|By Diane F. Orentlicher
Invoked with a frequency, familiarity, and reverence rarely associated with instruments of law, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide has come to embody the conscience of humanity. Yet nearly sixty years after it was drafted, the moral promise of the Genocide Convention has at best been only partially redeemed. While States have belatedly honoured their responsibility to punish genocide, they have shown no corresponding will to prevent it, as the treaty also requires.
Although the Genocide Convention envisages (but does not require) the creation of an international court to punish genocide, forty-five years passed before the first international criminal tribunal was established. Its jurisdiction was limited to crimes, including genocide, committed in the former Yugoslavia since 1991. A similar, more circumscribed, tribunal was created for Rwanda one year later. It was not until September 2, 1998—a half-century after the United Nations General Assembly adopted the Genocide Convention — that the first verdict interpreting the convention was rendered by an international tribunal. On that day the Rwanda Tribunal found Jean-Paul Akayesu guilty on nine counts for his role in the 1994 Rwandan genocide.
In 2002, with the launch of the International Criminal Court, the promise of a permanent international tribunal to prosecute those responsible for genocide was finally met. Genocide is one of the crimes over which the Court has jurisdiction, although its prosecutor has yet to publicly indict any defendants on genocide charges.
If States are slowly and belatedly acting to meet their treaty commitment to punish genocide, the same can hardly be said for the parallel obligation the Genocide Convention imposes to prevent the crime or halt its further progress once genocide is under way. When ethnic cleansing was under way in the Balkans, legal experts in the U.S. government were asked, in the words of a former State Department lawyer, “to perform legal gymnastics to avoid calling this genocide.” And as Rwandan Hutu slaughtered hundreds of thousands of Tutsi, the Clinton administration instructed its spokespeople not to describe what was happening as genocide lest this “inflame public calls for action,” according to the New York Times. Instead, the State Department and National Security Council reportedly drafted guidelines instructing government spokespeople to say that “acts of genocide may have occurred” in Rwanda.
Against the Clinton administration’s failure even to call the Rwanda genocide by its name at a time when effective intervention could have saved lives, the administration of George W. Bush forthrightly declared in September 2004 that violence committed by government-supported Arab militias against the black population of Darfur, Sudan, qualified as genocide. Yet the poverty of effective action to stop the violence in Darfur has made it painfully clear that invoking the name “genocide” does not by itself signify a political determination to stop the carnage.
Genocide defined. The definition of genocide set forth in the Genocide Convention is authoritative and has been incorporated verbatim in the statutes of the Yugoslavia and Rwanda tribunals, the International Criminal Court and several other courts established by or with the support of the United Nations. After affirming that genocide is a crime under international law whether committed in time of peace or war, the 1948 convention defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.”
In the 1948 convention, then, the crime of genocide has both a material element—comprising certain enumerated acts, such as killing members of a racial group—and a mental element—those acts must have been committed with the specific intent to destroy, in whole or in part, a national, ethnic, racial, or religious group “as such.” In its verdict in the Akayesu case, the Rwanda Tribunal found that the systematic rape of Tutsi women in Taba Province constituted the genocidal act of “causing serious bodily or mental harm to members of the [targeted] group.”
In addition to the crime of genocide itself, the 1948 convention provides that the following acts shall be punishable: conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide.
What was left out of the convention is as important as what was included. Although earlier drafts of the convention listed political groups among those covered by the intent requirement, this category was omitted during final drafting stages. Some governments, it appears, feared they would be vulnerable to the charge of genocide if deliberate destruction of political groups fell within the crime’s compass.
Also excluded was the concept of cultural genocide—destroying a group through forcible assimilation into the dominant culture. The drafting history makes clear that the 1948 convention was meant to cover physical destruction of a people; the sole echo of efforts to include the notion of cultural extermination is the convention’s reference to forcibly transferring children of a targeted group to another group.
