italian  Communist Party member may be just as heritable a characteristic as being an Italian church-going Roman Catholic."  191  A n d not surprisingly, this exclusion has generated  considerable controversy as activists and scholars have argued that any proper definition o f genocide should include political and social, as well as the disabled and the elderly 1  all targets o f exterminatory policies at some point.  However, b y excluding political,  economic, and age-specific groups, as well as those coalescing around issues o f sexual orientation, which do not perpetuate themselves directly through child rearing, the delegates elevated issues o f children and their custody to a place o f central importance i n the consideration o f genocide.  3.5 There is no minimum duration requirement Article 2(e), which simply prohibits "forcibly transferring the children o f the  Genocide Convention, supra note 2. Two of the five prohibited acts directly address children. In addition to Section 2(e), Section 2(d) prohibits "Imposing measures intended to prevent births within the group." Helen Fein, "Genocide: A Sociological Perspective" in Alexander Laban Hinton, ed., Genocide an Anthropological Reader (Maiden, Mass.: Blackwell, 2002) at 81. Schabas, Genocide, supra note 19 at 148-49; See Van Schaack, supra note 19; See also David L. Nersessian, "The Razor's Edge: Defining and Protecting Human Groups Under the Genocide Convention" (2003) 36 Cornell Int'l L.J. 293, discussing how the protected groups have been defined in international case law. 190  91  1 9 2  48  group to another group," contains no apparent minimum duration requirement for the period o f time for which children are separated from their g r o u p .  193  However, where the  Genocide Convention is silent on the issue o f duration, Gerhard Werle implies a permanency requirement.  Werle states that this provision "encompasses  transfer done with the specific intent o f destroying the group's existence."  194  permanent According  to Werle, the group's "social existence" is threatened when children are "estranged from their cultural identity" and are alienated from  their language  and traditions.  195  Additionally, the group's biological existence becomes threatened because the children involved are unlikely "to reproduce within their own group."  196  However, principles o f  statutory interpretation argue against implying a restrictive term where none is readily apparent.  197  There also is nothing in the convention's preparatory materials that would 198  imply such a restriction.  The better approach would consider the perpetrator's intent,  finding genocide where children were forcibly transferred from one group to another, for any length o f time, so long as the perpetrator intended the separation to destroy the group. 3.6  Children Although it does not define "children," the Genocide Convention is commonly  assumed to protect children to eighteen years, the age range designation established b y  1 9 3  Genocide Convention,  1 9 4  Werle, supra note 93 at 203.  Article 2 (e) supra note 2.  Ibid. Ibid. Vienna Convention, supra note 32, Articles 31 & 32.  1 9 5  ]96  1 9 7  1 9 8  6 Comm. Summary Records, UN Doc. A/C.6/SR.82, supra note 51. th  49  the Convention  on the Rights of the Child (CRC)}  99  Following the CRC, international  treaties covering children have increasingly recognized eighteen years o f age as the transition point from child to adult and this standard appears to be gaining status as an international n o r m .  200  Despite this growing consensus, some have asserted that Article  2(e) was actually intended to protect against the practice o f transferring children for purposes o f re-acculturation and therefore older teens should not be protected because they are not as susceptible to such influences. historical context.  201  However, this stance seems to overlook  The children removed in several prominent forcible child transfer  schemes - including those in the Swiss, N a z i , and Australian programs - were prevented from returning home at any age. When conducted in this manner, forcible child transfers mirror Article 2(d), which prohibits "[ijmposing measures intended to prevent births within the group." In these cases, the age o f removal is irrelevant; the removal o f older children is just as harmful to the group as the removal o f young children - both are permanently stripped from the group, affecting its ability to reproduce.  Finally, the  Genocide Convention does not specify that forcible child transfers must be carried out for purposes o f re-acculturation, or for any purpose other than to destroy the  group.  Convention on the Rights of the Child, 20 November 1989; 1577 U.N.T.S. 3, Article 1 [CRC]: "For the purposes of the present convention, a child means every human being below the age of eighteen years unless under the applicable law to the child, majority is attained earlier." See the following recent international treaties setting the age range for childhood at eighteen years; ILO Convention (182) Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, Art. 2, 27 June 1999, ILO No, 182, 38 I.L.M. 1207; Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, UN G.A. Res. 54/263 UN GAOR 2000, Supp. No. 49, UN Doc. A/54/49 (2000); African Charter on the Rights and Welfare of the Child Art. 2, July 1990, Organization of African Unity, CAB/LEG/153/Rev.2; Convention on Contact Concerning Children Art. 2, 15 May 2003, Eur. T.S. 192. See Schabas, Genocide, supra note 19 at 176. See also, Valerie Oosterveld, "The Elements of Genocide" in Roy S. Lee ed., The International Criminal court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational Publishers, 2001) 41 at 54, discussing the controversy surrounding the definition of children in the offense of forcible child transfer during the Rome Statute ratification debates. Proposed age-range designations ranged from fifteen to twenty-one years of age and the delegates finally compromised on eighteen. 199  2 0 0  2 0 1  50  Therefore, because the provision itself contains no age-range or purpose restrictions and because the removal o f older children has in certain instances been just as harmful to the group as the removal o f younger children, there seem to be no grounds for restricting the provision and the better approach would adhere to the internationally accepted standard o f eighteen years o f age.  3.7 C h a p t e r s u m m a r y  A s we have seen, those who framed the Genocide Convention  intended it to  provide robust group protections, and assurances o f the group's right to custody o f its children were intended to play a central role i n assuring such protection.  Under the  Genocide Convention, groups are not treated as mere collections o f individuals sharing particular traits, but are instead considered entities, whose existence hangs on the continued function o f its constituent parts. The framers also understood that the ability o f a protected group to continue its existence as an entity depends on control o f its children, for it is through the process o f childrearing that these ascriptive groups perpetuate themselves.  This group emphasis means that there may at times be a perceived  divergence between the interests o f the individual group members and the group itself. However, where such divergence is perceived, the Genocide Convention seems to require those operating in the interests o f individual group members to adjust their strategies to intervene i n a manner that is not intended to threaten the group's existence.  51  CHAPTER 4: "WITH INTENT TO": UNRAVELING THE INTENTION DIMENSION The  current debate on forcible child transfer often devolves to one basic  argument; the transfers were conducted with benevolent intentions and therefore, "by definition," cannot constitute genocide.  202  O f course, the issue o f intention is pivotal to  any discussion o f genocide, as an action must be animated by intent to destroy the group i f it is to amount to genocide under the Genocide Convention.  This issue becomes even  thornier in the debate surrounding forcible child transfers, where genocidal actions have often been infused with the earnest belief that these actions were i n the interest o f the targeted  group's children.  surrounding  forcible  child  It is therefore perhaps unsurprising that the transfers  has  been  characterized  by  debate  significant  misunderstandings o f the role intent plays in the legal analysis o f genocide. Throughout this chapter, I w i l l attempt to clarify the parameters o f genocidal intent i n arguing that mixed intents and benevolent motivations w i l l not save an otherwise genocidal act from amounting to genocide. I w i l l also argue that while designating genocide a specific intent offense does make it more difficult to classify acts as genocide, this task is made easier by the ability to infer genocidal intent from circumstantial evidence.  Tatz, "Confronting Australian Genocide," supra note 16 at 25, summing up "an issue in the current debate about the Stolen generations. ..." See also Reynolds, Indelible Stain, supra note 118 at 174: The argument [surrounding Australia's program of forcibly transferring Aboriginal children] would benefit from a consideration of the critical matter of intent; we should ask the question: 'What did the participants believe they were doing?' When they were quite consciously trying to breed out the colour in the name of White Australia, the charge of genocide has to be taken very seriously. When the motives were much more mixed and the emphasis was on what was thought - often erroneously - to be in the best interests of the child, we move much further away from genocidal intention.  2 0 2  52  4.1 Defining mens rea Intent and motive are parts o f a broader concept, mens rea, which is one o f the most contested concepts within criminal law.  Crimes are commonly considered to  consist o f two primary parts, the act, known as the actus reus, and the mental element, known as the mens rea.  To prove a crime, the prosecutor must generally prove both  204  elements; that the act was committed and that it was committed with the requisite mens rea.  Mens rea, i n turn, encompasses all o f the disparate elements that compose the  mental part o f the crime, including intent and motivation. Though there is considerable overlap and frequent confusion, these terms signify discrete concepts within criminal law.  W e commonly understand criminal intent to mean the purposive state o f mind  accompanying or animating a prohibited a c t i o n .  205  Motive is distinguished from intent  and is commonly defined as " a desire prompting conduct."  206  Because this distinction is  key to understanding genocidal intent, these terms w i l l be more fully explained below.  4.2 Intent To begin with, the legal definition o f intention must be distinguished from the way intention is used i n ordinary language. In discussing common law mens rea, Jerome H a l l defines intent by distinguishing it from negligence.  Regarding intent, "the actor  seeks the forbidden end; he directs his conduct toward that end or knows that it is very  Francis Bowes Sayre, "Mens Rea" (1931) 45 Harv. L. Rev. 974. "No problem of criminal law is of more fundamental importance or has proved more baffling through the centuries than the definition of the precise mental element or mens rea necessary for crime." See also Rollin M. Perkins, "A Rationale of Mens Rea" (1938) 52 Harv. L. Rev. 905, recounting the many ways in which intent and mens rea have been conflated and misunderstood. See Wayne R. LaFave, Criminal Law, 3rd ed. (St. Paul, Minn.: West, 2000) at 206. "Bad thoughts alone cannot constitute a crime; there must be an act, or an omission where there is a legal duty to act." Blacks' Law Dictionary, 7 ed., s. v. "intent". Walter Harrison Hitchler, "Motive as an Essential Element of Crime" (1930) 35 Dick. L. Rev. 105. 2 0 3  2 0 4  205  th  2 0 6  53  likely to occur. . . . Intended harm includes all harms that resulted because they stood i n the way o f the actor's objective - to his knowledge."  207  Negligence on the other hand,  "implies inadvertence, i.e., that the actor was completely unaware o f the dangerousness of his behavior although actually it was unreasonably increasing the risk o f the occurrence o f a proscribed h a r m . "  208  A s H a l l illustrates, intent i n its technical, legal  meaning is broader than our understanding o f this term i n ordinary language.  209  For  instance, i n most jurisdictions results are generally held to be intended where the actor knows that their actions were likely to cause the forbidden result, though the actor was ambivalent to, or may even have regretted, that result. Fletcher provides this example: " I f a prisoner i n an effort to escape blows up the prison wall with knowledge that guards are present and one o f the latter dies i n the explosion, we would not say that the prisoner intentionally killed the guard."  210  However, as Fletcher points out, " i n legal systems  across the Western world, the concept o f 'intention' is interpreted broadly to include 211  these probable side-effects o f intentional conduct." In French law, intention is referred to as dol general and is distinguished from dol special, which w i l l be discussed below. These terms are roughly equivalent to dolus generalis and dolus specialis i n other civil law jurisdictions. Catherine Elliot provides nineteenth century criminal lawyer Emile Garcon's classic definition o f dol  general,  according to which, "[ijntention i n its legal sense, is the desire to commit a crime as  Jerome Hall, Principles of Criminal Law (Indianapolis: The Bobbs-Merrill Company Publishers, 1947) at 215. 2 0 7  2 0 8  Ibid, at 216.  2 0 9  George Fletcher, Rethinking Criminal Law (Boston: Little, Brown & Company, 1978) at 443. [Flether,  Rethinking]. Ibid. 2 , 0  211  TU.-J  54  defined by the law; it is the accused's awareness that he is breaking the law." '^ 2  However, as Elliot points out, the requirement that the accused be aware that they are breaking the law is negated by the presumption i n French law, as i n the common law, "that people know the l a w . "  213  In French law, people are presumed to know the law,  unless their mistake as to the content o f the law "was induced b y a misrepresentation emanating from public officials."  214  In common law this presumption is typically  formulated as, "ignorance o f the law is no excuse," and i n both systems o f law it enforces a fundamental assumption that the accused did indeed know the content o f the law at the time it was violated. L i k e common law intent, dol general is broader than ordinary understandings o f intent, encompassing several levels o f intent including dolus directus, dolus and dolus eventualis.  indirectus,  Dolus directus probably conforms best to lay understandings o f  intent, denoting situations " i n which . . . the wrongful consequences o f the act were 215  foreseen and desired by the perpetrator."  Dolus indirectus encompasses situations i n  which an act's consequence is foreseen, but not desired by the perpetrator.  216  For  instance, where a perpetrator poisons a dish at a meal for the purpose o f killing one o f the diners, but with the knowledge that other guests w i l l eat that dish, the perpetrator is deemed to have intended to k i l l all those who eat the tainted dish, though the perpetrator  Catherine Elliot, French Criminal Law (Uffculme Cullompton, Devon, UK: Willan Publishing, 2001) at 66 [Elliot, French Law]. Ibid., "nemo censetur ignorare legem." Catherine Elliot, "The French Law of Intent and its Influence on the Development of International Criminal Law" (2000) 11 Crim. L. Forum 35 at 37. Johan D. van der Vyver, "Prosecution and Punishment of the Crime of Genocide" (1999) 23 Fordham Int'l L.J. 286 at 307.  2 1 2  2 1 3  2 1 4  2 1 5  i  55  had only desired the death o f the primary v i c t i m .  217  Dol eventualis is roughly equivalent  to recklessness and is said to include situations where the perpetrator is "indifferent to" or '"reconciled with' the result as a possible cost o f attaining one's g o a l . "  218  For instance,  where a perpetrator shoots into a car containing the intended victim, aware that there may be other occupants i n the car as well, that perpetrator w i l l be considered to have intended the deaths o f any fellow passengers that are shot.  219  The German law also distinguishes vorsatz, intention, from fahrlassigkeit, negligence.  220  or  According to Mohamed Elewa Badar,  "[i]t is generally accepted i n German case law that there are three different forms o f vorsatz: Absicht or purpose (intent i n the narrow sense or dolus directus o f the first degree); knowledge (dolus directus o f the second degree); and bedingter vorsatz (dolus eventualis), . . . " which "is similar to ... common law recklessness, but is more restricted i n a way that the perpetrator need not only be aware o f the risk but must also accept the possibility that the criminal consequence occurs." 