July 2, 1985

"Toynbee stated that the distinguishing characteristics of the twentieth century in evolving the development of genocide 'are that it is committed in cold blood by the deliberate fiat of holders of despotic political power, and that the perpetrators of genocide employ all the resources of present-day technology and organization to make their planned massacres systematic and complete'."

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United Nations Economic and Social Council
Commission on Human Rights
Sub-Commission on Prevention of Discrimination and Protection of Minorities
Thirty-eighth session
Item 4 of the provisional agenda

E/CN.4/Sub.2/1985/6 — 2 July 1985

REVIEW OF FURTHER DEVELOPMENTS IN FIELDS WITH WHICH THE SUB-COMMISSION HAS BEEN CONCERNED

Revised and updated report on the question of the prevention and punishment of the crime of genocide Prepared by Mr. B. Whitaker

[Paragraph 24]

24.Toynbee stated that the distinguishing characteristics of the twentieth century in evolving the development of genocide "are that it is committed in cold blood by the deliberate fiat of holders of despotic political power, and that the perpetrators of genocide employ all the resources of present-day technology and organization to make their planned massacres systematic and complete"¹¹. The Nazi aberration has unfortunately not been the only case of genocide in the twentieth century. Among other examples which can be cited as qualifying are the German massacre of Hereros in 1904,¹² the Ottoman massacre of Armenians in 1915-1916,¹³ the Ukrainian pogrom of Jews in 1919,¹⁴ the Tutsi massacre of Hutu in Burundi in 1965 and 1972,¹⁵ the Paraguayan massacre of Ache Indians prior to 1974,¹⁶ the Khmer Rouge massacre in Kampuchea between 1975 and 1978,¹⁷ and the contemporary Iranian killings of Baha'is.¹⁸ Apartheid is considered separately in paragraphs 43-46 below. A number of other cases may be suggested. It could seem pedantic to argue that some terrible mass-killings are legalistically not genocide, but on the other hand it could be counter-productive to devalue genocide through over-diluting its definition.

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[Paragraph 73]

73."In place of the law of the jungle of “vae victis” (“woe to the conquered”) Hugo Grotius laid the foundation for international law during the terrible Thirty Years War in the Seventeenth Century with his work De Jure Belli ac Pacis (Concerning the Laws of War and Peace). Following the founding of the Red Cross two centuries later, a series of Geneva and Hague Conventions were ratified seeking to establish international norms of conduct even in warfare. There were however no agreed sanctions or procedure to deal with war criminals. After the First World War, the defeated Germans themselves held some war crime trials in Leipzig in 1922, but these were unsuccessfully organized and 888 people out of the 901 charged in them were acquitted. The Turks also in 1919-20 held trials: not of ‘war criminals’ but of some of the Ottomans guilty of the Armenian genocide. When in the Second World War awareness of the extraordinary scale of the Nazi crimes became widespread, a European advisory Commission on War Crimes was set up to consider, as it was told by the French “an enemy who has sought to annihilate whole nations, who has elevated murder to a political system, so that we no longer have the duty of punishing merely those who commit but also those who plan the crime”.⁵⁶ As early as January 1942 the representatives of nine occupied countries conferred in London and issued the St. James’s Declaration that “international solidarity is necessary to avoid the repression of these acts of violence simply by acts of vengeance on the part of the general public and in order to satisfy the sense of justice of the civilized world”.⁵⁷

The Declaration announced that punishment for war crimes, whoever committed them, was now a principal war aim of the governments at the conference. It also made clear the intention to bring to justice not only those who themselves physically perpetrated such crimes, but those leaders who ordered them. The St. James’s Declaration was approved by Britain, the United States and the USSR, and significantly, expressed disgust not only at atrocity but at the idea of more vengeance: it implied a desire for some form of judicial proceeding to determine guilt and satisfy a sense of justice. The St. James’s conference was followed by one practical step: the United Nations War Crimes Commission was set up in London in 1943 to collect and collate information on war crimes and criminals.”⁵⁸

At the Moscow Conference of Foreign Ministers in November 1943, Britain, the United States and the Soviet Union had issued a joint declaration condemning Nazi atrocities in occupied Europe. This stated that ‘at the time of the granting of any armistice to any government which may be set up in Germany, those German officers and men and members of the Nazi Party who have been responsible for or who have taken part in the above atrocities, massacres and executions, will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of those liberated countries and of the Free Governments which will be erected therein’.”

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[Footnotes]

¹¹ Arnold Toynbee,Experiences (London, Oxford University Press, 1969).

¹² General von Trogha issued an extermination order; water-holes were poisoned and the African peace emissaries were shot. In all, three quarters of the Herero Africans were killed by the Germans then colonizing present-day Namibia, and the Hereros were reduced from 80,000 to some 15,000 starving refugees. See P. Fraenk,The Namibians (London, Minority Rights Group, 1985).

