The General Assembly of the United Nations adopted the Genocide Convention in 1948. The Convention has contributed significantly to addressing the commission of genocide. However, there have been questions and criticisms as to the effectiveness of the Convention in realizing the objectives behind its formulation and adoption. Critics assert that the Convention is too narrow and restrictive. They attribute this to either the scope of the groups it protects being limited, or the list of punishable acts under the Convention being exhaustive.
The Convention defines genocide as follows:
“…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.”
The definition of genocide under the Convention is a development from initial definition that Raphael Lemkin coined. Before Lemkin’s formulation of the word, there was no specific word for the deliberate and criminal annihilation of groups of people. Lemkin invented and defined genocide, deriving it from the Greek words ‘genos’ and ‘cide’. Genos refers to a race or tribe, while cide refers to killing. He went ahead to distinguish genocide from mass murder, stating that genocide does not essentially imply the instantaneous annihilation of a nation. Furthermore, and different from mass murder, genocide does not require that weapons be used or that there be a direct use of physical force. Genocide could arise in an instance where there is an organized scheme of diverse acts but all aimed at achieving a common goal of destroying the fundamental establishments of the life of national groups so as to exterminate the national groups. Lemkin set out the aims of such a scheme as the breakdown of the social and political establishments of the national groups, the culture, language, national feelings, religion and even economic subsistence of the national groups. Additional goals include the compromising of personal security, liberty, dignity, well-being and lives of individual persons belonging to the national groups.
In summary, Lemkin defined genocide as being targeted against national groups, and where the actions are aimed at individuals it is because of their being part of the targeted national groups. The definition is the basis of one of the basic elements of genocide that have to be proven in a charge of genocide. It has to be shown that persons killed or excluded suffered such only because they were part of a group that was the target of the actions.
It was Lemkin’s contention that after having a proper word for the crime of deliberate annihilation of groups of people, there was need for expressly prohibiting the crime. This necessitated the establishment of a legal structure that would identify genocide as a crime, set out how it would be curbed or prevented, and how perpetrators of genocide would be chastised for their actions. This view informed his averment of international law as needing to be “an instrument for human progress and justice”.
The Rome Statute also makes provisions touching on genocide. Article 5 lists genocide as one of the crimes falling within the jurisdiction of the International Criminal Court. Article 6 defines genocide. It copies the language of the Genocide Convention, listing the same acts as constituting genocide. The Statute defines other international crimes that are to be distinguished from genocide. These are crimes against humanity, the crime of aggression and war crimes. The distinguishing of genocide from the other crimes is the necessity to show that the accused had “the intent to destroy, in whole or in part, a national, ethical, racial or religious group”. The requirement is what international criminal tribunals referred to dolus specialis. The International Law Commission also brought out the distinction between genocide and other international crimes in the 1996 Draft Code of Crimes against the Peace and Security of Mankind. In the draft code, the Commission set out the specific intent requirement as being “the distinguishing characteristic of this particular crime under international law”.
The distinction between genocide and crimes against humanity is apparent upon a review of the Nuremberg Charter and the Genocide Convention. After the Nuremberg Tribunal, there was a view that genocide fell within the category of crimes against humanity. There are scholars who even asserted that genocide fell within the class of crimes against humanity that the Nuremberg Charter regarded as entailing “the persecution of individuals on political, racial or religious grounds”. The view is inconsistent with the drafting of the Genocide Convention. Whereas the Nuremberg Charter required that there be a link between the acts falling within the category of crimes against humanity and an armed conflict, the Genocide Convention does not require that there be armed conflict. Genocide can arise even at times of peace.
There could be a perception that the crime of genocide was derived from crimes against humanity. However, it is noteworthy that the crime of genocide is different from crimes against humanity. Genocide has been codified, with the Genocide Convention expressly setting out what elements have to be proven. These elements are different from those of crimes against humanity. For instance, the practice of the ICTY and the ICTR demonstrated the requirement of the mental element of the intention to either wholly or partly destroy a national, ethnic, racial or religious group. This requirement differs from the ad hoc tribunals consideration of crimes against humanity where they consistently affirmed the requirement that it be shown that the acts alleged as being crimes against humanity were “committed as part of a widespread or systemic attack directed against any civilian population, with knowledge of the attack”. Crimes against humanity do not require that the intent be shown, except for the crime of persecution. In the context of the persecution crime under crimes against humanity, the intent has to be shows as being discriminatory rather than genocidal. The position is part of customary international law.
Background of the Genocide Convention
In the period after World War II, it became apparent that there was need to criminalize genocide. World War II had resulted in such grave atrocities as the Holocaust. During the Holocaust, Nazi Germans and their allies methodically murder millions of Jews in the European territories that Germany occupied. The Nazis led by Adolf Hitler were deliberately seeking to exterminate the European Jews.
