A growing number of loosely defined groups are being declared victims of genocide by Latin American and Spanish courts: Indians in the Brazilian Amazonia, victims of the Argentine junta, student demonstrators in Mexico, street protesters in Bolivia, and former guerrilla members in Colombia. Yet, this trend goes against the widely accepted United Nations Genocide Convention of 1948 and the legal definition of genocide used by all contemporary international or hybrid tribunals, which are much stricter about what constitutes a genocide. "These Latin American cases approach genocide with a large, liberal interpretation of the term that is not in tune with what is happening at the international level," said William Schabas, Professor of Human Rights Law at the National University of Ireland-Galway and a leading authority on the subject. "The International Criminal Tribunal for the former Yugoslavia and the UN Commission of Inquiry in Darfur have adopted a more strict approach. Perhaps the reason it has remained narrow is that the concept of crimes against humanity has grown broader and more robust. Therefore, atrocities that, in the past, people were not sure how to label are now being labeled without dispute as crimes against humanity, and this has relieved the pressure on genocide from the arguments that it should be more broadly interpreted. Crimes against humanity carry the same sentencing weight as genocide, [are not proscriptable] and cannot be pardoned, just like genocides," he said. "But the word genocide carries an emotional weight attached to it," he added. And as Daniel Feierstein, Professor of Analysis of the Social Practices of Genocide at the National University of Buenos Aires, says, "It carries a strong symbolic value, and symbolism is no small thing, given that justice is as much about the possibility of punishment as it is about the construction of discourse of truth."

Against this background, Latin American courts are becoming increasingly defiant of the international standard for declaring genocide. In August 2006, the Brazilian Supreme Court unanimously upheld a 1997 federal court decision condemning four gold prospectors for genocide for their role in the 1993 massacre of 12 members of the Yanomami tribe of Amazonia. The tribe had been isolated from civilization until the 1950s. Since the gold prospectors arrived in the 1970s, some 2,000 Yanomamis have died from violence and foreign diseases transmitted by the miners. The rulings were based on Brazil's 1956 genocide law, which upholds the UN Convention's definition of genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". The Brazilian judges ruled there had been a "partial destruction" of the Yanomami ethnic group.

In September 2006, one month after the Brazilian Supreme Court ruling, a federal court in Argentina sentenced former Buenos Aires province police chief Miguel Angel Etchecolatz to life in prison for crimes against humanity in the kidnapping, torture and disappearance of six left-wing militants during the military dictatorship that ruled Argentina between 1976 and 1983 [IJT-53]. Moreover, the tribunal ruled that Etchecolatz's crimes had been committed in the context of the "genocide" that took place during those years, in which at least 10,000 guerrilla members and dissidents disappeared. On October 10, 2007, former police chaplain Christian von Wernich received a similar sentence from the same tribunal [IJT-71].

The Scilingo precedent

In its ruling, the tribunal followed the concept of "partial destruction of a national group" adopted by Spanish judge Baltazar Garzón in 1997 when he charged former Argentine Navy captain Adolfo Scilingo with genocide for throwing 30 drugged prisoners from an airplane during two so-called "death flights", a common practice used in disappearances during the Argentine dictatorship.

In 2005, the Spanish Supreme Court had convicted Scilingo to 640 years in jail for crimes against humanity but had dismissed the genocide charge. For Spain's highest court, the Scilingo decision meant a shift towards a stricter definition of genocide, which, at the international level, notably excludes political groups. Nine years earlier the same tribunal had unanimously upheld Garzón's claim that the Spanish judicial system was competent to try former Chilean dictator Augusto Pinochet on charges of genocide committed against Argentina's and Chile's populations in the 1970s. Garzón's extradition request was turned down by Great Britain after the British House of Lords, in concert with the international standard, dismissed the genocide charge.

