European Court Tackles the Definition of Genocide
Last week the Grand Chamber of the European Court of Human Rights delivered a very interesting judgment in Vasiliauskas v. Lithuania, no. 35343/05,
in which it examined in detail the definition of the crime of genocide.
This is another one in a series of relatively sui generis cases, mostly
coming from the Baltic states, dealing with historical crimes and
pleaded under Article 7 ECHR, which incorporates the nullum crimen sine
lege principle. The basic issue in the case was that the applicant, who
worked for Soviet security services and was involved in the killings of
Lithuanian partisans, was convicted of genocide by Lithuanian courts
after the resumption of independence by the Baltic states, under the new
Lithuanian Criminal Code which explicitly had retroactive application.
The question that the Court had to
answer, therefore, was whether the applicant’s conviction for genocide
was reasonably foreseeable, in light of international law as it stood in
1953, when the crime was committed. The Court comes out terribly split
on the outcome, ruling by 9 votes to 8 that the conviction was not
foreseeable and that there was a violation of Article 7.
The majority and the minority both agree
that customary international law at the time prohibited genocide, in
parallel to the 1948 Genocide Convention. They also agree that the list
of protected groups under Article II of the Convention, which is
reflective of custom, deliberately excluded political groups. Thus, a
conviction for genocide would not have been sound if the Soviets were
‘merely’ destroying their political opponents in Lithuania. But where
the case really gets interesting is in the analysis of the ‘in part’
element of genocidal intent. Here the minority believes that it is
perfectly fine to first define the protected group as ethnic
Lithuanians, and then further define a ‘part’ of that group as
Lithuanian partisans or opponents of Soviet rule. The majority, on the
other hand, believes that while the idea of the ‘part’ of a group could
foreseeably be thought of in numerical terms in 1953, it was not
foreseeable that the part could also be defined in qualitative terms, as
emerged from the case law of modern international criminal tribunals
(para. 177). This last point is I think highly problematic, since those
individuals convicted for intending to destroy a part of a group in
modern trials could then also say that their convictions violated nullum
crimen, since their crimes also preceded in time the jurisprudence of
the tribunals who convicted them – that this happened by 5 or 10 years
rather than 50 seems entirely immaterial.
On the other hand, accepting the
minority’s approach to the definition of a ‘part’ of a group would
expand the scope of genocide far beyond the approach taken so far in
international criminal law. For example, if the applicant had intended
to kill all gay Lithuanians or all disabled Lithuanians this would,
under the minority’s reasoning as far as I understand it, also
constitute genocide, even though sexual orientation or disability are
not covered by the Genocide Convention. Both groups would be
‘substantial’ in number, much like the partisans. But in any event the
whole case is yet another demonstration of the highly problematic and
morally arbitrary nature of the definition of genocide, which is
unfortunately coupled with the peculiar political magic that the word
has. An excessive focus on that crime by prosecutors, judges and in
public discourse only serves to systematically devalue other crimes
against international law, be it in Bosnia, Darfur, Cambodia, or indeed
in Soviet-controlled Lithuania.
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