The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot

Yale Law Journal

Volumn 106, Issue 7, 1997, Pages 2259-2290

  Van Schaack, Beth ^a  

^a NONE

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EID: 0041336490     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797169     Document Type: Review

References (226)

1. In the aftermath of World War II, the Allied nations established the United Nations and convened the Nuremberg and Tokyo Tribunals in an effort to create an international regime that would restrain aggression and the use of force, protect individuals from governmental atrocities, and ensure world peace. The tribunals, which were empowered to prosecute perpetrators of war crimes, crimes against the peace, and crimes against humanity, held out the promise that individuals would henceforth be held accountable before the international community for their acts of aggression and their crimes against humanity: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." International Military Tribunal (Nuremberg), Judgment and Sentences, Oct. 1, 1946, reprinted in 41 AM. J. INT'L L. 172, 221 (1947).
2. After the dissolution of the two ad hoc tribunals, the international community failed to "create structures in international society that would ensure that [the Nuremberg P]rinciples were not mere rhetoric but were operative upon behavior in times of peace as well as in the aftermath of military defeat." RICHARD FALK, REVITALIZING INTERNATIONAL LAW 224 (1989).
3. See Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991, U.N. Doc. S/25704, Annex, reprinted in 32 I.L.M. 1192 (1994) [hereinafter Yugoslav Statute]; S.C. Res. 827, U.N. SCOR, 3217th mtg. U.N. Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1203 (1994) (adopting Yugoslav Statute).
4. See Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia Since 1991, U.N. Doc. S/25704, Annex, reprinted in 32 I.L.M. 1192 (1994) [hereinafter Yugoslav Statute]; S.C. Res. 827, U.N. SCOR, 3217th mtg. U.N. Doc. S/RES/827 (1993), reprinted in 32 I.L.M. 1203 (1994) (adopting Yugoslav Statute).
5. See Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, S.C. Res. 955, U.N. SCOR, 3453d mtg. at 3, U.N. Doc. S/RES/955, Annex (1994), reprinted in 33 I.L.M. 1598, 1602 (1994) [hereinafter Rwandan Statute]. The establishment of the two tribunals under the Security Council's Chapter VII powers, which are activated when the Council determines "the existence of any threat to the peace, breach of the peace, or act of aggression," marked the alleviation of the Cold War paralysis that had for years beset the Council. U.N. CHARTER art. 39.
6. Pub. L. No. 103-236, § 572(a), 108 Stat. 486, 486-87 (1994). The Act authorizes, inter alia, the establishment of the Office of Cambodian Genocide Investigation to "develop the United States proposal for the establishment of an international criminal tribunal for the prosecution of those accused of genocide in Cambodia." Id. § 573(b)(4).
7. See General Assembly Establishes Preparatory Committee to Draft Convention for International Criminal Court, FEDERAL NEWS SERV., Dec. 12, 1995, available in LEXIS, News Library, FNS File. It is anticipated that the draft statute will be complete in 1998. See Lauren Comiteau, UN Plans to Create World Criminal Court, CHRISTIAN SCI. MONITOR, Dec. 31, 1996, at 7.
8. See General Assembly Establishes Preparatory Committee to Draft Convention for International Criminal Court, FEDERAL NEWS SERV., Dec. 12, 1995, available in LEXIS, News Library, FNS File. It is anticipated that the draft statute will be complete in 1998. See Lauren Comiteau, UN Plans to Create World Criminal Court, CHRISTIAN SCI. MONITOR, Dec. 31, 1996, at 7.
9. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951) [hereinafter Genocide Convention].
10. Israeli U.N. Delegation Concerned over International Criminal Court Proposal, JERUSALEM POST, Aug. 13, 1996, at 12.
11. See Genocide Convention, supra note 7, art. I, 78 U.N.T.S. at 280. Article II of the Genocide Convention reads in full: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical [sic], racial or religious group, as such: (a) Killing 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 births within the group; (e) Forcibly transferring children of the group to another group. Id. art. II, 78 U.N.T.S. at 280.
12. See Terence Duffy, Toward a Culture of Human Rights in Cambodia, 16 HUM. RTS. Q. 82, 83 (1994) ("For the world community, the very mention of Cambodia has become synonymous with genocide."); see, e.g., Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Pub. L. No. 100-204, § 906, reprinted in 27 I.L.M. 715, 756 (1988) ("[T]he persecution of the Cambodian people under the Khmer Rouge rule, [when] the bulk of the Khmer people were subjected to life in an Asian Auschwitz, constituted one of the clearest examples of genocide in recent history.").
13. See Terence Duffy, Toward a Culture of Human Rights in Cambodia, 16 HUM. RTS. Q. 82, 83 (1994) ("For the world community, the very mention of Cambodia has become synonymous with genocide."); see, e.g., Foreign Relations Authorization Act, Fiscal Years 1988 and 1989, Pub. L. No. 100-204, § 906, reprinted in 27 I.L.M. 715, 756 (1988) ("[T]he persecution of the Cambodian people under the Khmer Rouge rule, [when] the bulk of the Khmer people were subjected to life in an Asian Auschwitz, constituted one of the clearest examples of genocide in recent history.").
14. See discussion infra Section III.C.
15. The Genocide Convention's exclusion of political groups was one of the obstacles to its ratification by the United States. See 132 CONG. REC. S1355 (daily ed. Feb. 19, 1986) (statement of Sen. Symms) (indicating that treaty as written "turns our backs" on genocide in Cambodia).
16. This Note selects Cambodia as a representative case for understanding the limitations of the Genocide Convention for several reasons: The atrocities of the Khmer Rouge are historically well-documented and widely assumed to be genocide; a determination of liability for genocide is immediately pressing given the enactment of the Cambodia Genocide Justice Act; and some of the atrocities in Cambodia do coincide with the Convention's definition, which demonstrates the disparate results that would obtain for perpetrators and victims alike were such a trial to be held. The arguments for recognizing political genocide are equally applicable to the massacres in Indonesia, Uganda, Stalinist USSR, and Equatorial Guinea, and some of the killings in Rwanda. See LEO KUPER, THE PREVENTION OF GENOCIDE 126-47 (1985) (discussing case studies). In none of these countries, however, is there as developed an effort to prosecute the crimes of the prior regime as is occurring in Cambodia. On current efforts to prosecute political genocide in Ethiopia, see discussion infra note 140.
17. Under international treaty law doctrine, jus cogens norms constrain the substance of treaties, because these norms cannot be "opted out of." Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 331, 344 [hereinafter Vienna Convention]. For a more detailed discussion of the concept of jus cogens, see discussion infra Section III.A.
18. For more on these sources, see discussion infra Section III.D.
19. See discussion infra Section III.C.
20. This approach should be adopted by, inter alia, the International Criminal Tribunal for Rwanda when it considers acts of genocide perpetrated against "moderate Hutus," by an international or domestic tribunal inspired by the Cambodia Genocide Justice Act to try members of the Khmer Rouge, and by the impending International Criminal Court when confronted with individuals accused of political genocide.
21. Louis René Beres, Justice and Realpolitik: International Law and the Prevention of Genocide, 33 AM. J. JURIS. 123, 124 (1988) (misquoting the Genocide Convention).
22. WARREN FREEDMAN, GENOCIDE: A PEOPLE'S WILL TO LIVE 11 (1992) (quoting Winston Churchill).
23. The term is derived from the Greek word genos (race, tribe) and the Latin word caedo (to kill).
24. See RAPHAEL LEMKIN, AXIS RULE IN OCCUPIED EUROPE 79 (1944).
25. 1 TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL 43-44 (1947). Although the indictment does not mention political groups as such, it does mention "classes of people," in contrast to the Genocide Convention, and clearly designates an expansive view of protected human collectivities. Furthermore, the subsequent and unanimous United Nations resolution explicitly denotes political groups in its classification of genocide. See infra text accompanying note 25.
26. See Raphael Lemkin, Current Note, Genocide as a Crime Under International Law, 41 AM. J. INT'L L. 145 (1947); see also Matthew Lippman, The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty-Five Years Later, 8 TEMP. INT'L & COMP. L.J. 1, 3-4 (1994) (describing Lemkin's invention of "genocide" neologism). Some members of the committee that was convened to draft the Convention resisted this effort on the ground that the crime was already prohibited by customary international law. The United Kingdom delegate argued that codification was appropriate only where the law was uncertain, and "if a Convention were drawn up, it was quite conceivable that not all states would adhere to it, and that would cast doubts on an already recognized principle Genocide was already a crime under international law. A convention on the matter would weaken the principle rather than strengthen it." U.N. GAOR 6th Comm., 2d Sess., 39th mtg. at 20-21 (1948).
27. See Raphael Lemkin, Current Note, Genocide as a Crime Under International Law, 41 AM. J. INT'L L. 145 (1947); see also Matthew Lippman, The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty-Five Years Later, 8 TEMP. INT'L & COMP. L.J. 1, 3-4 (1994) (describing Lemkin's invention of "genocide" neologism). Some members of the committee that was convened to draft the Convention resisted this effort on the ground that the crime was already prohibited by customary international law. The United Kingdom delegate argued that codification was appropriate only where the law was uncertain, and "if a Convention were drawn up, it was quite conceivable that not all states would adhere to it, and that would cast doubts on an already recognized principle Genocide was already a crime under international law. A convention on the matter would weaken the principle rather than strengthen it." U.N. GAOR 6th Comm., 2d Sess., 39th mtg. at 20-21 (1948).
28. See Legal and Administrative Decisions, UNITED NATIONS WKLY. BULL., Dec. 31, 1946, at 17, 18.
29. G.A. Res. 96, 1 GAOR, 1st Sess., 55th mtg. at 188-89, U.N. Doc. A/64/Add. 1 (1947) (first and third emphases added).
30. The Ad Hoc Committee was composed of seven members: China, France, Poland, the Union of Soviet Socialist Republics, the United States, Lebanon, and Venezuela.
31. Draft Convention on Genocide, U.N. GAOR 6th Comm., 2d Sess., Annex 3, at 214-15, U.N. Doc. A/362 (1947) (emphasis added) [hereinafter Draft Convention on Genocide].
32. The others were the prohibition of "cultural genocide" and the reference to an international tribunal.
33. U.N. GAOR 6th Comm., 3d Sess., 63d mtg. at 6 (1948). For example, the Egyptian delegation argued that it would be "dangerous" to extend protection to political groups "in view of the frequent and inevitable changes of political opinion." Id. at 7. Quotations attributed to delegates at the drafting meetings are derived from the summarizations of their testimony that appear in the official records of the third session of the General Assembly.
34. Id., 64th mtg. at 19.
35. Id., 69th mtg. at 56.
36. Id., 74th mtg. at 100.
37. See id., 69th mtg. at 60 ("[I]n certain States, the ruling political parties would insist that [political groups] possessed an existence as stable as some religious or racial groups.").
38. Id.
39. Id., 75th mtg. at 114.
40. Id., 74th mtg. at 103.
41. Id. at 108.
42. Id. at 101.
43. Id.
44. See Draft Convention on Genocide, supra note 27, art. VII, at 214-15 ("The High Contracting Parties pledge themselves to punish any offendor under this Convention within any territory under their jurisdiction, irrespective of the nationality of the offendor or the place where the offence has been committed.").
45. The Convention now reads: "Persons charged with genocide . . . 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 . . . ." Genocide Convention, supra note 7, art. VI, 78 U.N.T.S. at 280.