221  L i k e the common law and French law, fahrlassigkeit liability.  222  w i l l not generally ground criminal  O n the other hand, unlike common law and French law, i n German law the  actor is not assumed to know the law and may avoid responsibility i f they are mistaken about the unlawfulness o f their act.  223  However, the actor must prove that the mistake as  to the law was "unavoidable," and because the accused must surpass a very strong  Ibid. Fletcher, Rethinking, supra note 209 at 446. But see Gropengeiper, supra note 93 at 338 cautioning that "'dolus eventualis' should not be confused with the concept o f recklessness,' a category alien to German law." van der Vyver, supra note 215 at 307. Mohamed Elewa Badar, "Mens rea - Mistake of Law & Mistake of Fact in German Criminal Law: A Survey for International Criminal Tribunals" (2005) 5 Int'l Crim. L. Rev. 203 at 215. Ibid. See also Fletcher, Rethinking, supra note 209 at 447-48, conducting a comparative analysis of dolus eventualis. Badar, supra note 220 at 232. Ibid, at 241. 2 , 7  2 1 8  2 1 9  2 2 0  221  2 2 2  123  56  assumption that the content o f the law was discernable, successful mistake o f law defenses are rare.  224  4.3 F o r c i b l e "Forcible" raises issues o f both act and intention. It is a material element, as the transfers must be accompanied by some real element o f force to be considered genocidal. However, insofar as "forcible" describes one part o f the mens rea specific to genocidal forcible child transfers, it is also considered a mental element. The legal implications o f "forcible" have not been directly addressed i n the genocide case law, though several courts and committees have opined on the issue. From these statements, it appears that, under the Genocide Convention, "forcible" means not only direct force, but encompasses acts o f non-direct force as well. It also appears that "forcible" is not generally treated as a mental element o f the crime o f genocide, but as a material element. A s the I C T R stated in Prosecutor v. Akayesu: W i t h respect to forcibly transferring children o f the group to another group, the Chamber is o f the opinion that . . . the objective is not only to sanction a direct act o f forcible physical transfer, but also to sanction acts o f threats or trauma which would lead to the forcible transfer o f children from one group to another. In Prosecutor  225  v. George Rutaganda  the Trial Chamber similarly determined that, "the  provisions o f Article 2(e) o f the Statute . . . are aimed at sanctioning not only any direct act o f forcible physical transfer, but also any acts o f threats or trauma which would lead  Ibid, at 241-43. Akayesu, (Trial Chamber) supra note 138 para 509. See also Schabas, Genocide, supra note 19 at 176-77.  224  225  57  to the forcible transfer o f children from one group to another group."  Z2b  These statements  by the I C T R indicate a broad understanding o f force, going so far as to sanction nondirect acts leading to the transfer o f children. The Preparatory Commission for the I C C proposes an even broader standard, stating: [fjhe term "forcibly" is not restricted to physical force, but may include threat o f force or coercion, such as that caused by fear o f violence, duress, detention, psychological oppression or abuse o f power, against such person or persons or another person, or by taking advantage o f a coercive environment.  227  Therefore, according to the Preparatory Committee for the I C C , "forcibly" sanctions omissions as well as acts. It also prohibits child transfers even where those conducting them did not create the conditions o f force that led to the transfers.  The Preparatory  Committee for the I C C standard incorporates the I C T R pronouncements mentioned above and harmonizes them with the existing international law on the issue o f force.  228  M u c h o f this law surrounds issues o f force i n the commission o f sex crimes where "force" is given a broad interpretation, including acts that render the victim helpless as 990  w e l l as acts or threats committed against third parties.  Taken together, these sources  endorse a broad and purposive understanding o f the force element and may go so far as to prohibit taking advantage o f a coercive situation to transfer children, regardless o f the circumstances under which that coercion had been established. Rutaganda (Trial Chaamber) supra note 140 at para 54. 2 2 7  Elements of Crimes, supra note 201 at n. 5.  Kriangsak Kittichaisaree, International Criminal Law (Oxford: Oxford University Press, 2001) at 82-83. Prosecutor v. Furundzija (1998) Case No. IT-95-17 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) at para. 180. See also Prosecutor v. Kunarac (2001) Case No. IT-96-23 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) at paras. 458-60, surveying the general sources of law on sexual violence and finding "force" in all situations in which the victim did not consent. 2 2 8  229  58  The I C J recently announced a narrower standard when it declared, "forcible transfer ... requires deliberate and intentional acts."  230  The I C J reaches this conclusion  by regarding "forcible" as the mental element that is particular to the act o f forcibly transferring children. The I C J partitions genocidal mens rea into two discrete inquiries, the first concerning the prohibited act and the second concerning the overall "intent to destroy."  231  In adjudicating an Article 2(e) violation, the court first determines whether  the transfers had been conducted forcibly and then whether they had been conducted with "intent to destroy."  232  B y comparison, adjudicating an Article 2(c) violation requires the  court to determine whether the group was deliberately subjected to "conditions o f life" that were "calculated to bring about its physical destruction, . . . " and then whether these conditions had been imposed with "intent to destroy."  Where Article 2(c) requires  actions to be "calculated" and "deliberate," Article 2(e) requires them to be conducted "forcibly." However, where Article 2(e) seems to imply a much lower level o f culpable intent than Article 2(c) the I C J reads them as roughly equivalent, requiring forcible child transfers to be deliberate and intentional. The I C J appears to overreach in determining that "forcibly" necessarily entails deliberate and intentional action, or denotes any mental state at all. According to Black's Law Dictionary  "deliberate" actions are those that are "[ijntentional; premeditated; fully  considered," while "forcible" means only, "[ejffected by force or threat o f force against opposition or resistance."  2 3 0  231  2 3 2  2 3 3  233  A n d "force" means only, "[pjower, violence or pressure  Bosnia v. Serbia, supra note 32 at para. 186.  Ibid. Supra note 2. Black's Law Dictionary, 7 ed. s.v., "forcible". th  59  directed against a person or t h i n g . "  234  From these common legal definitions, it appears  that "force" and "forcible" do not imply a mental element.  For instance, a perpetrator  might act recklessly, with knowledge, or perhaps even negligently, to establish conditions that result i n the forcible transfer o f children.  Alternatively, as the Preparatory  Committee to the I C C pointed out, a perpetrator might take advantage o f a coercive environment that was not o f their creation to transfer children.  Finally, a perpetrator  might make a deliberate or intentional omission that forces the group to transfer its children.  In each instance, children have been forced from their group, satisfying the  ordinary meaning o f Article 2(e). The I C J is correct in its observation that the mental elements for the crimes listed i n Article 2 paragraphs (a) - (d) are "made explicit," while the mental element for Article 2(e) is n o t .  236  In the absence o f an explicit statement, it is  not clear w h y the I C J would jump to such a restrictive interpretation o f Article 2(e), an interpretation that appears to be at odds with the Genocide  Convention's  ordinary  meaning. Given that, under the general principles o f law, criminal culpability generally attaches only to intentional action, there may be grounds for reading an intent requirement into criminal prosecutions o f Article 2(e) violations.  However, as the  discussion above illustrates, legal standards o f intent are broad and encompass knowing and reckless acts, not merely deliberate acts.  The better approach is the purposive  standard set out b y the I C T R and the Preparatory Commission for the I C C , which does not seem to regard forcible as denoting any mental element. Instead, force is regarded as a physical element and culpability is recognized where a perpetrator takes advantage o f  234  2 3 5  236  Black's Law Dictionary, l ed. s.v., "force". Elements of Crimes, Supra note 21. Bosnia v. Serbia, supra note 32 at para. 186. x  60  conditions o f force to transfer children. This has important implications for the analysis o f forcible child transfers.  While  many historical forcible child transfer programs were directly coercive, and there is no question o f groups being "forced," the circumstances surrounding some programs were more ambiguous. system  abandoned  history.  237  For instance, the United States' American Indian boarding school compulsory off-reservation schooling early in the  program's  Despite the official policy o f "voluntary" attendance, many parents continued  enrolling their children i n off-reservation residential schools. They did so for a number o f reasons.  Parents often enrolled their children in distant boarding schools because  those schools represented the only chance for their children to gain the skills needed for survival i n a rapidly changing world, or simply because conditions on the reservations were so horrible that many parents could not afford to keep the children at home. These children were not deliberately and intentionally transferred outside the group, but their group was subjected to conditions that forced the children's transfer.  4.4 Specific intent According to prevailing interpretations, the "with intent to destroy" language contained in Article 2 makes the crime o f genocide a "special," or "specific intent"  See Adams, supra note 1 at 65. From 1893 on, "full consent" was required from Native American parents before their children could be sent to an off-reservation school. Importantly, parents could still be compelled to enroll their children in on-reservation schools, which had similarly harsh conditions and which were similarly restrictive. See Child, supra note 6 at 15. A number of factors including economic depression and high death rates on the reservations pushed American Indian families to enroll their children in boarding schools. According to Child: "The presence of so much disease on reservations widowed women and men before their time, and, ironically, many Indians began to use the boarding school as a refuge for their children during a family crisis" (ibid.). 2 3 7  2 3 8  61  crime.  239  For instance, the Trial Chamber i n Akayesu found:  Genocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis.  Special intent o f a crime is the specific intention,  required as a constitutive element o f the crime, which demands that the perpetrator clearly seeks to produce the act charged.  Thus, the special  intent i n the crime o f genocide lies i n "the intent to destroy, i n whole or i n part, a national, ethnical, racial or religious group, as s u c h " .  240  The trial chamber's approach was recently ratified by the I C J i n Bosnia v. Serbia where the court held that proving genocide requires the prosecutor to prove that the perpetrator possessed an "additional intent" above the mental elements listed for each o f the offenses listed i n Article 2 .  2 4 1  A c c o r d i n g to the I C J :  But see Otto Triffterer, "Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such" (2001) 14 Leiden J. of Int'l L. 339 at 404, finding that although all definitions of genocide require "intent to destroy" none mention "an additional adjective like specific, special, particular, or general intent." Triffterer asks whether the perpetrator "[w]ho kills a group or part of it by a massacre for sadistic motives, but knowing it may eliminate the group by the act, and who merely agrees to this additional consequence, does he not fulfill the minimum requirements for genocidal intent?" See also Alexander K.A. Greenwalt, Note: "Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation" (1999) 99 Colum. L. Rev. 2259 at 2265 arguing that, despite the accumulated weight of expert commentaries and judicial opinions, the actual text of the Genocide Convention contains no specific intent requirement. Instead, Greenwalt proposes, "principal culpability for genocide should extend to those who may personally lack a specific genocidal purpose, but who commit genocidal acts while understanding the destructive consequences of their actions" (ibid, at 2259). See also William A. Schabas "The Jelisic Case and the Mens Rea of the Crime of Genocide" (2001) 14 Leiden J. Int'l L. 125 at 129 [Schabas, "Jelisic Case"], arguing that dolus specialis and specific intent have only confused the matter, and that rather than importing these concepts "from national systems of criminal law" it would be better to rely on the meaning of "the plain words of the definition of the international crime of genocide." Therefore, " for killing to constitute the crime of genocide, it must be accompanied by the 'intent to destroy,' .... This presumably is all that is meant by the dolus specialis, or the special intent, or the specific intent of the crime of genocide." But see Kai Ambos, "Some Preliminary Reflection on the Mens Rea requirement of the Crimes of the ICC Statute and of the Elements of Crimes" in Lai Chand Vorah, Fausto Pocar, Yvonne Featherstone, Oliver Fourmy, Christine Graham, John Hocking & Nicholas Robson, eds., Man's Inhumanity to Man: Essays on International Law In Honor ofAntonio Cassese (The Hague: Kluwer International, 2003) 11 at 21-22, critiquing proposals to broaden the intent standard, but rejecting them because they would "radically change" the nature of genocide. 2 3 9  240  241  Akayesu, supra note 138 at para 497. See also ibid, atpara.518: Special intent is a well-known criminal law concept in the Roman-continental legal systems. It is required as a constituent element of certain offences and demands that the perpetrator have the clear intent to cause the offence charged. According to this meaning, special intent is the key element of an intentional offence, which offence is characterized by a psychological relationship between the physical result and the mental state of the perpetrator. Bosnia v. Serbia, supra note 32 at para. 187.  62  Article II requires a further mental element.  It requires the establishment  o f the "intent to destroy, i n whole or i n part, ...[the protected] group as such." It is not enough to establish, for instance i n terms o f paragraph (a), that deliberate unlawful killings o f members o f the group have occurred. The additional intent must precisely.  also be established  and is defined very  It is often referred to as a special or specific intent or dolus  specialis; . . . It is not enough that the members o f the group are targeted because they belong to that group, that is because the perpetrator has a discriminatory intent.  Something more is required.  