The Crime of Genocide and International Law

Source: The Economist

Abstract

The crime of genocide is a massive human right violation based on the discriminatory motive which is witnessed around the globe. This article deals with the history, nature, and the general structure of the crime of genocide and will provide a comprehensive analytical commentary on the contemporary case laws to understand the boundaries of the definition and retrospective effect of this crime in the world at an international forum. This article will make readers understand the formulation of the word genocide during the Nazi occupation in Europe to the time it incorporated in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. It will go on to address the issues with the current international law definition of genocide and probable developments that might continue to emerge in international criminal law. This will help the readers to understand the problems related to the legal definition of genocide with historical and recent developments. The author has used the doctrinal research method for the study.

Public international law plays a major role in curbing the crime of genocide and to restore peace and harmony amongst the diverse communities. The article will throw light upon various treaties, rules, and regulations under the ambit of public international law. This article will be meaningful for the students and academicians working in the field of Human Rights, International Criminal law, and Genocide Studies.     

 

Introduction

The term Genocide was coined by Polish-Jewish legal scholar Raphael Lemkin (1900-1959) in 1944. The term was coined from Latin where gens/gentis means ‘birth, race, stock, kind’ and cidium means ‘cutting, killing’. Hence in a general sense genocide means the killing of people of a particular group. Lemkin portrayed Genocide as a crime against international law. This notion was widely accepted by the international communities and it also forms the basis for the Nuremberg Trial. Lemkin drafted the resolution for the genocide treaty and presented it before a number of countries for support and finally, the United States of America helped it to place before General Assembly for consideration. In the wake of the Holocaust Lemkin got successful in campaigning the universal acceptance of international laws defining and forbidding genocide.[1] 

 

Genocide Convention

The genocide convention was held on 11^th December 1946, by the United Nations, General Assembly and held the genocide to be a crime under International law. The perpetrators, even if they were statesman, public official or private individual were punishable under this crime.[2] As a result, the convention on the Prevention and Punishment of the Crime of Genocide which is known as the Genocide Convention is adopted by the General Assembly in 1948 which came into force on 12^th January 1951.[3] It contained an internationally accepted definition of the crime of genocide which was incorporated into many countries’ penal legislation as well.  

Genocide is defined as acts committed with intent to destroy a national, ethnical, racial or religious group by killing members of the group, causing serious bodily or mental injury to the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, preventive measure to control a number of births in that group or forcibly transferring from that group to the other. The person guilty of the charge will be tried in the competent tribunal of the state within the territorial limits or in the international penal tribunal, whose jurisdiction has been recognised the concerning states. The convention aims at preventing the wilful destruction of any ethnic, religious or national group in whole or in part. Many states contend that the prohibition against genocide as it was signed in the Prevention and Punishment of the Crime of Genocide, 1948 is a customary source of International law which the court must apply.[4] 

The convention loudly says that genocide is a crime done regardless of the fact whether done at the time of peace or the time of war. Hence irrespective of the context such as, peacetime, internal strife, internal armed conflict or whatever the general all condition was, the act is strictly punishable. As of January 2018, the convention is ratified by 149 states. But the International Court of Justice has stated that whether or not the country has ratified it or not, they are still be bound to follow it under International Law.

Element of Crime

The above-mentioned definition of Genocide contains 2 elements as follow:

1.  The mental element, which is also called mens rea. It is the intention of the perpetrator to destroy whole or in part the particular group of people.

2.  The physical element, which is also called actus rea. It is the actual bodily harm caused to the people through the action.

The United Nation has stated that the mental element is the most difficult part to determine in any case law. Mere cultural destruction would not suffice nor the intention to simply disperse the group. But the preparation intended to do physical harm in order to destroy a particular group of people on the basis of nationality, ethnic race or religion would amount to the crime of genocide. The target shall be the group as a whole and not a particular individual. It is also worth noting that genocide is committed against the part of a group as long as that group is identifiable and sustainable.  

