Genocide under municipal laws

The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) came into effect in January 1951. Article 5, 6 and 7 of the CPPCG cover obligations that sovereign states that are parties to the convention must undertake to enact:

Art. 5: The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.

Art. 6: Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

Art. 7 Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition.

The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.

— CPPCG[1]

Since 1951 the following states have enacted provisions within their municipal law to prosecute or extradite perpetrators of genocide:

State Provisions Notes
 Albania Chap. 1, Crimes Against Humanity, of the Criminal Code[2] See Genocide Law (Albania, 1995)
 Antigua and Barbuda Genocide Act, Laws, Vol. 4.[2]
 Argentina [2]
 Armenia Article 393 of the Criminal code.[2]
 Australia Genocide Convention Act 1949.[2]

International Criminal Court (Consequential Amendments) Act 2002
 Austria Paragraph 321 of the Strafgesetzbuch 1974.[2] Austrian law classifies all acts intended to annihilate a national, ethnic or religious group partially or in its entirety, create circumstances suitable to cause such events, create sterility in the group or other measures intended to prevent willful procreation, or forcefully abducting children of said group to integrate them into another as genocide, with a statutory sentence of life imprisonment. Conspiracy to commit such acts carries a penalty of one to ten years imprisonment.
 Azerbaijan Article 103 and 104 of the Criminal Code.[2]
 Bahrain Decree No. 4 of 1990 (on genocide).[2]
 Bangladesh International Crimes (Tribunals) Act 1973.[2]
 Barbados Genocide Act, chapter 133A.[2]
 Belarus Article 127 of the Criminal Code.[2]
 Belgium Law on serious violations of international humanitarian law, 10 February 1999.[2] In 1993 Belgium had adopted universal jurisdiction, allowing prosecution of genocide, committed by anybody in the world. The practice was widely applauded by many human rights groups, because it made legal action possible to perpetrators who did not have a direct link with Belgium, and whose victims were not Belgian citizens or residents. Ten years later in 2003, Belgium repealed the law on universal jurisdiction (under pressure from the United States). However, some cases which had already started continued. These included those concerning the Rwandan genocide, and complaints filed against the Chadian ex-President Hissène Habré.[3]

In a Belgium court case lodged on 18 June 2001 by 23 survivors of the 1982 Sabra and Shatila massacre, the prosecution alleged that Ariel Sharon, former Israeli defense minister (and Israel's Prime Minister in 2001–2006), as well as other Israelis committed a number of crimes including genocide,[4] because "all the constituent elements of the crime of genocide, as defined in the 1948 Convention and as reproduced in article 6 of the ICC Statute and in article 1§1 of the law of 16 June 1993,29 are present".[5] This allegation was not tested in Belgium court because on 12 February 2003 the Court of Cassation (Belgian Supreme Court) ruled that under international customary law, acting heads of state and government can not become the object of proceedings before criminal tribunals in foreign state (although for the crime of genocide they could be the subject of proceedings of an international tribunal).[5][6] This ruling was a reiteration of a decision made a year earlier by the International Court of Justice on 14 February 2002.[7] Following these ruling in June 2003 the Belgian Justice Ministry decided to start a procedure to transfer the case to Israel.[8]

 Bolivia Article 138 of the Código Penal.[2]
 Bosnia and Herzegovina Article 141 of the Penal Code.[2] List of Bosnian genocide prosecutions#The Court of Bosnia and Herzegovina
 Brazil Law No. 2.889 of 1 October 1956.[2] The Helmet Massacre of the Tikuna people took place in 1988, and was initially treated as homicide. Since 1994 it has been treated by the Brazilian courts as a genocide. Thirteen men were convicted of genocide in 2001. In November 2004 at the appeal before Brazil's federal court, the man initially found guilty of hiring men to carry out the genocide was acquitted, and the other men had their initial sentences of 15–25 years reduced to 12 years.[9]

In a news letter published on 7 August 2006 the Indianist Missionary Council reported that: "In a plenary session, the [Brizillian] Supreme Federal Court (STF) reaffirmed that the crime known as the Haximu Massacre [perpetrated on the Yanomami Indians in 1993][10] was a genocide and that the decision of a federal court to sentence miners to 19 years in prison for genocide in connection with other offenses, such as smuggling and illegal mining, is valid. It was a unanimous decision made during the judgment of Extraordinary Appeal (RE) 351487 today, the 3rd, in the morning by justices of the Supreme Court".[11] Commenting on the case the NGO Survival International said "The UN convention on genocide, ratified by Brazil, states that the killing 'with intent to destroy, in whole or in part, a national, ethnical, racial or religious group' is genocide. The Supreme Court's ruling is highly significant and sends an important warning to those who continue to commit crimes against indigenous peoples in Brazil."[10]