The acts listed i n  Article II must be done with the intent to destroy the group as such i n whole or i n p a r t . Designating inquiry  243  242  genocide  a specific intent  crime implies a two-step  intention  whereby the fact finder first determines whether the perpetrator intended to  carryout the prohibited action and then inquires whether that action was intended to achieve some "further consequence . . . beyond the conduct or result that constitutes the actus reus of the offense. "  2  U  LaFave demonstrates the increased burden o f proving  Roberta Arnold, "The Mens Rea of the ICC" (2003) 14 Crim. L. Forum 127, also implies a two-step intention inquiry by which the act must have been intended and that the actor must also have intended to destroy a protected group as such. See also Nina H. B. Jorgensen, "The Definition of Genocide" (2001) 1 Int'l Crim. L. Rev. 285 at 308 citing Akayesu (at para. 122)findsa: three- runged ladder of proof for the mens rea of genocide by killing: (a) it must be proved that a national, ethnical, racial or religious group was selected and targeted (or persecuted) by the accused; (b) the accused must have formed a specific intention to eradicate all or part of the group; ... (c) it must be proved that the accused intended to kill the individual members of the group that he did in fact kill. Joshua Dressier, Understanding Criminal Law (New York: Mathew Bender & Company, 2001) at 136. According to Dressier there are two instances in which a crime is considered to be one of "specific intent" rather than a "general intent." First, when the crime requires proof of an intent to do some future act or achieve some future consequence beyond the actus reus of the crime. And second, where the crime's definition provides "that the actor must be aware of a statutory attendant circumstance," for instance, when a statute prohibits receiving stolen goods with the knowledge that they are stolen. Violations of the Genocide Convention fall into thefirstof Dressler's two specific intent categories. But see Fletcher, Rethinking at 453. Specific intent: can mean any of the three following: (1) a well-defined, particular intent (e.g., an intent to deprive the owner permanently of this property), or (2) an intent to realize a particular objective (if the intent is specific in this sense, undesired side-effects are not included), or (3) an intent that affects the 'species or degree' of a crime and therefore may be negated by a claim of intoxication. See also, Perkins, supra note 203 at p. 924: "[T]he phrase 'specific intent' is used to connote something more than the intentional doing of the actus reus itself - an intent which is specifically required for guilt in a particular offense, as in assault with intent to murder, burglary, using mails with intent to defraud, or criminal intent." 2 4 3  2 4 4  63  specific intent b y explaining: common law larceny, for example, requires the taking and carrying away of the property o f another, and the defendant's mental state as to this act must be established, but i n addition it must be shown that there was an "intent to steal" the property. Similarly, common law burglary requires a breaking and entry into the dwelling o f another, but i n addition to the mental states connected with these acts it must also be established that the defendant acted "with intent to commit a felony therein." 245  Thus, i n common law jurisdictions, proving a specific intent crime requires proving two mental states, an intent to commit the primary act and a further intent as specified b y the nature o f the crime. In French law, dol special is similarly said to require proof o f an additional mental element. For instance, "[i]f one takes the offense o f theft, the general intent required is the desire to take property belonging to another . . . ; while the special intent required is the intent to behave as the owner o f the property belonging to another."  246  German law contains a similar category o f crimes, including theft, which  requires the further "intention o f appropriation," and fraud, which requires "the intention to benefit unjustly." .  vorsatz.  247  Otto Triffterer refers to this further intent as an erweiterter  248  4.5 Mixed intents are irrelevant The nature o f specific intent offenses means that they are commonly assumed to require the highest degree o f intent - Absicht, i n the German law, dolus directus i n c i v i l  LaFave, supra note 204 at 240. Elliot, supra note 214 at 38-39. Badar, supra note 220 at 223. Triffterer, supra note 239 at 403. See also Badar, supra note 220 at 223 referring to the "extended mental element" as uberschiessende lnnentendenz. 2 4 5  2 4 6  2 4 7  2 4 8  64  law, and purposeful action i n the common l a w .  249  This does indeed burden the  prosecutor i n any genocide prosecution, as this more exacting standard must be proved. However, it is notable that the intent i n question is the perpetrator's intent toward the group's existence; any additional intentions regarding individual group members are irrelevant. Here we see some friction between the perceived interests o f individual group members and the interests o f the group as an entity. A s we have seen, however, the Genocide  Convention  provides robust group protections and contains no apparent  exception for acts deemed to benefit individual group members. Although the specific intent designation certainly elevates the prosecutor's burden, given the current discourse surrounding forcible child transfers, it is at least as significant for what it does not do. The "with intent to destroy" language in the Genocide Convention does not indicate the volume o f culpable intent, but rather its specificity. Put differently, this means that the court is not required to find that the perpetrator had a very bad or morally reprehensible intention, merely that they possessed the very narrow intent to destroy the group. Returning to the analogy with burglary, we see that designating a crime as a specific intent offense, or one requiring dolus specialis,  does not b y itself  indicate that the a crime requires an especially awful intent any more so than the "intent to behave as the owner o f property belonging to another," reprehensible than the intent to rape, murder, or torture.  250  is somehow more  In addition, designating  genocide as a specific intent crime does not allow mixed intentions to defeat a charge o f  Nersessian, ["Contours"] supra note 31 at 264. "Decisionsfromthe international criminal tribunals explicitly reject a knowledge standard for acts of genocide." Elliot, supra note 214.  2 4 9  2 5 0  65  genocide.  251  In the criminal law generally and i n the law o f genocide specifically, mixed  intentions do not excuse culpable behavior that is otherwise animated by a proscribed intention. According to LaFave, "[i]t may be said that, so long as the defendant has the intention required by the definition o f the crime, it is immaterial that he may also have some other intention."  252  A s applied to the Genocide Convention, the fact finder would  determine whether the prohibited action was carried out with the requisite intent specific to each prohibited act and then whether it was carried out with the "further" intent o f destroying the g r o u p .  253  Under this analysis, whether the perpetrators o f forcible child  transfers also intended to benefit the group's children is irrelevant, what matters is whether they intended the transfers to destroy the children's group.  4.6 Establishing specific intent Adjudication o f a specific intent offense raises obvious questions o f proof.  How  is the prosecutor to objectively prove the accused's internal processes? F e w perpetrators  See Nersessian, "Contours," supra note 31 at 268: "provided the requisite intent exists, it matters not whether that intent was fueled by animus toward the group, by hope of financial gain, by a personal grudge against individual group members, by ideological or wartime resistance, by misguided beneficence (i.e., mass euthanasia), or indeed by any reason at all." LaFave, supra note 204 at 237. See also Prosecutor v. Kayishema & Ruzindana (2001) Case No. ICTR95-1-A (International Criminal Tribunal for Rwanda, Appeals Chamber) at para. 149 [Kayishema']. The defendant asserted that his efforts to save seventy-two children were incompatible with intent to destroy. However, the Appeals Chamber observed "that in the light of the overall evidence, the fact that the 72 children may have been taken to the hospital pursuant to Kayishema's instructions has little direct bearing on the question whether he possessed the requisite mens rea." See Triffterer, supra note 239 at 403. See also John R.W.D. Jones, "Whose Intent is it Anyway? Genocide and the Intent to Destroy a Group" in Lai Chand Vorah, Fausto Pocar, Yvonne Featherstone, Oliver Fourmy, Christine Graham, John Hocking & Nicholas Robson, eds., Man's Inhumanity to Man: Essays on International Law In Honor ofAntonio Cassese (The Hague: Kluwer International, 2003) 467 at 278-79, proposing a two-part test for determining culpable mens rea on the individual level. First, the court would assess the context of the individual's actions, "whether... a nationwide, or in any event organised and widespread plan existed to exterminate a [protected] group." Under his proposal the existence of such a plan would need to be proved only by a "balance of the probabilities. Finding such a plan, the court would "turn to the issue whether the accused participated in the implementation of that plan by committing any of the [prohibited] acts, ... with the intent and knowledge that the commission of those acts would further the implementation of the genocidal plan" (ibid.). 2 5 1  2 5 2  2 5 3  66  offer, as Hitler did, a declaration o f their intentions to commit genocide and a blueprint for its completion. Therefore, it is not surprising that where direct evidence is lacking i n genocide prosecutions, courts have permitted prosecutors to infer this intent available facts and have granted them substantial latitude i n doing s o . Prosecutor  v. Karadzic  and Mladic  254  from  For example, i n  the tribunal addressed the evidentiary issues  surrounding genocide and specific intent stating "[fjhe intent which is peculiar to the crime o f genocide need not be clearly expressed, ... [but] may be inferred from a certain number o f facts such as the general political doctrine which gave rise to the acts. , . . "  2 5 5  A m o n g other facts establishing intent, the I C T Y listed ethnic cleansing, rape, and actions typically considered to be cultural genocide, stating that, "[fjhe destruction o f mosques or Catholic churches is designed to annihilate the centuries-long presence o f the group or groups; the destruction o f the libraries is intended to annihilate a culture which was enriched  through  population."  256  the participation o f the various national components  o f the  In Jelisic, the Appeals Chamber determined that:  in the absence o f direct or explicit evidence, [specific intent may] be inferred from a number o f facts and circumstances, such as the general context, the perpetration o f other culpable acts systematically directed against the same group, the scale o f the atrocities committed, the systematic targeting o f victims on account o f their membership o f a particular group, or the repetition o f destructive and discriminatory acts.  257  See generally Bosnia v. Serbia, supra note 32, Vice President Al-Khasawneh, dissenting at paras. 40-47, discussing the standard for inferred intent that has developed in the ICTY and ICTR. Prosecutor v Karadzic and Mladic (1996) Case No. IT-95-5-R61, IT-95-18-R61 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) at para. 94 [Karadzic]. See also Alonzo-Maizlish, supra note 94 at 1386; Guglielmo Verdirame, "The Genocide Definition in the Jurisprudence of the ad hoc Tribunals" (2000) 49 I.C.L.Q. 578 at 585. Karadzic, ibid, at para. 94. Ibid. Prosecutor v. Jelisic (2001) Case No. IT-95-10-T (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber) (5 July 2001) Judgement at para 47. 2 5 4  255  256 257  67  A n d according to the Appeals Chamber i n Kristic, "[w]hen direct evidence o f genocidal intent is absent, the intent may still be inferred from the factual circumstances o f the crime."  258  The I C T R also recognizes that the specific intent to destroy the group can be inferred from circumstantial evidence. In Akaeyesu the I C T R stated that it: considers that intent is a mental factor which is difficult, even impossible, to determine. This is the reason why, in the absence o f a confession from the accused, his intent can be inferred from a certain number o f presumptions o f fact. The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context o f the perpetration o f other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale o f atrocities committed, their general nature, i n a region or a country, or furthermore, the fact o f deliberately and systematically targeting victims on account o f their membership o f a particular group, while excluding the members o f other groups, can enable the Chamber to infer the genocidal intent o f a 1  259  particular act.  In Prosecutor v. Kayishema, the tribunal similarly found that, "explicit manifestations o f criminal intent are, for obvious reasons, often rare i n the context o f criminal trials. In order to prevent perpetrators from escaping convictions simply because such manifestations are absent, the requisite intent may normally be inferred from relevant facts and circumstances."  260  A n d in Rutaganda, the Appeals Chamber determined that  while, "making anti-Tutsi utterances or being affiliated with an extremist anti-Tutsi group  Kristic (Appeals Chamber) supra note 157 at para. 34. See also Brdjanin, supra note 141 at para. 704; Stakic, supra note 157 at para. 526: "It is generally accepted, particularrly in the jurisprudence of both this Tribunal and the Rwanda Tribunal, that genocidal dolus specialis can be inferred from the facts, the concrete circumstances, or 'a pattern of purposeful action.'" Akayesu, supra note 138 at para. 523. Prosecutor v. Kayishema (1998) Case No. ICTR-97-23-S (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) supra note _ at para. 159, aff d. Kayishema, supra note 252 (Appeals Chamber) at para. 159. See also Prosecutor v. Semanza (2003), Case No. ICTR-97-20-T (International Criminal Tribunal for Rwanda, Trial Chamber) at para 313; Bagilishema, supra note 153 at para. 63. 2  2 5 9 260  68  is not a sine qua non for establishing dolus specialis, ... establishing such a fact may, nonetheless, facilitate proof o f specific intent."  261  Therefore, according to the I C T R and  I C T Y , it is proper to consider the wider context o f the crimes; systematic discrimination based on group affiliation, methodical planning, the political doctrine that animates the crimes, anti-group slurs, and acts normally considered to be instances o f cultural genocide may all be evidence o f the specific intent to commit genocide.  4.6.1  262  T h e I C J inferred intent approach  The I C J recently reaffirmed the determination i n Kristic that, "attacks on the cultural and religious property and symbols o f the targeted groups," when conducted i n tandem with "physical" or "biological" attacks, "may legitimately be considered as evidence o f an intent to destroy the group." Serbia  263  However, the judgment i n Bosnia v.  also substantially raised the standard o f proof required to prove genocide,  especially when inferring genocidal intent.  264  According to the I C J :  The dolus specialis, the specific intent to destroy the group i n whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist; and for a pattern o f conduct to be accepted as evidence o f its existence, it would have to be such that it could only point to the existence o f such intent. 265  Prosecutor v. Rutaganda (2003) Case No. ICTR-96-3-A (International Criminal Tribunal for Rwanda, Appeals Chamber) at para. 525. See also Verdirame, supra note 254 at 579. In fact, the case law generated through the ad hoc tribunals demonstrates a general willingness to transcend the strict definitions contained in the Genocide Convention, favoring instead what Verdirame terms "a purposeful approach to the definition." Under this approach, systematic rape and ethnic cleansing, which are not specifically prohibited, have been found to violate the convention and the tribunals have indicated some elasticity in the notion of protected groups. Bosnia v. Serbia, supra note 32 at para. 343 citing Kristic (Trial Chamber) supra note 154 at para. 580. Bosnia v. Serbia, supra note 32 at paras. 370-78. See also, Dissenting Opinion of Vice President AlKhasawneh (ibid.) at paras. 40-47, criticizing the judgment for departing from the considerable ICTY case law on inferred intent. Ibid, at para. 373. 261  2 6 2  2 6 3  264  265  69  However, to the extent this new standard appears more restrictive, it must be read i n conjunction with an earlier passage, i n which the court established the standard o f proof in inter-state disputes.  266  According to the I C J , it "has long recognized that claims  against a State involving charges o f exceptional gravity must be proved by evidence that is fully c o n c l u s i v e . "  267  The "fully conclusive" standard leaves no room for doubt,  reasonable or otherwise, and seems to require near certitude. This may be an appropriate standard for adjudicating delicate inter-state disputes, but it is even more exacting than the "beyond a reasonable doubt" codified i n the Rome Statute of the International Criminal  Court for adjudicating individual culpability for genocide,  268  which, i n turn, is  more exacting than standards o f proof typically required i n the type o f tort or moral claims envisaged in this thesis. In most historical forcible child transfer programs we see both types o f evidence, direct and constructive. In many cases, the perpetrators were proud o f these acts and left statements and plans indicating their group-destroying intentions. Each also occurred i n a social and political context laden with the ideology o f racial or cultural superiority, each targeted victims because o f their particular group membership, and each occurred as At least one tribunal in the ICTY set a similar standard. See Brdjanin (Trial Chamber) supra note 141 at para. 970: "Where an inference needs to be drawn, it needs to be the only reasonable inference available on the evidence." Bosnia v. Serbia, supra note 32 at para. 209. Rome Statute, Art. 66, supra note 27. See also "Interview: ICJ Chief on Bosnia Genocide Case" (31 May 2006), online: Institute for War & Peace Reporting <http://iwpr.net/index.php?apc_state=henptri&s=o&o=tribunal_rh_int.html> Discussing the burden of proof especially as concerns the Genocide Convention, Chief Judge of the ICJ Rosalyn Higgins stated: On burden of proof it's slightly different, because of course we are a civil court. And what may be absolutely correct for them as a criminal court is not necessarily what we would regard as the requisite burden of proof in a civil case. You're in an overlap area where you've got something like genocide, where it is a crime under international law. And then you have difficult questions of whether the burden of proof vis-a-vis a state, which is what we'll be dealing with, the same as for an individual. 