Whitaker Report on Genocide, 1985

source Prevent Genocide International. Available from http://www.preventgenocide.org/prevent/UNdocs/whitaker/.

introduction There have been two major United Nation documents on genocide, the Ruhashyankiko report of 1978 and the Whitaker report of 1985. Both are major studies of genocide from the standpoint of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (presently the Sub-Commission on Promotion and Protection of Human Rights), with the second report intended as a corrective to the former. Due to political pressure, the Ruhashyankiko report had been forced to delete any mention of the Armenian genocide. The Whitaker report, in contrast, concluded that the Armenian massacres had constituted genocide. The official cites for the reports are: Nicodeme Ruhashyankiko, "Report to the UN Sub-Commission on Prevention of Discrimination and Protection of National Minorities: Study of the Question of the Prevention and Punishment of the Crime of Genocide" (E/CN.4/Sub. 2/416, 4 July 1978), 186 pages; Ben Whitaker, "Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide" (E/CN.4/Sub. 2/416/1985/6, 2 July 1985), 62 pages.

The Report on genocide prepared by Ben Whitaker in 1985, for what is now called the United Nations Sub-Commission on the Promotion and Protection of Human Rights is one of the major contributions to the evolving law in this area. The Sub-Commission is an expert body which operates very much as a 'think tank' for the Commission on Human Rights. In the early 1970s, it mandated Nicodeme Ruhashyankiko to prepare a study on genocide that was to focus on the application and interpretation of the 1948 Convention. Ruhashyankiko's final report, presented in 1979, was very controversial because he had buckled to Turkish pressure and removed all references to the genocide of the Armenians. Subsequently, the Sub-Commission appointed Whitaker to prepare a revised and updated version, that rectified the omission of the Armenian genocide and also made many other innovative proposals. Whitaker's suggestion that the reference in the definition of genocide to destruction of a group 'in whole or in part' might refer not only to a numerically substantial proportion of the group, but also to a 'significant' part of the group, such as its intellectual, political or religious and cultural leadership, has been endorsed in subsequent judicial decisions.

PART I: HISTORICAL SURVEY

A. The crime of genocide and the purpose of this study

14. Genocide is the ultimate crime and the gravest violation of human rights it is possible to commit. Consequently, it is difficult to conceive of a heavier responsibility for the international community and the Human Rights bodies of the United Nations than to undertake any effective steps possible to prevent and punish genocide in order to deter its recurrence.

15. It has rightly been said that those people who do not learn from history, are condemned to repeat it. This belief underpins much of the Human Rights work of the United Nations. In order to prescribe the optimal remedies to prevent future genocide, it can be of positive assistance to diagnose past cases in order to analyse their causation together with such lessons as the international community may learn from the history of these events.

16. Genocide is a constant threat to peace, and it is essential to exercise the greatest responsibility when discussing a subject so emotive. It is certainly not the intention of this Study in anyway to comment on politics or to awaken bitterness or feelings of revenge. The purpose and hope of this Study is exactly the opposite: to deter future violence by strengthening collective international responsibility and remedies. It would undermine this purpose, besides violating historical truth as well as the integrity of United Nations Studies, were anybody guilty of genocide to believe that international concern might be averted or historical records changed because of political or other pressure. If such an attempt were to succeed, that would serve to encourage those in the future who may be contemplating similar crimes. Equally, it is necessary to warn that nothing in these historical events should be used to provide an excuse for further violence or vendettas: this Study is a warning directed against violence. Its object is to deter terrorism or killing of whatever scale, and to encourage understanding and reconciliation. The scrutiny of world opinion and an honest recognition of the truth about painful past events have been the starting point for a foundation of reconciliation, with, for example, post-war Germany, which will help to make the future more secure for humanity.

B. The concept of genocide

17. Amongst all human rights, the primacy of the right to life is unanimously agreed to be pre-eminent and essential: it is the sine qua non, for all other human rights (apart from that to one's posthumous reputation) depend for their potential existence on the preservation of human life. Every right can also only survive as a consequence of the exercise of responsibilities. The right of a person or people not to be killed or avoidably left to die depends upon the reciprocal duty of other people to render protection and help to avert this. The concept of this moral responsibility and interdependence in human society has in recent times received increasing international recognition and affirmation. In cases of famine in other countries, for example, the States parties to the International Covenant on Economic, Social and Cultural Rights in "recognizing the fundamental right of everyone to be free from hunger" have assumed responsibility to take "individually and through international co-operation" the measures required "to ensure an equitable distribution of world food supplies in relation to need".(1) The core of the right not to [Page 6] starve to death is a corollary of the right not to be killed, concerning which the duty of safeguarding life is recognized to extend not just to the individual's or group's own Government but to the international community as well.

