Crime of Genocide
1. Raphael Lemkin and the coining of the term genocide
The legal use of the term genocide is very closely associated with the name Raphael Lemkin (1900 – 1959). In memory of the massacre of the Armenians during the First World War, which remained almost entirely devoid of legal consequences, and with the Nazi policies of exclusion and annihilation in mind, Lemkin called for the creation of an internationally recognized penal law, based on which the perpetrators of the crimes committed in the name of National Socialism throughout Europe could be called to account. In response to Winston Churchill’s comment that the nature and scale of this crime, which was committed against sectors of the civil population in Germany and, in particular, in the occupied territories, made it a “crime without a name”, Lemkin coined a term to describe it; in 1944, he created the term “genocide” from the Ancient Greek genos (i.e. race, nation, tribe) and Latin caedere (to kill). He understood the term as referring to “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objective of such a plan would be disintegration of the political and social institutions of culture, language, national feelings, religion, and the economic existence of national groups and the destruction of the personal security, liberty, health, dignity and even the lives of the individuals belonging to such groups. 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.” (Lemkin, 1944, 79)
Lemkin’s definition of genocide is both narrow and broad in its scope. Narrow because it stipulated that only the destruction of national groups qualified as genocide, and broad because it deemed not only the physical destruction, i.e. murder, of the members of a national group as genocide, but also all acts targeting the permanent destruction of the foundations of life and culture of such a group. With regard to the course of a genocide, Lemkin highlighted the fact that it consists of two phases, i.e. “[…] one, destruction of the national pattern of the oppressed group; the other, imposition of the national pattern of the oppressor”. (Lemkin, 1944, 79)
2. The London Agreement and the Genocide Convention
Had Lemkin had his way, a crime of genocide would have had to be included in the Charter of the International Military Tribunal which, as part of the London Agreement of August 8, 1945, specified the offences under international law for the prosecution and punishment of Nazi war crimes. However, the Allies classified the exclusion and annihilation measures implemented by the Nazis under the “crimes against humanity”, or more precisely under the crimes of “extermination” and “persecution on political, racial or religious grounds”. Due to the accessoriness of the crimes against humanity in the London Agreement, the two were not classified as separate offences but connected with the simultaneous perpetration of crimes of aggression or war crimes. Accessoriness was, however, eradicated in the Allied Control Council Act No 10 of December 20, 1945.
Due to the fact that, in the view of the then international community of States, the special nature of the crime of genocide necessitated specific legal measures that reflected the gravity and complexity of such acts, on December 11, 1946, the General Assembly of the United Nations (UN) commissioned the UN Economic and Social Council to develop a draft for a convention on the crime of genocide. Two years later, almost to the day, on December 9, 1948, the draft of a convention to be entitled “Convention on the Prevention and Punishment of the Crime of Genocide” was passed in the form of a resolution by the UN General Assembly with fifty-six votes in favor and none against. This meant that the offence was formulated for the first time in an instrument of international law.
Article I of the Convention clearly states: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.” According to Article II of the Convention, acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” are punishable as genocide. Protection is provided primarily to the physical and social existence of such groups; also protected is the human dignity of the victims. Objectively, genocide involves the committing of one of the individual acts specified in (a) to (e) of Article II of the Convention, i.e.: “(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”. The object of the crime is always the individual member of the group in question. In terms of its typical manifestation, however, the crime is usually carried out in the context of a systematic or large-scale attack on a group.
In addition to premeditation in relation to the individual acts comprising a crime of genocide, from a subjective perspective, all genocidal acts must also involve the intention to destroy completely or in part a national, ethnic, racial or religious group. Thus, it is not essential that the group or a part thereof be actually destroyed.