2 6 6  267  268  70  part o f a larger program to destroy the group's cultural institutions and heritage.  4.7 Motivation is not intent as such In interpreting the Genocide Convention it is necessary to distinguish motive from intent, a task made difficult by a tendency to conflate the two concepts. LaFave clarifies the difference between intent and motive stating, "[w]hen A murders B in order to obtain B ' s money, A ' s intent was to k i l l and his motive was to get the m o n e y . "  269  H a l l explains  the distinction stating: The most common o f all human traits is the direction o f conduct toward the attainment o f goals. Such conduct involves (a) the end sought; (b) deliberate functioning to reach the end, which manifests the intentionality of the conduct; and (c) the reasons or grounds for (the "causes" of) the end-seeking, i.e., its motivation.''''  M o t i v e has little relevance i n assessing a prima facie  violation o f the criminal law.  According to Hitchler: A s a general rule, no act otherwise lawful becomes criminal because done with a bad motive: and, conversely, no act otherwise criminal is excused or justified because o f the motives o f the actor, however good they may  The reluctance to consider motive at the offense definition level does not result from the 272  difficulty  o f establishing motives, but from the difficulty  i n evaluating them.  According to H a l l , i n evaluating motives: LaFave at, supra note 204 at 243. See also Blacks Law Dictionary 1 ed., s.v. "intent": The state of mind accompanying an act, esp. a forbidden act. While motive is the inducement to do some act, intent is the mental resolution or determination to do it. When the intent to do an act that violates the law exists, motive becomes immaterial. See also s.v. "motive": "Something, esp. willful desire, that leads one to act. - Also termed ulterior motive" (ibid.). Hall, supra note 207 at 141. Hitchler, supra note 206 at 109. //W.at 160.  2 7 0  2 7 1  2 7 2  71  the actor's own estimate o f this motivation could hardly be accepted even i f he had undoubtedly followed his conscience - unless we are prepared to say that every fanatic morally has carte blanche to wreak whatever harm he decides to inflict. Moreover there are no easily applied rules available to aid such judgment. ... Hence such a provision would imply a repudiation o f legal adjudication as traditionally understood. 273  A s H a l l illustrates, requiring a perpetrator to possess an untoward motive would establish a subjectivist standard  o f guilt, allowing "fanatics" to invoke their idiosyncratic  worldview to escape culpability.  274  Therefore, it is not surprising that in Gardner's  history o f motive in the criminal law, he finds that the law, "with few exceptions," continuously rejected  the  claims " o f those contending their criminal  precipitated by benign motives o f euthanasia or religious obligation."  4.7.1  acts  were  275  M o t i v a t i o n is irrelevant  Whether or not to include a motive element was among the most divisive issues the framers faced.  The A d Hoc Committee's Draft did include a motive element,  requiring that acts must be based "on grounds o f the national or racial origin, religious belief, or political opinion o f its members."  276  However, the A d H o c Committee Draft  also stated that these motives were non-restrictive and were provided "only by way o f illustration."  277  While delegates in the subsequent Sixth Committee deliberations  Ibid, at 160-61. However, Hall surely overstates, as it is well accepted that motivation is often vital in assessing mitigation and determining punishment. See Martin R. Gardner, "The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present" [1993] Utah L. Rev. 635 at 640, highlighting the differential role of motive in both offense definition and defense. Ibid, at 666-67. Also consistently rejected were claims by the accused that they were unaware that their actions violated the law. Ad Hoc Committee Draft, supra note 82. Ibid. In agreeing on this provision, the delegates rejected a proposal that would have read "particularly on grounds of. ..." 273  2 7 4  275  2 7 6 277  72  exhibited unusual unity in their dissatisfaction with the A d Hoc Committee's motive element, they exhibited little agreement on how to address these defects.  These  deliberations were characterized by disagreement over whether to include a motive element, by confusion over what practical effect a motive element would have, and b y confusion over the role o f motive i n criminal law generally.  278  A number o f delegations supported the provision, arguing that motivation was central to the crime o f genocide.  279  M r . Morozov o f the Soviet U n i o n "stated that a crime  against a human group only became a crime o f genocide when that group was destroyed for national, racial, or religious motives."  280  M r . Bartos o f Yugoslavia agreed that, "[i]f  motive were not defined, any crime committed by one group against another group might be regarded as genocide."  281  M r . Reid o f N e w Zealand insisted that, i f "there might be  bombing which might destroy whole groups," it was essential to enumerate motives, otherwise a modern war, even one undertaken at the U . N . Security Council's behest, could run afoul o f the convention.  282  Gerald Fitzmaurice, representing the United Kingdom, led a small but vocal faction within the Sixth Committee that fiercely opposed the provision. According to M r . Fitzmaurice:  Greenwalt, supra note 239 at 2275, argues that beginning with the Ad Hoc Committee debates through ratification there was never "any sustained discussion about what exactly 'intent' or 'motive' meant." And, "[m]ost significantly, while some delegates did explicitly phrase the issue as one of motive, much of the discussion appears to collapse motive and specific intent, ..." (ibid.). 6 Comm. Summary Records, UN Doc.A/C.6/SR.75 supra note 51, citing Union of Soviet Socialist Republics: Amendments to Article II of the Draft Convention, UNGAOR C6, 3 Sess., U.N. Doc.A/C.6/223. Ibid. Mr. Raafat of Egypt similarly stated that "[i]t would not be genocide if a group were destroyed for motives other than those of national or racial origin, religious belief, or political opinion." (ibid). Ibid. Ibid. Mr. Parades of the Philippines agreed that motives should be enumerated if the Genocide Convention were to retain its restrictive meaning (ibid.). 2 7 8  2 7 9  th  rd  280  281  2 8 2  73  the concept o f intent had already been expressed at the beginning o f the article. Once the intent to destroy a group existed, that was genocide, whatever reasons the perpetrators o f the crime might allege. The phrase was not merely useless; it was dangerous, for its limitative nature would enable those who committed a crime o f genocide to claim that they had not committed that crime 'on grounds o f one o f the motives listed i n the article. 283  M r . Perozo similarly argued that it "would be a powerful weapon i n the hands o f guilty •  284  parties and would help them to avoid being charged with genocide."  This hard-line  stance against any motive element was joined by Panama, which said that a motive element was unnecessary "since no provision was made for it i n any penal c o d e . "  285  Even among those arguing for including a motive element, there was wide disagreement over its proper contours and likely effect.  The Soviet representative  seemed to think that deleting a motive element would both mutilate the definition so that it would not catch cases it was intended to encompass and unduly broaden the definition so that, "perfectly legal situations might be covered by i t . "  286  M r . Raafat o f Egypt, M r .  A b d o h o f Iran, M r . Padres o f The Philippines, M r . Zourek o f Czechoslovakia, and M r . K u r a l o f Turkey all agreed that motive was essential, otherwise mass killings and other group-destroying actions undertaken for political or other non-genocidal motives might be considered to be genocide.  287  M r . Noriega o f M e x i c o felt that a motive element would  "clarify the concept o f protected groups which article II sought to define and not merely ibid. Ibid. UN DOC.A/C.6/SR.76. 285 Ibid. UN D0C.A/C.6/SR. 75-76 (Mr. Aleman, Panama). Speaking against Mr. Morozov of the USSR, Mr. Aleman pointed out "that there was a distinction between intention and motives, and ["elementary law"] did not use motives in the definition of crimes." Australia opposed any motive element (ibid. UN DOC.A/C.6/SR.75, Mr. Dignam). Brazil opposed any motive element, but favored the "as such" language as a compromise, (ibid. UN Doc.A/C.6/SR.76, Mr. Amado). Ibid. UN Doc.A/C.6/SR.76 (Mr. Morozov, USSR). 2 8 3  2 8 4  2g6  287  Ibid. UN Doc.A/C.6/SR.75-76.  74  to enumerate."  288  M r . Demesian o f Haiti declared motives to be " o f considerable  importance" because they would determine "the tribunal which would have to take cognizance o f the c r i m e . "  289  The French proposed their own non-limitative motive  element, which would have inserted "by reason o f its nature" so that Article 2 would read, "genocide means any o f the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group by reason o f its nature."  290  A t this point, the debates became extremely confused, the delegates contradicting each other on the fundamental tenets o f criminal law. M r . Gross o f the United States summarized the ongoing confusion: A t first he had thought that a statement for motives would result i n ambiguity, in repetition or in a limitation. A s a result o f the discussion which had just taken place, he thought that a statement o f motives would create ambiguity. The representative o f the U S S R had declared that the deletion o f that statement would limit the scope o f the convention, whereas other representatives had thought that such a deletion would extend its scope. A s those assertions could not both be right, [he] feared that the inclusion o f a statement o f motives might give rise to 291  ambiguity. A s the debate continued, it become clear that a majority vote could not be mustered either in favor o f enumerating motives, or for completely excluding motive from  the  convention. The Belgian delegation expressed concern that the lengthy and convoluted debates on motive would obscure the committee's intent and would therefore make future  Ibid. UN DOC.A/C.6/SR.76. Ibid. According to Mr. Demesian: If the motives were such that the criminal act could be described as genocide, the appropriate tribunal should be an international tribunal; if, on the other hand, the motives were such that the act could be described as a crime under common law it would have to be dealt with by national tribunals. Ibid. (Mr. Chaumont, France).  75  interpretations o f the convention unduly difficult/ " 5  Looking for compromise, the delegates took up a Venezuelan proposal that inserted the words "as such" so the provision would read, "genocide means any o f the following acts committed with intent to destroy, i n whole or i n part, a national, ethnical, racial, or religious group as s u c h . "  293  Venezuela claimed its amendment would retain  motive by implication, without limiting possible motives, thereby "giv[ing] wider powers o f discretion to the judges who would be called upon to deal with cases o f genocide."  294  The compromise garnered the necessary support, but left the delegates largely unsure o f its m e a n i n g .  295  M r . Morozov o f the U.S.S.R. was o f the view that, "the words 'as such'  ... would mean that, in cases o f genocide, the members o f a group would be exterminated solely because they belonged to that group."  296  The United States was actually against a  motive element, but supported the "as such" by way o f compromise, because it did not interpret this language as encompassing m o t i v e .  297  M r . Spiropoulos o f Greece thought  these words did incorporate motives, though without enumerating t h e m ,  298  and M r .  Amado o f Brazil believed that these words did not address motive at all, "but stressed the  Ibid. (Mr. Kaeckenbeeck, Belgium). See also Mr. Manini Y Rios, Uruguay (ibid.). Ibid. UN Doc.A/C.6/SR.75, citing Venezuela: Amendment to Article II of the Draft Convention, UNGAOR C6, 3 Sess., U.N. Doc. A/C.6/231 (1948). Schabas, Genocide, supra note 19 at 250, citing ibid. UN Doc.A/C.6/SR.77 (Mr. Perozo, Venezuela). Drost, supra note 19 at 83. According to Drost, even as they voted in favor of the Venezuelan provision, the 6* Committee remained divided as to its meaning, several delegates voting "against the amendment precisely because the final words did not make any mention of motives for the commission of the crime." 6 Comm. Summary Records, UN Doc. A/C.6/SR.76 supra note 51. Ibid. (Mr. Gross). See also ibid. (Mr. Perozo, Venezuela). Mr. Perozo originally agreed with this assessment, insisting that he was in favor of deleting motives, but asserted that his delegation had submitted the "as such" amendment because "the statement that the essential factor in intent was the destruction of a group should be retained." Later, he asserted, "motives were implicitly included in the words 'as such'" (ibid.). 2 9 2  293  rd  2 9 4  2 9 5  2 9 6  th  297  76  element o f intention."  299  M r . Kaeckenbeeck o f Belgium was o f the opinion that, "the  Venezuelan amendment omitted motives but, in the interests o f clarity, narrowed the concept o f the group, which the committee had broadened b y including intent to destroy part o f a group."  300  M r . Amado o f Brazil voted "for the Venezuelan amendment because  it did not include the motives for the crime, but buttressed the element o f intention."  301  Although the motive discussion had consumed an inordinate amount o f time, this debate only seemed to obscure the role o f motive i n genocide.  Finally, in apparent  frustration, M r . M a n i n i Y Rios o f Uruguay: pointed out that the vote [for the "as such" language] had given rise to three different interpretations. Some delegations had intended to vote for an express reference to motives in the definition o f genocide; others had intended to omit motives while retaining intent; others again, among them the Uruguayan delegation, while recognizing that, under the terms o f the amendment, genocide meant the destruction o f a group for any reason whatsoever, had wanted the emphasis to be transferred to the special intent to destroy a group, without enumerating the motives, as the concept o f such motives was not sufficiently objective. 302  M r . M a n i n i Y Rios then proposed a working group "to find out what the intention o f its [the committee's] members had been i n voting for the Venezuelan amendment." Because o f these complex debates, it is impossible to discern any overriding legislative intent on the issue o f motive. While it is clear that a majority o f the delegates rejected an enumeration o f culpable motives, fearing that this would unduly limit the  Ibid. UN DOC.A/C.6/SR.77. See also ibid. UN Doc.A/C.6/SR.76 (Mr. Raafat, Egypt) arguing, '"as such' added yet another description of the groups covered in the convention, while it did not define the motives for the crime"; (Mr. Chaumont, France) stated "it might well be asked whether the expression 'as such' applied to the description of the group rather than to the group itself (ibid. UN Doc.A/C.6/SR.76). Ibid. UN DOC.A/C.6/SR.76. Ibid. See also Prince Wan Waithayakon, Siam, who: "explained why he had voted for the Venezuelan amendment. He thought there were two possible interpretations of the words 'as such'; they might mean either 'in that the group is a national, racial, religious or political group,' or 'because the group is a national, racial, religious or political group" (ibid). Ibid. UN DOC.A/C.6/SR.78. Ibid. The working group proposal was voted down "30 votes to 15 with 3 abstentions."  