In this and other respects the conventional definition of genocide is narrower than the conception of Polish scholar Raphael Lemkin, who first proposed at an international conference in 1933 that a treaty be created to make attacks on national, religious, and ethnic groups an international crime. Lemkin, who served in the U.S. War Department, fashioned the term genocide from the Greek word genos, meaning race or tribe, and the Latin term for killing, cide.
Although Lemkin’s conception included the physical extermination of targeted groups, this was, in his view, only the most extreme technique of genocide. In his 1944 book, Axis Rule in Occupied Europe, Lemkin proposed that genocide should be understood as signifying “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 objectives 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 has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain, or upon the territory alone, after removal of the population and colonization of the area by the oppressor’s own nationals.”
Another four years would pass before Lemkin’s crime was recognized in an international treaty, but the legal foundation was laid during the 1945 Nuremberg and other postwar prosecutions. Although the Nuremberg Charter did not use the term genocide, its definition of crimes against humanity overlapped significantly with Lemkin’s conception of genocide. The term “genocide” was used in the indictment against major war criminals tried at Nuremberg, who were accused of having “conducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial or religious groups.” Nuremberg prosecutors also invoked the term in their closing arguments, and it also appeared in the judgments of several U.S. military tribunals operating in Nuremberg.
The comparatively narrow terms of the 1948 convention—in particular, its exclusion of political groups and its restrictive intent requirement—have meant that genocide is a difficult crime to establish. However, a series of decisions by the Yugoslavia and Rwanda war crimes tribunals has helped clarify the treaty’s core terms. The tribunals have said that in the absence of direct evidence, genocidal intent can be inferred from such factors as “the scale of atrocities committed” and “the systematic targeting of victims on account of their membership of a particular group.” These tribunals have also ruled that defendants can be convicted of certain genocide-related charges without themselves intending the destruction of a protected group if, for example, they knowingly and substantially furthered the commission of genocide by those who were bent on the destruction of a targeted group.
Recent case law has also helped clarify when genocidal intent can be established by virtue of a perpetrator’s intent to destroy a protected group “in part.” This requirement is satisfied, in the words of the ICTY Appeals Chamber, “where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group.” Applying this standard in the case of Radislav Krsti´c, who commanded the Bosnian Serb Drina Corps during the infamous Srebrenica massacre of July 1995, an ICTY trial chamber concluded that the intent to destroy the Bosnian Muslims of Srebrenica by killing their men constituted the intent to destroy a substantial part of a national group protected by the Genocide Convention, “the Bosnian Muslims.” The trial chamber reasoned, in part, that “Bosnian Serb forces could not have failed to know, by the time they decided to kill all the men, that this selective destruction of the group would have a lasting impact upon the entire group[; they] had to be aware of the catastrophic impact that the disappearance of two or three generations of men would have on the survival of a traditionally patriarchal society.” Krsti´c was convicted of genocide, though the Court’s Appeals Chamber later reduced this to a conviction for aiding and abetting genocide.
As noted above, the Genocide Convention imposes a general duty on States parties “to prevent and to punish” genocide. Those charged with genocide are to be tried either in the State where the crime occurred or “by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.” By early 2006, the Rwanda war crimes tribunal had convicted 24 defendants of genocide or genocide-related charges. By contrast, a small proportion of those indicted by the Yugoslavia tribunal has been convicted of genocide-related offences.
The operation of these tribunals—along with the ghastly crimes that led to their creation—created a new if modest impetus for genocide prosecutions by national courts. While suspected leaders of the 1994 Rwanda genocide have been prosecuted by the ICTR, over 2700 accused genocidaires have been prosecuted before Rwandan courts. A War Crimes Chamber in Sarajevo, which formally began operating in March 2005, has brought genocide-related charges against a number of suspects in connection with the 1995 Srebrenica massacre. In the 1990s and the early years of the 21st century, courts in several countries outside Rwanda and the Balkans, including Germany, Canada, Switzerland, Austria, Denmark, France and Belgium, also instituted genocide proceedings against suspected perpetrators from Rwanda and the former Yugoslavia.
