By Dr. Faustin Z. Ntoubandi
(Faculty of Law, University of Toronto)
This is the first in a series of short notes on genocide that will provide readers with a general understanding of the meaning and implications of genocide as one of the most serious crimes in the history of mankind. Such notes will restate, in a more simplistic form, the most important provisions of the Genocide Convention in order to make their content meaningful to all.
Our series will start with a brief informative piece on the origin of the codification and qualification of genocide as a grave crime under international law. Then, a number of key articles of the Genocide Convention will be selected, and their content explained in a less formalistic way. The final note will briefly touch on the core differences between genocide and other crimes characterized as ‘serious’ under international law (namely, crimes against humanity, war crimes and torture).
The ultimate aim of these informal notes is to disseminate the general letter of the Genocide Convention among our readers. The sequence of such notes is as follows:
1. Genesis of genocide
2. Genocide and complicity to commit genocide (Genocide Convention Articles II-III)
3. Criminal proceedings against genocide perpetrators (Genocide Convention Articles IV-VII)
4. General State obligations to prevent and suppress acts of genocide (Genocide Convention Article I and VIII)
5. Difference between genocide and war crimes, crimes against humanity and torture
I. Genesis of Genocide
1. Coinage of the word ‘genocide’
Raphael Lemkin, a Jewish-Polish lawyer, coined the word ‘genocide’ in 1944. In one of his works entitled Axis Rule in Occupied Europe, he combined the Greek word genos (i.e. family, tribe, race or people), with the Latin word cīdere (i.e. ‘to kill’) in an attempt to describe the nature of the German rule in countries occupied by the Nazi troops during World War II. Such combination gave birth to what is referred to nowadays as ‘genocide.’
In Lemkin’s words, genocide meant the “destruction of a nation or of an ethnic group”. According to him, “genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.” To express his disgust of such conduct, he called for the adoption of an international treaty, which would elevate genocide into an international crime and impose on States an obligation to adopt repressive measures against the perpetrators thereof.
Lemkin’s proposition would later be unanimously adopted by the United Nations (UN) General Assembly Resolution 96 (I) on the Crime of Genocide, on 11 December 1946. This instrument proclaimed genocide as a crime under international law, called for an international cooperation among States to facilitate “the speedy prevention and punishment of the crime of genocide”, and invited the UN Economic and Social Council (ECOSOC) to prepare a draft convention to that effect. The codification process that ensued gave rise, on 9 December 1948, to the Convention on the Prevention and Punishment of the Crime of Genocide (herein, Genocide Convention).
Making genocide an international crime and calling for an international cooperation to combat it has significant legal and political consequences: it means that no State can claim acts of genocide to be exclusively a matter of domestic concern, and that the international community as a whole (i.e. Member States of the UN as well as non-Members) must stand at the forefront of the fight against genocide.
It is perhaps worth indicating at this point that prior to 1944, other terminologies were used to qualify the conduct that Lemkin would later describe as amounting to ‘genocide’. These were ‘new crimes’ against ‘humanity and civilization’, or ‘offences’ against the ‘laws of humanity’. The latter expression was coined by European Powers (Great Britain, France and Russia) to define the widespread massacres committed by the Ottoman Empire against the Armenian minority during World War I. In the aftermath of World War II, such ‘new crimes’ or ‘offences against the ‘laws of humanity’ would become ‘crimes against humanity’ under the London Charter of 8 August, 1945 on the basis of which the International Military Tribunal of Nuremberg was established to prosecute the major Nazi war criminals.
It is therefore fundamental to note that prior to 1948, genocide was prosecuted under the appellation of crimes against humanity, in particular crimes against humanity of persecution and extermination. However, with the adoption of its specific Convention in 1948, genocide would evolve into a separate and distinct crime.
2. Genocide: a ‘new’ crime under international law
The following international legal instruments would later contribute to making genocide an offence under international law:
– General Assembly Resolution 96(I): this resolution, which constitutes the first decisive international move to codify Lemkin’s terminology and recommendations, was adopted on 11 December 1946 by the General Assembly of the United Nations. It recognized genocide as “a denial of the right of existence of entire human groups”, and as “a crime under international law”. In addition, it protected three specific groups from genocide; namely, “racial, religious and other groups”.
– Genocide Convention: this treaty was adopted unanimously by the General Assembly of the United Nations on 9 December 1948. It made genocide a specific crime that could exist independently from crimes against humanity. Its preamble states that genocide is “a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world”. The Genocide Convention contains 19 Articles, the most important of which address fundamental issues relating to States’ obligations with respect to genocide, the definition of the crime of genocide, and criminal proceedings against genocide offenders. It is one of the most widely accepted instruments in the world (as of 10 October, 2011 about 142 countries have ratified it)
3. Post-Genocide Convention Developments
Subsequent developments occurred, which contributed to giving meaning to a number of unclear provisions of the Genocide Convention, and to mitigate some of its flaws. The following court cases and legal instruments are among the most significant interpretive and codification moves, which broadened the scope and clarified the meaning and content of, the obligations flowing from the Genocide Convention.
– Reservations to the Convention on Genocide (International Court of Justice Advisory Opinion, 28 May, 1951): the International Court of Justice held in this instance that the principles underlying the Genocide Convention are binding on all States, with or without any conventional obligation. This means that the core legal obligations that the Convention imposes on the State Parties to it would extend to non
-State Parties, even against their will.
– The Eichmann Judgment (Israeli District Court of Jerusalem 12 December, 1961): the Israeli court of this case decided that the jurisdiction to try genocide offenders is universal, meaning that any State can prosecute genocide committed within or outside the limits of its territory, even in the absence of any specific link between the State concerned and the perpetrators or victims of actual acts of genocide.
– Report of the United Nations International Commission on Darfur (2005): this document makes it clear that genocide may be committed by private persons (leading to individual criminal responsibility) as well as public officials in furtherance of official State policy (giving rise to State’s civil responsibility).
– The Case concerning the Application of the Genocide Convention: Bosnia and Herzegovina v. Montenegro (International Court of Justice, 2007): in this case, the International Court of Justice suggested that both States and individuals may be simultaneously held responsible for genocide and that, for this to happen, “the specific intent to destroy the group in whole or in part, has to be convincingly shown.”
– The International Criminal Tribunal for the former Yugoslavia (1993): see in particular the Tribunal’s decision in Prosecutor v. Krstić, Trial Chamber Judgment of 2 August 2001.
– The International Criminal Tribunal for Rwanda (1994): a number of decisions reached by this tribunal deal with various aspects of genocide committed in Rwanda in 1994 (e.g., the Akayesu case, and the Kayishema and Ruzindana case).
– The Statute of the International Criminal Court (1998): Article 6 of this convention confirms the international character of the prohibition against genocide.
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