2 9 9  3 0 0  301  3 0 2  3 0 3  77  convention's scope,  304  it is just as clear that a majority wanted to include some sort o f  non-restrictive motive element.  305  However, even i f we take the vote i n favor o f the "as  such" language to indicate that a majority o f the delegations favored including a motive element, it remains impossible to determine how that motive element should be applied, even whether it would expand or limit the definition o f genocide. Commentators  have  been  similarly  perplexed,  generally  disregarding the  preparatory debates as too indeterminate to be useful, deferring instead to the Genocide Convention's  "ordinary meaning."  In 1985 Special Rapporteur Benjamin Whitaker  concluded: A n essential condition is provided by the words "as such" i n Article II, which stipulates that, i n order to be characterized as genocide, crimes against a number o f individuals must be directed at their collectivity or at them i n their collective character or capacity. Motive, on the other hand, is not mentioned as being relevant. 306  The International L a w Commission, i n its commentary to the Draft Code of Crimes Against the Peace and Security of Mankind, stated: the intention must be to destroy the group "as such" meaning as a separate and distinct entity, and not merely some individuals because o f their membership i n a particular group. In this regard, the General Assembly distinguished between crimes o f genocide and homicide i n describing genocide as the "denial o f the right o f existence o f entire human groups" and homicide as the "denial o f the right to live o f individual human beings...." 307  Ibid. UN Doc.A/C.6/SR.77. A USSR amendment (Union of Soviet Socialist Republics: Amendments and Additions to the Preamble and Article I of the Draft Convention, UNGAOR C6, 3 Sess., UN Doc. A/C.6/212 (1948)) to link genocide to Nazism and racism "was rejected by 34 votes to 11, with 6 abstentions." Ibid. A United Kingdom amendment (United Kingdom: Amendments to Articles I and II of the Draft Convention, UNGAOR C6, 3 Sess. UN Doc. A/C.6/222 (1948)) to delete all reference to motive was "rejected by 28 votes to 9, with 6 abstentions." Whitaker, supra note 175 at 19. ILC, "Draft Commentary," supra note 50 at 46. 304  rd  305  rd  3 0 6  3 0 7  78  According to Pieter Drost: "[t]he Convention did not take a definite stand on the matter [of motivation]. In the absence o f any words to the contrary the text offers no pretext to presume the presence o f an unwritten, additional element i n the definition o f the crime."  308  A n d , according to Nersessian: "[fjhe underlying motivations for the crime o f  genocide are irrelevant.  If the requisite intent exists, it matters not whether that intent  was fueled by animus toward the protected group, by hopes o f financial gain, . . . or indeed by any reason at a l l . "  3 0 9  International tribunals considering the matter have reached similar conclusions resulting i n a broad consensus that the Genocide Convention does not address motive. In Jelisic, the Appeals Chamber recalled: the necessity to distinguish specific intent from motive. The personal motive o f the perpetrator o f the crime o f genocide may be, for example, to obtain personal economic benefits, or political advantage or some form o f power. The existence o f a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide. In Kayishema  & Ruzindana,  310  the tribunal similarly noted that, "[t]he existence o f a  personal motive does not preclude the perpetrator from also having the specific intent to *  commit genocide."  311  It went on to state:  that criminal intent (mens rea) must not be confused with motive and that, in respect o f genocide, personal motive does not exclude criminal responsibility providing the acts proscribed i n Article 2(a) through to (e) were committed "with intent to destroy, i n whole or i n part a national, Drost, supra note 19 at 84. See also Storey, supra note 166 at 228: "The fact that this [genocidal] act is committed with a beneficial motive is apparently irrelevant. Genocide does not require malice; it can be (misguidedly) committed 'in the interests of a protected population." Nersessian, supra note 31 at 268. Jelisic, supra note 257 (Appeals Chamber, Judgment) at para. 71 citing Prosecutor v. Tadic (1999) Case No. IT-94-1-A (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Judgment) at para 269, declaring "the irrelevance and 'inscrutability of motives in criminal law' insofar as liability is concerned, where an intent - including a specific intent - is clear." Kayishema (Appeals Chamber), supra note 252 at para. 161. 3 0 8  3 0 9 310  311  79  ethnical, racial, or religious group. Thus, the courts that have addressed the relevance of motive in assessing genocidal intent have found the former largely irrelevant. 4.7.2 Confusing motivations Confusing matters, some refer to the secondary intention in a specific intent offense as "motive."  313  For instance in Akayesu, the tribunal stated that, "[fjhe  perpetration of the act charged therefore extends beyond its actual commission, for example, the murder of a particular individual, for the realisation of an ulterior motive, which is to destroy, in whole or part, the group of which the individual is just one element."  314  Notice that "ulterior motive" can also be referred to as a "secondary" or  "further" intent, or in Triffterer's terms, "ertwieterer vorsatz."  It is unclear why the  tribunal referred to this additional mental element as an "ulterior motive," especially when the Genocide Convention itself specifically refers to it as "intent." However, in the end it is a distinction without a meaning as these vocabulary disputes do not affect the analysis; the motivating urge behind the "ulterior motive" remains irrelevant in establishing guilt. The recent ICJ decision in Bosnia v. Serbia should clarify any lexical Ibid. See also Brdjanin, (Trial Chamber) supra note 141 at para. 696, citing the same language. Hitchler, supra note 206 at 113: burglary: consists in breaking and entering a dwelling house at night with intent to commit a felony therein. The intent to commit a felony, which is an essential element of the crime, is the motive for the breaking and entering, and burglary is therefore "an exception to the ordinary rule of criminal liability, whereby motive is regarded as immaterial." See also Dressier, supra note 244 at 121. But see LaFave, supra note 204 at 242, explaining that although some authors refer to this secondary intent in specific intent crimes as "motive," the better approach is: "to view such crimes as not being based upon proof of a bad motive. This can be accomplished by taking the view that intent relates to the means and motive to the ends, but that where the end is the means to yet another end, the medial end may also be considered in terms of intent." Akayesu, supra note 138 at para 522 [emphasis added]. 3 1 3  3 1 4  80  confusion.  315  According to the ICJ: "[i]n addition to those mental elements, Article II  requires a further mental element. It requires the establishment of the 'intent to destroy, in whole or in part, ...[the protected] group, as such.'"  316  It went on to confirm that,  "[fjhe specific intent is also to be distinguished from other reasons or motives the TIT  perpetrator may have."  From this language, we see both that the court is  unambiguously referring to the "further mental element" as intent, rather than motive, and that, "any other reasons or motives" remain irrelevant. 4.7.3  Schabas' "hatred" proposal  Schabas argues that although there is near consensus among scholars and courts in favor of omitting motive: "the reasoning is rarely very compelling. Little in the way of justification is offered to support this view, the main rationale being essentially pragmatic, namely that it can only further complicate prosecutions of genocide."  318  However, Schabas' proposal seems far broader than any of the proposed motive elements, requiring that, for genocide to be found, the act must have been committed out of "hatred" for the group.  315  319  Schabas paraphrases Article II of the A d Hoc Committee  Bosnia v. Serbia, supra note 32.  Ibid, at para. 187. Ibid, at para. 189. Schabas, Genocide, supra note 19 at 251-252. Delegations proposed several alternative "motive" elements. France (Amendments to the Draft Convention, UNGAOR C6, 3 Sess. U.N. Doc.A/C.6/224 (1948)) proposed amending Article 2 to read: "Genocide is an attack on life directed against a human group, or against an individual member of a human group, on account of the nationality, race, religion or opinions of such a group or individual." The U.S.S.R. (U.N. Doc.A/C.6/223, supra note 279) proposed amending Article 2 to read: "For purposes of the present Convention, genocide shall be understood to mean any of the following criminal acts aimed at the physical destruction of racial, national (or religious) groups committed on racial, national (or religious) grounds. ..." Belgium (Amendments to the Draft Convention, UNGAOR C6, 3 Sess., U.N. Doc.A/C.6/217 (1948)) proposed amending Article 2 to read: "Where such acts are committed with intent to cooperate in destroying a national, racial, or religious group on grounds of national or racial origin or 316 3)1  318  319  rd  rd  81  Draft,  320  which was cut before the final draft, in proposing that to prove motive, "[fjhe  organizers and planners [of genocide] must necessarily have a racist or discriminatory motive, that is, a genocidal motive, taken as a whole."  He would require: "the  prosecution to establish that genocide, taken in its collective dimension, was committed ' o n grounds o f nationality, race, ethnicity or religion.' The crime must, i n other words, 321  be motivated by hatred o f the group."  Schabas is on extremely shaky ground as he  equates "on the grounds o f . . . " with "hatred o f the group." subject to many interpretations.  " O n the grounds o f is  It could be taken to mean because the group's  nationality, race, ethnicity, or religion is different, irritating, inconvenient, or stands in the way o f profit taking.  It might also mean because the group's nationality, race,  ethnicity, or religion is "hated" - but this is only one o f many interpretations that could attach to this phrase.  Most historical forcible child transfer programs have targeted  groups "on the grounds o f their national or racial origin. That is, group members were selected for this discriminatory treatment because o f their particular "racial" or "national" characteristics including perceived laziness, shiftlessness, godlessness, etc. Often those implementing these programs viewed these characteristics as backward, so much so that the group's destruction might be a small price to pay to rid individuals o f these characteristics, but this did not necessarily lead them to "hate" the group.  Schabas'  hatred proposal might represent an obstacle in proving genocide i n some instances o f forcible child transfer because it would require the prosecutor to prove actual hatred o f religious belief." It is significant that none of these unsuccessful provisions would require a court to find the perpetrator was motivated by hatred of the group. Supra note 2, Article 2: "In this Convention genocide means any of the following deliberate acts committed with the intent to destroy a national, racial, religious or political group, on grounds of the national or racial origin, religious belief, or political opinion of its members. ..." 3 2 0  82  the group. However, because these programs have each been directed at the group, i n its capacity as a group, all would appear to qualify as genocide under any o f the less restrictive proposed motive elements.  4.7.4  Policy reasons against a motive element  In large part, the debate on whether to include motive i n the Genocide  Convention  breaks down upon the lines o f well-worn retributivist and utilitarian policy arguments. If the sole purpose o f the Genocide Convention is (was) to exact retribution on those who have committed genocide, then there is solid reason to consider motive at the offensedefinition level.  Under this doctrine it would be wrong to punish those who believed  they were destroying protected groups for benevolent reasons. However, throughout the Genocide Convention and the preparatory materials we see an overriding determination to prevent genocide, by deterrence and by stopping it even at its earliest stages. In this sense, the Genocide Convention  appears strongly utilitarian, and far less emphasis is  placed on the perpetrator's actual "moral" culpability. Instead, the emphasis is on setting an example so that other states, individuals, and organizations are deterred committing similar genocidal actions.  from  A s Professor Sayre says, "[sjocial and public  interests require protection from those with dangerous and peculiar idiosyncrasies as w e l l as from those with evil designs."  4.7.5  Motive: Summary  If a motivation requirement is read into the Genocide Convention, it should not be  3 2 2  Sayre, supra note 203 at 1018. See also, Gardner, supra note 274 at 715.  83  restricted to "hatred" o f the group's character. Neither the Genocide Convention, nor the preparatory materials, nor the logic o f the Genocide Convention support such a reading. Instead, we should remember that the Genocide  Convention  is intended to guard  humanity's interest in maintaining diverse human groups. It matters little whether that destruction was motivated by the difference, inconvenience, or un-profitability presented by the group, or by hatred o f the group itself; in any case the group has been destroyed and humanity has suffered an irreparable loss. Further, the specific intent requirement w i l l adequately protect those who have "inadvertently" committed acts that would otherwise be considered genocide. To avoid these confusions, the better reading would omit any motivation requirement, focusing instead on the perpetrator's intent.  4.8  C h a p t e r summary  A s we have seen, the "with intent to" language does establish a formidable evidentiary threshold, requiring the prosecutor to prove that one o f the prohibited actions listed in Article 2 was committed with the requisite level o f intent specific to that act and that this act was animated by a very specific further intent to destroy the group.  This  specific intent can be inferred from circumstantial evidence, including "the general political doctrine,"  323  whether the individual victims were selected for mistreatment  based on their group affiliation, and whether the prohibited actions took place amidst other actions aimed at destroying the group's culture. W e now understand that most o f those who have planned and implemented forcible child transfer programs believed, earnestly and erroneously, that this was i n the  Karadzic, supra note 254 at para. 94.  84  "best interests" o f the children involved. However, this belief cannot excuse an act o f genocide. A benevolent attitude toward individuals should not excuse a crime against the group. The Genocide Convention draws a bright line, prohibiting five group-destroying actions, and contains no exception for acts deemed beneficial to the individuals o f the group.  More significantly, it would allow a perpetrator's subjective belief to trump  criminality. This would set a dangerous precedent, especially in the historical context o f genocide, where perpetrators have often committed heinous acts in pursuit o f what they believe to be the greater good.  85  C H A P T E R 5: A G E N O C I D E B Y A N Y O T H E R N A M E . Despite Article 2(e)'s broad and obvious prohibition o f forcible child transfers, some claim that it does not encompass many o f the transfer programs mentioned in this thesis. These assertions break down into two primary arguments. First, some claim that the forcible transfer o f children as practiced i n most o f these programs was really a form of cultural genocide or ethnocide, and is therefore excluded from a convention addressing only physical and biological genocide.  324  A more nuanced version o f this argument holds  that where perpetrators intended forcible child transfers to destroy the group physically or biologically, they should be regarded as a form o f genocide. However, where intended to destroy the group as a cultural unit, forcible child transfers, though reprehensible, are beyond the Genocide Convention's Convention  reach.  325  Second, some claim that the  Genocide  exempts these programs because they were conducted as part o f greater  assimilation schemes, which they claim the framers did not intend to p r o h i b i t .  