46. U.N. GAOR 6th Comm., 3d Sess., 100th mtg. at 403 (1948).
47. According to testimony by the Egyptian delegate, "[i]t would be very dangerous if statesmen could be tried by the courts of countries with a political ideology different from that of their own country." Id. at 398. To counter the apprehension about scurrilous charges of genocide, the Ecuadorian delegate reminded the Committee that, "[a]ny penal provision might give rise to slanderous accusations; it was the duty of the law courts to examine and reject such accusations." Id., 74th mtg. at 101.
48. The Iranian delegate argued that international law and order which the Committee was trying to establish must be based upon a universal conception of justice. . . . [Genocide] involved not only the law and order of the State on whose territory the crime was committed, but also the law and order of all the States constituting the family of nations. Id., 100th mtg. at 396.
49. Id., 69th mtg. at 58.
50. Id., 74th mtg. at 99.
51. Id., 65th mtg. at 21. In response, another delegate wryly countered that, "[u]nless a State was determined to eliminate certain groups because of their political convictions, it would not object to adhering to the convention." Id., 69th mtg. at 61.
52. See id., 128th mtg. at 661-63.
53. Id. at 662.
54. Id.
55. Id., 129th mtg. at 667.
56. See id. at 669.
57. To this, the United States delegation added: The United States delegation had spared no effort to obtain unanimous approval for the convention on genocide. It was for that reason that it had agreed to the omission of political groups among the groups to be protected by the convention; and the abstention of the Soviet Union and certain other States when the vote was taken (128th meeting) had come as a surprise. Id., 133d mtg. at 704.
58. See RONALD DWORKIN, LAW'S EMPIRE 179-80 (1986) (coining term).
59. See infra note 93 (discussing sources of international law).
60. See LEO KUPER, GENOCIDE: ITS POLITICAL USE IN THE TWENTIETH CENTURY 146-50 (1981) (describing these purges).
61. See KURT GLASER & STEFAN T. POSSONY, VICTIMS OF POLITICS 38-39 (1979) ("Through the dropping of political groups from the victim list, the most severe form of discrimination currently practiced is, in effect, tolerated and, in a sense, 'legalized' by omission.").
62. Even though the Convention purports to secure the prospective prevention and punishment of the crime of genocide, it is in effect only a "registration of protest against past misdeeds of individual or collective savagery." L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE 751 (H. Lauterpacht ed., 8th ed. 1955).
63. See BEN KIERNAN, THE POL POT REGIME: RACE, POWER, AND GENOCIDE IN CAMBODIA UNDER THE KHMER ROUGE, 1975-79, at 34 (1996).
64. See ELIZABETH BECKER, WHEN THE WAR WAS OVER 19-36 (1986).
65. FRANÇOIS PONCHAUD, CAMBODIA YEAR ZERO 214-15 (Nancy Amphoux trans., Allen Lane 1978) (1977).
66. Karl D. Jackson, The Khmer Rouge in Context, in CAMBODIA, 1975-1978: RENDEZVOUS WITH DEATH 3, 3 (Karl D. Jackson ed., 1989).
67. For a detailed account of the Khmer Rouge era, see generally BECKER, supra note 60; CAMBODIA, 1975-1978: RENDEZVOUS WITH DEATH, supra note 62; DAVID P. CHANDLER, THE TRAGEDY OF CAMBODIAN HISTORY (1991); DAVID P. CHANDLER ET AL., POL POT PLANS FOR THE FUTURE: CONFIDENTIAL LEADERSHIP DOCUMENTS FROM DEMOCRATIC KAMPUCHEA (1988) [hereinafter CHANDLER, LEADERSHIP DOCUMENTS]; and KIERNAN, supra note 59.
68. For a detailed account of the Khmer Rouge era, see generally BECKER, supra note 60; CAMBODIA, 1975-1978: RENDEZVOUS WITH DEATH, supra note 62; DAVID P. CHANDLER, THE TRAGEDY OF CAMBODIAN HISTORY (1991); DAVID P. CHANDLER ET AL., POL POT PLANS FOR THE FUTURE: CONFIDENTIAL LEADERSHIP DOCUMENTS FROM DEMOCRATIC KAMPUCHEA (1988) [hereinafter CHANDLER, LEADERSHIP DOCUMENTS]; and KIERNAN, supra note 59.
69. For a detailed account of the Khmer Rouge era, see generally BECKER, supra note 60; CAMBODIA, 1975-1978: RENDEZVOUS WITH DEATH, supra note 62; DAVID P. CHANDLER, THE TRAGEDY OF CAMBODIAN HISTORY (1991); DAVID P. CHANDLER ET AL., POL POT PLANS FOR THE FUTURE: CONFIDENTIAL LEADERSHIP DOCUMENTS FROM DEMOCRATIC KAMPUCHEA (1988) [hereinafter CHANDLER, LEADERSHIP DOCUMENTS]; and KIERNAN, supra note 59.
70. See Serge Thion, Genocide as a Political Commodity, in GENOCIDE AND DEMOCRACY IN CAMBODIA 163, 166 (Ben Kiernan ed., 1993).
71. See KIERNAN, supra note 59, at 45; Kenneth M. Quinn, The Pattern and Scope of Violence, in CAMBODIA: 1975-1978: RENDEZVOUS WITH DEATH, supra note 62, at 179, 184-86.
72. See BECKER, supra note 60, at 205.
73. See Karl D. Jackson, The Ideology of Total Revolution, in CAMBODIA, 1975-1978: RENDEZVOUS WITH DEATH, supra note 62, at 37, 51.
74. BECKER, supra note 60, at 253.
75. Hurst Hannum, International Law and Cambodian Genocide: The Sounds of Silence, 11 HUM. RTS. Q. 82, 85 (1989).
76. BECKER, supra note 60, at 253 (quoting Khmer Rouge propaganda).
77. See generally KIERNAN, supra note 59, at 251-309.
78. FRANK CHALK & KURT JONASSOHN, THE HISTORY AND SOCIOLOGY OF GENOCIDE 404 (1990).
79. See Duffy, supra note 10, at 88; Quinn, supra note 65, at 194-95. See generally Report of Activities of the Party Center According to the General Political Tasks of 1976, in CHANDLER, LEADERSHIP DOCUMENTS, supra note 63, at 177 (quoting speech, probably by Pol Pot, describing Khmer Rouge party as riddled with traitors).
80. See CHANDLER, LEADERSHIP DOCUMENTS, supra note 63, at xii; David Hawk, The Photographic Record, in CAMBODIA 1975-1978: RENDEZVOUS WITH DEATH, supra note 62, at 209, 210.
81. See CHANDLER, LEADERSHIP DOCUMENTS, supra note 63, at xii; David Hawk, The Photographic Record, in CAMBODIA 1975-1978: RENDEZVOUS WITH DEATH, supra note 62, at 209, 210.
82. Hawk, supra note 74, at 210.
83. See Quinn, supra note 65, at 198.
84. See supra note 10 (discussing examples).
85. No internationally recognized trial of the Khmer Rouge has been conducted to date. Almost immediately alter seizing power in 1979, the People's Republic of Kampuchea established the People's Revolutionary Tribunal to try Pol Pot and Ieng Sary for genocide. The trial was conducted in absentia "with reference to" the Genocide Convention and pursuant to Decree No. 1 of July 15, 1979, which defined genocide at Article 1 as "[p]lanned mass killing of innocent people, forced evacuation of the population from cities and villages, concentration of the population and forcing them to work in physically and morally exhausting conditions, abolition of religion, destruction of economic and cultural structures and of familial and social relations." See PEOPLE'S REVOLUTIONARY TRIBUNAL HELD IN PHNOM PENH FOR THE TRIAL OF THE GENOCIDE CRIME OF THE POL POT-IENG SARY CLIQUE, at I-35 (1988).
86. Lori Lyman Bruun, Beyond the 1948 Convention - Emerging Principles of Genocide in Customary International Law, 17 MD. J. INT'L L. & TRADE 193, 211-12 (1993) (arguing that customary law of humanitarian intervention allows for states to defend groups subjected to genocide).
87. See Theodor Meron, On a Hierarchy of International Human Rights, 80 AM. J. INT'L L. 1, 3-4 (1986).
88. The Vienna Convention provides a set of rules for the interpretation of treaties, and it is widely accepted that the Convention codifies customary international law. See LOUIS HENKIN ET AL., INTERNATIONAL LAW: CASES AND MATERIALS 387 (2d ed. 1987).
89. Vienna Convention, supra note 14, 1155 U.N.T.S. at 344. In other words, "any act or treaty that conflicts with a jus cogens norm is void - such a conflicting document does not legally exist." Karen Parker & Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 HASTINGS INT'L & COMP. L. REV. 411, 451 (1989). This concept is related to the municipal law maxim: Ius publicum privatorum pactis mutari non potest ("public law cannot be altered by a private contract"). See Alfred P. Rubin, Recueil des Cours de l'Académie de Droit International de La Haye, 81 AM. J. INT'L L. 254, 254 (1987) (book review).
90. Vienna Convention, supra note 14, 1155 U.N.T.S. at 344. In other words, "any act or treaty that conflicts with a jus cogens norm is void - such a conflicting document does not legally exist." Karen Parker & Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human Rights, 12 HASTINGS INT'L & COMP. L. REV. 411, 451 (1989). This concept is related to the municipal law maxim: Ius publicum privatorum pactis mutari non potest ("public law cannot be altered by a private contract"). See Alfred P. Rubin, Recueil des Cours de l'Académie de Droit International de La Haye, 81 AM. J. INT'L L. 254, 254 (1987) (book review).
91. Parker & Neylon, supra note 82, at 416 n.21 (citing ENCYCLOPAEDIC DICTIONARY OF INTERNATIONAL LAW 201 (C. Parry ed., 1986) (quoting G. SCHWARZENBERGER, INTERNATIONAL LAW AND ORDER 5 (1971))).
92. Parker & Neylon, supra note 82, at 416 n.21 (citing ENCYCLOPAEDIC DICTIONARY OF INTERNATIONAL LAW 201 (C. Parry ed., 1986) (quoting G. SCHWARZENBERGER, INTERNATIONAL LAW AND ORDER 5 (1971))).
93. See Alfred von Verdross, Forbidden Treaties in International Law, 31 AM. J. INT'L L. 571 (1937); see, e.g., 9 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 [hereinafter CONTROL COUNCIL No. 10 TRIALS], at 1327, 1395 (U.S. v. Krupp) (1950) (voiding agreement authorizing use of POWs in armament industry as contrary to law of nations). Like jus cogens norms, the U.N. Charter may also limit the subject matter or application of subsequent treaty provisions. According to Article 103, obligations under the Charter prevail over contrary preexisting treaty obligations. See U.N. CHARTER art. 103; see, e.g., Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), 1992 I.C.J. 114, 126 (Apr. 14) (Request for the Indication of Provisional Measures) (finding that Libya's obligations under Security Council Resolution 748 overrode its obligations under Montreal Convention).
94. See Alfred von Verdross, Forbidden Treaties in International Law, 31 AM. J. INT'L L. 571 (1937); see, e.g., 9 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. 10 [hereinafter CONTROL COUNCIL No. 10 TRIALS], at 1327, 1395 (U.S. v. Krupp) (1950) (voiding agreement authorizing use of POWs in armament industry as contrary to law of nations). Like jus cogens norms, the U.N. Charter may also limit the subject matter or application of subsequent treaty provisions. According to Article 103, obligations under the Charter prevail over contrary preexisting treaty obligations. See U.N. CHARTER art. 103; see, e.g., Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), 1992 I.C.J. 114, 126 (Apr. 14) (Request for the Indication of Provisional Measures) (finding that Libya's obligations under Security Council Resolution 748 overrode its obligations under Montreal Convention).