International Case Laws

International Court of Justice (ICJ) took the provisional measure in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia)[5]. The republic of Croatia filed a suit against the Republic of Yugoslavia for the crime of genocide in 1999. With the dissolution of the Republic of Yugoslavia into Serbia and Montenegro in 2006, Serbia was considered to be the legal successor in the case.

The court on the jurisdiction of Article 9 of the Genocide Convention, recounted the series of events from April 1992 in Bosnia-Herzegovina which fall within the definition of genocide as given in the Genocide Convention:

1.  Killing Muslim inhabitants of Bosnia-Herzegovina.

2.  Causing serious physical and mental injury to them.

3.  Deliberate inflicting upon their life to bring about its physical destruction.

4.  Imposing measures to prevent birth among that group of people.

But the Bosnia-Herzegovina argued that the crime was committed by the former members of the Yugoslav People’s Army (YPA) and by the Serbian military and para-military forces under the assistance of Yugoslavia. Whereas the Republic of Serbia filed counter filed a suit charging Croatia of genocide in 2010.

The court held that the government shall immediately take all the measures to prevent the commission of the crime of genocide. In the end, the court held that neither Serbia nor Croatia was able to evidence that could prove that either of the sides has committed the crime of genocide, thereby dismissing the case.  

Nuremberg Trial – The Holocaust performed by the Nazis from WW1 to WW2 was tried by a series of military tribunals by allied forces under international law and the law of war. The argument of the accuse was that they were under the command of the sovereign to follow the order and hence they were not liable for the crime of genocide. 12 people were sentenced to death, 7 were given life imprisonment and 3 were acquitted in the trial.

Rwanda Genocide – The genocide took place between the month of April and July of 1994 during the time of the Rwanda civil war. During the period of these 100 days, minority groups like Tutsi, Hutu and others faced military force. As per estimates around 6 lakhs were slaughtered. It is even be argued that this genocide was very well pre-planned a year before.  United Nations Assistance Mission for Rwanda since 1993 was formed to see the implementation of Arusha accords. Some of the catholic church people were convicted by the International Criminal Tribunal for Rwanda.

Rohingya crises – Myanmar government has refused to accept Rohingyas as the citizen of the country. Technically they are not the citizen of any country and hence their fundamental human rights are most of the times get violated because of which. The government refuses to acknowledge them as an ethnic group and believe them to be the migrants of Bangladesh. There are allegations of possible genocide happening against them in Myanmar. International Criminal Court has condemned the military force applied by the government over them and ordered the government to take preventive measures to stop genocide and to preserve evidence of the past attacks. Whereas a report submitted by Myanmar in 2017 rejects the allegation of military force and state the allegation to be fabricated.       

 

Formation of the International Criminal Court

In 1993 United Nation Security Council condemned the practice of ‘ethnic cleansing’ and systematic and organised massive detention and rape of a woman and other similar acts in violation of human rights. They decided to establish a permanent tribunal for punishing the people responsible for such violation in the former territory of Yugoslavia since 1991.[6] In the furtherance of the resolution, the International Criminal Tribunal was formed for Yugoslavia by the United Nation, which was headquartered in Hague, Netherlands. The second tribunal was formed in Tanzania by the United Nations in 1994 for the investigation of the crime of genocide that took place during the civil war took place in Rwanda, Central Africa.[7]    

During this time the talks for the formation of a permanent ICC was intensified. The power and jurisdiction of the same were in discussion. Finally, in 1998 Rome Statute was adopted for the formation of the International Criminal Court in Hague, Netherlands and the statute describes the subject matter and jurisdiction of the court. Since 2002, ICC can exercise its jurisdiction over the national courts if the national courts are unwilling to investigate or prosecute the criminals. Thus, ICC acts as the last resort for the subject matter to exercise its jurisdiction over criminals to individual sovereign states.