326  This  chapter addresses both arguments in turn. First, it argues that under current genocide case law the forcible transfer o f children, as conducted i n the disputed programs, was a  See Samuel Totten, "A Matter of Conscience" in Samuel Totten, Steven L. Jacobs eds., Pioneers of Genocide Studies (New Brunswick, NJ: Transaction Publishers, 2002) 545 at 566. Totten does "not think part "e" ... belongs in the U.N. Convention. As horrible as that crime is, I do not see how it constitutes genocide. Ethnocide yes: genocide, no." See also Andrew Markus, "Genocide in Australia (2001) 25 Aboriginal History 57 at 65. 3 2 4  3 2 5  See Nicodeme Ruhashyankiko, Study of the Question of the Prevention and Punishment of the Crime of  Genocide UN ESC 31 Sess. U.N. Doc. E/CN.4/Sub.2/416 (1978), citing Jean Graven, "Les Crimes Contre L'humanite," Academie de Droit International de la Haye, Recueil des Cours, 1950 at 501-02; See also Robert van Krieken, "Barbarism of Civilization: Cultural Genocide and the 'Stolen Generations" (2000) 50 British Journal of Sociology 297 at 298 [van Krieken, "Barbarism"], van Krieken seems to endorse this proposition, recognizing that forcible child transfers can be both "cultural" and "biological." Regarding Australia's forcible child transfers, van Krieken says these acts were: "actually alien to [the Genocide Convention's] overall intent, particularly its concern to exclude the question of 'cultural' genocide. In this sense, then, it is clear that 'genocide' has only restricted range of application of law." Reynolds, supra note 118 174-76; McGregor, supra note 161. According to McGregor, because Australia's post-war child removal programs were overtly assirhilationist, they would not qualify as genocide, cultural genocide, or even ethnocide. st  3 2 5  86  physical act intended to destroy the group as a physio-biological entity. Therefore, this practice amounts to genocide even though the means o f destruction were often culturally mediated. Next, it argues that attempts to excuse forcible child transfers by redefining them as "assimilation" lack a foundation in law. Although forcible child transfers have at times been conducted as part o f larger assimilation schemes, this context does not excuse these practices and may even prove genocidal intent.  5.1 Cultural genocide is no excuse: An exploration of the critical matter of destruction While it is clear that the "to destroy" language i n Article 2 is not restricted to acts o f killing, the exact meaning o f this phrase remains contested. A s mentioned above, the Secretariat's  Draft originally contained three categories o f genocidal destruction,  physical, biological, and cultural.  327  Article 1(H)(1) addressed acts "[c]ausing the death  of members o f a group or injuring their health or physical integrity, . . . " while Article 1(H)(2) prohibited "Restricting births, . . . " and Article 1(H)(3) prohibited "[djestroying the specific characteristics o f the group, . . . "  3 2 8  The A d H o c Committee Draft, which  followed, combined acts o f physical and biological destruction i n Article 2, while acts o f 329  cultural destruction were contained in a separate article o f the same draft.  According  to the U N Yearbook, 1947-1948, the A d H o c Draft defined physical/biological genocide as: deliberate acts committed with the intent o f destroying a national, racial, religious or political group by killing its members, impairing their physical integrity, inflicting on them conditions aimed at causing their deaths or imposing measures intended to prevent births within the group. Secretariat's Draft, supra note 18. Ibid. Ad Hoc Committee Draft, supra note 82.  3 2 7  328  3 2 9  87  Cultural genocide the draft Convention defined as any deliberate act committed with the intention o f destroying the language, religion or culture o f a ... group, such as, for example, prohibiting the use o f the group's language or its schools or places o f w o r s h i p . 330  The delegates finally eliminated all reference to cultural genocide from the Genocide Convention  during the eighty-third session o f the Sixth Committee debates.  331  The  deleted provision read: In this Convention genocide also means any deliberate act committed with the intent to destroy the language, religion or culture o f a national, racial, or religious group on grounds o f national or racial origin or religious belief such as 1. Prohibiting the use o f the language o f the group i n daily intercourse or in schools, or i n the language o f the group; 2. Destroying or preventing the use of, libraries, museums, places o f worship or other cultural institutions and objects o f the group.  332  This provision would have created a very broad definition o f genocide, prohibiting measures designed to prevent groups from using their languages  and prohibiting  destruction o f the group's cultural institutions. None o f these acts would directly threaten the group's existence, though they might gradually erode the group by eliminating its distinctive features.  The Sixth Committee Draft, which the U N General Assembly  unanimously ratified, did not draw any distinctions between categories o f destruction, but simply listed five prohibited genocidal acts.  333  The issue o f cultural genocide came up  again during the final ratification debates i n two General Assembly plenary sessions.  334  Supra note 73 at 597. 6 Comm. Summary Records, UN Doc.A/C.6/SR.83, supra note 51. During this debate, the Chairman "put to the vote the exclusion of cultural genocide from the convention." The committee voted to exclude "[b]y 25 votes to 16, with 4 abstentions ..." (ibid.). Ad Hoc Committee Draft, supra note 82. Report of the Sixth Committee to the General Assembly UN GAOR, 3d Sess. UN Doc. A/760 (1948). UN GAOR, 3d Sess., 178* - 179* Plen. Mtgs. 330  3 3 1  th  3 3 2  333  3 3 4  88  Both the U . S . S . R . and Venezuela proposed cultural genocide provisions to replace the i l l fated cultural genocide provision o f the Secretariat's Draft. Like Article 3 o f the A d H o c Committee's Draft, the proposed Soviet amendment was b r o a d rejected it by a wide m a r g i n . narrow,  337  336  335  and the delegates  The Venezuelan amendment was comparatively  but the Venezuelan delegate withdrew it due to a perceived lack o f support.  5.1.1  338  The ILC destruction approach  Although the Genocide Convention as finally ratified makes no mention o f types or categories o f culpable destruction, the I L C takes the failure o f the cultural genocide provisions as indicating that the delegates had excluded all forms o f cultural destruction from the convention. According to the I L C : A s clearly shown by the preparatory work for the Convention, the destruction i n question is the material destruction of a group either by physical or biological means, not the destruction o f the national, linguistic, religious, cultural or other identity o f a particular group. The national or religious element and the racial or ethnic element are not taken into consideration i n the definition of the word "destruction", which must be taken only in its material sense, its physical or biological sense. ... [T]he text o f the Convention, as prepared by the Sixth Committee and adopted by the General Assembly, did not include the concept o f 'cultural Union of Soviet Socialist Republics: Amendment to the Convention of the Prevention and Punishment of Genocide, U N G A O R , 3 Sess. U . N . Doc. A/766 (1948). The Soviet proposal read: In this convention genocide also means any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin, or religious beliefs such as: (a) Prohibiting the use of the language of the group in daily intercourse or in schools or the printing and circulation of publications in the language of the group. (b) Destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group. U N G A O R , 3d Sess., 179 Plen. Mtg. at p. 847 (Rejected 31 votes to 14, with 10 abstentions). See Ibid, at p. 816. The Venezuelan amendment "retained three of the factors in the original article III and deleted all those which might lead to confusion. Those three factors were: religious edifices, schools and libraries of the group." Ibid, at p. 847.  3 3 5  rd  3 3 6  th  3 3 7  3 3 8  89  genocide' contained i n the earlier two drafts and simply listed acts w h i c h come within the category o f 'physical' or 'biological' genocide.  The I L C approach has been persuasive and the I C J , I C T Y and I C T R have cited it approvingly.  340  Commentators,  especially those addressing the Australian programs,  have also implicitly adopted the I L C approach to claim that forcible child transfers, as conducted i n Australia and elsewhere, cannot amount to genocide  341  A c c o r d i n g to this  logic, because these forcible child transfers were intended to immerse the children i n a new culture they were cultural and cannot amount to physical or biological genocide.  In  this chapter, I w i l l argue that, under the existing genocide case law, forcible child transfer as practiced i n Australia and elsewhere was a form o f physical or biological genocide. W h i l e forcible child transfers may often destroy the group through cultural means, the perpetrators intended to destroy these groups as physical biological entities, not merely their continued cultural existence.  ILC, "Draft Commentary," supra note 50 at 90-91. Bosnia v. Serbia, supra note 32 at para. 344. Semanza, at para. 315: Article 2 of the Statute indicates that the perpetrator must be shown to have committed the enumerated prohibited acts with the intent to "destroy" a group. The drafters of the Genocide Convention, from which the Tribunal's Statute borrows the definition of genocide verbatim, unequivocally chose to restrict the meaning of'destroy' to encompass only acts that amount to physical or biological genocide. See also Kristic (Appeals Chamber) supra note 157 at para 25. "The Genocide Convention and customary law in general, prohibit only physical or biological destruction of a human group"; Brdanin, supra note 141 at para. 694. But see Kristic, (Appeals Chamber) supra note 157 (Judge Shahabuddeen, Partial Dissenting Opinion) at paras. 48 - 54. Judge Shahabuddeen criticizes the ILC approach as contravening the rules of treaty interpretation by disregarding the Genocide Convention's ordinary meaning. According to Judge Shahabuddeen "the [Genocide Convention] itself does not require an intent to cause physical or biological destruction of the group in whole or in part" (ibid, at para. 48). He goes on to say, "[i]t is not apparent why an intent to destroy a group in a non-physical or non-biological way should be outside the ordinary reach of the convention, ... provided that the intent attached to a listed act, ..." (ibid.). See also Blagojevic, supra note 153 at paras 665-66, endorsing Judge Shahabuddeen's approach.  3 3 9  340  3 4 1  van Krieken, "Cultural Genocide" supra note 117; Reynolds, supra note 118 at 175.  90  5.1.2  The developing case law on culturally mediated destruction  The I C T R and I C T Y continue to reiterate that the Genocide Convention does not address cultural genocide. However, on at least three issues, rape, selective killing, and forced deportations, they have recognized that the line between cultural and physiobiological genocide is blurry as acts aimed at destroying the group physically or biologically remain deadly to the group even though these acts may work their destruction through cultural processes.  342  Under this emerging standard, forcible child  transfers, as conducted i n Australia and elsewhere, would also amount to physical or biological genocide. L i k e rape, selective killing, and forced deportations, forcible child transfer is a physical and biological act that destroys the group through processes that are often primarily cultural.  a)  Selective killing  K i l l i n g is the first and least controversial means o f group destruction listed i n Article 2 .  343  A s discussed above, for killings to amount to genocide they must be carried  out with intent to destroy a substantial part o f a protected group. In Prosecutor v. Jelisic, the Trial Chamber determined that "substantial" could have both a qualitative and a quantitative meaning.  344  That is, a group might be destroyed either by k i l l i n g a  But see Nersessian, "Contours" supra note 31 at 323-24, surveying the emerging case law and criticizing the "qualitative" approach to genocide as unduly expanding the genocide convention to encompass measures of "cultural" genocide. Nersessian cautions that: "If the qualitative approach is used at all, it must be applied in accord with the object and purpose of the Genocide Convention and limited to the physical and biological existence of the group." Genocide Convention, Article 2(a) supra note 2. Jelisic, supra note 153 at para. 82. See also Jorgensen, supra note 243at 302; Verdirame, supra note 254 at 587. 3 4 2  343  344  91  significant proportion o f the group's members or by selectively killing an important segment o f the population, especially its leaders.  345  According to the Trial Chamber:  Genocidal intent may manifest i n two forms. It may consist o f desiring the extermination o f a very large number o f the members o f the group, i n which case it would constitute an intention to destroy a group en masse. However, it may also consist o f the desired destruction o f a more limited number o f persons selected for the impact that their disappearance would have on the survival o f the group as such. This would then constitute an intention to destroy the group "selectively." 346  In Prosecutor v. Kristic the Trial Chamber similarly found that, "the Bosnian Serb forces had to be aware o f the catastrophic impact that the disappearance o f the two or three generations o f men would have on the survival o f a traditionally patriarchal society. ..."  3 4 7  B y emphasizing the highly patriarchal characteristics o f Bosnian M u s l i m society  the tribunal explicitly recognized the importance o f culturally mediated processes o f group destruction. It also recognized that perpetrators might target genocidal actions to take advantage o f a group's particular cultural characteristics.  Although killing is  unquestionably a physical act, i n this instance the group destruction it caused depended heavily on cultural factors.  Similarly, i n selectively killing a group's leadership the  perpetrator does not intend to cause the group's immediate physical destruction, but to weaken the group culturally, facilitating its ultimate physical destruction.  b)  F o r c e d Deportations  The Trial Chamber i n Blagojevic surveyed the issues surrounding forced  Jelisic, ibid, at para. 82; Prosecutor v. Sikirca (2001) Case No. IT-95-8 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber) at para. 77. "The important element here is the targeting of a selective number of persons who, by reason of their special qualities of leadership within the group as a whole, are of such importance that their victimization ... would impact the survival of the group as such." See also Brdjanin, supra note 141 at para. 703. Jelisic, ibid, at para. 82. Kristic (Trial Chamber) supra note 154 at para. 595. 346 347  92  deportations,  finding that although they are not listed among the acts Article 2  specifically proscribes, and although they do not directly cause the death o f group members or deliberately prevent members from reproducing within the group, forced deportations still constitute genocide when conducted with intent "to destroy the group as a separate and distinct entity."  348  According to the Trial Chamber: "the physical or  biological destruction o f a group is not necessarily the death o f the group members. W h i l e killing large numbers o f a group may be the most direct means o f destroying a group, the other acts or series o f acts, can also lead to the destruction o f the group."  349  The Trial Chamber might have found that forced deportations amount to genocide only insofar as they disperse the group, making it difficult for group members to reproduce within the group.  350  In this sense, forced deportations clearly constitute a violation o f  Article 2(d) o f the Genocide Convention, which prohibits "[i]mposing measures intended to prevent births within the group."  351  However, the Trial Chamber ratified a much  broader proposition, highlighting the manner i n which forcible deportation destroys the group by attacking its "history, traditions, the relationship between its members, the  Blagojevic, supra note 153 at para. 665. See also ILC, "Draft Commentary," supra note 50 at 92, determining that "when carried out with intent to destroy the group in whole or in part," forced deportations violate Article 2(c) of the Genocide Convention. Contra Bosnia v. Serbia, supra note 32 at para. 190. According to the ICJ, "ethnic cleansing" can only be a from of genocide within the meaning of the Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention." Blagojevic, ibid, at para. 666. See Bosnia v. Serbia, supra note 32 at para. 190, endorsing this much more limited proposition. See also Kristic (Appeals Chamber) supra note 157 at para. 31. "The Trial Chamber ... impermissibly broadened the definition of genocide by concluding that an effort to displace a community from its traditional residence is sufficient to show that the alleged perpetrator intended to destroy a protected group." But see Kristic (Appeals Chamber) partial dissenting opinion of Judge Shahabuddeen at para. 35: "[Standing alone, forcible transfer is not genocide. But in this case the transfer did not stand alone ..." (ibid.). Genocide Convention, Article 2(d) supra note 2. 