95. See A. Mark Weisburd, The Emptiness of the Concept of Jus Cogens, As Illustrated by the War in Bosnia-Herzegovina, 17 MICH. J. INT'L L. 1, 19 (1995).
96. Parker & Neylon, supra note 82, at 415 (quoting U.N. Conference on the Law of Treaties, 1st & 2d Sess., Vienna, Mar. 26-May 24, 1968, U.N. Doc. A/CONF./39/11/Add.2 (1971) (statement of Mr. Fattal (Lebanon))); see also Stefan A. Riesenfeld, Comment, Jus Dispositivum and Jus Cogens in International Law: In the Light of a Recent Decision of the German Supreme Constitutional Court, 60 AM. J. INT'L L. 511, 513 (1966) (quoting German Supreme Constitutional Court, which held that jus cogens norms are "those norms that are indispensable to the existence of the law of nations as an international legal order").
97. See Princz v. Federal Republic of Germany, 26 F.3d 1166, 1180 (D.C. Cir. 1994) (Wald, J., dissenting) ("Jus cogens norms are a select and narrow subset of the norms recognized as customary international law. Sitting atop the hierarchy of international law, jus cogens norms enjoy the greatest clout, preempting both conflicting treaties and customary international law.") (citations omitted); see also Barcelona Traction, Light & Power Co. (Belgium v. Spain), 1970 I.C.J. 4, 32 (Feb. 5) (holding that right of state to intervene on behalf of national shareholders does not constitute jus cogens norm along with prohibition of genocide). For example, the German Supreme Constitutional Court rejected a claim that the principle that foreigners cannot be compelled to contribute to the raising of war revenue represented a jus cogens norm that would an void international agreement, because [o]nly a few elementary legal mandates may be considered to be rules of customary international law which cannot be stipulated away by treaty. The quality of such peremptory norms may be attributed only to such legal rules as are firmly rooted in the legal conviction of the community of nations and are indispensable to the existence of the law of nations. Riesenfeld, supra note 86, at 513 (quoting Bundesverfassungsgericht [BVerfGE] 18, 441 (448) (1965)).
98. Alfred Verdross, Jus Dispositivum and Jus Cogens in International Law, 60 AM. J. INT'L L. 55, 58 (1966).
99. In drafting the Vienna Convention on the Law of Treaties, the International Law Commission did not specify particular norms as jus cogens norms, but left the content to later development. It did, however, suggest a few norms, one of which was the prohibition of genocide. See Report of the Commission to the General Assembly, 2 Y.B. INT'L L. COMM. 187, 198-99 (1963); see also Craig Scott et al., A Memorial for Bosnia: Framework of Legal Arguments Concerning the Lawfulness of the Maintenance of the United Nations Security Council's Arms Embargo on Bosnia and Herzegovina, 16 MICH. J. INT'L L. 1, 28 (1994) ("The prohibition against genocide, as one of the most established of peremptory norms, represents the wish of the collective legal and moral conscience to condemn and suppress an act which is the antithesis of coexistence. . . . [Genocide] undermines the international system itself by systematically destroying its constituent parts.").
100. In drafting the Vienna Convention on the Law of Treaties, the International Law Commission did not specify particular norms as jus cogens norms, but left the content to later development. It did, however, suggest a few norms, one of which was the prohibition of genocide. See Report of the Commission to the General Assembly, 2 Y.B. INT'L L. COMM. 187, 198-99 (1963); see also Craig Scott et al., A Memorial for Bosnia: Framework of Legal Arguments Concerning the Lawfulness of the Maintenance of the United Nations Security Council's Arms Embargo on Bosnia and Herzegovina, 16 MICH. J. INT'L L. 1, 28 (1994) ("The prohibition against genocide, as one of the most established of peremptory norms, represents the wish of the collective legal and moral conscience to condemn and suppress an act which is the antithesis of coexistence. . . . [Genocide] undermines the international system itself by systematically destroying its constituent parts.").
101. Advisory Opinion, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28).
102. Id.
103. The I.C.J. reaffirmed this position in Barcelona Traction, 1970 I.C.J. at 32 (stating that erga omnes obligations derive in contemporary international law "from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination").
104. According to Article 38(1) of the Statute of the International Court of Justice, the following constitute sources of international law: international conventions and treaties, custom (general practice accepted as law (opinio juris)), and general principles of law. Judicial decisions and the writings of jurists constitute subsidary sources. See STATUTE OF THE INTERNATIONAL COURT OF JUSTICE art. 38(1), 59 Stat. 1055, 1060 (1945).
105. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27) (Merits). The Court's application of this principle to the facts of the case has drawn some criticism. According to Judge Jennings in dissent, the Court simply ignored the U.S. treaty reservation, applied the treaty provisions, and called the latter "customary law." Id. at 532 (Jennings, J., dissenting). Commentators have argued that the Court conducted a diminished investigation of the elements of general customary law: state practice and opinio juris. See, e.g., Jonathan I. Charney, International Agreements and the Development of Customary International Law, 61 WASH. L. REV. 971, 977 (1986). At the same time, it has been observed that in humanitarian law, courts tend to look more to opinio juris than to state practice to affirm the content of a particular norm. See Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 AM. J. INT'L L. 238, 239 (1996); see, e.g., Prosecutor v. Tadić, Case No. IT-94-1-AR72, Appeal on Jurisdiction (Appeals Chamber, Int'l Crim. Trib. Former Yugo., Oct. 2, 1995), reprinted in 35 I.L.M. 32, 55-68 (1996) (relying on verbal evidence, such as statements, resolutions and declarations from states, rather than actual state practice, to determine customary law of armed conflict).
106. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27) (Merits). The Court's application of this principle to the facts of the case has drawn some criticism. According to Judge Jennings in dissent, the Court simply ignored the U.S. treaty reservation, applied the treaty provisions, and called the latter "customary law." Id. at 532 (Jennings, J., dissenting). Commentators have argued that the Court conducted a diminished investigation of the elements of general customary law: state practice and opinio juris. See, e.g., Jonathan I. Charney, International Agreements and the Development of Customary International Law, 61 WASH. L. REV. 971, 977 (1986). At the same time, it has been observed that in humanitarian law, courts tend to look more to opinio juris than to state practice to affirm the content of a particular norm. See Theodor Meron, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 AM. J. INT'L L. 238, 239 (1996); see, e.g., Prosecutor v. Tadić, Case No. IT-94-1-AR72, Appeal on Jurisdiction (Appeals Chamber, Int'l Crim. Trib. Former Yugo., Oct. 2, 1995), reprinted in 35 I.L.M. 32, 55-68 (1996) (relying on verbal evidence, such as statements, resolutions and declarations from states, rather than actual state practice, to determine customary law of armed conflict).
107. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1984 I.C.J. 392, 424 (Nov. 26) (Jurisdiction of the Court and Admissibility of the Application), reprinted in 24 I.L.M. 59 (1985).
108. Military and Paramilitary Activities, 1986 I.C.J. at 95.
109. In this way, the essential significance of a norm's customary character under international law is that the norm binds even those states that are not parties to a pertinent codifying instrument or convention, e.g., the Genocide Convention. Indeed, with respect to the bases of obligation under international law, even where a customary norm and a norm restated in treaty form are apparently identical, the norms are treated as separate and discrete. Louis René Beres, After the Gulf War: Iraq, Genocide and International Law, 69 U. DET. MERCY L. REV. 13, 16 n.7 (1991).
110. Military and Paramilitary Activities, 1986 I.C.J. at 95. The implications of this are that a conventional rule may be "superseded" by a customary rule identical in content but "subject to different methods of interpretation and applicable when the treaty rule would not apply." Oscar Schachter, Entangled Treaty and Custom, in INTERNATIONAL LAW AT A TIME OF PERPLEXITY 717, 720 (Yoram Dinstein ed., 1989); see also Tadić, Case No. IT-94-1-AR72, at 63 (finding that "there exists a corpus of general principles and norms on internal conflict embracing common Article 3 [of the Geneva Conventions] but having a much greater scope").
111. Military and Paramilitary Activities, 1986 I.C.J. at 95. The implications of this are that a conventional rule may be "superseded" by a customary rule identical in content but "subject to different methods of interpretation and applicable when the treaty rule would not apply." Oscar Schachter, Entangled Treaty and Custom, in INTERNATIONAL LAW AT A TIME OF PERPLEXITY 717, 720 (Yoram Dinstein ed., 1989); see also Tadić, Case No. IT-94-1-AR72, at 63 (finding that "there exists a corpus of general principles and norms on internal conflict embracing common Article 3 [of the Geneva Conventions] but having a much greater scope").
112. See generally Schachter, supra note 98, at 727-28 (discussing interaction between treaty and customary law).
113. See generally Jonathan I. Charney, The Persistent Objector Rule and the Development of Customary International Law, 56 BRIT. Y.B. INT'L L. 1 (1985) (discussing persistent objector rule); Ted L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 HARV. INT'L L.J. 457 (1985) (same).
114. See generally Jonathan I. Charney, The Persistent Objector Rule and the Development of Customary International Law, 56 BRIT. Y.B. INT'L L. 1 (1985) (discussing persistent objector rule); Ted L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 HARV. INT'L L.J. 457 (1985) (same).
115. See Theodor Meron, The Geneva Conventions as Customary Law, 81 AM. J. INT'L L. 348, 349 (1987).
116. For example, the Israeli Supreme Court ruled that the Geneva Conventions were inapplicable to Israel's activities in the West Bank, because these instruments had not been incorporated into domestic law. See id. at 349 n.4.
117. Id. at 350. For example, to indicate the gravity of the norms involved, the I.C.J. in the Hostages Case noted that the international legal obligations violated by Iran were "not merely contractual obligations established by the Vienna Conventions of 1961 and 1963, but also obligations under general international law." United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, 31 (May 24).
118. Genocide Convention, supra note 7, art. I, 78 U.N.T.S. at 280. The General Assembly Resolution that preceded the Convention also recognized that customary law already prohibited genocide. "The General Assembly . . . affirms that genocide is a crime under international law . . . whether the crime is committed on religious, racial, political or any other grounds . . . ." G.A. Res. 96, 1 GAOR, 1st Sess., 55th mtg. at 188-89, U.N. Doc. A/64/Add. 1 (1947).
119. Vienna Convention, supra note 14, art. 26, 1155 U.N.T.S. at 339 (indicating that doctrine of pacta sunt servanda holds that "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith").
120. The I.C.J. observed in the Nicaragua case that "[a] State may accept a rule contained in a treaty not simply because it favours the application of the rule itself, but also because the treaty establishes what that State regards as desirable institutions or mechanisms to ensure implementation of the rule." Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 95 (June 27) (Merits). Even though customary law already governs a particular area of law, [a] convention may be useful in focusing the attention of national bodies on the subject, particularly in respect of any action which may have to be taken by them; it may also be helpful in clarifying and settling details required to implement the main principle, or more generally for the purpose of laying down a regime for dealing with the illegality in question. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 35 I.L.M. 809, 866 (1996) (Shahabuddeen, J., dissenting).
121. See Genocide Convention, supra note 7, art. V, 78 U.N.T.S. at 280 ("The Contracting Parties undertake to enact . . . the necessary legislation to give effect to the provisions of the present Convention and . . . to provide effective penalties for persons guilty of genocide . . . .").
122. See id. art. IX, 78 U.N.T.S. at 282 ("Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention . . . shall be submitted to the [I.C.J.] . . . .").
123. See id. art. VII, 78 U.N.T.S. at 282 ("Genocide . . . shall not be considered as [a] political crime[] for the purpose of extradition.").