The difference between ICC (International Criminal Court) and ICJ (International Court of Justice) was that ICJ only hears the matter of the civil dispute between the countries. Whereas ICC prosecutes even individual for the criminal offence.   

 

Nuclear Weapons and Genocide Convention

The use of nuclear power for the purpose of destruction and its subsequent radioactive effect will lead to deliberate bodily and mental harm to the group of people if done at large and the effects are not limited to them but also to their coming generations as well. Therefore, nuclear weapons would produce consequences that will be clearly contrary to the spirit of the Genocide Convention.  

The argument was that the number of deaths by the use of the nuclear weapon would be enormous that the victim would be of a certain group of people belonging to a specific ethnic race, nationality or religion. And the intention to destroy such groups could be inferred from the fact the user would not take into account the effect of destruction from such a weapon.

The International Court of Justice points out that the element of genocide by way of using a nuclear weapon would only be sustained if it is proved that the act was done with the intent to target a particular group of people. Therefore, it would only be possible to arrive at such a conclusion after taking due account of the circumstances of each case.[8]

 

Jus Cogen

Jus Cogen is a set of binding rules of international law and there are no exceptions available for the violation of the same. It is strictly binding upon all the countries, irrespective of their consent and violation of this would mean crime against the community as a whole. Some of the crimes mentioned as Jus Cogen are slavery, genocide, torture, prolonged arbitrary detention and radical discrimination. Any activity or treaty signed by the international organisation, any sovereign state or individual body that is violating human dignity and human rights will be said to be violative of Jus Cogen. Therefore, it could be said that Jus Cogen is protective of Human Rights and Human Dignity around the globe.[9]   

In the case of Bosnia and Herzegovina, 2007 where a group of Muslim people were tortured and killed. The ICJ held it to be a crime of genocide and held that Jus Cogen stands superior to customary law and treaties as it stands upon the fundamental of the natural law and humanity. Hence Serbia was held liable for the crime of genocide.

 

Prevention of Genocide

Lemkin believed that criminal law has a more powerful preventive influence and believed that hard punishment would stop the perpetrators from committing this crime. He also believed that axis power in Europe would help in establishing the institutions for effective control of occupational practises and these could also play a preventive role. He has trust in the 1948 convention and the efficiency of the United Nation and its organs. Article 8 of the convention provided the states with the appeal to request the organ of UN to take appropriate measures to prevent the acts of genocide or other acts as mentioned in article 3, such as collusion to commit genocide or inciting people to commit such crime, complicity and more. Under article 4 the states are obliged to form laws that would make perpetrators libel for the crime of genocide, whether public officer, private individual or any constitutional figure.[10]     

However, the convention does set a precisely set nature and extent of the preventive obligation. The focus is more upon the punishment rather. It does not provide that what measures shall be taken by the states to prevent from occurrence of this crime in the first instance. Nor there is clarity that in what situation what UN organs shall be addressed and what action subsequently be taken. Hence there is a lacuna in the instrument for preventing the crime and suppressing genocide. The generality of records and imprecise language of the convention had led to the abandonment of such a great cause.    

At the time of the cold period war, the focus on the establishment of a permanent institution was blocked. More focus was on establishing the International Human Right Protection System. Even after 1989, no adequate measures were taken by the international community to suppress the crime of genocide. As the world has witnessed Balkans, Somalia or Rwanda incident. Many incidents also took place on a small scale like in countries, like the 1984 Sikh riot in India.

The events of the 1990s had changed the thinking of the international community, especially after witnessing displacement in Kosovo in 1999[11] and the Serbia genocide case. It motivated the world to think of a new solution to the problem. UN Secretary-General Kofi Annan argued that it is the 21^st century and it is high time to take preventive measure. He proclaimed the need to adopt ‘culture of prevention and to look through a prevention lens[12].  The final document of the UN summit 2005 accepted the idea of making the states and international community responsible for civil protection.[13] Even in the case of Croatia v Serbia, the ICJ ruled out that Serbia had failed to take preventive measure to stop the crime of genocide and also did not punished the perpetrators of the crime as provided in article 1 of the convention. Hence the ICJ noted that preventive measures are the obligation upon all the parties and are not territorially limited and it refers to effective and immediate using all the necessary funds available.