18. More serious problems arise when the body responsible for threatening and causing death is — or is in complicity with — a State itself.(2) The potential victims in such cases need to turn individually and collectively for protection not to, but from, their own Government. Groups subject to extermination have a right to receive something more helpful than tears and condolences from the rest of the world. Action under the Charter of the United Nations is indeed specifically authorized by the Convention on the Prevention and Protection of the Crime of Genocide, and might as appropriate be directed for example to the introduction of United Nations trusteeship. States have an obligation, besides not to commit genocide, in addition to prevent and punish violations of the crime by others; and in cases of failure in this respect too, the 1948 Convention recognizes that intervention may be justified to prevent or suppress such acts and to punish those responsible "whether they are constitutionally responsible rulers, public officials or private individuals".

19. The Convention on Genocide was unanimously adopted by the United Nations General Assembly on 9 December 1948, and therefore preceded albeit by one day the Universal Declaration of Human Rights itself. While the word "genocide" is a comparatively recent neologism for an old crime,(3) the Convention's preamble notes that "at all periods of history genocide has inflicted great losses on humanity, and being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required".

20. Throughout recorded human history, war has been the predominant cause or pretext for massacres of national, ethnic, racial or religious groups. War in ancient and classical eras frequently aimed to exterminate if not enslave other peoples. Religious intolerance could also be a predisposing factor: in [Page 7] religious wars of the Middle Ages as well as in places in the Old Testament, some genocide was sanctioned by Holy Writ. The twentieth century equally has seen examples of "total wars" involving the destruction of civilian populations and which the development of nuclear weapons makes an almost inevitable matrix for future major conflicts. In the nuclear era, indeed the logical conclusion of this may be "omnicide".

21. Genocide, particularly of indigenous peoples, has also often occurred as a consequence of colonialism, with racism and ethnic prejudice commonly being predisposing factors. In some cases occupying forces maintained their authority by the terror of a perpetual threat of massacre.(5) Examples could occur either at home or overseas: the English for example massacred native populations in Ireland, Scotland and Wales in order to deter resistance and to "clear" land for seizure, and the British also almost wholly exterminated the indigenous people when colonizing Tasmania as late as the start of the nineteenth century. Africa, Australasia and the Americas witnessed numerous other examples. The effect of genocide can be achieved in different ways: today, insensitive economic exploitation can threaten the extinction of some surviving indigenous peoples.

22. But genocide, far from being only a matter of historical study, is an aberration which also is a modern danger to civilization. No stronger evidence that the problem of genocide has — far from receding — grown in contemporary relevance is required than the fact that the gravest documented example of this crime is among the most recent, and furthermore occurred in the socalled developed world. Successive advances in killing-power underline that the need for international action against genocide is now more urgent than ever. It has been estimated that the Nazi holocaust in Europe slaughtered some 6 million Jews, 5 million Protestants, 3 million Catholics and half a million Gypsies. This was the product not of international warfare, but a calculated State political policy of mass murder that has been termed "a structural and systematic destruction of innocent people by a State bureaucratic apparatus".(6) The Nazi intention to destroy particular human nations, races, religions, sexual groups, classes and political opponents as a premeditated plan was manifested before the Second World War. The war later offered the Nazi German leaders an opportunity to extend this policy from their own country to the peoples of occupied Poland, parts of the Soviet Union and elsewhere, with an intention of Germanizing their territories. The "final solution" included (as evidenced at the Nuremberg trial), "delayed-action genocide" aimed at destroying groups' biological future through sterilization, castration, abortion, and the forcible transfer of their [Page 8] children.(7) The term genocide, with also its concept as an international crime, was first used officially at the subsequent International Tribunal at Nuremberg. The indictment of 8 October 1945 of the major German war criminals charged that the defendant had: "conducted deliberate" (8)

The concluding speech by the British Prosecutor stated that: "Genocide was not restricted to extermination of the" (9)

23. The present two German Governments have been unflinching in their acknowledgment and condemnation of these guilty events, in their efforts to guard against any repetition of them or of Nazism. The Government of the Federal Republic of Germany had stated that official action will be taken, without the need for complaint from any member of the public, to prosecute people who seek to deny the truth about the Nazi crimes. President von Weizsacker in a forthright recent speech to the Bundestag made clear his belief that his countrymen must have known during the war of the fate of the Jews: "The genocide of the Jews is without example in history . . . at the end of the war, the whole unspeakable truth of the holocaust emerged. Too many said they knew nothing, or had only an inkling of it. There is no guilt or innocence of a whole people because guilt, like innocence, is not collective but individual. All those who lived through that time with full awareness should ask themselves today, quietly, about their involvement."(10)

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.

PART III: FUTURE PROGRESS: POSSIBLE WAYS FORWARD

D. Conclusions

91. The reforms recommended will, like most things worthwhile in human progress, not be easy. They would however be the best living memorial to all the past victims of genocide. To do nothing, by contrast, would be to invite responsibility for helping cause future victims.

PART IV: LIST OF RECOMMENDATIONS

92. The principal recommendations of the present Special Rapporteur are contained in paragraphs 50, 55, 57, 41, 55, 54, 64, 70, 79, 80, 81, 82, 83–84, 85, 86–8), 90 and 91 supra.