The atrocities had no sufficient definition at law. Raphael Lemkin was at the forefront of the campaign to have the United Nations declare genocide to be an international crime. The campaign bore fruits as in 1946, the General Assembly affirmed genocide as an international crime. In the resolution, the Assembly asked Member States to enact the requisite laws to ensure the deterrence and punishment of genocide.
In 1948, the General Assembly of the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), being the first treaty on human rights to get undivided adoption of the Assembly.
The Convention has 19 articles. The first eight articles contain what may be regarded as the substantial provisions with regards to the crime of genocide.
Article I stipulates the affirmation by Contracting Parties to the Convention of genocide as a crime under international law. The confirmation as an international law crime applies whether it occurs in the course of war or in a time of peace. It also sets out the undertaking by the Parties to it to commit to the prevention and punishment of genocide.
Article II sets out the definition of genocide.
Article III lists the acts that are punishable under the Convention. These include genocide, conspiracy to commit genocide, attempt to commit genocide, complicity in genocide, and the direct and public incitement to commit genocide.
Article IV makes provision as to the liability of perpetrators. It mandates that those who commit any of the acts listed as being punishable under Article III shall be subjected to punishment. It is immaterial whether the persons are private individuals or they are in such positions as public offices or constitutional leadership.
Article V sets out the undertaking by the Contracting Parties to have in place appropriate legislation effecting the stipulations of the Genocide Convention. Such enactments provide for the actual sanctions or penalties for persons convicted for committing the crime of genocide or any of the acts listed as being punishable under Article III.
Article VII sets out the obligation to have persons accused of genocide or the acts listed as punishable under Article III to be tried in competent tribunals established by the State in whose territory the act was committed. The alternative is that they be tried in an international criminal tribunal that has jurisdiction with regards to Contracting Parties to the Convention that have agreed to the jurisdiction of such tribunal.
Article VII makes a consequential provision. It dictates that the acts listed under Article III, including genocide, are not to be regarded as political crimes in the context of extradition. This means that where extradition is sought for these acts, the State Parties to the Convention are under an obligation to allow extradition but in a manner that is consistent with the Parties’ laws and applicable treaties.
Article VIII allows a Party to the Convention to seek the involvement of the United Nations. It allows for any Contracting Party to the Convention to seek the relevant organs of the United Nations to act as necessitated by circumstances to prevent and squash acts amounting to genocide or any of the offences listed in Article III. The actions of the organs of the United Nations have to be in accordance with the Charter of the United Nations.
Effectiveness of the Convention
The effectiveness of the Genocide Convention is assessable from the cases that have been handled by international courts and tribunals applying the provisions of the Convention.
International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)
The United Nations established the court to deal with crimes that took place in the course of the conflicts in the Balkans. The ICTY addressed charges of genocide in some of the trials it conducted. In the case against Sikirica, Sikirica was charged with genocide and complicity in genocide. It is noteworthy that Article 4 of the Statute establishing the ICTY defined genocide in the exact words as those used in the Genocide Convention. The Statute of the ICTR also used the same definition. The Secretary-General of the United Nations acknowledged the Genocide Convention as the main basis for including genocide in the ICTR and ICTY Statutes.
The Genocide Convention lists as punishable acts that do not involve actual and direct commission of genocide. For instance, Article III sets out as punishable the crime of public incitement to commit genocide. The expansion of the scope of prosecutable offences advances the objective of preventing and punishing genocide by addressing related genocidal acts.
The International Criminal Tribunal for Rwanda (ICTR) in the case against Jean Paul Akayesu found the defendant liable for the crime of public incitement to genocide. The decision was the first time that an international tribunal was interpreting the provisions of the Genocide Convention. In convicting the defendant on all the nine counts that he had been indicted for, the ICTR affirmed individual criminal responsibility for genocide. He was held liable as the court held that he had effective control over the communal police had the means to try and stop the killings. The ICTR also convicted former Prime Minister Jean Kambanda. He was convicted on the counts of genocide, conspiracy to genocide, and incitement of genocide.
Limitations of the Convention
As early as in 1978, concerns arose as to the effectiveness of the Convention in preventing and punishing genocide. The 1978 Report of the Special Rapporteur on Genocide observed that the Genocide Convention did not have efficient measures at the international level to deter against genocide and punish perpetrators. The report concluded that the Convention did not set up any hindrance to the commission of genocide. The position was affirmed later on when the 1985 Special Rapporteur’s Report pointed out that “all too much evidence continues to accumulate that acts of genocide are still being committed in various parts of the world … [i]n its present form, the Convention … must be judged to inadequate. Further evolution of international measures against genocide are necessary and indeed overdue”.
