Its moral force is surely ironic. For the record of the Genocide Convention since its adoption has been notable above all for States' nearly wholesale failure to enforce its terms.

Although the treaty 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 following a trial (one other defendant had previously pleaded guilty to genocide). On that day the Rwanda Tribunal found Jean-Paul Akayesu guilty on nine counts for his role in the 1994 Rwandan genocide.

Nor did any State bring a case under the Genocide Convention to the World Court until 1993, and this was scarcely a milestone in international enforcement efforts. The case was brought by a State that had endured genocidal crimes-Bosnia-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.

To the contrary, when those same crimes were being committed-and gruesomely portrayed in the daily media-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 Hutus slaughtered hundreds of thousands of Tutsis, 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.

Five decades of nonenforcement have left the Genocide Convention's core terms shrouded in considerable ambiguity, making it that much easier for recalcitrant politicians to equivocate. (Such equivocations nonetheless fly in the face of the convention, which requires States parties not only to punish genocide-a measure that does demand legal certainty-but also to prevent and repress the crime-action that by its nature must not await the certain knowledge that genocide has occurred.)

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 as well as that of a permanent International Criminal Court (ICC) that will be created after sixty states have ratified the statute adopted in Rome in July 1998. 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 physical 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 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 commitgenocide, 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. Too many governments, it seemed, 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. (In his 1944 book, Axis Rule in Occupied Europe, Lemkin noted that the same idea could also come from the term "ethnocide, consisting of the Greek word 'ethnos'-nation-and the Latin word 'cide.' ")

Although Lemkin's conception included the physical extermination of targeted groups, this was, in his view, only the most extreme technique of genocide:

"By 'genocide' we mean the destruction of an ethnic group.... Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify 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."

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.

Shortly after the trial of major war criminals at Nuremberg, the UN General Assembly adopted a resolution affirming that genocide is a "crime under international law." In its preamble, the 1946 resolution termed genocide "a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings."

The comparatively narrow terms of the 1948 convention-in particular, its exclusion of political groups and its restrictive intent requirement-have enabled political leaders to raise doubts about whether probable genocides satisfy the convention's stringent criteria. Did the authors of the Anfal campaigns of 1988, in which at least fifty thousand Iraqi Kurds are estimated tohave been massacred, intend to kill Kurds "as such" or, in the words of one leading scholar, was their aim to eliminate "the Kurdish movement as a political problem?" Did Serb perpetrators of ethnic cleansing in Bosnia intend to destroy Muslims and Croats "as such," or did they "merely" seek to establish homogeneous Serb control over coveted territory?

As these questions suggest, a key source of ambiguity is the meaning of the 1948 convention's intent requirement. Although the drafting history is somewhat ambiguous, I believe that it is a mistake to treat the convention's use of the term intent as though it were synonymous with motive. That Serb perpetrators of ethnic cleansing may have slaughtered Muslims so that they could obtain control over territory does not negate their intent to destroy Muslims "as such" in order to achieve their ultimate goal.

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." Although the convention does not mention a third possibility-prosecution in a third State-it is now well established that any State can assert jurisdiction over crimes of genocide, wherever the crimes occurred and whatever the nationality of the perpetrators and victims.

In addition to individual criminal responsibility for genocide, the convention also establishes State responsibility-that is, international legal responsibility of the State itself for breaching its obligations under the convention. Parties to the convention can bring a case before the International Court of Justice alleging that another State party is responsible for genocide. As noted above, the first case of this sort was brought against Yugoslavia by Bosnia-Herzegovina in 1993 and is still pending.

Article 8 of the convention contemplates measures not only to punish genocide, but also to stop it in its tracks: "Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article 3." States that are parties to the convention could, for example, seek Security Council authorization to use military force to stop genocide being committed in another country.

Finally, although treaties themselves are binding only on States that are parties to the treaties, in a 1951 advisory opinion the International Court of Justice observed that the principles underlying the Genocide Convention are part of customary international law, which binds all states.

Genocide in History

Although Lemkin implied that Nazi crimes were fundamentally different from any previously committed, Hitler's "Final Solution" was not the first campaign of extermination that would meet Lemkin's definition of genocide. The systematic extermination of Armenians by the Young Turks beginning in April 1915 was the first genocide in this 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?"

Among 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-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.

While some campaigns of extermination more clearly qualify as genocide than others-the Holocaust and the 1994 Rwandan genocide are instances-the truth is that plausible arguments can be raised with respect to most cases of possible genocide. In the absence of judicial resolution or political resolve, virtually any case of genocide can be questioned. The first defendant tried before the Rwanda Tribunal argued, for example, that the massacres in Rwanda were politically motivated, a gruesome manner of waging civil war. In response the tribunal concluded that, "alongside the conflict...genocide was committed in Rwanda in 1994 against the Tutsi as a group." That the execution of this genocide "was probably facilitated by the conflict" did not negate the fact that genocide occurred.

The dearth of precedents enforcing the convention-a grim testament to the international community's failure of will-has for decades left experts able to do little more than argue knowledgeably about whether well-known candidates for the label "genocide" meet the legal definition. The ambiguities built into the Genocide Convention can finally be resolved only when States are willing to acknowledge forthrightly that genocide has occurred and to enforce the law of conscience.

Diane F. Orentlicher is a professor of law and Director of the War Crimes Research Office at the Washington College of Law, American University. She is author of Genocide and Crimes Against Humanity: The Legal Regime (United States Holocaust Memorial Council, 1998).