Genocide, defined by Raphael Lemkin in 1944, refers to the deliberate destruction of a group based on ethnicity, nationality, or religion. The 1948 Genocide Convention mandates states to prevent and punish genocide—are we doing enough to uphold these obligations?
The word "genocide" is a combination of two terms: genos (Greek), meaning family, clan, tribe, or race, and cide (Latin), meaning killing. In modern times, the term "genocide" was coined in 1944 by Raphael Lemkin, a Polish Jewish lawyer. Lemkin was perhaps the first person in modern history to make extensive efforts for the adoption of an international convention aimed at the prevention and punishment of the crime of genocide.
Lemkin referred to examples of genocide, including extermination campaigns such as the Holocaust, during which Nazi Germany wiped out entire racial groups in World War II. This included a horrendous number of six million European Jews over just 4 years—1941 to 1945. The Holocaust remains the most studied genocide. Furthermore, it was the immediate cause for the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 (commonly referred to as the Genocide Convention).1
Genocide is a recurrent historical phenomenon with roots traced back to wholesale campaigns of slaughter mentioned in the Hebrew Bible. In modern times, erstwhile colonial powers such as Brazil, the United States, and Paraguay engaged in widespread genocides against the indigenous populations of their colonies. During the World War I, the Ottoman Empire was accused of committing the Armenian genocide, Assyrian genocide, and Greek genocide. More recent examples include the Rwanda genocide in 1994 and the Srebrenica genocide in 1995.
Definition of Genocide
According to the Encyclopedia Britannica, genocide is defined as "the deliberate and systematic destruction of a group of people because of their ethnicity, nationality, religion, or race." Genocide is further defined by Article 3 of the Genocide Convention. The landmark Rome Statute of the International Criminal Court (1998) defines genocide in Article 6. Through United Nations General Assembly (UNGA) Resolution No. 96 (I) of December 11, 1946, genocide was declared a crime under international law.
Jus cogens, a peremptory norm of general international law, is a norm accepted and recognized by the international community of states as a whole from which no derogation is permitted (by treaty or otherwise) and which can be modified only by a subsequent norm of general international law having the same character).
Jurisprudence of International Court of Justice on Genocide
The International Court of Justice (ICJ) has delivered several decisions highlighting the nature and legal status of the genocide:
In 1951, the ICJ pronounced the prohibition of genocide to be a rule of the customary international law2, binding even non-signatory parties to the Convention.
In 1996, the ICJ further attributed to the prohibition of genocide an effect erga omnes.3 In international law, erga omnes obligations are responsibilities that a state owes to the international community as a whole. Consequently, any state has the right to invoke state responsibility in order to hold the responsible state legally liable.
In 2006, the ICJ further recognized that the prohibition of genocide amounts to jus cogens.4 Jus cogens, a peremptory norm of general international law, is a norm accepted and recognized by the international community of states as a whole from which no derogation is permitted (by treaty or otherwise) and which can be modified only by a subsequent norm of general international law having the same character).56
States are obliged to take all measures within their power to prevent the commission of the crime of genocide, even before a competent court determines that the Genocide Convention actually applies to a case in hand.6
Convention Against Prevention and Punishment of the Crime of Genocide
On November 21, 1947, the UNGA passed Resolution No. 180 (II) directing the UN Economic and Social Council to expedite the “Draft Convention on Genocide” and submit a report to the UNGA along with the Draft Resolution. Consequently, the Genocide Convention was adopted in 1948, entered into force in 1951, and has been ratified by 153 countries.
The preamble to the Genocide Convention recognizes 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 cooperation is required”. It is, therefore, in this spirit that Article 1 of the Genocide Convention makes it obligatory for all parties to the Convention to take individual and collective measures to prevent and punish the crime of genocide.
Nature of Obligation of the Parties to the Genocide Convention
Article 1 states: “The Contracting Parties confirm that genocide, whether committed in times of peace or in times of war, is a crime under international law which they undertake to prevent and to punish.
A question arises as to whether the obligations under Articles 4 to 8 of the Genocide Convention are exhaustive or merely illustrative of the general obligations imposed under Article 1.
If interpreted as minimum or illustrative and not exhaustive, it would strengthen the international community’s strong resolve to eradicate, completely prevent, and punish the crime of genocide. This resolve is supported by the conduct of the Nuremberg trials and various UNGA resolutions passed prior to the promulgation of the Genocide Convention. The ICJ has confirmed this position in a case by observing that “the Court… confirms that Article I does impose distinct obligations over and above those imposed by other Articles of the Convention.”