 Bulgaria Article 416 on Genocide, of the Criminal Code.[2]
 Burkina Faso Article 313 of the Code Pénal.[2]
 Burundi In 2003 the transitional parliament in Burundi passed a law, introduced to parliament by the Burundian Foreign Minister Therence Sinunguruzaa, chiefly aimed at preventing genocide.[12]
 Cambodia Law for prosecuting crimes committed from 1975 to 1979.[2]
 Canada Act on genocide and war crimes, Article 318 on Advocating Genocide.[2] In Canada the War Crimes and Crimes Against Humanity Act makes it an offence under Canadian law to commit genocide, whether inside or outside Canada. A person may be charged under this law if, at the time of the crime, the perpetrator was a Canadian citizen or was employed by Canada, if the victim was a Canadian citizen or a citizen of a country allied to Canada, if the perpetrator was a citizen of, or employed by, a country that Canada was engaged in armed conflict with or if, at any time after committing the crime, the perpetrator enters Canadian territory.
 China Hong Kong, Section 9A, Offenses Against Person Ordinance, Cap. 212 - genocide. Macau, Article 230 (Genocide).[2]
 Colombia Articles 101 & 102 of the Código Penal.[2]
 Costa Rica Article 127 of the Código Penal (14 April 1998).[2] The law includes political groups or social groups as a protected group.[13]
 Côte d'Ivoire Article 137 of the Code Pénal.[2]
 Croatia Article 156 of the Penal Code.[2]
 Cuba Article 361 of the Código Penal.[2]
 Cyprus Uw 59/ 1980.[2]
 Czech Republic Article 259 of the Penal Code.[2]
 Denmark Law Nr. 132 of 29 April 1955.[2]
 El Salvador Article 361 of the Código Penal.[2]
 Ethiopia Article 281 of the Penal Code of 1957.[2]
 Estonia Article 91 of the Karistusseadustik eriosa.[2]
 Fiji Chapter 34 (Genocide) of the Penal Code.[2]
 France Article 211-1 of the Code Pénal.[2] The French law defines "a group determined by any arbitrary criteria" which is far broader than that found in the CPPCG.[13]
 Finland Criminal Code on Genocide and Ethnic Agitation[2] Genocide has been criminalized as a separate crime in Finland since 1995 and carries a penalty from 4 years to life sentence.[14] Attempted genocide or planning it are punishable. Genocide, as a number of other crimes of international nature is inside Finnish universal jurisdiction, but under Chapter 1, Section 12 of the Criminal Code, incidents of it abroad may not be investigated unless the Prosecutor General gives an order to do this.[15]

In 2010 a Rwandan refugee, François Bazaramba was convicted to life in prison for participation in the Rwandan genocide.[16]

 Georgia Article 651 (genocide) of the penal code[2]
 Germany Article 220a of the Strafgesetzbuch (1954),[2] superseded by article 6 of the Völkerstrafgesetzbuch (2002). Prior to the 2007 ICJ ruling on the Bosnian Genocide Case German courts handed down several convictions for genocide during the Bosnian War.

Novislav Djajić was indicted for participation in genocide, but the Bavarian Higher Regional Court failed to find beyond a reasonable doubt that he had intended to commit genocide. He was found guilty of 14 cases of murder and one case of attempted murder, receiving a sentence of 5 years imprisonment.[17] At Djajic's appeal on 23 May 1997, the Bavarian Appeals Court found that acts of genocide were committed in June 1992, though confined within the administrative district of Foča.[18]

The Higher Regional Court (Oberlandesgericht) of Düsseldorf, in September 1997, handed down a genocide conviction against Nikola Jorgić, a Bosnian Serb from the Doboj region who was the leader of a paramilitary group located in the Doboj region. He was sentenced to four terms of life imprisonment for his involvement in genocidal actions that took place in regions of Bosnia and Herzegovina, other than Srebrenica.[19]

On 29 November 1999, the Higher Regional Court (Oberlandesgericht) of Düsseldorf condemned Maksim Sokolović to 9 years in prison for aiding and abetting the crime of genocide and for grave breaches of the Geneva Conventions".[20]