A crucial point for critics of the Convention is that it is narrow and restrictive. The narrowness and restrictiveness arises in the context of the limited scope of the group that the Convention protects. Article II is expressly restrictive on groups of whom the Convention applies. It defines genocide as acts committed with the intention of destroying a national, ethnical, racial or religious group. The definition of genocide as arising only if acts are committed against persons for being members of these groups means that commission of genocide based on other groups will not qualify as genocide in the context of the Convention. The protection of the Convention extends to persons or groups that are only either national, ethnical, racial or religious.
There is need for the Convention to be reviewed with a view to expanding the scope of the groups that it protects. In the period between when the Convention was adopted and the present day, there have been numerous developments in the structure of society. There have arisen more classification or groups of classifying persons demographically. Crimes are committed against these newer groups of persons. There is need to review the Convention so that the scope of protected groups is not conclusive as to exclude others that are not listed. An appropriate way to do this would be to substitute the listed or groups or add to them the additional provision of any rational group that can be the subject of persecution or genocidal actions.
The narrowness and restrictiveness is further made clear by the fact that the provisions of Article II do not include political groups, women, gay people and even economic classes. Even in the period preceding the adoption of the Convention, political groups were the subjects of persecution. This still continues to date. In the past, members of political groups and movements have been victimized on the basis of their membership to the groups and movements. A concern then arises that the exclusion from protection of political groups affords authorities in different states to justify genocidal acts as being acts intended at cutting down dissenters. Governing regimes argue that their actions are not based on ethnicities or religion, but curtailing rebellion. Scholars have attributed the exclusion of political groups to such factors as the influence that the Soviet Union played in the negotiations preceding the formulation and adoption of the Convention. The then Soviet Union leader Joseph Stalin was against the classification of persecution against political groups as genocide, so as to exempt his actions of purging political dissidents from being regarded as genocide.
The inadequacy of the Convention due to its narrowness and restrictiveness in defining genocide is exemplified in the context of Cambodia. During the Khmer Rouge regime, the regime carried out atrocities which scholars have defined as being genocide. The regime targeted the victims on the basis of their political distinctions. The revolution by the regime focused on professionals, students and those who conversed in foreign languages. They were suspected as being connected to the foreign countries. Scholars argue that the actions of the regime amounted to genocide as they targeted the destruction of a national group of people. Based on a literal interpretation of the Convention, the actions of the regime would not amount to genocide since the victims were not persecuted only because of being members of the protected national groups, but instead because of being members of the professional, economic and political groups.
Steven Ratner and Jason Abrams assert that adopting a broader interpretation of the Convention is morally appealing but would have the implication of practically widening the scope of the Convention and expand the list of protected groups to almost any “political, social or economic element of a population that can be viewed as a part of a larger Cambodian national group”. The scholarly argument has a serious flaw. It faults the expansion of the list of protected groups. The main objective of the Convention is to safeguard against the systematic destruction, either in part or wholly, of groups of people. It should matter less what groups of people benefit from the protection. The objective of avoiding persecution should override all other considerations.
Another example arises in the context of the Soviet killing of thousands of Poles at Katyn Forest in the period of World War II. The Soviet Union committed mass murder of members of the Polish intelligentsia. Those opposed to the classification of the killings as genocide assert the view that those killed were not targeted because of being part of a Polish national group. The Genocide Convention protection offers protection offers protection to national groups. However, there is the perspective that the members of the Polish intelligentsia who were killed were targeted because of their membership to the intelligentsia, which is a subgroup of the larger Polish national group. Those who subscribe to this school of thought then agree that it was the intention of the Soviet Union to destroy the Polish national group, not wholly but in part. A loophole arises in the fact that the subgroup is not expressly a protected group in the Convention. The Convention only directly anticipates the destruction of national, ethnic, racial or religious groups. The narrowness of the Convention in limiting the scope of the protected groups results in the failure to prevent and punish acts which would reasonably fall within the category of genocidal acts.
A limitation of the Convention arises in the context of the requirement for motive and intention to be shown. Article II in defining genocide introduces the aspect of intent to destroy. Scholars have been critical of the wording of this article on the basis that it is evasive as to the definition of intent. They opine that the provision does not set out parameters for determining the existence of the element of intent. This means that the determination of intent is left to the discretion of judges, thereby making the determination of intent a subjective process. The ICTR itself acknowledged the difficulty in establishing the existence of not just intent, but genocidal intent. It stated that the inference and deduction of the element of intent has to be done in the circumstances of the genocidal acts in general. The same position was affirmed by the judges of the ICTR in the Kayishema case. There, the judges used the fact that a significant number of the victims were members of the Tutsi ethnic group as part of the evidence inferring or deducing the genocidal intention of the defendant to destroy the ethnic group. However, the ICTR cautioned against placing reliance on the consideration of number of victims solely. The judges emphasized that the numbers are to be considered in the social and political circumstances in which the acts against the victims were committed.