Thus, a reasonable interpretation of the Convention is that the UN, along with the parties to the Convention, had a firm intention to take all possible steps for the prevention and punishment of genocide, extending beyond the measures outlined in Articles 4 to 8. In this context, the execution of treaties such as the Rome Statute, which established the International Criminal Court for prosecuting genocide, and the adoption of the Responsibility to Protect (R2P) regime through General Assembly Resolution A/60/L.1 on September 16, 2005, were consistent with the general obligations imposed by Article 1 of the Genocide Convention.
According to the practice of Security Council, “threat to peace” now includes gross violation of human rights such as genocide.
Obligations of the Parties Under and Pursuant to the Genocide Convention
Article IV of the Convention specifies that any individual responsible for committing genocide or related acts outlined in Article III—whether a ruler, public authority, or private person—must be punished under the Convention. Therefore, it is the obligation of all parties to the Convention to ensure that no individual, regardless of their status, is exempt from accountability for genocide.
Article V obligates all national parties to enact necessary legislation to punish individuals for the crime of genocide. In this regard, member states are required not only to criminalize the act of genocide but also to provide effective punishments. Furthermore, if needed, special mechanisms such as trial procedures and the establishment of dedicated forums must be provided under national legislation in compliance with this Article.
Article VI provides for territorial jurisdiction for the prosecution of persons accused of committing genocide as defined in Article III of the Convention. Usually, such crime shall be tried by the courts of the country where genocide occurred or in absence of such courts, any international tribunal such as was established for the trial of persons responsible for committing genocide in Rwanda and former Yugoslavia (ICTR and ICTY). In addition, jurisprudence has evolved which says that if genocide is committed in country A, but conspiracy or abetment is made for the same in country B, C, or D, all countries have jurisdiction to try the person responsible for the respective act.7 Further jurisprudence is developed with regard to “universal jurisdiction”8 according to which a State has competence to try the crime of genocide irrespective of the place of perpetration, the nationality of suspect or victim or any other recognized linking point between the crime and the prosecuting State.9
Article VII states that if a request is made by one State to another for the extradition of a person accused of the crime of genocide, it shall not be refused on the grounds of the crime being political in nature. However, as per the provisions of Article VII, extradition is to be granted “in accordance with (national) laws and treaties in force.” This implies that extradition may be refused on grounds other than the political nature of the crime.
There are different views on the question of available grounds for refusal to extradite. While some authorities consider the obligation to extradite as absolute and unexceptional, other authorities are of the opinion that such view is not in consonance with the text of Article VII and limited grounds are available under the regime of “national laws and treaties” to refuse extradition, such as existence of a threat of torture or double jeopardy.
Article 8 and article 9 of the Genocide Convention provide that States to the party may refer to any competent organ of the United Nations for suppression and prevention of acts of genocide. Furthermore, if any question arises regarding the fulfillment of the Convention or the responsibility of a State for acts of genocide, any State party may refer the matter to the ICJ for adjudication.
Under Article 39 of the UN Charter, the Security Council may take note of any event that might constitute a threat to peace and security at international level and then may take any action, including imposition of sanctions and action by armed forces in order to scale down or suppress the threat to peace. According to the practice of Security Council, “threat to peace” now includes gross violation of human rights such as genocide. Security Council’s resolution no. 827/1993, which constituted ad hoc tribunal for prosecution of crimes of genocide in former Yugoslavia, considered genocide as “threat to peace”. In this regard UNSC resolution 1593/2005 in relation to Darfur may also be cited.
Article 9 of the Convention grants the ICJ mandatory jurisdiction to resolve disputes related to genocide, allowing any State party to the Convention to initiate proceedings before the ICJ if genocide occurs in another State. If a party fails to comply with the ICJ's judgment, the matter may be referred to the UNSC under Article 94 of the UN Charter for appropriate measures to enforce the ICJ's decision.
The ICJ also holds advisory jurisdiction under Article 96 of the UN Charter in matters of genocide. Additionally, Chapter 6 of the UN Charter allows for recourse to the UN for negotiation and peaceful resolution of disputes, including those involving genocide.
A doctrine independent of the provisions of Chapter VI and VII of the UN Charter, known as the "Responsibility to Protect," has been developed through UNGA resolution A/60/L.1 dated September 16, 2005. This doctrine overrides the provision of Article 2(7) of the UN Charter, which prohibits any State or the UN from interfering in matters that relate to the domestic jurisdiction of a member State.