 Ghana Criminal Code (Amendment) Act, 1993 Section 1: Genocide[2]
 Guatemala Article 376 of the Código Penal[2]
 Hungary Article 155 of the Penal Code[2]
 Indonesia Article 26 Tahun – Pasal 8 – genosida[2]
 Iraq statute of the Iraqi Special Tribunal, issued 10 December 2003[2]
 Ireland Ireland's Genocide Act of 1973[2]
 Israel Israeli Law on the Crime of Genocide, 5710 -1950[2]
 Italy law on Genocide of 9 October 1967, n. 962[2]
 Jamaica Offenses against the person (amendment) 1968, s. 33[2]
 Kiribati (Gilbert Islands) Penal Code Article 52 (Genocide)[2]
 Kyrgyzstan Article 373 of the Criminal Code[2]
 Latvia Article 71 of the Penal Code[2]
 Liechtenstein Article 321 of the Penal Code[2]
 Lithuania Article 99 of the Criminal Code[2]
 Luxembourg Genocide law, 8 August 1985[2]
 Mali Article 30 of the Code Pénal[2]
 Mexico Article 149 of the Código Penal[2]
 New Zealand International Crimes and ICC Act of 6 September 2000.[2]
 Netherlands Act Implementing the Conv. on Genocide, 2 July 1964.[2] Dutch law restricts prosecutions for genocide to its nationals. On December 23, 2005 a Dutch court ruled in a case brought against Frans van Anraat for supplying chemicals to Iraq, that "[it] thinks and considers legally and convincingly proven that the Kurdish population meets the requirement under the genocide conventions as an ethnic group. The court has no other conclusion: that these attacks were committed with the intent to destroy the Kurdish population of Iraq" and because he supplied the chemicals before 16 March 1988, the date of the Halabja poison gas attack, he is guilty of a war crime but not guilty of complicity in genocide.[21][22]
 Nicaragua Article 549 & 550 of the Código Penal.[2]
 Panama Article 311 of the Código Penal.[2]
 Paraguay Articulo 319 9 of the Código Penal.[2]
 Peru Title XIV (Law # 26926 (Article 129 of the Código Penal)).[2] The law includes political groups or social groups as a protected group.[13]
 Poland Article 118 of the Kodeks Karny (penal code).[2]
 Portugal Article 239 of the Codigo Penal.[2] The law includes political groups or social groups as a protected group.[13]
 Republic of the Congo ' 'Law No. 8 - 98 of 31 October 1998 on genocide, war crimes and crimes against humanity.[2]
 Romania Article 356 of the Penal Code.[2]
 Russia Article 357 of the Federal Criminal Code.[2]
 Rwanda Organic Law No. 08/96 on Genocide and Crimes Against Humanity.[2]
 Serbia Article 370 of the Krivični zakonik (2005).
 Seychelles Genocide Act of 1969.[2]
 Solomon Islands Article 52 (Genocide) of the Penal Code.[2]
 Slovakia Articles 259-265 of the Criminal Code.[2]
 Slovenia Chapter 35, art. 373 and 378 of the Penal Code, 1994.[2]
 South Africa Implementation of the Rome Statute of the International Criminal Court Act 27 (12 July 2002).[2]
 Spain Article 607 of the Código Penal Ley Orgánica 10/1995, 23 November.[2][23] Under Spanish law, judges have the right to try foreigners suspected of genocidal acts that have taken place outside Spain. In June 2003 Spanish Judge Baltasar Garzón jailed Ricardo Miguel Cavallo, (also known as Miguel Angel Cavallo), a former Argentine naval officer, extradited from Mexico to Spain pending his trial on charges of genocide and terrorism relating to the years of Argentina's military dictatorship.[24][25] On 29 February 2008, the Spanish agreed to extradite Cavallo to Argentina where he is charged with crimes against humanity. He still faces a trial in Spain on genocide charges at some later date.[26][27]

In 1999, Nobel peace prize winner Rigoberta Menchu brought a case against the military leadership in a Spanish Court. Six officials, among them Efrain Rios Montt and Oscar Humberto Mejia, were formally charged on 7 July 2006 to appear in the Spanish National Court after Spain's Constitutional Court ruled in 2005 that Spanish courts can exercise universal jurisdiction over war crimes committed during the Guatemalan Civil War (1960–1996)[28]