But still I personally believe that there is still problem in the system of dealing with different kinds of problems in the international community because even now we could witness the issue of Rohingya subsisting and the inefficient measures of the international community are paving the way for more and more atrocities upon them and it is rightly said the ‘justice delayed is justice denied’.

 

Sovereignty and Humanitarian intervention

The international community introduced the new understanding of the sovereignty of the states by imposing responsibility for civil protection[14] upon them and this responsibility is in three dimensions – prevention, response and reconstruction. The proposal was formally accepted in the UN General Assembly in its summit Outcome Document in 2000.[15]

Raphael Lemkin also referred to the issue in sovereignty and humanitarian aspect of genocide. Humanitarian intervention was important for the purpose of securing the inhabitants from another state’s arbitrary abusive exercise of power which they think to be an act of reason and justice. He especially draws the attention towards the reluctant states the dire need for human intervention. Though as many states argues that the independence of a sovereign state shall be protected, and one does not interfere in the internal matter of a state and the principle of non-interference is sacred, but Lemkin thinks that for the protection of lives Human intervention becomes important and strong measure.[16]  He believes the international law to be an expression of moral feeling of human and it must have social and human meaning. It is for the human progress, development and justice and shall not act as an obstacle.[17]  

Also read - Role Of Public International Law In Combating Global Terrorism

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[1] Gurdip Singh, International Law, (3^rd ed. 2015)

[2] General Assembly Res. 96 (I), 11-12-1946

[3] 78 UNTS, 277

[4] Gurdip Singh, International Law, (3^rd ed. 2015)

[5] Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, ICJ Rep 1993, 3:(1993) 57 Am J Int’l L 505 

[6] UN Security Council Resolution (1991) 820

[7] Marco Odello & Piotr Lubinski, The concept of Genocide in International Criminal Law, Development after Lemkin, (1^st ed. 2020)

[8] Gurdip Singh, International Law, (3^rd ed. 2015)

[9] Marco Odello & Piotr Lubinski, The concept of Genocide in International Criminal Law, Development after Lemkin, (1^st ed. 2020)

[10] O. Ben-Naftali, “The Obligations to Prevent and to Punish Genocide”in P. Gaeta (ed.), The UN Genocide Convention: A Commentary (Oxford University Press 2009) 36–44.

[11] A. Bieńczyk-Missala, “Kosovo: The First War for Human Rights”in M. Madej (ed.), Western Military Interventions After the Cold War: Evaluation of the Wars of the West (Routledge, 2019).

[12] UN Secretary-General Report, Prevention of Armed Conflict, A/55/985–S/2001/574, 07.06.2001

[13] General Assembly, 2005 World Summit Outcome, par. 138–140, www.un.org/en/prevent genocide/adviser/pdf/World%20Summit%20Outcome%20Document.pdf#page=30 [accessed 5 January 2020].

[14] Report of the International Commission on Intervention and State Sovereignty, The Responsibility to Protect, December 2001, http://responsibilitytoprotect.org/ICISS%20Report.pdf [accessed 5 January 2020].

[15] General Assembly, 2005 World Summit Outcome, par. 138–140, www.un.org/en/preventgenocide/adviser/pdf/World%20Summit%20Outcome%20Document.pdf#page=30 [accessed 5 January 2020]

[16] S.L. Jacobs, “The Human, the Humane, and the Humanitarian: Their Implications and Consequences in Raphael Lemkin’s Work on Genocide”in Bieńczyk-Missala and Dębski (eds.), RafałLemkin 153–164.

[17] R. Lemkin, “The Legal Case Against Hitler”(24 February 1945) The Nation 205.