While individuals can be prosecuted for genocide, States can be held legally responsible for breaching their obligations under the Genocide Convention. Parties to the convention can bring a case before the International Court of Justice (which handles disputes between States) alleging that another State party has violated the treaty. But no State turned to the ICJ to enforce the treaty against a State said to be responsible for genocide until 1993. That case was brought by a State that had endured atrocities—Bosnia and Herzegovina—against a State allegedly responsible—the former Yugoslavia—and not by other States determined to enforce the law of universal conscience on behalf of desperate victims beyond their borders. In a controversial judgment rendered on February 26, 2007, the ICJ concluded that Bosnia’s legal team had established the occurrence of genocide only in respect of the Srebrenica massacre. But, the Court found, Bosnia failed to prove the Serbian State’s legal responsibility for this genocide.
Serbia nonetheless became the first State in history judged to have violated the Genocide Convention. Its failure to arrest and transfer to the ICTY Ratko Mladic, who was twice indicted for genocide by the ICTY, violated Serbia’s treaty-based duty to punish genocide. Serbia was found in violation of another core duty under the genocide treaty—to prevent genocide. In the Court’s reckoning, this obligation meant that Serbia should have used its significant influence with the Bosnian Serbs who carried out the Srebrenica genocide to prevent them from doing so.
Genocide in History
Although the crime of genocide is associated above all with Hitler’s Final Solution, this was not the first campaign of extermination that would qualify as genocide. The systematic extermination of Armenians by the Young Turks beginning in April 1915—an episode that loomed large in Lemkin’s early thinking about the need to criminalize what he later termed genocide—was the first genocide in the twentieth century. Emboldened by the world’s acquiescence in the slaughter of Armenians—over 1 million are estimated to have been put to death—Hitler is famously reported to have reassured doubters in his ranks by asking, “Who after all is today speaking of the Armenians?”
Turning to more recent episodes of wholesale slaughter, at least some scholars have concluded that the Turkish massacre of Kurds in the district of Dersim in 1937-1938, the massacre of Hutus by Tutsi perpetrators in Burundi in 1972, the Khmer Rouge campaign of extermination in the mid-1970s, and the 1988 Anfal campaign against Iraqi Kurds meet the legal definition of genocide.
Among these cases, perhaps none better illustrates the complexities of the 1948 convention’s definition of genocide than the case of Cambodia. In view of the magnitude of the carnage there—some 1.5 million out of Cambodia’s 7 million citizens are believed to have died as a result of Khmer Rouge policies—there has been a keen desire to affix the term “genocide” to their crimes. Since, however, both the perpetrators and the majority of victims were Khmer, reaching this conclusion has required agile legal reasoning. Some scholars have invoked the concept of auto-genocide, arguing that it is possible to satisfy the 1948 convention’s definition even when the perpetrators sought to kill a substantial portion of their own ethnic/national group. Others, more conservatively, have conceded that the vast majority of victims were killed for reasons that may be broadly termed political, but note that certain minority groups, such as the Muslim Cham and Khmer Buddhists, were specially targeted for destruction and argue that at least the crimes against these groups were genocidal. Notably, the jurisdiction of a court established in 2006 to prosecute senior surviving Khmer Rouge leaders, a joint enterprise of the United Nations and the government of Cambodia, includes genocide.
For decades, the dearth of precedents enforcing the Genocide Convention—a grim testament to the international community’s failure of will—left experts able to do little more than speculate knowledgeably about whether well-known candidates for the label “genocide” met the legal definition. Today, international tribunals and national courts are gradually clarifying definitional ambiguities and serving notice—however tentatively—that those responsible for genocide may face justice. Still, the very fact that courts are presiding over genocide-related cases stands as a stark testament of a deeper failure: If States have at last begun to meet their obligation to punish genocide, they have barely begun to meet their duty to prevent it in the first place or, at the least, to stop it in its deadly tracks.