348  349  3 5 0  351  93  relationship with other groups, the relationship with the land.""  02  The Trial Chamber  emphasized that it was not reading the Genocide Convention as encompassing cultural genocide, but was instead attempting "to clarify the meaning o f physical or biological genocide."  353  According to this interpretation forced deportation, like selective killing, is  a physical act that operates culturally to destroy the group physically or biologically.  c)  Rape  Rape is a horrifying physical act that, when conducted systematically against a human group, has obvious bio-genocidal consequences.  354  However, like selective  k i l l i n g and forced deportation, courts have determined that, i n conjunction with its immediate physical and biological effects, rape also achieves genocidal results through cultural processes.  The Trial Chamber i n Akayesu specifically cited cultural factors i n  determining that rape can amount to genocide. According to the Trial Chamber: In Patriarchal societies, where membership o f a group is determined b y the identity o f the father, an example o f a measure intended to prevent births within a group is the case where, during rape, a woman o f the said group is deliberately impregnated b y a man o f another group, with the intent to have her give birth to a child who w i l l consequently not belong to its mother's group.  ice  Blagojevic, supra note 153 at para. 666 3 5 3  Ibid.  See Kelly Dawn Askin, "Gender Crimes Jurisprudence in the ICTR: Positive Developments" (2005) 3 J. of Int'l Crim. Justice 1007, surveying the development of the jurisprudence on rape and other gender crimes at the ICTR; Siobhan K. Fisher, "Occupation of the Womb: Forced Impregnation as Genocide" (1996) 46 Duke L. J. 91 at 120-32, pointing out the many types of harm resulting from rape with impregnation. Aside from the tremendous psychic consequences, which certainly affect group viability, rape is used "to proliferate members of one group [while] simultaneously preventing] the reproduction of members of another" (ibid, at 121). Specifically, when women are pregnant with progeny of another group, "they cannot be pregnant with the children of their own people" (ibid, at 124); Carpenter, supra note 146; Magkalini Karagiannakis, "The Definition of Rape and its Characterization as an Act of Genocide: A Review of the Jurisprudence of the International Criminal Tribunals of Rwanda and the Former Yugoslavia" (1999) 12 Leiden J. of Int'l. L. 479; Verdirame, supra note 254 at 595-97. Akayesu, supra note 138 at para 507. 3 5 4  355  94  According to the Trial Chamber, systematic forced impregnation o f the women o f a protected group amounts to genocide because the culture o f highly patriarchal societies prevents children o f such rapes from being accepted into the group.  Later, the Trial  Chamber linked rape with the destruction o f families and the group as a whole, stating that: These rapes resulted in physical and psychological destruction o f Tutsi women, their families and their communities. Sexual violence was an integral part o f the process o f destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction o f the Tutsi group as a w h o l e . 356  A s with forced deportations, the tribunal might have reached a much more limited holding, finding that rape amounts to genocide only insofar as it causes the victimized woman to suffer physical or psychic harm that would prevent her from reproducing within the group. Such a holding would have endorsed a narrow definition o f genocidal destruction, one exclusively limited to physical or biological genocide.  The tribunal  however endorsed a much broader conception o f genocidal destruction, recognizing the crucial role o f cultural factors in maintaining the group's physical and biological existence. According to the tribunal, rape not only inflicts tremendous suffering on the victimized woman, but affects the viability o f the family structures o f which she is a part.  The decision is vague about the mechanisms through which rape destroys the  victimized woman's family, community, and group as a whole, but it seems apparent that cultural factors are at play. The tribunal's emphasis on the crucial role o f families i n assuring group viability is also important to this thesis.  According to the tribunal,  measures that weaken family structures weaken the group and make it more susceptible ] * Ibid, at para 731. s  95  to outside aggression. The Akayesu Trial Chamber's characterization o f rape as genocide has  been  widely  controversial.  ratified by subsequent  tribunals  and appears  relatively non-  358  5.1.3 Summary: Forcible child transfer amounts to physical and biological genocide  Although generally reaffirming the I L C approach, the case law o f the I C T R and I C T Y does not indicate that acts intended to physically or biologically destroy the group through culturally mediated processes are somehow excluded from the Convention.  Genocide  Rather, it indicates that proscribed acts conducted with intent to destroy the  group as a separate and distinct physical or biological entity amount to genocide, even where that destruction was mediated through cultural processes.  Under this standard,  destroying libraries, preventing the use o f museums and places o f religious worship, or prohibiting daily intercourse i n the group's language do not amount to. genocide. These acts o f cultural destruction attempt to strip the group o f its unique heritage while leaving the group largely intact.  O n the other hand, proscribed acts carried out with intent to  destroy the group would amount to genocide. Under this standard, forcible child transfers, as carried out i n Australia and See Women's Initiatives of Gender Justice, "Sexual Violence and International Criminal Law: An Analysis of the Ad Hoc Tribunal's Jurisprudence & the International Criminal Court's Elements of Crimes" (2005) online: <www.iccwomen.org/ publications/resources/docs/Overview_Sexual_Violence_and_Intemational_Crirninal_Law.doc> citing Kayishema, supra note 260 (Trial Chamber) at para 108; Prosecutor v. Musema (2000) Case No. ICTR-9613-T (International Criminal Tribunal for Rwanda, Trial Chamber) at para. 156; Kristic (Trial Chamber) supra note 154 at paras. 509,513; Prosecutor v. Kamuhanda (1998) Case No. ICTR-97-23-S (International Criminal Tribunal for Rwanda, Trial Chamber) at para. 634; Stakic, supra note 157 at para. 516; Prosecutor v. Kagelijeli (2003) Case No. ICTR-98-44A-T International Criminal Tribunal for Rwanda, Trial Chamber) at para. 815; Prosecutor v. Gacumbitisi (2004) Case No. ICTR 2001-64-T (International Criminal Tribunal for Rwanda) at para. 291. 3 5 8  96  elsewhere, were acts o f physical and biological genocide.  L i k e forced deportation,  selective killing, and systematic rape, forcible child transfer is a physical act that operates culturally to destroy the group biologically, by preventing children from reproducing within the group, and physically, by discouraging children from returning to their group. Often, the intended destruction was culturally mediated - the children held away from the group and forced to internalize the dominant culture - but in each case the ultimate goal was the group's physio-biological destruction. Therefore, even under the I L C standard for destruction, the forcible child transfer programs mentioned in this thesis would amount to genocide. In each instance, perpetrators intended to destroy the targeted group as a "separate and distinct" physical or biological entity, not merely to destroy its status as a unique cultural unit.  5.2  Assimilation is no excuse Some have also argued that the Australian forcible child transfers cannot amount  to genocide because they were actually part o f a larger assimilation scheme.  359  According to this logic, because the delegates did not intend to prohibit assimilation, had they considered the later stages o f the Australian forcible child transfer programs, they would have found it acceptable.  360  However, because the Genocide Convention contains  no assimilation exception, and because the ratification debates do not clearly indicate that a majority o f delegates intended to excuse all assimilative actions, there seems to be little 3 5 9  Reynolds, supra note 118 at 174-77. See generally, McGregor, supra note 161.  Many delegates were clearly concerned that the proposed prohibitions on "cultural" genocide would interfere with their right to assimilate disparate,populations. For instance, "[fjhe Egyptian delegation had also expressed the fear that the concept of cultural genocide might hamper a reasonable policy of assimilation which no state aiming at national unity could be expected to renounce." (6 Comm. Summary Records, UN Doc.A/C.6/SR.63 supra note 51 (Mr. Rafat, Egypt)). Mr. Amado, Brazil feared that the "cultural" genocide provision would interfere with "legitimate efforts made to assimilate ... minorities by the countries in which they were living" {ibid.). 3 6 0  th  97  to ground this argument. Henry Reynolds attempts to carve out an assimilation exemption by referring to Lemkin's commentary to the Secretariat's Draft. According to Reynolds, " L e m k i n , who was so committed to seeing cultural genocide included i n the Convention, did not regard assimilation as a major problem."  361  However, the passage that Reynolds cites actually  reads: Professor L e m k i n pointed out that cultural genocide was much more than just a policy o f forced assimilation by moderate coercion - involving for example, prohibition o f the opening o f schools for teaching the language o f the group concerned, o f the publication o f newspapers printed i n that language, o f the use o f that language i n official documents and i n court, and so on. It was a policy, which by drastic methods, aimed at the rapid and complete disappearance o f the cultural, moral and religious life o f a group o f human beings. 362  From this passage we see that to Lemkin, "forced assimilation by moderate coercion" involved prohibiting groups from; 1) opening schools to educate their young i n the group language; 2) publishing newspapers i n the group language, or; 3) using the group's language i n official documents, etc. To Lemkin, these measures were less serious than cultural genocide, to which he was fervently opposed.  363  Reynolds, supra note 118 at 175 citing Secretariat's Draft supra note 18. See also Robert van Krieken, "Cultural Genocide," supra note 117 at 134-35. Secretariat's Draft, supra note 18 at p.27. The Commentary addresses assimilation at two other points as well stating: By this definition, certain acts which may result in the total or partial destruction of a group of human beings are in principle excludedfromthe notion of genocide, namely, international or civil war, isolated acts of violence not aimed at the destruction of a group of human beings, the policy of compulsory assimilation of a national element, mass displacements of population" (ibid, at 23). And: "Policy of forced assimilation of a section of the population: Such a policy, even if the notion of "cultural" genocide ... is admitted, it does not as a rule constitute genocide" (ibid, at 24). See A. Dirk Moses, "Genocide and Settler Society in Australian History" in A. Dirk Moses ed., 3 6 1  3 6 2  3 6 3  Genocide and Settler Society: Frontier  Violence and Stolen Indigenous Children in Australian  History  (New York: Berghan Books, 2004) at 22. According to Moses, in taking Lemkin's work as a whole, "it would be safe to infer that he did not equate assimilation with cultural genocide." For more information on  98  Lemkin, like many framers, would have seen gradations within the concept o f assimilation.  Assimilation encompasses a broad spectrum o f actions, from m i l d l y  coercive requirements that minority communities send their children to state day schools for instruction in the state language, to forced religious conversions, with death and dispossession serving as the penalties for non-compliance.  Assimilation programs  relying only on moderate coercion were apparently acceptable and would not implicate the proposed provision on cultural genocide.  However, in its more severe forms  assimilation might constitute a form o f outright physical or biological genocide. Therefore, it seems unlikely that Lemkin, had he known o f it, would have "accepted as appropriate" Australia's assimilative policies, especially when those policies involved forcibly and permanently stripping Aboriginal groups o f sizable proportions o f their children.  364  It seems doubtful that the delegates intended to excuse any act so long as its  perpetrators claimed it had been committed as part o f a greater assimilation scheme. Such an interpretation would create a large loophole, allowing perpetrators to excuse genocidal acts on grounds that they were actually intended to "assimilate" the victim group. Although Reynolds finds significance in that, "no one condemned assimilationist Lemkin's views on these issues, see also Dominick Schaller, "Raphael Lemkin's View of European Rule in Africa: Between Condemnation and Admiration" (2005) 7 J. Genocide Research 531 at 536, stating: "Lemkin has been an enthusiastic advocate of colonialism and he considered the 'civilization' of the Congo and other parts of Africa by Europeans to be a necessary task." Schaller goes on to state: "The way Lemkin has perceived Africans can only be described as racist" (ibid.). See also, Michael A. McDonnell & A. Dirk Moses, "Raphael Lemkin as a Historian of Genocide in the Americas" (2005) 7 J. of Genocide Research 501, discussing Lemkin's views on the colonization of the Americas. According to these authors, "Lemkin doubted the credibility" of Spanish rationalizations that "pointed to the barbarism and savagery of the Indians to justify their rule." From these efforts to research Lemkin's unpublished writings it seems that Lemkin, like many of the educated of his time, had complex and often contradictory views on colonialism and assimilation. Still, he had always been against forcible child transfers, regarding them as a primary form of "biological" genocide (ibid, at 507). Reynolds, supra note 118 at 176 claiming, "[w]e can assume that, had he known of it, Lemkin would have accepted as appropriate Paul Hasluck's [mid-twentieth century] drive for assimilation." 3 6 4  99  policies or argued that they had genocidal implications," the delegates were probably far from united on this matter.  365  For instance, Sandr Bahadur K a h n o f Pakistan said his  delegation: understood perfectly that new countries desired to assimilate immigrants in order to create a powerful national unit; nevertheless i f assimilation was nothing but a euphemism concealing measures o f coercion designed to eliminate certain forms o f culture, Pakistan formally opposed fascist methods o f that kind, which emanated from philosophies that should be repudiated as contrary to the spirit and the aims o f the Charter o f the United Nations.  While Reynolds reads the general  lack o f attention  paid to assimilation as  an  endorsement o f this practice, it seems just as likely that the delegates simply avoided the issue as too contentious.  Had there been true unity on assimilation, the  Genocide  Convention might have excused forcible child transfers and other otherwise genocidal measures when conducted as part o f a larger assimilation scheme - but it did not. Here, it is important to remember that unless there is a very clear intent on the part o f the framers to the contrary, the Genocide Convention must be read according to its "ordinary meaning."  366  Since the framers exhibited no clear intent to excuse proscribed acts when  those acts were committed as part o f a larger assimilation scheme, interpretation o f the Genocide Convention reverts to its "ordinary meaning," which contains no assimilation exception. Far from excusing acts that otherwise amount  to genocide, evidence that  forbidden acts were carried out during a program o f forced assimilation may actually prove culpable intent.  3 6 5  366  Forced assimilation centers on a hostility toward the targeted  Reynolds, supra note 118 at 176. Vienna Convention, supra note 32, Article 31.  100  group's continued existence as a "separate and distinct entity." It aims to see the group's distinctive characteristics eliminated as the group is absorbed into another group. In this sense, forced assimilation is akin to "attacks on the cultural and religious property and symbols o f the targeted groups."  