Professor Feierstein said that Etchecolatz and von Wernich were not convicted of genocide because they were not questioned on that charge, which was not contemplated by the prosecutors when the trial began several years ago. However, he added that a group of former army soldiers have been charged with genocide in the more recent Batallion Arsenales case in Tucuman province. These charges are based on international treaties because Argentina has not added a genocide law to its penal code.

Meanwhile, on October 18, 2007 in Bolivia, a federal prosecutor charged former president Gonzalo Sánchez de Lozada with genocide in an extradition request to the United States, where the former president resides. The prosecutor's accusation was formally endorsed by a vote in the Bolivian Congress. According to Waldo Albarracín, head of the Bolivian public defender's office, who has closely followed the extradition request, Sanchez de Lozada, his cabinet and his top military commanders are accused of ordering troops to open fire against demonstrators who were protesting an energy law in October 2003, causing more than 50 deaths and hundreds of injuries. "These acts are considered by human rights law as genocide, as described by the Bolivian penal code, which includes the modality of 'bloody massacre' contemplated in international law," said the Bolivian legal expert. According to Bolivian law, "The same sanction will fall upon the author or authors, or others directly or indirectly guilty of bloody massacres in the country."

Including or excluding political groups ?

The trend seems to be catching on and even the region's international tribunal, the Inter-American Court of Human Rights, could soon consider a case that clearly involves a political group, which the United Nations specifically left out of the Genocide Convention after much discussion. The case involves the Unión Patriótica, a left wing political party created by former Colombian guerrillas after a peace treaty, which was the target of a mass persecution that led to the extrajudicial killings of 1,163 persons between 1985 and 1993. The Unión Patriótica lobbied for Colombia's genocide law, which was approved by congress in 2000 and defines the crime more broadly than the Genocide Convention as including the "partial or total destruction of a group for political reasons and causing death to its members for belonging to such groups".

"We have the Unión Patriótica case and the defendants have asked us to consider the accusation of genocide and we are studying it," said Victor Abramovich, a member of the Inter-American Human Rights Commission, which is in charge of presenting cases before the Court.
Mexico provides yet another case involving genocide charges. Two years ago, a special commission appointed by then president Vicente Fox found former president Luis Etcheverría responsible for genocide for allegedly ordering the 1968 Tlateloco Massacre in which a few hundred student demonstrators lost their lives when police opened fire on them. In September 2005, a Mexican judge charged Echeverría with genocide and ordered his house arrest, but in July 2007 a federal tribunal overturned that decision, ruling that there was "not enough evidence" to charge Echeverría with genocide. Still, the tribunal ruled that the massacre did constitute genocide "aimed at exterminating a national student group".

Professor Schabas said the United Nation's decision to exclude political groups from the definition of genocide was a political decision and a decision that makes sense. "It is not a question of who made the better legal argument. Most states didn't want political groups in the [Genocide] Convention because it could be used against them. And I think there is a logic to that: we have a United Nations convention that deals with racial discrimination but we don't have one that deals with all kinds of discrimination. I don't think it is an ideological decision, it is a rational decision." On the contrary, Professor Feierstein supports the inclusion of political groups in the genocide definition. "I would argue that all mass killings, even ethnic and religious cleansing, have a political content. To propose a law against a killing that excludes political content would be equal to proposing a law that cannot be applied," he said.

Juan Mendez, who was the Special Adviser to the UN Secretary General for the study and prevention of genocide until last April, agrees with Schabas that international law remains restrictive in its definition of genocide, but he added that the tendency could change. "I think the Etchecolatz and von Wernich sentences represent a good evolution because they were found guilty of crimes against humanity within the context of a genocide, which, in the context of international law, means nothing," said Mendez, who now heads the International Center for Transitional Justice. "But what these sentences add," he concluded, "is the recognition of the character of the repression in Argentina, by giving it the name of genocide, which is valid for Argentine law, but not international law. It adds to a tendency and perhaps in the future it can find its way into the body of international law."