R2P prescribes the following:
Each individual State has the responsibility to protect its population from acts of genocide.
The international community, through the UN, has the responsibility to adopt all means under Chapter VI and VIII of the UN Charter, using diplomatic, humanitarian, and other peaceful methods to help protect populations from genocide.
States have the responsibility to take collective action under Chapter VII of the UN Charter to help protect populations from genocide.
R2P envisions not only collective responsibility but also the individual responsibility of all States to take measures such as political and social boycotts, commercial sanctions, penal measures, and severance of diplomatic relations against a country that fails to protect its population from genocide.
The Security Council has reaffirmed its commitment to R2P in more than 80 resolutions. The first such resolution came in April 2006, when the Security Council reaffirmed the provisions of paragraphs 138 and 139 in its Resolution 1674/2006. In country-specific situations (such as Darfur, Libya, Yemen, Syria, Mali, Sudan, and South Sudan), the Security Council has mentioned R2P.
The ICC can prosecute and punish persons accused of genocide, as it falls within the jurisdiction of the Court. Any member state, including the UNSC and UNGA, can bring a complaint before the ICC for the prosecution and punishment of individuals involved in genocide.
Recently, arrest warrants have been issued for Israeli Prime Minister Netanyahu, requiring his appearance before the Court for investigation and prosecution of crimes committed in Palestine since 2023.
The ICC has indicted several political and rebel leaders, including Ugandan rebel leader Joseph Kony, former President Omar al-Bashir of Sudan, President Uhuru Kenyatta of Kenya, Libyan head of state Muammar Gaddafi, President Laurent Gbagbo of Ivory Coast, and former Vice President Jean-Pierre Bemba of the Democratic Republic of the Congo. Recently, arrest warrants have been issued for Israeli Prime Minister Netanyahu, requiring his appearance before the Court for investigation and prosecution of crimes committed in Palestine since 2023.
The Genocide Convention is an international instrument not driven by the political necessities of international relations but reflecting the highest manifestation of "international conscience" and "morality."
Commenting on the special nature of the Genocide Convention, the ICJ, in its Advisory Opinion mentioned above, observed that the "Convention was manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed difficult to imagine a convention with such a dual character to a greater degree, as its object is, on one hand, to safeguard the very existence of certain human groups and, on the other, to confirm and endorse the most elementary principles of morality. In such a convention, the contracting States do not have any interests of their own; they merely have, one and all, a common interest—namely, the accomplishment of those high purposes which are the raison d'être of the convention."
Most importantly, the Genocide Convention covers acts of genocide committed not only during wartime but also during peacetime. In this regard, it supplements both international humanitarian law and international human rights law. Genocide is an aggravated form of cruelty and mistreatment of innocent people. It is an attack on individuals—those affected are singled out for extermination, not because of anything they have done as individuals, but because of the group to which they belong.
The Genocide Convention is an international instrument not driven by the political necessities of international relations but reflecting the highest manifestation of "international conscience" and "morality." Those who cynically view international law as merely a tool for ensuring the dominance of great powers over weaker nations need to reconsider this perspective in light of the provisions of the Genocide Convention.
The author is a former Federal Law Minister, President of the Research Society of International Law (RSIL), and Advisor at the Centre of Excellence for International Law (CEIL), National Defense University, Islamabad.
References
1. “Explainer: What Is the Genocide Convention? | the United Nations Office at Geneva.” 2024. www.ungeneva.org. January 11, 2024. https://www.ungeneva.org/en/news-media/news/2024/01/89297/explainer-what-genocide-convention.
2. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, ICJ Reports 1951, p. 23.
3. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, Judgment of July 11, 1996, ICJ Reports 1996 (II), p. 616.
4. Case concerning Armed Activities on the Territory of Congo, Jurisdiction of the Court and Admissibility of the Application (Democratic Republic of Congo v. Rwanda), Judgement of February 3, 2006, para. 64.
5. See Article 53 of Vienna Convention on Law of Treaties 1969.
6. Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) (Request for the indication of provisional measures) ICJ Reports (1993, P. 2) para 46.
7. The penal codes of Switzerland, Germany and Italy provides jurisdictional provision to that effect— ubiquitous jurisdiction.
8. Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain) ICJ Reports 1970, p.1 at p. 32.
9. Examples are German Code of Crimes against international Law and Netherlands International Crimes Act 2003.
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