367  The I C T Y and I C T R have stated,  368  and the I C J  recently affirmed, that, when carried out i n tandem with an act prohibited under the Genocide Convention, evidence o f such attacks could prove the existence o f the specific intent to destroy the g r o u p .  369  Therefore, although acts o f "forced assimilation by  moderate coercion," may not amount to genocide, acts specifically proscribed i n Article 2 o f the Genocide  Convention  certainly do; and this remains true whether or not the  perpetrators justified these acts with assimilationist rhetoric.  In fact, the rhetoric o f  assimilation may actually prove genocidal intent.  5.3  Chapter summary  Thus, we see that attempts to escape liability for genocide by re-defining forcible child transfer as ethnocide, cultural genocide, or assimilation probably fail. Although the I L C destruction approach remains persuasive, the emerging genocide case law indicates that courts w i l l be likely to determine that prohibited actions do constitute genocide even where intended to destroy the group through cultural processes. Similarly, the Genocide Convention contains no exception for acts carried out as part o f a larger assimilation plan and, i n the absence o f a clear intention on the part o f a majority o f delegates, there seem to be no grounds for construing one. In fact, the international genocide case law indicates that attacks on a group's cultural and religious symbols may help prove the 367  3 6 8  3 6 9  Bosnia v. Serbia, supra note 32 at para. 343 citing Kristic (Trial Chamber) supra note 154 at para. 580. See above §4.6. Ibid; Supra note 263.  101  specific intent to destroy the group. To the extent assimilative policies mimic such attacks, those polices might actually help establish the existence o f genocidal intent.  102  C H A P T E R 6: C O N C L U S I O N  A s this thesis has demonstrated, Article 2(e) "makes sense" i n the context o f an international treaty that is intended to protect the viability o f human groups.  The  Genocide Convention does not protect human groups as loose amalgamations o f individuals who happen to bear similar traits; it protects the group itself.  Group  protection, in turn, requires robust prohibitions on acts that undermine group viability by disrupting the internal processes that are vital to the group's continued existence as a "separate and distinct entity."  C h i l d rearing is the quintessential process that racial,  ethnic, religious, or national groups perform, as it is only through childrearing that these groups perpetuate themselves. Thus, any instrument purporting to protect these human groups should recognize the central role o f child custody i n assuring those protections. Determining a prima facie violation o f Article 2(e) requires a simple three-step inquiry. First, the fact finder inquires whether children o f a protected group were indeed transferred to another group. Next, they determine whether the transfers were carried out forcibly.  Finally, they determine whether the transfers were conducted with intent to  destroy the group as such, at least in part.  A s we have seen, claims that the forcible  transfers were intended to benefit the affected children are largely irrelevant to assessing culpability. A clear majority o f courts and commentators have determined that mixed intentions and motivations are irrelevant in assessing acts o f genocide and it is doubtful that the law has ever allowed benevolent motivations to trump criminal liability where an act was otherwise committed with culpable intent. It also does not matter that transferred children were often subjected to processes intended to strip them o f their group's culture.  103  Forcible child transfer is a form o f physical and biological genocide that, while it may operate through cultural processes,  is specifically  forbidden under the  Genocide  Convention. Article 2(e)he Genocide Convention is actually quite narrow, prohibiting only the removal o f minority group children for reasons specific to the children's affiliation with a particular group, and then only when that removal is animated by intent to destroy the group.  States continue removing minority group children for reasons specific to that  child's situation, including allegations that the child has suffered mistreatment, with no apparent danger o f violating the Genocide Convention.  Even where these interventions  disproportionately affect minority groups, and might endanger the group's existence as an entity, there remains no danger o f violating the Genocide Convention because there is no apparent intent to destroy the group.  In fact, even the strongest reading o f the  Genocide Convention permits states tremendous latitude i n their dealings with minority group children. States can compel education i n the dominant culture and language, so long as this education is delivered in day schools and does not transfer custody o f the children outside o f the group.  States can also compel boarding school attendance, so  long as the education provided is sensitive to the children's culture and is not intended to threaten the group's existence. In short, all that the Genocide Convention seems to say is that i f a state is interested in removing minority group children, it must do so i n a manner that is not intended to destroy the children's group - hardly an unworkable constraint for states and others hoping to help minority group children. One goal o f this thesis has been to establish grounds on which groups victimized by forcible child transfers could seek redress through economic and moral claims.  104  Litigation generates a wealth o f documentation that both establishes culpability and documents the untoward consequences o f these programs.  370  Moreover, as M i n o w points  out, "[t]he truth-telling surrounding the struggles for reparations can alter attitudes more than the reparations themselves, yet the palpable symbolism o f actual reparations w i l l 371  redeem those struggles i n ways that all the narration and fact gathering never could." However, many victimized groups w i l l find courts unavailable to hear their claims, or that the expense o f litigation is prohibitive. In those instances, it is hoped that victimized groups can use the legal framework established i n this thesis to pursue a moral claim i n the media and perhaps the legislature. In any case, calling these acts for what they were - genocide - provides victimized groups valuable symbolic capital that can be converted into tangible change.  1  Minow, supra note 22 at 123-24. Ibid, at 132.  105  BIBLIOGRAPHY  TREATIES AND STATUTES  African Charter on the Rights and Welfare of the Child Art. 2, July 1990, Organization o f African Unity, C A B / L E G / 1 5 3 / R e v . 2 ; Convention on Contact Concerning Children A r t . 2, 15 M a y 2003, Eur. T.S. 192. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity 26 November 1968, 754 U . N . T . S . 73. 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Starr, Sonja & L e a Brilmayer, "Family Separation as a Violation of International L a w " (2003) 21 Berkeley J. Int'l L . 213. Storey, Mathew, "Kruger v. The Commonwealth: Does Genocide Require M a l i c e " (1998) 21 U . N . S . W . L . J . 224. Tatz, Colin, "Genocide in Australia" (1999) 1 J. o f Genocide Research 315. Triffterer, Otto, "Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such" (2001) 14 Leiden J. of Int'l L . 339. van der Vyver, Johan D . , "Prosecution and Punishment o f the Crime o f Genocide" (1999) 23 Fordham Int'l L . J . 286. van Krieken, Robert, "Is Assimilation Justicable?" Case Note on Lorna Cubillo & Peter Gunner v. Commonwealth" (2001) 23 Sydney L . Rev. 239. — "Barbarism of Civilization: Cultural Genocide and the 'Stolen Generations" (2000) 50 British Journal of Sociology 297. — "Rethinking Cultural Genocide: Aboriginal C h i l d Removal and Settler-Colonial State Formation" (2004) 75 Oceania 125.  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M i l l o y , John S., A National Crime: The Canadian Government and the Residential School System: 1879 to 1986 (Winnipeg: University o f Manitoba Press, 1999). M i n o w , Martha, Between Vengeance and Forgiveness: Facing History After and Mass Violence (Boston: Beacon Press, 1998).  Genocide  Neu, Dean 8c Richard Therrien, Accounting for Genocide: Canada's Bureaucratic Assault on Aboriginal People (Black Point, N o v a Scotia: Fernwood Publishing, 2003). Power, Samantha, A Problem From Hell: America and the Age of Genocide (New Y o r k : Harper Perennial, 2002). Pratt, Richard Henry, Battlefield and Classroom: Four Decades with the American Indian, 1867-1904, ed. by Robert M . Utley (New Haven: Y a l e University Press, 1964). Reynolds, Henry, Indelible Stain: The Question of Genocide in Australia's (Victoria, Australia: V i k i n g , 2001).  History  Russell, Bertrand. The History of Western Philosophy (New Y o r k : Simon & Schuster, 1945). Schabas, W i l l i a m A . , Genocide in International Cambridge Press, 2000). — An Introduction to the International University Press, 2001).  Law (Cambridge: University o f  Criminal Court (Cambridge: Cambridge  — The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge: Cambridge University Press, 2006).  114  Tatz, C o l i n , With Intent to Destroy: Reflecting on Genocide (Verso: London, 2003). Titley, E . Brian, A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada (Vancouver: University o f British Columbia Press, 1996). Vitebsky, Piers, The Reindeer People: Living with Animals and Spirits in Siberia (Boston: Houghton M i f f l i n , 2005). Weisbrod, Carol, Emblems of Pluralism: Princeton University Press, 2002).  Cultural Differences and the State (Princeton,  Werle, Gerhard. Principles of International Press, 2005).  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Dirk Moses, ed., Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History trans, by Andrew H . Beattie (New Y o r k : Bergham Books, 2004). Jones, John R . W . D . , "Whose Intent is it Anyway? Genocide and the Intent to Destroy a Group" in L a i Chand Vorah, Fausto Pocar, Yvonne Featherstone, Oliver Fourmy, Christine Graham, John Hocking & Nicholas Robson, eds., Man's Inhumanity to Man: Essays on International Law In Honor of Antonio Cassese (The Hague: K l u w e r International, 2003) 467. Jorda, Claude & Jerome de Hemptinne, "The Status and Role o f the V i c t i m " i n Antonio Cassese, Paola Gaeta & John R . W . D . Jones, eds., The Rome Statute of the International Criminal Court: A Commentary (Oxford: Oxford University Press, 2002) vol. 2, 1387.  115  Lemkin, Raphael, "Totally Unofficial M a n : The Autobiography o f Raphael L e m k i n " i n Steven L . Jacobs & Samuel Totten eds., Pioneers of Genocide Studies (New Brunswick, N J : Transaction Books, 2002) 371. McGregor, Russell, "Governance, Not Genocide: Aboriginal Assimilation in the Post War E r a " in A . Dirk Moses, ed., Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History (New Y o r k : Berghan Books, 2004). M c L a r e n , John, "The Doukhobor Belief in Individual Faith and Conscience and the Demands o f the Secular State" in John M c L a r e n & Harold Coward eds., Religious Conscience, the State and the Law: Historical Contexts and Contemporary Significance (Albany: State University o f N e w Y o r k Press, 1999). — "The State, C h i l d Snatching, and the L a w : The Seizure and indoctrination o f Sons o f Freedom Children in British Columbia, 1950-60" in John McLaren, Robert Menzies & Dorothy E . Chunn eds., Regulating Lives: Historical Essays on the State, Society, the Individual and the Law (Vancouver: University o f British Columbia Press, 2002) 117. Moses, A . Dirk, "Genocide and Settler Society in Australian History" i n A . D i r k Moses ed., Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History (New Y o r k : Berghan Books, 2004) 3. Oosterveld, Valerie, "The Elements o f Genocide" in R o y S. Lee ed., The International Criminal court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, N Y : Transnational Publishers, 2001) 41. Tomeschat, Christian, "Individual Reparation Claims in Instances o f Grave Human Rights Violations: The Position o f the General International law" i n Albrecht Randelzhofer & Christian Tomuschat, eds., State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (The Hague: Martinus Nijhoff Publishers, 1999) 1. Totten, Samuel, " A Matter o f Conscience" in Samuel Totten, Steven L . Jacobs eds., Pioneers of Genocide Studies (New Brunswick, N J : Transaction Publishers, 2002) 545. OFFICIAL REPORTS AND DOCUMENTS A d H o c Committee on Genocide, Report to the Economic and Social Council on the Meetings of the Committee Held at Lake Success, New York, From 5 April to 10 May 1948 U N E S C 3d Sess., Supp. N o . 6. U N Doc. E/794 (1948). Australian Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry Into the Separation of Aboriginal and Torres Strait Islander Children From Their Families (Sydney: Sterling Press Pty. Ltd., 1997).  116  Belgium: Amendments to the Draft Convention, U N G A O R C 6 , 3 Doc.A/C.6/217 (1948).  ra  Sess., U . N .  Draft Convention on the Crime of Genocide, U N E S C O R U N Doc. E/447 (1947). Final Report of the United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 1994 U N Doc. S/1994/674. France: Amendments to the Draft Convention, U N G A O R C 6 , 3 Doc.A/C.6/224 (1948).  rd  Sess. U . N .  Genocide: Draft Convention and Report of the Economic and Social Council, Report of the Sixth Committee, U N G A O R , 3 Sess., U N Doc. A/760 (1948). rd  Greece: Amendment to the Enumeration in Article II on the Draft Convention U N G A O R C 6 , 3 Sess., U . N . Doc. A/C.6/242 (1948).  (E/794)  rd  International L a w Commission, Report of the International Law Commission on the Work of its Forty-Eighth Session, U . N . G A O R , 5 1 Sess., Supp. N o . 10 U . N . Doc.A/51/10 (1996). st  Report of the Preparatory Commission for the International Criminal Court, Finalized Draft Text of the Elements of Crimes, 2000 U . N . Doc. PCNICC/2000/INF/3Add.2.  Addendum,  Prevention and Punishment of Genocide: Comments by Governments on the Draft Convention Prepared by the Secretariat, U N G A O R C 6 , 3 Sess., U . N . Doc. E/623 (1948) at 35. rd  Sixth Committee, Summary Records of Meetings U N G A O R , 3d Sess. U N Doc. A/C.6/SR.63-134. (1948). Union of Soviet Socialist Republics: Amendment to the Convention of the Prevention and Punishment of Genocide, U N G A O R , 3 Sess. U . N . Doc. A/766 (1948). rd  Union of Soviet Socialist Republics: Amendments and Additions to the Preamble and Article I of the Draft Convention, U N G A O R C 6 , 3 Sess., U N Doc. A/C.6/212 (1948). rd  Union of Soviet Socialist Republics: Amendments to Article II of the Draft U N G A O R C 6 , 3 Sess., U . N . Doc.A/C.6/223 (1948).  Convention,  United Kingdom: Amendments to Articles I and II of the Draft Convention, C6, 3 Sess. U N Doc. A/C.6/222 (1948).  UNGAOR  rd  rd  van Boven, Theo Special, Rapporteur, Study Concerning the Right to Restitution,  117  Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, U N C H R O R , 4 5 Sess., U N Doc. E/CN.4/Sub.2/1993/8 (1993). th  Venezuela: Amendment to Article II o f the Draft Convention, U N G A O R C 6 , 3 U . N . Doc. A/C.6/231 (1948).  rd  Sess.,  Whitaker, Benjamin, Revised and Updated Report on the Question of the Prevention Punishment of the Crime of Genocide U N E S C O R , 3 8 Sess. U N D o c . E/CN.4/Sub.2/1985/6 (1985) at 16.  and  th  Whiteman, Marjorie M . , ed., Digest of International Law vol. 11 (Washington: U . S . Dept. o f State Publication 8354, 1968) at 872; International Commission o f Jurists, The Question of Tibet and the Rule of Law (Geneva, 1959). Yearbook of the United Nations: 1947-1948, (Lake Success, N Y : United Nations Department o f Public Information, 1949). Yearbook of the United Nations: 1948-1949, (Lake Success, N Y : United Nations Department o f Public Information, 1950). M E D I A  Swiss to Compensate "Persecuted' Gypsies / Pro Juventute Foundation charity to make amends for children o f the Country Roads programme" The Guardian (London) (8 July 1986). "Interview: I C J Chief on Bosnia Genocide Case" (31 M a y 2006), online: Institute for W a r & Peace Reporting http://iwpr.net/index.php?apc_state=henptri&s=o&o=tribunal_rh_int.html. Jourdan, Laurence, "Past Abuses: Gypsy Hunt in Switzerland: L o n g Pursuit o f Racial Purity," online: European R o m a Rights Centre < www.errc.org/cikk.php?cikk=1203>. Moorehead, Caroline, "Spectrum: The 'stealing' o f gypsy children - for almost 50 years, it is claimed the children o f Swiss gypsies were forcibly taken from their families" The Times (London) 17 M a r c h 1988. Netter, Thomas W . , "Swiss Gypsies: A tale o f vanishing children" The New York Times (9 June, 1986) p. 9.  118  

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