¹³ At least 1 million, and possibly well over half of the Armenian population, are reliably estimated to have been killed or death marched by independent authorities and eye-witnesses. This is corroborated by reports in United States, German and British archives and of contemporary diplomats in the Ottoman Empire, including those of its ally Germany. The German Ambassador, Wangenheim, for example, on 7 July 1915 wrote "the government is indeed pursuing its goal of exterminating the Armenian race in the Ottoman Empire" (Wilhelmstrasse archives). Though the successor Turkish Government helped to institute trials of a few of those responsible for the massacres at which they were found guilty, the present official Turkish contention is that genocide did not take place although there were many casualties and dispersals in the fighting, and that all the evidence to the contrary is forged. See, inter alia, Viscount Bryce and A. Toynbee,The Treatment of Armenians in the Ottoman Empire 1915-16 (London, HMSO, 1916): G. Chaliand and Y. Ternon,Genocide des Armeniens (Brussels, Complexe, 1980); H. Morgenthau,Ambassador Morgenthau's Story (New York, Doubleday, 1918); J. Lepsius,Deutschland und Armenien (Potsdam, 1921: shortly to be published in French by Fayard, Paris); R.G. Hovanissian,Armenia on the Road to Independence (Berkeley, University of California, 1967); Permanent People's Tribunal, A Crime of Silence (London, Zed Press, 1985); K. Gurun,Le Dossier Armenien (Ankara, Turkish Historical society, 1983); B. Simsir and others,Armenians in the Ottoman Empire (Istanbul, Bogazici University Press, 1984); T. Ataov,A Brief Glance at the "Armenian Question" (Ankara, University Press, 1984); V. Goekjian, The Turks before the Court of History (New Jersey, Rosekeer Press, 1984); Commission of the Churches on International Affairs,Armenia, the Continuing Tragedy (Geneva, World Council of Churches, 1984); Foreign Policy Institute,The Armenian Issue (Ankara, F.P.I., 1982).

¹⁴ Between 100,000 - 250,000 Jews were killed in 2,000 pogroms by Whites, Cossacks and Ukrainian nationalists. See Z. Katz ed.,Handbook of Major Soviet Nationalities (New York, Free Press, 1975), p.362; A. Sachar,A History of the Jews (New York, Knopf, 1967).

¹⁵ The Tutsi minority government first liquidated the Hutu leadership in 1965, and then slaughtered between 100,000 and 300,000 Hutu in 1972. See Rene Lemarchand,Selective Genocide in Burundi (London, Minority Rights Group, 1974) and Leo Kuper,The Pity of it All (London, Duckworth, 1977).

¹⁶ In 1974 the International League for the Rights of Man together with the Inter-American Association for Democracy and Freedom, charging the Government of Paraguay with complicity in genocide against the Ache (Guayaki Indians), alleged that the latter had been enslaved, tortured and massacred; that food and medicine had been denied them; and their children removed and sold. See Norman Lewis and others in Richard Arens ed.,Genocide in Paraguay (Philadelphia, Temple University Press, 1976); and R. Arens "The Ache of Paraguay" in J. Porter,Genocide and Human Rights (op.cit.).

¹⁷ It is estimated that at least 2 million people were killed by Pol Pot's Kher Rouge government of Democratic Kampuchea, out of a total population of 7 million. Even under the most restricted definition, this constituted genocide, since the victims included target groups such as the Chams (an Islamic minority) and the Buddhist monks. See Izvestia, 2 November 1978; F. Ponchaud,Cambodia Year Zero (London, Penguin Books, 1978); W. Shawcross,Sideshow; Kissinger, Nixon and the Destruction of Cambodia (New York, Simon and Schuster, 1979); V. Can and others,Kampuchea Dossier: The Dark Years (Hanoi,Viet Nam Courier, 1979); D. Hawk,The Cambodia Documentation Commission (New York, Columbia University, 1983); L. Kuper,International Action against Genocide (London, Minority Rights Group, 1984).

¹⁸ See evidence presented to United Nations Human Rights Commission and Sub-Commission, 1981-1984, and R. Cooper,The Baha'is of Iran (London, Minority Rights Group, 1985).

⁵⁶ United Kingdom Lord Chancellor’s Office, LCO 2.2978. See A. and J. Tusa, op.cit.

⁵⁷ Telford Taylor, International Conciliation, No. 450 (April 1949).

⁵⁸ It was made up of representatives of 17 nations – but had no Russian member. Stalin would only join if every Soviet Republic were given separate representation. This was refused.

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UNITED NATIONS

ECONOMIC AND SOCIAL COUNCIL

Distr.
General

E/CN.4/Sub.2/1985/6/Corr.1
29 August 1985

Original: ENGLISH

COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of Discrimination and Protection of Minorities
Thirty-eighth session
Item 4 of the provisional agenda

REVIEW OF FURTHER DEVELOPMENTS IN FIELDS WITH WHICH THE SUB-COMMISSION HAS BEEN CONCERNED

Revised and updated report on the question of the prevention and punishment of the crime of genocide
Prepared by Mr. B. Whitaker

Corrigendum

31. Paragraph 73, line 10: Between “acquitted” and “when”, insert the following: “The Turks also in 1919-20 held trials: not of ‘war criminals’ but of some of the Ottomans guilty of the Armenian genocide”.