124. UNITED NATIONS, ECONOMIC AND SOCIAL COUNCIL, AD HOC COMMITTEE ON GENOCIDE, RELATIONS BETWEEN THE CONVENTION ON GENOCIDE ON THE ONE HAND AND THE FORMULATION OF THE NURNBERG PRINCIPLES AND THE PREPARATION OF A DRAFT CODE OF OFFENCES AGAINST PEACE AND SECURITY ON THE OTHER 7, U.N. Doc. E/AC.25/3 (1948) (emphasis added).
125. See supra text accompanying note 41.
126. 11 CONTROL COUNCIL NO. 10 TRIALS, supra note 84, at 757, 1241 (U.S. v. List) (1949).
127. This principle is not new. According to Vattel, [w]hile the jurisdiction of each State is in general limited to punishing crimes committed in its territory, an exception must be made against those criminals who, by the character and frequency of their crimes, are a menace to public security everywhere and proclaim themselves enemies of the whole human race. Beres, supra note 18, at 141 (citing EMMERICH DE VATTEL, THE LAW OF NATIONS § 233 (1758)). The pirate was the original hostis humani generis, and the epithet now applies to the human rights violator. See Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980) ("[T]he torturer has become - like the pirate and slave trader before him - hostis humani generis, an enemy of all mankind.").
128. 36 I.L.R. 5 (D.C. Jm. 1961), aff'd, 36 I.L.R. 277 (S. Ct. Isr. 1962).
129. 36 I.L.R. at 299.
130. Id. at 298.
131. Id. at 304; see also Yoram Dinstein, International Criminal Law, 5 ISRAEL Y.B. ON HUM. RTS. 55, 62 (1975) ("[T]he crime of genocide exists under both customary and conventional international law, and, whereas no universal jurisdiction pertains to it under conventional law . . . there is - and continues to be - a universal jurisdiction under customary law . . . .").
132. In the words of the district court, "Article 6 established a compulsory minimum, which did not affect the existing jurisdiction of States under customary international law." Eichmann, 36 I.L.R. at 11. In support of the application of the universal jurisdiction principle, the circuit court also observed that countries that could have tried Eichmann under the territorial principle did not protest Israel's exercise of jurisdiction. See id. at 6.
133. 776 F.2d 571 (6th Cir. 1985).
134. Id. at 582.
135. In 1994, an Austrian court commenced criminal proceedings against Dusko Cvjetkovic, who was charged with committing genocide in Bosnia. See Austria to Charge Bosnian Serb with Genocide, REUTERS WORLD SERV., Aug. 3, 1994, available in LEXIS, World Library, Allwld File; Serb in Dock in First War Crimes Trial Outside ex-Yugoslavia, AGENCE FRANCE PRESSE, Oct. 20, 1994, available in LEXIS, World Library, Allwld File. The jury acquitted the defendant. See Steve Pagani, Serb Cleared of War Crimes, Prosecutor Appeals, REUTERS WORLD SERV., May 31, 1995, available in LEXIS, World Library, Allwld File. Austria is a signatory to the Genocide Convention.
136. In 1994, an Austrian court commenced criminal proceedings against Dusko Cvjetkovic, who was charged with committing genocide in Bosnia. See Austria to Charge Bosnian Serb with Genocide, REUTERS WORLD SERV., Aug. 3, 1994, available in LEXIS, World Library, Allwld File; Serb in Dock in First War Crimes Trial Outside ex-Yugoslavia, AGENCE FRANCE PRESSE, Oct. 20, 1994, available in LEXIS, World Library, Allwld File. The jury acquitted the defendant. See Steve Pagani, Serb Cleared of War Crimes, Prosecutor Appeals, REUTERS WORLD SERV., May 31, 1995, available in LEXIS, World Library, Allwld File. Austria is a signatory to the Genocide Convention.
137. In 1994, an Austrian court commenced criminal proceedings against Dusko Cvjetkovic, who was charged with committing genocide in Bosnia. See Austria to Charge Bosnian Serb with Genocide, REUTERS WORLD SERV., Aug. 3, 1994, available in LEXIS, World Library, Allwld File; Serb in Dock in First War Crimes Trial Outside ex-Yugoslavia, AGENCE FRANCE PRESSE, Oct. 20, 1994, available in LEXIS, World Library, Allwld File. The jury acquitted the defendant. See Steve Pagani, Serb Cleared of War Crimes, Prosecutor Appeals, REUTERS WORLD SERV., May 31, 1995, available in LEXIS, World Library, Allwld File. Austria is a signatory to the Genocide Convention.
138. Germany recently brought suit against Nikola Jorgic, a Bosnian Serb, on genocide charges stemming from allegations that he led death squads that massacred Moslems. See Serb Accused of Genocide on Trial in Germany, REUTERS N. AM. WIRE, Feb. 28, 1997, available in LEXIS, World Library, Allwld File. In a similar trial, Novislav Djajic has been charged with being an accessory to genocide. See Trial of Serb Charged with Complicity in Genocide Opens in Germany, DEUTSCHE PRESSE-AGENTUR, Feb. 25, 1997, available in LEXIS, World Library, Allwld File. Before Dusko Tadić was extradited to the International Criminal Tribunal for the Former Yugoslavia in the Hague, proceedings in which he was charged with "complicity in genocide" had been commenced against him in Germany. See Melinda Crane-Engel, Germany vs. Genocide, N.Y. TIMES, Oct. 30, 1994, at 56 ("Tadic's arrest represented the first time Germany had elected to exercise . . . 'universal jurisdiction' - jurisdiction that does not directly depend on links of territory or nationality - to bring charges of genocide."); Serb to Face Genocide Trial in Germany, REUTERS N. AM. WIRE, Feb. 28, 1995, available in LEXIS, News Library, US File. Germany is a signatory to the Genocide Convention.
139. Germany recently brought suit against Nikola Jorgic, a Bosnian Serb, on genocide charges stemming from allegations that he led death squads that massacred Moslems. See Serb Accused of Genocide on Trial in Germany, REUTERS N. AM. WIRE, Feb. 28, 1997, available in LEXIS, World Library, Allwld File. In a similar trial, Novislav Djajic has been charged with being an accessory to genocide. See Trial of Serb Charged with Complicity in Genocide Opens in Germany, DEUTSCHE PRESSE-AGENTUR, Feb. 25, 1997, available in LEXIS, World Library, Allwld File. Before Dusko Tadić was extradited to the International Criminal Tribunal for the Former Yugoslavia in the Hague, proceedings in which he was charged with "complicity in genocide" had been commenced against him in Germany. See Melinda Crane-Engel, Germany vs. Genocide, N.Y. TIMES, Oct. 30, 1994, at 56 ("Tadic's arrest represented the first time Germany had elected to exercise . . . 'universal jurisdiction' - jurisdiction that does not directly depend on links of territory or nationality - to bring charges of genocide."); Serb to Face Genocide Trial in Germany, REUTERS N. AM. WIRE, Feb. 28, 1995, available in LEXIS, News Library, US File. Germany is a signatory to the Genocide Convention.
140. Germany recently brought suit against Nikola Jorgic, a Bosnian Serb, on genocide charges stemming from allegations that he led death squads that massacred Moslems. See Serb Accused of Genocide on Trial in Germany, REUTERS N. AM. WIRE, Feb. 28, 1997, available in LEXIS, World Library, Allwld File. In a similar trial, Novislav Djajic has been charged with being an accessory to genocide. See Trial of Serb Charged with Complicity in Genocide Opens in Germany, DEUTSCHE PRESSE-AGENTUR, Feb. 25, 1997, available in LEXIS, World Library, Allwld File. Before Dusko Tadić was extradited to the International Criminal Tribunal for the Former Yugoslavia in the Hague, proceedings in which he was charged with "complicity in genocide" had been commenced against him in Germany. See Melinda Crane-Engel, Germany vs. Genocide, N.Y. TIMES, Oct. 30, 1994, at 56 ("Tadic's arrest represented the first time Germany had elected to exercise . . . 'universal jurisdiction' - jurisdiction that does not directly depend on links of territory or nationality - to bring charges of genocide."); Serb to Face Genocide Trial in Germany, REUTERS N. AM. WIRE, Feb. 28, 1995, available in LEXIS, News Library, US File. Germany is a signatory to the Genocide Convention.
141. Germany recently brought suit against Nikola Jorgic, a Bosnian Serb, on genocide charges stemming from allegations that he led death squads that massacred Moslems. See Serb Accused of Genocide on Trial in Germany, REUTERS N. AM. WIRE, Feb. 28, 1997, available in LEXIS, World Library, Allwld File. In a similar trial, Novislav Djajic has been charged with being an accessory to genocide. See Trial of Serb Charged with Complicity in Genocide Opens in Germany, DEUTSCHE PRESSE-AGENTUR, Feb. 25, 1997, available in LEXIS, World Library, Allwld File. Before Dusko Tadić was extradited to the International Criminal Tribunal for the Former Yugoslavia in the Hague, proceedings in which he was charged with "complicity in genocide" had been commenced against him in Germany. See Melinda Crane-Engel, Germany vs. Genocide, N.Y. TIMES, Oct. 30, 1994, at 56 ("Tadic's arrest represented the first time Germany had elected to exercise . . . 'universal jurisdiction' - jurisdiction that does not directly depend on links of territory or nationality - to bring charges of genocide."); Serb to Face Genocide Trial in Germany, REUTERS N. AM. WIRE, Feb. 28, 1995, available in LEXIS, News Library, US File. Germany is a signatory to the Genocide Convention.
142. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 404 (1987). The Restatement is published by the American Law Institute, a nongovernmental body, to "express the law as it would be pronounced by a disinterested tribunal." Id. at xi.
143. Id. § 404 (reporters' note 1).
144. See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. Doc. S/1994/674, Annex, at 13 [hereinafter Final Report] ("[T]he only offences committed in internal armed conflict for which universal jurisdiction exists are 'crimes against humanity' and genocide . . . .").
145. See, e.g., Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT'L L. 554, 570 (1995) ("These are the offenses [including genocide] that are recognized by the community of nations as of universal concern, and as subject to universal condemnation.") (citation omitted); Jordan J. Paust, Congress and Genocide: They're Not Going to Get Away with It, 11 MICH. J. INT'L L. 90, 91 n.1, 92 n.2 (1989) (citing supporting authority and scholars); Kenneth Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785, 837 (1988) ("Universal jurisdiction over genocide under customary law can coexist with territoriality jurisdiction under treaty law; the former relates to a jurisdictional right, the latter to a jurisdictional obligation. . . . The parties [to the Convention] . . . simply have obligated themselves to prosecute offenses specifically committed within their territory.") (citations omitted).
146. See, e.g., Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT'L L. 554, 570 (1995) ("These are the offenses [including genocide] that are recognized by the community of nations as of universal concern, and as subject to universal condemnation.") (citation omitted); Jordan J. Paust, Congress and Genocide: They're Not Going to Get Away with It, 11 MICH. J. INT'L L. 90, 91 n.1, 92 n.2 (1989) (citing supporting authority and scholars); Kenneth Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785, 837 (1988) ("Universal jurisdiction over genocide under customary law can coexist with territoriality jurisdiction under treaty law; the former relates to a jurisdictional right, the latter to a jurisdictional obligation. . . . The parties [to the Convention] . . . simply have obligated themselves to prosecute offenses specifically committed within their territory.") (citations omitted).