The acts punishable under the terms of the Convention are defined in Article III. First and, unsurprisingly, comes (a) “genocide” followed by “(b) conspiracy to commit genocide”, (c) “direct and public incitement to commit genocide”, (d) “attempt to commit genocide” and, finally, (e) “complicity in genocide”. Article IV of the Convention takes up a provision of the London Agreement by stipulating that: “Persons committing genocide or any other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” Article V requires the “Contracting Parties” to take legislative measures to guarantee the application of the Convention and, in particular, “to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article III.” The question of jurisdiction is clarified in Article VI, according to which suspects should either “be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal”, the jurisdiction of which is recognized by the Contracting Parties. Finally, Article IX contains a further important provision which states that: “Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
3. Developments following the establishment of the ad-hoc tribunals and the foundation of the International Criminal Court
The Convention on the Prevention and Punishment of the Crime of Genocide came into force in early 1951. However, it failed to develop any penal effect in the subsequent years as an international penal jurisdiction that could have dealt with possible crimes of genocide did not exist. Unsurprisingly, the States displayed no interest in pursuing allegations of the perpetration of genocide on their own territories or within their sphere of influence. This does not mean, however, that the Convention was without social or political effect. It provided a point of reference for the documentation of the gravity of State crimes against minorities.
In terms of penal law, the Convention began to gain in significance in the first half of the 1990s. In May 1993, the UN Security Council set up the International Criminal Tribunal for the Former Yugoslavia, and this was followed by the establishment of the International Criminal Tribunal for Rwanda in November 1994, also on the basis of a Security Council resolution. Genocide is defined in the statutes of both of these courts as a penal offence, the forms and characteristics of which are adopted word for word from Articles II and III of the Convention on the Prevention and Punishment of the Crime of Genocide.
The first conviction for a crime of genocide was handed down in September 1998. The judgment against Jean-Paul Akayesu, the former mayor of a small town in Rwanda, simultaneously constituted a major contribution to the development of genocide law. Contrary to the traditional minimizing of crimes of violence against women, in this judgment, the International Criminal Tribunal for Rwanda stated that rape and other sexual atrocities can be genocidal acts because, even if they are not accompanied by the murder of the victim, they cause serious physical and psychological harm to the victim and are committed with the aim of preventing births.
The first genocide judgment of the International Criminal Tribunal for the Former Yugoslavia was passed in 2001. It concerned the Srebrenica Massacre of July 1995 and commented on the important point as to what should be understood by the important formulation “destruction in part” in relation to a protected group. Based on this, it may be concluded that an intention to commit genocide exists if a “significant part” of a group, to be determined qualitatively, is to be destroyed and this is related to the treatment intended for the rest of the group. According to the Tribunal: “The Bosnian Serb forces knew, by the time they decided to kill all of the military aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.” (Prosecutor v. Krstic, Judgment, August 2, 2001, para. 595)
The crime of genocide is also included in the Rome Statute of the International Criminal Court that began its work on July 1, 2002. The wording of Article 6 of this Statute largely corresponds to that of Article II of the Convention on Genocide.
4. Further developments and open questions
Although 140 States have ratified or joined the Convention on Genocide (status: July 2007) and the prohibition on the acts listed in Article 2 is recognized under customary international law and is, moreover, a peremptory norm (ius cogens), the clarification of all the provisions of the Convention did not remain uncontested. The fact most widely accepted by case law and scholarship is that not only individuals but also States can be responsible for crimes of genocide, as established by the International Criminal Court in February 2007 in the case involving the “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)”. This arises necessarily from the obligation to prevent genocide laid down in the Convention and aimed at States and from the classification of genocide as “a crime under international law” in Article I of the Convention.
Irrespective of this, it is nevertheless the case in international law practice that the punishment of crimes of genocide is based not on the responsibility of the States, but on individual responsibility as established by international penal law. It is even claimed on occasion that an individual acting alone could commit genocide (Prosecutor v. Jelisic, Judgment, December 14, 1999, para. 100; confirmed by appeal judgment, July 5, 2001, para. 48). However the view that the perpetration of a crime of genocide necessitates a State plan or corresponding policy has meanwhile become established. Accordingly, it is stated in the Elements of Crimes of the Rome Statute that genocidal acts “took place in the context of a manifest pattern of similar conduct directed against that group or was conducted that could itself effect such destruction” (Elements of Crimes, ICC-ASP/1/3, p. 108).