On 11 January 2006 it was reported that the Spanish High Court would investigate whether seven former Chinese officials, including the former President of China Jiang Zemin and former Prime Minister Li Peng participated in a genocide in Tibet. This investigation followed a Spanish Constitutional Court (26 September 2005) ruling that Spanish courts could try genocide cases even if they did not involve Spanish nationals.[29] The court proceedings in the case brought by the Madrid-based Committee to Support Tibet against several former Chinese officials was opened by the Judge on 6 June 2006, and on the same day China denounced the Spanish court's investigation into claims of genocide in Tibet as an interference in its internal affairs and dismissed the allegations as "sheer fabrication".[30][31] The case was shelved in 2010, following a law passed in 2009 that restricted High Court investigations to those "involving Spanish victims, suspects who are in Spain, or some other obvious link with Spain". The judicial rules in place in Spain before passed this law had irritated many other countries such as Israel, who's officials had faced possible prosecution.[32]

 Suriname Constitution of Suriname of 1987: Chapter IV: International principles:Article 7.4.[2]
 Sweden Article 169 of the' Lagboken (Act of 20 March 1963).[2] In Sweden genocide was criminalized in 1964. According to the Swedish law any act intended to destroy, in whole or in part, a national, ethnic, racial or religious group, as such, and which is punished according to the criminal act is punished as genocide and carries a penalty from 4 years to life sentence. The Swedish legislation simply noticed that any severe common crime which is committed in order to destroy an ethnic group can be considered genocide, no matter what specific crime it is. Also intent, preparation or conspiring to genocide, and also failure to reveal such a crime is punishable as specified in penal code chapter 23, which is applicable to all crimes.[33]
  Switzerland Article 264 of the Penal Code.[2]
 Tajikistan Crimes Against the Peace and Security of Mankind.[2]
 Tonga Genocide Act, 1969.[2]
 Trinidad and Tobago Genocide Act, 1977.[2]
 Tuvalu Article 52 (Genocide) of the Penal Code.[2]
 Ukraine Article 442 on Genocide, of Criminal Code.[2]
 United Kingdom The Genocide Act 1969,[34] superseded by the International Criminal Court Act 2001.[2] The United Kingdom has incorporated the International Criminal Court Act into domestic law. It was not retroactive so it applies only to events after May 2001 and genocide charges can be filed only against British nationals and residents. According to Peter Carter QC, chairman of the Bar's human rights committee[35] "It means that British mercenaries who support regimes that commit war crimes can expect prosecution".[21] The Coroners and Justice Act 2009, altered the ICC ACT so that prosecutions could be taken against anyone in the UK from January 1991 — The date from which the International Criminal Tribunal for the former Yugoslavia had jurisdiction to try offences under the Tribunal’s Statute adopted by the United Nations Security Council.[36]
 United States Chapter 50A of the United States Code.[2] United States federal law recognizes the crime of genocide where it was committed within the U.S. or by a national of the U.S. (18 U.S.C. § 1091). A person found guilty of genocide can face the death penalty or life imprisonment. Persons found guilty of genocide may be denied entry or deported from the U.S. (8 U.S.C. § 1101, § 1182, § 1227).