147. See, e.g., Theodor Meron, International Criminalization of Internal Atrocities, 89 AM. J. INT'L L. 554, 570 (1995) ("These are the offenses [including genocide] that are recognized by the community of nations as of universal concern, and as subject to universal condemnation.") (citation omitted); Jordan J. Paust, Congress and Genocide: They're Not Going to Get Away with It, 11 MICH. J. INT'L L. 90, 91 n.1, 92 n.2 (1989) (citing supporting authority and scholars); Kenneth Randall, Universal Jurisdiction Under International Law, 66 TEX. L. REV. 785, 837 (1988) ("Universal jurisdiction over genocide under customary law can coexist with territoriality jurisdiction under treaty law; the former relates to a jurisdictional right, the latter to a jurisdictional obligation. . . . The parties [to the Convention] . . . simply have obligated themselves to prosecute offenses specifically committed within their territory.") (citations omitted).
148. See supra text accompanying note 41.
149. See supra text accompanying note 25.
150. The classic position is that "[resolutions 'are capable, like many other things, of contributing to the formation of lex communis, and can in that sense constitute material influencing the content of the law, but not creating it.'" Gregory J. Kerwin, Note, The Role of United Nations General Assembly Resolutions in Determining Principles of International Law in United States Courts, 1983 DUKE L.J. 876, 880 n.26 (quoting Gerald Fitzmaurice, The Future of Public International Law and of the International Legal System in the Circumstances of Today, in LIVRE DU CENTENAIRE, 1873-1973, at 196, 269 (1973)).
151. The classic position is that "[resolutions 'are capable, like many other things, of contributing to the formation of lex communis, and can in that sense constitute material influencing the content of the law, but not creating it.'" Gregory J. Kerwin, Note, The Role of United Nations General Assembly Resolutions in Determining Principles of International Law in United States Courts, 1983 DUKE L.J. 876, 880 n.26 (quoting Gerald Fitzmaurice, The Future of Public International Law and of the International Legal System in the Circumstances of Today, in LIVRE DU CENTENAIRE, 1873-1973, at 196, 269 (1973)).
152. The General Assembly has confirmed that its resolutions may be a source of international law: "[T]he development of international law may be reflected, inter alia, by declarations and resolutions of the General Assembly which may to that extent be taken into consideration by the International Court of Justice." G.A. Res. 3232, U.N. GAOR, 29th Sess., Supp. No. 31, at 142, U.N. Doc. A/9631 (1975); see also Oscar M. Garibaldi, The Legal Status of General Assembly Resolutions: Some Conceptual Observations, 73 PROC. AM. SOC'Y INT'L L. 324, 325 (1979) (discussing growing weight accorded to General Assembly resolutions, especially in Third World).
153. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 882-83 (2d Cir. 1980) (finding that "international consensus" on prohibition of torture in customary international law is evidenced by Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., Supp. No. 51, at 73, U.N. Doc. A/810 (1948), which states "no one shall be subjected to torture," and Declaration on the Protection of All Persons from Being Subject to Torture, G.A. Res. 3452, U.N. GAOR, 30th Sess., Supp. No. 34, at 91, U.N. Doc. A/1034 (1975)).
154. See Christopher Osakwe, Contemporary Soviet Doctrine on the Sources of General International Law, 73 PROC. AM. SOC'Y INT'L L. 310, 321 (1979) (citing INTERNATIONAL LAW 66-67 (G. Ignatenko & D. Ostapenko eds., 1978)).
155. See Christopher Osakwe, Contemporary Soviet Doctrine on the Sources of General International Law, 73 PROC. AM. SOC'Y INT'L L. 310, 321 (1979) (citing INTERNATIONAL LAW 66-67 (G. Ignatenko & D. Ostapenko eds., 1978)).
156. In Texaco Overseas Petroleum Co. v. Libyan Arab Republic, 53 I.L.R. 389 (Int'l Arb. Trib. 1977), an arbitrator invoked General Assembly Resolution 1803 to determine the appropriate standard of compensation under international law for expropriations of foreign-owned assets. See id. at 27. In assigning legal value to General Assembly resolutions, the arbitrator looked to the "circumstances under which they were adopted and . . . the principles which they state," and observed that Resolution 1803 was widely subscribed to by
157. See Prosecutor v. Tadić, Case No. IT-94-1-AR72, Appeal on Jurisdiction (Appeals Chamber, Int'l Crim. Trib. Former Yugo., Oct. 2, 1995), reprinted in 35 I.L.M. 32, 60-61 (1996) (invoking General Assembly Resolution 2444 to elaborate principles governing protection of civilian populations and property in armed conflict); see also The Nuclear Tests Case (Austl. v. Fr.), 1974 I.C.J. 253, 267 (́It is well recognized that declarations [by states] . . . may have the effect of creating legal obligations."); Stephen M. Schwebel, The Effect of Resolutions of the U.N. General Assembly on Customary International Law, 73 PROC. AM. SOC'Y INT'L L. 301, 303 (1979) (citing OLIVER LISSITZYN, INTERNATIONAL LAW TODAY AND TOMORROW 34-36 (1965)) ("Statements or declarations not binding as treaties may also give rise to reasonable expectations . . . . [If they] emanate from a large number of States and purport to deal with a legal matter, they may be regarded in some circumstances as indications of a general consensus amounting to a norm of international law.").
158. See Prosecutor v. Tadić, Case No. IT-94-1-AR72, Appeal on Jurisdiction (Appeals Chamber, Int'l Crim. Trib. Former Yugo., Oct. 2, 1995), reprinted in 35 I.L.M. 32, 60-61 (1996) (invoking General Assembly Resolution 2444 to elaborate principles governing protection of civilian populations and property in armed conflict); see also The Nuclear Tests Case (Austl. v. Fr.), 1974 I.C.J. 253, 267 (́It is well recognized that declarations [by states] . . . may have the effect of creating legal obligations."); Stephen M. Schwebel, The Effect of Resolutions of the U.N. General Assembly on Customary International Law, 73 PROC. AM. SOC'Y INT'L L. 301, 303 (1979) (citing OLIVER LISSITZYN, INTERNATIONAL LAW TODAY AND TOMORROW 34-36 (1965)) ("Statements or declarations not binding as treaties may also give rise to reasonable expectations . . . . [If they] emanate from a large number of States and purport to deal with a legal matter, they may be regarded in some circumstances as indications of a general consensus amounting to a norm of international law.").
159. 3 CONTROL COUNCIL No. 10 TRIALS, supra note 84, at 3, 983 (U.S. v. Altstoetter) (1951).
160. Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (May 28).
161. See supra note 108.
162. See Bosnia-Herzegovina v. Yugoslavia (Serbia and Montenegro), 1993 I.C.J. 3, 23 (Apr. 8).
163. See supra text accompanying note 93 (listing sources of international law); see also Nottebohm Case (Liech. v. Guat.), 1955 I.C.J. 4, 21-24 (Apr. 6) (examining municipal nationality law); North Sea Continental Shelf Cases (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 128-30, 174-76, 225-29 (Feb. 20) (examining national laws regarding continental shelf exploration).
164. See Julie V. Mayfield, The Prosecution of War Crimes and Respect for Human Rights: Ethiopia's Balancing Act, 9 EMORY INT'L L. REV. 553, 572-73 (1995) (citing PENAL CODE OF THE EMPIRE OF ETHIOPIA OF 1957, art. 281 (NEGARIT GAZETA, Extraordinary Issue No. 1 of 1957)). Under this law, Ethiopia is prosecuting members of the Dergue, a military body established to enforce government policy and ideology and to eliminate members of opposition groups that were deemed "'enemies of the Revolution.'" Id. at 559 (quoting DAWIT WOLDE GEORGIS, RED TEARS: WAR, FAMINE AND REVOLUTION IN ETHIOPIA 6 (1989)). The Ethiopian Office of the Special Prosecutor (SPO) indicated that it would "apply only those rules of international humanitarian law which are beyond any doubt part of customary law." Id. at 572 (citing Rodolfo Mattarollo, SPO Working Paper No. 4, Nov. 25, 1993, at 1). Ethiopia is a signatory to the Genocide Convention.
165. See Julie V. Mayfield, The Prosecution of War Crimes and Respect for Human Rights: Ethiopia's Balancing Act, 9 EMORY INT'L L. REV. 553, 572-73 (1995) (citing PENAL CODE OF THE EMPIRE OF ETHIOPIA OF 1957, art. 281 (NEGARIT GAZETA, Extraordinary Issue No. 1 of 1957)). Under this law, Ethiopia is prosecuting members of the Dergue, a military body established to enforce government policy and ideology and to eliminate members of opposition groups that were deemed "'enemies of the Revolution.'" Id. at 559 (quoting DAWIT WOLDE GEORGIS, RED TEARS: WAR, FAMINE AND REVOLUTION IN ETHIOPIA 6 (1989)). The Ethiopian Office of the Special Prosecutor (SPO) indicated that it would "apply only those rules of international humanitarian law which are beyond any doubt part of customary law." Id. at 572 (citing Rodolfo Mattarollo, SPO Working Paper No. 4, Nov. 25, 1993, at 1). Ethiopia is a signatory to the Genocide Convention.
166. See Julie V. Mayfield, The Prosecution of War Crimes and Respect for Human Rights: Ethiopia's Balancing Act, 9 EMORY INT'L L. REV. 553, 572-73 (1995) (citing PENAL CODE OF THE EMPIRE OF ETHIOPIA OF 1957, art. 281 (NEGARIT GAZETA, Extraordinary Issue No. 1 of 1957)). Under this law, Ethiopia is prosecuting members of the Dergue, a military body established to enforce government policy and ideology and to eliminate members of opposition groups that were deemed "'enemies of the Revolution.'" Id. at 559 (quoting DAWIT WOLDE GEORGIS, RED TEARS: WAR, FAMINE AND REVOLUTION IN ETHIOPIA 6 (1989)). The Ethiopian Office of the Special Prosecutor (SPO) indicated that it would "apply only those rules of international humanitarian law which are beyond any doubt part of customary law." Id. at 572 (citing Rodolfo Mattarollo, SPO Working Paper No. 4, Nov. 25, 1993, at 1). Ethiopia is a signatory to the Genocide Convention.
167. REPUBLICA DE PANAMA CÓD. PEN., 1993, art. 311.
168. REPUBLICA DE COSTA RICA CÓD. PEN., 1992, art. 373.
169. PERU CÓD. PEN. ANOTADO, 1995, art. 129.
170. CÓD. PEN. PORTUGUÊS, 1986, art. 189 ("[W]hoever, with the intention of destroying in whole or in part, a community or a national, ethnic, racial, religious, or social group" shall be guilty of genocide).
171. C. PÉN. 1995, art. 211-1, 1995 (Law No. 92-684 of July 22, 1992).
172. PENAL CODE OF THE ROMANIAN SOCIALIST REPUBLIC, 1976, art. 357 (defining genocide as "[t]he commission of any of the following acts for the purpose of completely or partially destroying a collectivity or a national, ethnic, racial, or religious group"); see also CÓD. PEN. PORTUGUÊS, art. 189 (prohibiting destruction of "a community").
173. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Charter of the International Military Tribunal, art. 6(c), Aug. 8, 1945, 82 U.N.T.S. 279, 59 Stat. 1544. Article 6(c) defined crimes against humanity as: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Id., 59 Stat. at 1547 (citation omitted). In some ways, the prohibition of crimes against humanity overlaps with that of genocide. The definition in Article 6(c) of the former offense, however, suggests some definitional difficulties, viz., to what extent the offense is still linked to a state of war, applicable only to civilian populations, or a function of state action. See also infra note 157; see generally M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 235-62 (1992) (discussing definitional difficulties). Moreover, the dolis specialis that distinguishes the crime of genocide - the specific intent to destroy the group - is not an element of the offense of crimes against humanity. See M.N. Shaw, Genocide and International Law, in INTERNATIONAL LAW AT A TIME OF PERPLEXITY, supra note 98, at 797, 805 (noting that without intent requirement, "the distinction between genocide and ordinary murder would be eroded, as well as that between genocide on the one hand and war crimes and crimes against humanity on the other") (citing U.N. GAOR, 3d Sess., pt. 1, 6th Comm., 69th, 72d, & 73d mtgs. (1948)).
174. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Charter of the International Military Tribunal, art. 6(c), Aug. 8, 1945, 82 U.N.T.S. 279, 59 Stat. 1544. Article 6(c) defined crimes against humanity as: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Id., 59 Stat. at 1547 (citation omitted). In some ways, the prohibition of crimes against humanity overlaps with that of genocide. The definition in Article 6(c) of the former offense, however, suggests some definitional difficulties, viz., to what extent the offense is still linked to a state of war, applicable only to civilian populations, or a function of state action. See also infra note 157; see generally M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 235-62 (1992) (discussing definitional difficulties). Moreover, the dolis specialis that distinguishes the crime of genocide - the specific intent to destroy the group - is not an element of the offense of crimes against humanity. See M.N. Shaw, Genocide and International Law, in INTERNATIONAL LAW AT A TIME OF PERPLEXITY, supra note 98, at 797, 805 (noting that without intent requirement, "the distinction between genocide and ordinary murder would be eroded, as well as that between genocide on the one hand and war crimes and crimes against humanity on the other") (citing U.N. GAOR, 3d Sess., pt. 1, 6th Comm., 69th, 72d, & 73d mtgs. (1948)).
175. Convention Relating to the Status of Refugees, July 28, 1951, art. 1, 189 U.N.T.S. 137, 139 [hereinafter Refugee Convention]. The Convention was succeeded by the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 268, 19 U.S.T. 6223. One scholar has inferred that the Refugee Convention protects more groups than the Genocide Convention as a reaction to criticism that the protection of latter convention were too narrow. See Arthur C. Helton, Persecution on Account of Membership in a Social Group as a Basis for Refugee Status, 15 COLUM. HUM. RTS. L. REV. 39, 42 n.20 (1983).
176. Political groups may be identified on the basis of their "i) criticism of; ii) interference with; iii) refusal to participate in; [or] iv) refusal to cooperate with, the political activities, or the realization of the political aims, of a persecutor." Sachin D. Adarkar, Political Asylum and Political Freedom: Moving Towards a Just Definition of "Persecution on Account of Political Opinion" Under the Refugee Act, 42 UCLA L. REV. 181, 211 (1994) (citations omitted). In identifying political groups, it is important to consider the perceptions of the persecuting authority involved. See Saam Yagasampanthar Murugesu, Immigration Appeal Board Decision M82-1142, Sept. 30, 1983, at 9 (G. Loiselle) ("[T]he crucial test in interpreting political activities is whether the ruling government in the country from which the refuge is sought considers the conduct in question as political activity."), cited in JAMES C. HATHAWAY, THE LAW OF REFUGEE STATUS 154-55 n.139 (1991); see also HATHAWAY, supra, at 154-56 (citing cases regarding claims of imputed political opinion or activity). Victims may be targeted on the basis of their "membership in a political organization, or expression of a political opinion through party membership, political demonstrations, and propaganda distribution." Linda Dale Bevis, "Political Opinions" of Refugees: Interpreting International Sources, 63 WASH. L. REV. 395, 401-02 (1988). At the same time, victims of political genocide need not occupy leadership positions or even manifest membership in formal political organizations. Indeed, '[w]hile one might expect the authorities to arrest and persecute the leaders and the high profile members of an organization, more often that not, to avoid adverse publicity and political ramifications, the leaders are left alone and the brunt of the persecution is borne by the rank and file members whose rights are easily violated.' HATHAWAY, supra, at 153 (quoting Bakhshish Gill Singh, Canadian Immigration Appeal Board Decision, V87-6246X, July 22, 1987, at 12) (Singh, J., dissenting). Refugee law also recognizes that the decision to remain neutral can constitute a political opinion for the purposes of asylum determination. See HATHAWAY, supra, at 155 n.145 ("It is apparent that the applicant has gone out of his way to avoid expressing a dangerous political opinion, but nevertheless . . . he has been deemed . . . to hold political opinions antagonistic to the regime.") (quoting Mario Roberto Gudiel Medina, Immigration Appeal Board Decision V83-6313, Mar. 28, 1984, C.L.I.C. Notes 69.2, at 4-5) (Howard B.). Moreover, individuals have been granted asylum on the basis of imputed political opinion or the belief that they were merely harboring or sympathetic to an opposition political group. See Bevis, supra, at 412 ("Opinions can be attributed to persons who do not actually hold them.").
177. Political groups may be identified on the basis of their "i) criticism of; ii) interference with; iii) refusal to participate in; [or] iv) refusal to cooperate with, the political activities, or the realization of the political aims, of a persecutor." Sachin D. Adarkar, Political Asylum and Political Freedom: Moving Towards a Just Definition of "Persecution on Account of Political Opinion" Under the Refugee Act, 42 UCLA L. REV. 181, 211 (1994) (citations omitted). In identifying political groups, it is important to consider the perceptions of the persecuting authority involved. See Saam Yagasampanthar Murugesu, Immigration Appeal Board Decision M82-1142, Sept. 30, 1983, at 9 (G. Loiselle) ("[T]he crucial test in interpreting political activities is whether the ruling government in the country from which the refuge is sought considers the conduct in question as political activity."), cited in JAMES C. HATHAWAY, THE LAW OF REFUGEE STATUS 154-55 n.139 (1991); see also HATHAWAY, supra, at 154-56 (citing cases regarding claims of imputed political opinion or activity). Victims may be targeted on the basis of their "membership in a political organization, or expression of a political opinion through party membership, political demonstrations, and propaganda distribution." Linda Dale Bevis, "Political Opinions" of Refugees: Interpreting International Sources, 63 WASH. L. REV. 395, 401-02 (1988). At the same time, victims of political genocide need not occupy leadership positions or even manifest membership in formal political organizations. Indeed, '[w]hile one might expect the authorities to arrest and persecute the leaders and the high profile members of an organization, more often that not, to avoid adverse publicity and political ramifications, the leaders are left alone and the brunt of the persecution is borne by the rank and file members whose rights are easily violated.' HATHAWAY, supra, at 153 (quoting Bakhshish Gill Singh, Canadian Immigration Appeal Board Decision, V87-6246X, July 22, 1987, at 12) (Singh, J., dissenting). Refugee law also recognizes that the decision to remain neutral can constitute a political opinion for the purposes of asylum determination. See HATHAWAY, supra, at 155 n.145 ("It is apparent that the applicant has gone out of his way to avoid expressing a dangerous political opinion, but nevertheless . . . he has been deemed . . . to hold political opinions antagonistic to the regime.") (quoting Mario Roberto Gudiel Medina, Immigration Appeal Board Decision V83-6313, Mar. 28, 1984, C.L.I.C. Notes 69.2, at 4-5) (Howard B.). Moreover, individuals have been granted asylum on the basis of imputed political opinion or the belief that they were merely harboring or sympathetic to an opposition political group. See Bevis, supra, at 412 ("Opinions can be attributed to persons who do not actually hold them.").
178. Political groups may be identified on the basis of their "i) criticism of; ii) interference with; iii) refusal to participate in; [or] iv) refusal to cooperate with, the political activities, or the realization of the political aims, of a persecutor." Sachin D. Adarkar, Political Asylum and Political Freedom: Moving Towards a Just Definition of "Persecution on Account of Political Opinion" Under the Refugee Act, 42 UCLA L. REV. 181, 211 (1994) (citations omitted). In identifying political groups, it is important to consider the perceptions of the persecuting authority involved. See Saam Yagasampanthar Murugesu, Immigration Appeal Board Decision M82-1142, Sept. 30, 1983, at 9 (G. Loiselle) ("[T]he crucial test in interpreting political activities is whether the ruling government in the country from which the refuge is sought considers the conduct in question as political activity."), cited in JAMES C. HATHAWAY, THE LAW OF REFUGEE STATUS 154-55 n.139 (1991); see also HATHAWAY, supra, at 154-56 (citing cases regarding claims of imputed political opinion or activity). Victims may be targeted on the basis of their "membership in a political organization, or expression of a political opinion through party membership, political demonstrations, and propaganda distribution." Linda Dale Bevis, "Political Opinions" of Refugees: Interpreting International Sources, 63 WASH. L. REV. 395, 401-02 (1988). At the same time, victims of political genocide need not occupy leadership positions or even manifest membership in formal political organizations. Indeed, '[w]hile one might expect the authorities to arrest and persecute the leaders and the high profile members of an organization, more often that not, to avoid adverse publicity and political ramifications, the leaders are left alone and the brunt of the persecution is borne by the rank and file members whose rights are easily violated.' HATHAWAY, supra, at 153 (quoting Bakhshish Gill Singh, Canadian Immigration Appeal Board Decision, V87-6246X, July 22, 1987, at 12) (Singh, J., dissenting). Refugee law also recognizes that the decision to remain neutral can constitute a political opinion for the purposes of asylum determination. See HATHAWAY, supra, at 155 n.145 ("It is apparent that the applicant has gone out of his way to avoid expressing a dangerous political opinion, but nevertheless . . . he has been deemed . . . to hold political opinions antagonistic to the regime.") (quoting Mario Roberto Gudiel Medina, Immigration Appeal Board Decision V83-6313, Mar. 28, 1984, C.L.I.C. Notes 69.2, at 4-5) (Howard B.). Moreover, individuals have been granted asylum on the basis of imputed political opinion or the belief that they were merely harboring or sympathetic to an opposition political group. See Bevis, supra, at 412 ("Opinions can be attributed to persons who do not actually hold them.").
179. See, e.g., B. WHITAKER, REVISED AND UPDATED REPORT ON THE QUESTION OF THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, U.K. Doc. E/CN.4/Sub.2/1985/6, at 20 (1985) [hereinafter GENOCIDE REPORT] ("'[G]enocide' in popular modern usage covers many more cases of mass killings than those covered in the Convention."). Sociologists and historians have for the most part abandoned the definition of genocide in the Genocide Convention on the ground that it is too limited as a tool of general analysis and is more relevant as a description of the Holocaust. See CHALK & JONASSOHN, supra note 72, at 12-27 (discussing alternative definitions of genocide).
180. Lemkin originally considered the crux of the crime to be the extermination of definable human groups. See LEMKIN, supra note 21.
181. See supra note 78 (discussing trial in absentia of Pol Pot for genocide). As is the case in Cambodia, the mass killing of suspected guerrilla sympathizers in Latin America was widely considered by the families of victims to be "genocide." See MARK DANNER, THE MASSACRE AT EL MAZOTE 89 (1993); see also GENOCIDE REPORT, supra note 150, at 10 ("It could seem pedantic to argue that some terrible mass-killings are legalistically not genocide . . . .").
182. See supra note 78 (discussing trial in absentia of Pol Pot for genocide). As is the case in Cambodia, the mass killing of suspected guerrilla sympathizers in Latin America was widely considered by the families of victims to be "genocide." See MARK DANNER, THE MASSACRE AT EL MAZOTE 89 (1993); see also GENOCIDE REPORT, supra note 150, at 10 ("It could seem pedantic to argue that some terrible mass-killings are legalistically not genocide . . . .").