The narrowness of the groups protected by the law of genocide remains a topic that generates controversy and debate. The exclusion of political groups is disputed in particular, especially in view of the fact that these are included in part as protected objects under national penal laws that incorporate a genocidal offence. The attempt to increase the number of protected groups in general based on the criterion of “stable and permanent groups” (Prosecutor v. Akayesu, Judgment, 2 September 1998, pares. 428-429) has, however, proven unsuccessful. The list of the four protected groups adopted by the various statutes from Article II of the Genocide Convention continues to be adhered to although subjective social attributions on the part of the perpetrators or third parties are taken into account in addition to the objective determination of the group characteristics. The intention “to destroy, in whole or part” in relation to one of the groups remains decisive as a central characteristic of genocide, therefore genocide cannot be equated with ethnic cleansing (Application of the Convention on the Prevention and Punishment of the Crime of Genocide [Bosnia and Herzegovina v. Serbia and Montenegro], February 26, 2007, para. 190).
Despite this clarification, the tendency persists to relax the boundaries between this crime and crime against humanity in both jurisprudence and case law, and even to unite both categories of crime under the general heading of crimes against humanity. Non-legal sociological definitions of genocide go even further in that they define genocide as “a form of violent social conflict, or war, between armed power organizations that aim to destroy civilian social groups and those groups and other actors who resist their destruction” (Shaw, 154). The often lamented “hierarchization of victims” as a result of the understanding of genocide as the “crime of all crimes” in conjunction with the narrow concept of genocide may counteract this, however it is doubted (Schabas in Hankel, 226) whether this and other definitions are legally manageable and do justice to the specific demerits of the crime of genocide.
COOPER J., 2008, Raphael Lemkin and the Struggle for the Genocide Convention, London: Palgrave Macmillan.
HANKEL, G., 2005, “Was heißt eigentlich Völkermord? Überlegungen zu einem problematischen Begriff”, Mittelweg 36, 4: 70-81.
LEMKIN R., 1944, Axis Rule in Occupied Europe, Laws of Occupation, Analysis of Government, Proposals for Redress, Washington: Carnegie Endowment for World Peace.
LEVENE, M., 2005, Genocide in the age of a nation state, Volume I: The meaning of genocide; Volume II: The rise of the west and the coming of genocide, London: I. B. Tauris.
SCHABAS W. A., 2000, Genocide in International Law, Cambridge: Cambridge University Press.
SCHABAS W. A., 2008, “‘Die verabscheuungswürdige Geißel’: Völkermord, 60 Jahre danach” in HANKEL G. (ed.), Die Macht und das Recht. Beiträge zum Völkerrecht und zum Völkerstrafrecht am Beginn des 21. Jahrhunderts, Hamburg: Hamburger Edition, 189-226.
SCHALLER D. J., BOYADJIAN R., BERG V., SCHOLTZ H. (eds.), 2004, Enteignet, Vertrieben, Ermordet. Beiträge zur Genozidforschung, Zürich: Chronos Verlag.
SHAW M., 2007, What is Genocide?, Cambridge: Polity Press.
WERLE G., 2005, Principles of International Criminal Law, The Hague: Asser Press.
United Nations Treaty Collection, https://treaties.un.org/
International Criminal Tribunal for the former Yugoslavia, http://www.icty.org/
International Criminal Tribunal for Rwanda, http://unictr.irmct.org/
International Criminal Court, https://www.icc-cpi.int/
International Court of Justice, https://www.icj-cij.org/
International Network of Genocide Scholars, http://inogs.com/
Irish Center for Human Rights Nui Galway, http://www.nuigalway.ie/human_rights/index.html
Institut für Diaspora- and Genozidforschung an der Ruhr-Universität Bochum, http://www.idg.ruhr-uni-bochum.de/