From the foregoing review of the ICTR, it is apparent that there is no clear and predictable manner of deducing the existence of the genocidal intent, particularly where there is no direct evidence of the defendant’s specific intent to destroy the protected group.
The case of Bosnia-Herzegovina is indicative of the loophole that exists as a result of the requirement for the genocidal intent to be shown. Bosnia-Herzegovina brought proceedings against Serbia alleging that Serbia had breached the Genocide Convention. Bosnia-Herzegovina commenced the proceedings on the basis of Article IX which confers jurisdiction on the International Court of Justice. The ICJ held that the Srebrenica massacre that Serbia orchestrated and in which more than 5,000 Bosnian makes were killed amounted to a genocidal act. The basis of this finding was that the killings were carried out with intention of destroying a national group protected under the Convention. However, the Court held that the acts were nor committed with the same genocidal motive. Based on this finding, the Court held that the atrocities did not qualify as genocide in the context of the Genocide Convention. It stated that:
“It is not enough that the members of the group are targeted because they belong to that group, that is because the perpetrator has a discriminatory intent…. The acts listed in Article II must be done with intent to destroy the group as such in whole or in part. The words “as such” emphasize that intent to destroy the protected group.”
The limitation arising out of the requirement to prove genocidal intent and not discriminative intent has also arisen in the context of the ICJ. In the Bosnian case, the ICJ made a distinction between the persecution as a crime against humanity and persecution as part of genocide. It referred to the decision of the ICTY in the Kupreškić case where the ICTY asserted that in the context of persecution as a crime against humanity, this is based on a discriminatory intent taking inhumane forms. In the context of genocide, there is a deliberate objective to partly or wholly destroy the group that the victims of the persecution belong to. The ICJ was categorical that even in instances of ethnic cleansing, this would fall under the punishable acts under the Genocide Convention only if the intention to destroy the group exists. Based on this interpretation, the ICJ concluded that Serbia was not liable for violation of the Convention through express genocide. The ICJ also affirmed this position in the dispute between Croatia and Serbia. It asserted that in the absence of the specific intent to destroy the group to which victims belong, ethnic cleansing would not amount to genocide. This position is illustrative of how the requirement for proof of intention and motive to destroy a protected group is curtailing the effectiveness of the Genocide Convention in preventing and punishing genocide.
Article III lists the criminal acts that are punishable under the Convention. The list is extensive as it extends beyond the actual commission of genocidal acts. The Article lists such inchoate crimes as conspiracy to commit genocide, public incitement to commit genocide and even attempting to commit genocide. The inclusion of acts that are not direct genocide is a fair attempt at widening the scope of the act. However, the requirement for proof of specific intent to destroy a protected group indicates the narrowness of the Convention. This is a loophole that has aided States and persons to avoid liability for acts which would otherwise qualify as genocide. For instance, the ethnic cleansing in the context of Croatia and Serbia is genocidal but the International Criminal Court declined to hold Serbia liable for genocide on the basis of an absence of a specific intent to destroy a protected group.
There is need for further review of the Convention with a view to expanding the scope of the Convention. Such a review should, for instance, allow for the finding of liability for genocide in the absence of the specific intent but the perpetrator knew or ought to have reasonably known that the bulk of the victims fall under a protected group. The Convention should allow courts to infer the intention of destroying, in part or wholly, a protected group if there is evidence of a vast majority of victims belonging to a group.
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 Dan Eshet, Totally Unofficial: Raphael Lemkin and The Genocide Convention. The Making History Series (Facing History and Ourselves Foundation, Inc. 2007), pg. 19-21.
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 Rome Statute, Art 6.
 Ibid. Also set out in the Genocide Convention, Article II.
 Janine Natalya Clark, ‘Elucidating The Dolus Specialis: An Analysis of ICTY Jurisprudence On Genocidal Intent’ (2015) 26 Criminal Law Forum.
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 Article 7(1) of the ICC Statute. The provision is reflective of the provisions of Article 3 of the ICTR Statute and Article 5 of the ICTY Statute.
 Yusuf Aksar, ‘The “Victimized Group” Concept in The Genocide Convention and The Development of International Humanitarian Law Through the Practice of Ad Hoc Tribunals 1’ (2003) 5 Journal of Genocide Research.
 United Nations Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, 78 UNT.S. 277 (referred to as the Genocide Convention, 1948).
 Ibid, Art I.
Supra n.22, Art II.
Supra n.22, Art III.
Supra n.22, Art IV.
Supra n.22, Art V.
Supra n.22, Art VI.
Supra n.22, Art VII.
Supra n.22, Art VIII.
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 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 and Add. 1 (1993), para 45.
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 Jeffrey S. Morton and Neil Vijay Singh, ‘The International Legal Regime On Genocide’ (2003) 5 Journal of Genocide Research, pg. 56.
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