183. The Martens Clause, named after the Russian delegate to the first Hague Conferences, indicates that inhabitants and belligerents remain under the protection of "the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience." See Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 2279-80 (1907). It appears in the preamble of the Hague Conventions of 1899 and 1907, in the main text of Protocol I, and then again in the 1949 Geneva Conventions. See, e.g., Convention with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, 1805 (1899); Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 2279-80 (1907); Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 3152, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 3254, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 3424, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 3622, 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, art. 1, 1125 U.N.T.S. 3, 7.
184. See HILAIRE MCCOUBREY, INTERNATIONAL HUMANITARIAN LAW: THE REGULATION OF ARMED CONFLICTS 187 (1990).
185. The Attitude of States Toward the Development of Humanitarian Law, in THE NEW HUMANITARIAN LAW OF ARMED CONFLICT: PROCEEDINGS OF THE 1976 AND 1977 CONFERENCES 221, 257 (Antonio Cassese ed., 1980) [hereinafter PROCEEDINGS] (emphasis omitted). This "language was revolutionary in its recognition that the codified laws of war were incomplete and could supplement and interact with customary laws of war." Ariane L. DeSaussure, The Role of the Law of Armed Conflict During the Persian Gulf War: An Overview, 37 A.F. L. REV. 41, 45 (1994).
186. The Attitude of States Toward the Development of Humanitarian Law, in THE NEW HUMANITARIAN LAW OF ARMED CONFLICT: PROCEEDINGS OF THE 1976 AND 1977 CONFERENCES 221, 257 (Antonio Cassese ed., 1980) [hereinafter PROCEEDINGS] (emphasis omitted). This "language was revolutionary in its recognition that the codified laws of war were incomplete and could supplement and interact with customary laws of war." Ariane L. DeSaussure, The Role of the Law of Armed Conflict During the Persian Gulf War: An Overview, 37 A.F. L. REV. 41, 45 (1994).
187. The Attitude of States Toward the Development of Humanitarian Law, in PROCEEDINGS, supra note 155, at 257. In this way, the Martens Clause is much more than a pious declaration. It is a general clause, making the usages established among civilized nations, the laws of humanity, and the dictates of public conscience into the legal yardstick to be applied if and when the specific provisions of the [Hague] Convention and the Regulations annexed to it do not cover specific cases occurring in warfare, or concomitant to warfare. 9 CONTROL COUNCIL No. 10 TRIALS, supra note 84, at 1327, 1341 (U.S. v. Krupp) (1950).
188. The Attitude of States Toward the Development of Humanitarian Law, in PROCEEDINGS, supra note 155, at 257. In this way, the Martens Clause is much more than a pious declaration. It is a general clause, making the usages established among civilized nations, the laws of humanity, and the dictates of public conscience into the legal yardstick to be applied if and when the specific provisions of the [Hague] Convention and the Regulations annexed to it do not cover specific cases occurring in warfare, or concomitant to warfare. 9 CONTROL COUNCIL No. 10 TRIALS, supra note 84, at 1327, 1341 (U.S. v. Krupp) (1950).
189. 3 CONTROL COUNCIL No. 10 TRIALS, supra note 84, at 954, 979 (U.S. v. Altstoetter) (1951). Article 6(c) of the Charter of the International Military Tribunal at Nuremberg originally permitted prosecutions for crimes against humanity only for acts that were committed during wartime. In this case, brought under Control Council Law No. 10 which governed domestic prosecutions of Nazi war criminals, the tribunal discarded the war nexus. See Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against the Peace and Against Humanity, art. II(c) (1945), reprinted in 3 CONTROL COUNCIL No. 10 TRIALS, supra note 84, at xviii, xix (1951).
190. 3 CONTROL COUNCIL No. 10 TRIALS, supra note 84, at 954, 979 (U.S. v. Altstoetter) (1951). Article 6(c) of the Charter of the International Military Tribunal at Nuremberg originally permitted prosecutions for crimes against humanity only for acts that were committed during wartime. In this case, brought under Control Council Law No. 10 which governed domestic prosecutions of Nazi war criminals, the tribunal discarded the war nexus. See Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against the Peace and Against Humanity, art. II(c) (1945), reprinted in 3 CONTROL COUNCIL No. 10 TRIALS, supra note 84, at xviii, xix (1951).
191. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 4, 113 (June 27) (citation omitted).
192. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 35 I.L.M. 809, 827-28 (1996); see also id. at 900 (Weeramantry, J., dissenting) (noting that Martens Clause recognizes "the need . . . [for] strongly held public sentiments in relation to humanitarian conduct [to] be reflected in the law").
193. See supra text accompanying note 29.
194. See CAMBODIA, 1975-1979: RENDEZVOUS WITH DEATH, supra note 62, app. B, 278 ("If they die, [the opposing forces] will have instructed their children to keep struggling against communists.") (citing Khmer Rouge propaganda found in Sharpen the Consciousness of the Proletarian Class to Be as Keen and Strong as Possible, REVOLUTIONARY FLAGS, Sept.-Oct. 1976, at 33-97); Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), U.N. SCOR, 49th Sess., Annex at 16, U.N. Doc. S/1994/1405 (1994) ("Before dawn on 7 April, members of the Presidential Guard went to the homes of moderate opposition members and then killed them and their families."); DANNER, supra note 152, at 75 (noting that government forces in El Salvador reported to have ordered massacre of children of suspected guerrilla sympathizers, because "'[i]f we don't kill them now . . . they'll just grow up to be guerrillas'"); KUPER, supra note 13, at 127 (noting "there were many executions of families in the Indonesian anticommunist massacres"); François Ponchaud, Social Change in the Vortex of Revolution, in CAMBODIA, 1975-1978: RENDEZVOUS WITH DEATH, supra note 62, at 151, 165; see also supra text accompanying note 66.
195. See CAMBODIA, 1975-1979: RENDEZVOUS WITH DEATH, supra note 62, app. B, 278 ("If they die, [the opposing forces] will have instructed their children to keep struggling against communists.") (citing Khmer Rouge propaganda found in Sharpen the Consciousness of the Proletarian Class to Be as Keen and Strong as Possible, REVOLUTIONARY FLAGS, Sept.-Oct. 1976, at 33-97); Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), U.N. SCOR, 49th Sess., Annex at 16, U.N. Doc. S/1994/1405 (1994) ("Before dawn on 7 April, members of the Presidential Guard went to the homes of moderate opposition members and then killed them and their families."); DANNER, supra note 152, at 75 (noting that government forces in El Salvador reported to have ordered massacre of children of suspected guerrilla sympathizers, because "'[i]f we don't kill them now . . . they'll just grow up to be guerrillas'"); KUPER, supra note 13, at 127 (noting "there were many executions of families in the Indonesian anticommunist massacres"); François Ponchaud, Social Change in the Vortex of Revolution, in CAMBODIA, 1975-1978: RENDEZVOUS WITH DEATH, supra note 62, at 151, 165; see also supra text accompanying note 66.
196. See CAMBODIA, 1975-1979: RENDEZVOUS WITH DEATH, supra note 62, app. B, 278 ("If they die, [the opposing forces] will have instructed their children to keep struggling against communists.") (citing Khmer Rouge propaganda found in Sharpen the Consciousness of the Proletarian Class to Be as Keen and Strong as Possible, REVOLUTIONARY FLAGS, Sept.-Oct. 1976, at 33-97); Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), U.N. SCOR, 49th Sess., Annex at 16, U.N. Doc. S/1994/1405 (1994) ("Before dawn on 7 April, members of the Presidential Guard went to the homes of moderate opposition members and then killed them and their families."); DANNER, supra note 152, at 75 (noting that government forces in El Salvador reported to have ordered massacre of children of suspected guerrilla sympathizers, because "'[i]f we don't kill them now . . . they'll just grow up to be guerrillas'"); KUPER, supra note 13, at 127 (noting "there were many executions of families in the Indonesian anticommunist massacres"); François Ponchaud, Social Change in the Vortex of Revolution, in CAMBODIA, 1975-1978: RENDEZVOUS WITH DEATH, supra note 62, at 151, 165; see also supra text accompanying note 66.
197. See CAMBODIA, 1975-1979: RENDEZVOUS WITH DEATH, supra note 62, app. B, 278 ("If they die, [the opposing forces] will have instructed their children to keep struggling against communists.") (citing Khmer Rouge propaganda found in Sharpen the Consciousness of the Proletarian Class to Be as Keen and Strong as Possible, REVOLUTIONARY FLAGS, Sept.-Oct. 1976, at 33-97); Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), U.N. SCOR, 49th Sess., Annex at 16, U.N. Doc. S/1994/1405 (1994) ("Before dawn on 7 April, members of the Presidential Guard went to the homes of moderate opposition members and then killed them and their families."); DANNER, supra note 152, at 75 (noting that government forces in El Salvador reported to have ordered massacre of children of suspected guerrilla sympathizers, because "'[i]f we don't kill them now . . . they'll just grow up to be guerrillas'"); KUPER, supra note 13, at 127 (noting "there were many executions of families in the Indonesian anticommunist massacres"); François Ponchaud, Social Change in the Vortex of Revolution, in CAMBODIA, 1975-1978: RENDEZVOUS WITH DEATH, supra note 62, at 151, 165; see also supra text accompanying note 66.
198. This point was noted during the drafting of the Genocide Convention. See supra note 33. In Cambodia, the Khmer Rouge believed that it would be impossible to assimilate members of the prior regime into the new political order. See supra text accompanying note 69.
199. KUPER, supra note 13, at 127; see also id. at 129 (indicating that Communists in Indonesia "were readily identified from party lists of members, and, particularly in the villages, by intimate knowledge of political affiliation"). Likewise, members of the Lon Nol regime were identified at checkpoints established by the Khmer Rouge. See supra text accompanying note 65.
200. Refugee Convention, supra note 148. This convention, which entered into force in 1951, is a contemporary of the Genocide Convention.
201. Ejusdem generis is a rule of statutory construction that literally means "(o]f the same kind, class, or nature." BLACK'S LAW DICTIONARY 517 (6th ed. 1990). According to this canon, "where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated." Id.
202. In re Acosta, No. A-24159781 (Bd. of Immigr. Appeals), 1985 BIA LEXIS 2, at *54 (Mar. 1, 1985) (emphasis added).
203. See, e.g., Ananeh-Firempong v. INS, 766 F.2d 621, 626-27 (1st Cir. 1985) (finding that individuals associated with former government of Ghana could be members of particular social group for purposes of asylum, because they were identifiable by characteristics that were beyond their power to change); In re Fuentes, No. A-24841098 (Bd. of Immigr. Appeals), 1988 BIA LEXIS 24, at *9 (Apr. 18, 1988) (stating that past status as police officer is immutable characteristic).
204. Acosta, 1985 BIA LEXIS 2, at *54-55.
205. See HATHAWAY, supra note 149, at 150-51; see, e.g., Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., at 71, U.N. Doc. A/810 (1948) (declaring at Article 18 that "[e]veryone has the right to freedom of thought, conscience and religion"; at Article 19 that "[e]veryone has the right to freedom of opinion and expression"; and at Article 20 that "[e]veryone has the right to freedom of peaceful assembly and association").
206. The U.N. High Commissioner on Refugees has recognized that refugees may be subject to persecution on overlapping grounds. See OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES 1, 19 (1979); see, e.g., In re Fuentes, 1988 BIA LEXIS 24, at *9 (holding that persecution can stem from multiple motives). Recognizing multiple grounds of persecution would avoid the perverse reasoning of the Indicting Chamber of the Court of Appeals of Lyons, who ruled that Klaus Barbie could not be prosecuted for his persecution of Professor Marcel Gompel, who was both Jewish and a member of the Resistance, because it was not clear if Gompel was targeted "'in his capacity as a Jew,' or in his capacity as a member of the Resistance." Leila Sadat Wexler, The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again, 32 COLUM. J. TRANSNAT'L L. 289, 339 (1994) (quoting Judgment of Dec. 20, 1985, ¶ 18).