References and notes

  1. ↑ Convention on the Prevention and Punishment of the Crime of Genocide
  2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 The Crime of Genocide in Domestic Laws and Penal Codes website of prevent genocide international.
  3. ↑ Belgium: Universal Jurisdiction Law Repealed web page on Human Rights Watch August 1, 2003
  4. ↑ The Case Against The Accused (Ariel Sharon, former Israeli defense minister and Israel's prime minister in 2001, as well as other Israelis and Lebanese), indictsharon.net – The website of the International Campaign for Justice for the Victims of Sabra & Shatila
  5. 1 2 The complaint against Ariel Sharon Lodged in Belgium on 18 June 2001
  6. ↑ Chibli Mallat, Michael Verhaeghe, Luc Walleyn and Laurie King-Irani The February 2003 Decision of the Belgian Supreme Court Explained on the website of indictsharon.net, 19 February 2003
  7. ↑ Andrew Osbor Sharon cannot be tried in Belgium, says court, The Guardian, 15 February 2002
  8. ↑ Luc Walleyn, Michael Verhaeghe, Chibli Mallat. Statement of the Lawyers for the Survivors of Sabra and Shatila in reaction to the Belgian Justice Ministry's decision to start the procedure of transferring the case to Israel 15 June 2003.
  9. ↑ Staff. Brazilian Justice Acquits Man Sentenced for 1988 Massacre of Indians, Brazzil Magazine 12 November 2004. Cites as its source Cimi – Indianist Missionary Council
  10. 1 2 Supreme Court upholds genocide ruling, Survival International 4 August 2006
  11. ↑ "Federal Court is competent to judge the Haximu genocide". Indianist Missionary Council.
  12. ↑ Staff. Burundi approves genocide law BBC 16 April 2003
  13. 1 2 3 4 Naomi Klein. The Shock Doctrine: The Rise of Disaster Capitalism, Macmillan, 2007 ISBN 0-8050-7983-1, ISBN 978-0-8050-7983-8. p. 101, see footnote
  14. ↑ Finnish Criminal Code, Chapter 11, Sections 6-8 on Genocide, Preparation for Genocide and Ethnic Agitation
  15. ↑ Universal jurisdiction in the European Union PDF (926 KiB) published by The Redress Trust Registered Charity Number 1015787, A Limited Company in England Number 2274071
  16. ↑ "Ruandalaispastorille elinkautinen joukkotuhonnasta". Yle Uutiset (in Finnish). 2012-03-30.
  17. ↑ "?". TRIAL (Track Impunity Always). Archived from the original on October 12, 2007.
  18. ↑ "Prosecutor v. Radislav Krstic - Trial Chamber I - Judgment - IT-98-33 (2001) ICTY8 (2 August 2001)], The International Criminal Tribunal for the Former Yugoslavia, paragraph 589. citing Bavarian Appeals Court, Novislav Djajic case, 23 May 1997, 3 St 20/96, section VI, p. 24 of the English translation".
  19. ↑ Oberlandesgericht Dusseldorf, "Public Prosecutor v Jorgic", 26 September 1997 (Trial Watch Nikola Jorgic)
  20. ↑ Trial Watch Maksim Sokolovic
  21. 1 2 Dutch court says gassing of Iraqi Kurds was 'genocide' by Anne Penketh and Robert Verkaik in The Independent December 24, 2005
  22. ↑ Dutch man sentenced for role in gassing death of Kurds CBC December 23, 2005
  23. ↑ Wilson, Richard Spanish Criminal Prosecutions Use International Human Rights Law to Battle Impunity in Chile and Argentina KO'AGA ROÑE'ETA se.iii (1996) - Article originally published in ACLU Int'l Civil Liberties Report, Jan. 1997. See footnote 14
  24. ↑ Spanish Judge Sends Argentine to Prison on Genocide Charge by Emma Daly New York Times 30 June 2003.
  25. ↑ Profile: Judge Baltasar Garzon BBC 26 September 2005
  26. ↑ Jason Webb, Spain to extradite "Dirty War" Argentine officer, Reuters, 29 February 2008
  27. ↑ Spain authorizes Cavallo's extradition to Argentina, People's Daily, 1 March 2008 cites Xinhua
  28. ↑ Spain judge charges ex-generals in Guatemala genocide case, Jurist, July 8, 2006.
  29. ↑ Spanish courts to investigate if a genocide took place in Tibet.
  30. ↑ World in Brief: Lawyers take China to court in The Times, 7 June 2006
  31. ↑ Alexa Olesen China rejects Spain's 'genocide' claims in The Independent 7 June 2006
  32. ↑ "Spanish court shelves Tibet human rights case against China". Madrid: phayul.com. Deutsche Presse-Agentur. 2010-02-26. Retrieved 2010-09-06.
  33. ↑ Sverige Lagboken (Sweden) § 169 folkmord Prevent Genocide International
  34. ↑ Frank Chalk: The United Kingdom Genocide Act of 1969: Origins and Significance
  35. ↑ Bar Human Rights Committee "is the international human rights arm of the Bar of England and Wales. It is an independent body primarily concerned with the protection of the rights of advocates and judges around the world."
  36. ↑ UK: As originally enacted, the ICC Act 2001 presented two loopholes . First, those involved in the genocide in Rwanda and atrocities in the Former Yugoslavia could not be prosecuted, as the crimes happened before 2001. Second, the law applied only to people who were legally defined as resident in the UK, i.e.it did not apply to anyone on student, business, tourist, academic or skilled / domestic worker visas, or anyone who has been refused asylum under Article 1F(a) of the Refugee Convention but who cannot be returned home for fear of persecution. The Coroners and Justice Act 2009 s.70 amends the ICC Act 2001, and it closes these two loopholes (by adding s.65A and s.67A to the ICC Act). It gives jurisdiction from 1 January 1991, which is the date from which the International Criminal Tribunal for the former Yugoslavia had jurisdiction to try offences under the Tribunal’s Statute adopted by the United Nations Security Council. The law has also been extended to cover the categories of persons not legally resident set out above (http://www.aegistrust.org/Parliamentary-work/no-safe-haven-gaps-in-uk-law-on-international-crimes.html No safe haven: gaps in UK law on international crimes], Aegis Trust, Accessed 18 March 2010).
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