05 Jul The Odious Scourge of Genocide and the Limits of International Law: Part II
[Dimitrios Kourtis is a PhD candidate at the Aristotle University and a Research Associate and Adjunct Lecturer at the University of Nicosia. Part I can be found here.]
A Collective Right to Existence
Westphalian international law is not the best platform to address ‘dealing with the past’ issues (Koskenniemi). The Treaty of Westphalia itself contained a legal oblivion clause (Common Article II) and the general understanding is that issues not directly regulated by norms or principles of international law (such as the question of pre-conventional genocidal atrocities) remain within the ambit of domestic jurisdiction or the general notion of state freedom of conduct (Lotus principle). This understanding of course can also support the power of states to re-draft the customary law on genocide and create a rule extending the legal title of the descendants of certain victimized communities to use the g-word while describing their forebears’ hardships and persecutions.
However, there might be another avenue to address such instances of genocidal atrocities, but this avenue requires a certain degree of legal imagination inherent in the dynamic interpretation of fundamental legal texts, which upon conclusion are expected to lead of life of their own. If the international law on genocide stands as a re-affirmation of a collective right to existence (Reservations Advisory Opinion 23), then we might ask ourselves who is the true right holder? Given the fact that the prohibition of genocide is a jus cogens (Armed Activities §64) norm and the primary obligations stemming from the Genocide Convention are erga omnes (Kayishema TC-II §88; Bosnian Genocide Case Preliminary Objections §31) in their essence, one possible answer is that the right holder is the international community. However, if the Genocide Convention is truly a human rights treaty, a statement that has been affirmed time and again by both scholars and representatives of states, then –as we know– the right holder can and should be an individual or maybe a collectivity of individuals. The international law on genocide has established a numerus clausus of communities that can be targeted by the underlying acts, namely national, ethnic, religious, or racial groups. These groups and the surplus of mens rea (the intent to destroy or the dolus specialis of genocide) give to the crimes, which is otherwise no different than a crime against humanity, its unique character and special culpability (Ambos 835-836; Quigley 11). The protection of the said groups and the safeguarding of their collective right to existence is probably the best candidate for the Rechtsgut, i.e. the societal value protected by the prohibitive norm (Ambos I 62). This collective right is both an aggregate of individual rights of the members of the community (their rights to life, health, integrity, an adequate standard of living, social, cultural, and family life) and something aliud, since it intends to guarantee the preservation and proliferation of the protected community, given that, according to Lemkin, human societies are essential elements of the world community (Lemkin 91) and their targeting ultimately puts at risk the very fabric of the international social order (Bechky 583). Such collective rights were also recognized during the Interwar period within the framework of the minority protection treaties, while in modern times self-determination seems to be a comparable notion being itself a collective right of a people.
A Colonial Genocide
If we accept that this collective right belongs primarily to the affected community (with the international community being the custodian or the trustee) then this community once targeted acquires a very specific legal status; it becomes a victimized community; although in international law, we have as many definitions of the concept of victim as the existing international regimes (either regional or universal) (Casadevante Romani 89 et seq.), it is true that the common denominator of the different approaches can be found; a victim as per comparative international law, is a person that has suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of fundamental rights, as a consequence of conduct which is illegal; or due to the person’s intervention to provide support to the victims or prevent victimization, while they were targeted with the aforementioned illegal conduct. This conduct breaching the collective right is of course classified as genocide under the 1948 Convention; for atrocities committed before the adoption of the Convention, the same conduct might be illegal as per domestic law or as per as general pledge (see also Anderson 1172 et seq.), like the one enshrined in Article 6 of the General Act of the Berlin Conference on West Africa of 26 February 1885, where signatories undertook the obligation to preserve the tribal communities of Africa. Although, it seems odd to invoke the spirit of colonialism to assess the legality of such conduct, it is true that Germany, a party to the Berlin Act, entered into ‘treaties of protection’ with several Namibian indigenous communities, including for instance the Herero people (Agreement of 1885, reaffirmed in 1890), pledges that were violated by the German colonial forces, at the beginning through acts of land and cattle appropriation, and then through a war of annihilation. The quintessence of such pledges was that Imperial Germany bound itself to respect and protect the communities in question, while later on violated the said responsibilities by slaughtering en masse the Hereros and Namas. The discussion about whether the Hague Conventions of 1899 applied to the Herero and Nama interments and other hardships is interesting (Sarkin 63 et seq., Shelton 318) but disregards the fact that humanitarian law was in its infantile stage back then, so arguing for the customary application of such norms might be difficult to prove (but see Dugard 448 and Raath/Strydom regarding the application of customary international humanitarian law to the Anglo-Boer wars of 1880-1902). Additionally, this nexus of protection obligations was complemented by multilateral treaties, including Articles II(1) and VIII of the General Act of the Brussels Conference relative to the African Slave Trade of 2 July 1890.
In the same vein, von Liszt argued that these undertakings were declaratory of an extant obligation to safeguard the protection of native populations (von Liszt  10th edn, 277-278), while Bluntschli was of the opinion that wars of annihilation were generally not permitted according to the law of nations, provided that the targeted collectivity was capable of sustaining an organized social life and culture. Nevertheless, he also pointed out that his contemporary tribal societies were not protected under international law, even though some fundamental rights cannot be denied to them, for instance they are not allowed to be hunted down like foxes of wolfs (Bluntschli  3rd edn, §533 [sic; §535]).
It goes without saying that violation of such stipulations cannot be re-branded as genocide, but it is indicative of the existence of a certain chain of undertakings on behalf of the colonial power to respect, at least nominally, the basic rights of the indigenous communities. Even so, since Germany, as the ultimate successor state of the German Empire, acknowledged its moral and historical responsibility vis-à-vis the Herero and Nama peoples, apologized, and confirmed its willingness to assist financially the affected communities, it should also understand that despite the ‘paradox of reparations’ (Roht-Arriaza 122; Shelton 24) (paying to ‘repair’ irreparable harm caused by atrocity crimes), it is important for the current holders of the collective right it violated at the beginning of the previous century to be addressed not only as victims of, but also as beneficiaries of reparations owed to them in their own right, namely under their status as descendants of the originally victimized community.
If the Genocide Convention establishes individual criminal responsibility and reinforces state responsibility for the violation of the collective right to existence, violations of the said right which were in breach of pre-existing international obligations, in spite of falling outside the ambit of the Convention, can be redressed through reparations going hand in hand with the assumption of responsibility. The fact that the 1948 Convention cannot be applied retroactively does not erase responsibility already founded on the international norms applicable at the time of perpetration. The existence of the right today, or its continuous manifestation (Las Palmas 845), might include certain considerations based on the international law on genocide, that is whether international law accepts trans-generational victimization (for the time being the obvious answer is negative Katanga TC-II §29, upon referral by Katanga AC §260) and the re-classification of the original trauma as genocidal, but this does not impede either collective or individual reparations being given outside the context of the ‘crime of crimes’.