207. For example, the characterization of the killing in Rwanda as "age old tribal animosities" disguises the role played by the two extreme political groups, the National Republican Movement for Development and Democracy and the Coalition for the Defence of the Republic, who many believe orchestrated the killing in Rwanda in order to consolidate political power and eliminate political opposition. See Alex de Waal, Genocide in Rwanda, 10 ANTHROPOLOGY TODAY 1 (1994). The interahamwe, militias trained by the Presidential Guard and the Rwandan armed forces, committed violations against moderate Hutus and Hutus who opposed the regime of Rwanda's former President. See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), U.N. SCOR, 49th Sess., Annex at 15-16, U.N. Doc. S/1994/1405 (1994); see also HUMAN RIGHTS WATCH/AFRICA, GENOCIDE IN RWANDA: APRIL-MAY 1994, at 3 (1994) ("Within an hour of the plane crash, the Presidential Guard had set up roadblocks around the capital of Kigali and had begun liquidating key members of the moderate opposition."). See generally HUMAN RIGHTS WATCH, PLAYING THE "COMMUNAL CARD": COMMUNAL VIOLENCE AND HUMAN RIGHTS, at viii (1995) ("[W]e have seen that a government's willingness to play on existing communal tensions to entrench its own power or advance a political agenda is a key factor in the transformation of those tensions into communal violence." (i.e., violence between ethnic, racial or religious groups)).
208. For example, the characterization of the killing in Rwanda as "age old tribal animosities" disguises the role played by the two extreme political groups, the National Republican Movement for Development and Democracy and the Coalition for the Defence of the Republic, who many believe orchestrated the killing in Rwanda in order to consolidate political power and eliminate political opposition. See Alex de Waal, Genocide in Rwanda, 10 ANTHROPOLOGY TODAY 1 (1994). The interahamwe, militias trained by the Presidential Guard and the Rwandan armed forces, committed violations against moderate Hutus and Hutus who opposed the regime of Rwanda's former President. See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), U.N. SCOR, 49th Sess., Annex at 15-16, U.N. Doc. S/1994/1405 (1994); see also HUMAN RIGHTS WATCH/AFRICA, GENOCIDE IN RWANDA: APRIL-MAY 1994, at 3 (1994) ("Within an hour of the plane crash, the Presidential Guard had set up roadblocks around the capital of Kigali and had begun liquidating key members of the moderate opposition."). See generally HUMAN RIGHTS WATCH, PLAYING THE "COMMUNAL CARD": COMMUNAL VIOLENCE AND HUMAN RIGHTS, at viii (1995) ("[W]e have seen that a government's willingness to play on existing communal tensions to entrench its own power or advance a political agenda is a key factor in the transformation of those tensions into communal violence." (i.e., violence between ethnic, racial or religious groups)).
209. For example, the characterization of the killing in Rwanda as "age old tribal animosities" disguises the role played by the two extreme political groups, the National Republican Movement for Development and Democracy and the Coalition for the Defence of the Republic, who many believe orchestrated the killing in Rwanda in order to consolidate political power and eliminate political opposition. See Alex de Waal, Genocide in Rwanda, 10 ANTHROPOLOGY TODAY 1 (1994). The interahamwe, militias trained by the Presidential Guard and the Rwandan armed forces, committed violations against moderate Hutus and Hutus who opposed the regime of Rwanda's former President. See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), U.N. SCOR, 49th Sess., Annex at 15-16, U.N. Doc. S/1994/1405 (1994); see also HUMAN RIGHTS WATCH/AFRICA, GENOCIDE IN RWANDA: APRIL-MAY 1994, at 3 (1994) ("Within an hour of the plane crash, the Presidential Guard had set up roadblocks around the capital of Kigali and had begun liquidating key members of the moderate opposition."). See generally HUMAN RIGHTS WATCH, PLAYING THE "COMMUNAL CARD": COMMUNAL VIOLENCE AND HUMAN RIGHTS, at viii (1995) ("[W]e have seen that a government's willingness to play on existing communal tensions to entrench its own power or advance a political agenda is a key factor in the transformation of those tensions into communal violence." (i.e., violence between ethnic, racial or religious groups)).
210. For example, the characterization of the killing in Rwanda as "age old tribal animosities" disguises the role played by the two extreme political groups, the National Republican Movement for Development and Democracy and the Coalition for the Defence of the Republic, who many believe orchestrated the killing in Rwanda in order to consolidate political power and eliminate political opposition. See Alex de Waal, Genocide in Rwanda, 10 ANTHROPOLOGY TODAY 1 (1994). The interahamwe, militias trained by the Presidential Guard and the Rwandan armed forces, committed violations against moderate Hutus and Hutus who opposed the regime of Rwanda's former President. See Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), U.N. SCOR, 49th Sess., Annex at 15-16, U.N. Doc. S/1994/1405 (1994); see also HUMAN RIGHTS WATCH/AFRICA, GENOCIDE IN RWANDA: APRIL-MAY 1994, at 3 (1994) ("Within an hour of the plane crash, the Presidential Guard had set up roadblocks around the capital of Kigali and had begun liquidating key members of the moderate opposition."). See generally HUMAN RIGHTS WATCH, PLAYING THE "COMMUNAL CARD": COMMUNAL VIOLENCE AND HUMAN RIGHTS, at viii (1995) ("[W]e have seen that a government's willingness to play on existing communal tensions to entrench its own power or advance a political agenda is a key factor in the transformation of those tensions into communal violence." (i.e., violence between ethnic, racial or religious groups)).
211. Maryellen Fullerton, A Comparative Look at Refugee Status Based on Persecution Due to Membership in a Particular Social Group, 26 CORNELL INT'L L. J. 505, 551 (1993); see also KUPER, supra note 56, at 39 ("[G]enocides against racial, national, ethnic or religious groups are generally a consequence of, or intimately related to, political conflict.").
212. See supra text accompanying note 31.
213. See generally THE CENTRAL AMERICAN CRISIS READER (Robert S. Leikin & Barry Rubin eds., 1987); EL SALVADOR: CENTRAL AMERICA IN THE NEW COLD WAR (Marvin E. Gettleman et al. eds., 1981).
214. See generally THE CENTRAL AMERICAN CRISIS READER (Robert S. Leikin & Barry Rubin eds., 1987); EL SALVADOR: CENTRAL AMERICA IN THE NEW COLD WAR (Marvin E. Gettleman et al. eds., 1981).
215. See supra text accompanying note 45.
216. See, e.g., Duncan B. Hollis, Note, Accountability in Chechnya - Addressing Internal Matters with Legal and Political International Norms, 36 B.C. L. REV. 793, 806-07 (1995) (arguing that Russia has legally recognized claim to oppose Chechen separatism).
217. See 1907 Hague Convention (IV), Regulations Respecting the Laws and Customs of War on Land, art. 22, 36 Stat. at 2301 ("The right of belligerents to adopt means of injuring the enemy is not unlimited.").
218. See Jean Pictet, International Humanitarian Law: Definition, in INTERNATIONAL DIMENSIONS OF HUMANITARIAN LAW at xix, xix (Jean Pictet ed., 1988) ("The purpose of international humanitarian law is to regulate hostilities in order to attenuate hardship."). In addition to general international law, civil wars are governed by Article 3 common to the four Geneva Conventions and Protocol II. See supra note 153 (citing four Geneva Conventions); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, art. 13, 1125 U.N.T.S. 609, 615. Working together, these instruments afford armed rebels "with the fundamental guarantees of humane treatment." Robert Kogod Goldman, International Humanitarian Law: Americas Watch's Experience in Monitoring Internal Armed Conflicts, 9 AM. U. J. INT'L L. & POL'Y 49, 63 (1993).
219. See Jean Pictet, International Humanitarian Law: Definition, in INTERNATIONAL DIMENSIONS OF HUMANITARIAN LAW at xix, xix (Jean Pictet ed., 1988) ("The purpose of international humanitarian law is to regulate hostilities in order to attenuate hardship."). In addition to general international law, civil wars are governed by Article 3 common to the four Geneva Conventions and Protocol II. See supra note 153 (citing four Geneva Conventions); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, art. 13, 1125 U.N.T.S. 609, 615. Working together, these instruments afford armed rebels "with the fundamental guarantees of humane treatment." Robert Kogod Goldman, International Humanitarian Law: Americas Watch's Experience in Monitoring Internal Armed Conflicts, 9 AM. U. J. INT'L L. & POL'Y 49, 63 (1993).
220. The Genocide Convention at Article I makes clear that the prohibition of genocide is operative in times of peace or conflict: "[G]enocide, whether committed in time of peace or in time of war, is a crime under international law." Genocide Convention, supra note 7, art. I, 78 U.N.T.S. at 280; see also Final Report, supra note 125, at 24 ("[I]rrespective of the context in which it occurs (for example, in peacetime, internal strife, international armed conflict or whatever the general overall situation) genocide is a punishable international crime."). This principle was reaffirmed by the I.C.J. in its Advisory Opinion on the Threat or Use of Nuclear Weapons when the Court noted that the prohibition of genocide would be invoked with respect to war if the element of intent was demonstrated. See Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 35 I.L.M. 809, 820 (1996). Moreover, some human rights conventions allow for limited derogation in times of war, but not with respect to the core jus cogens norms such as the prohibition of genocide. See Dietrich Schindler, Human Rights and Humanitarian Law: Interrelationship of the Laws, 31 AM. U. L. REV. 935, 938 (1982).
221. The Genocide Convention at Article I makes clear that the prohibition of genocide is operative in times of peace or conflict: "[G]enocide, whether committed in time of peace or in time of war, is a crime under international law." Genocide Convention, supra note 7, art. I, 78 U.N.T.S. at 280; see also Final Report, supra note 125, at 24 ("[I]rrespective of the context in which it occurs (for example, in peacetime, internal strife, international armed conflict or whatever the general overall situation) genocide is a punishable international crime."). This principle was reaffirmed by the I.C.J. in its Advisory Opinion on the Threat or Use of Nuclear Weapons when the Court noted that the prohibition of genocide would be invoked with respect to war if the element of intent was demonstrated. See Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 35 I.L.M. 809, 820 (1996). Moreover, some human rights conventions allow for limited derogation in times of war, but not with respect to the core jus cogens norms such as the prohibition of genocide. See Dietrich Schindler, Human Rights and Humanitarian Law: Interrelationship of the Laws, 31 AM. U. L. REV. 935, 938 (1982).
222. The redress of victims is a primary goal of international human rights law. See Velasquez Rodriguez Case, Inter-Am Ct. H.R. 43, OEA/ser. L./V./3.19, doc. 13 (1988), reprinted in 9 HUM. RTS. L.J. 212, 233 (1988) ("The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages . . . .").
223. See Shaw, supra note 147, at 808 (observing that states may "seek to defend themselves against charges of genocide by re-defining the target group as political and not, for example, as ethnic or religious").
224. See KUPER, supra note 13, at 145.
225. See KIERNAN, supra note 59, at 314-16 (describing massacres of suspected traitors at Tuol Sleng prison); Duffy, supra note 10, at 88; see also supra text accompanying note 76.
226. This potentiality was anticipated by the United Kingdom delegate to the Ad Hoc Committee on Genocide who questioned the propriety of a convention on the subject of genocide, given that genocine was already a crime under international law. See supra note 23.