Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, Race (classification of humans) , religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars. While a precise definition varies among genocide scholars, a legal definition is found in the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). Article 2 of this 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; [and] forcibly transferring children of the group to another group."
The preamble to the CPPCG states that instances of genocide have taken place throughout history, but it was not until Raphael Lemkin coined the term and the prosecution of perpetrators of the Holocaust at the Nuremberg trials that the United Nations agreed to the CPPCG which defined the crime of genocide under international law.
During a video interview with Raphael Lemkin, the interviewer asked him about how he came to be interested in this genocide. He replied; "I became interested in genocide because it happened so many times. First to the Armenians, then after the Armenians, Hitler took action.".
There was a gap of more than forty years between the CPPCG coming into force and the first prosecution under the provisions of the treaty. To date all international prosecutions of genocide, the Rwandan Genocide and the Srebrenica Genocide, have been by ad hoc international tribunals. The International Criminal Court came into existence in 2002 and it has the authority to try people from the states that have signed the treaty, but to date it has not tried anyone.
Since the CPPCG came into effect in January 1951 about 80 member states of the United Nations have passed legislation that incorporates the provisions of the CPPCG into their domestic law, and some perpetrators of genocide have been found guilty under such municipal laws, such as Nikola Jorgic, who was found guilty of genocide in Bosnia by a German court (Jorgic v. Germany).
Critics of the CPPCG point to the narrow definition of the groups that are protected under the treaty, particularly the lack of protection for political groups for what has been termed politicide (politicide is included as genocide under some municipal jurisdictions). One of the problems was that until there was a body of case law from prosecutions, the precise definition of what the treaty meant had not been tested in court, for example, what precisely does the term "in part" mean? As more perpetrators are tried under international tribunals and municipal court cases, a body of legal arguments and legal interpretations are helping to address these issues.
The exclusion of political groups and politically motivated violence from the international definition of genocide is particularly controversial. The reason for this exclusion is because a number of UN member nations insisted on it when the Genocide Convention was being drafted in 1948. They argued that political groups are too vaguely defined, as well as temporary and unstable. They further held that international law should not seek to regulate or limit political conflicts, since that would give the UN too much power to interfere in the internal affairs of sovereign nations. In the years since then, critics have argued that the exclusion of political groups from the definition, as well as the lack of a specific reference to the destruction of a social group through the forcible removal of a population, was designed to protect the Soviet Union and the Western Allies from possible accusations of genocide in the wake of World War II.
Another criticism of the CPPCG is that when its provisions have been invoked by the United Nations Security Council, they have only been invoked to punish those who have already committed genocide and been foolish enough to leave a paper trail. It was this criticism that led to the adoption of UN Security Council Resolution 1674 by the United Nations Security Council on 28 April 2006 commits the Council to action to protect civilians in armed conflict and to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
Genocide scholars such as Gregory Stanton have postulated that conditions and acts that often occur before, during, and after genocide—such as dehumanization of victim groups, strong organization of genocidal groups, and denial of genocide by its perpetrators—can be identified and actions taken to stop genocides before they happen. Critics of this approach such as Dirk Moses assert that this is unrealistic and that, for example, "Darfur will end when it suits the great powers that have a stake in the region".
In 1933 Lemkin wrote a proposal on the "crime of barbarity" to be presented to the Legal Council of the League of Nations in Madrid. This was his first formal attempt at creating a law against what he would later call genocide. The concept originated in his youth when he first heard of the Ottoman government's mass killings (Armenian Genocide) of its Christian population during the First World War and the renewed round of anti-Assyrian persecution in Iraq. His proposal failed, and his work incurred the disapproval of the Polish government, which was at the time pursuing a policy of conciliation with Nazi Germany.
In 1944, the Carnegie Endowment for International Peace published Lemkin's most important work, entitled Axis Rule in Occupied Europe, in the United States. This book included an extensive legal analysis of German rule in countries occupied by Nazi Germany during the course of World War II, along with the definition of the term genocide ("the destruction of a nation or of an ethnic group").
Lemkin's idea of genocide as an offense against international law was widely accepted by the international community and was one of the legal bases of the Nuremberg Trials (the indictment of the 24 Nazi leaders specifies in Count 3 that the defendants "conducted deliberate and systematic genocide—namely, the extermination of racial and national groups...") Lemkin presented a draft resolution for a Genocide Convention treaty to a number of countries in an effort to persuade them to sponsor the resolution. With the support of the United States, the resolution was placed before the General Assembly for consideration. In 1943, Lemkin wrote:
The CPPCG was adopted by the UN General Assembly on 9 December 1948 and came into effect on 12 January 1951 (Resolution 260 (III)). It contains an internationally-recognized definition of genocide which was incorporated into the national criminal legislation of many countries, and was also adopted by the Rome Statute of the International Criminal Court, the treaty that established the International Criminal Court (ICC). The Convention (in article 2) defines genocide:
The first draft of the Convention included political killings, but the USSR along with some other nations would not accept that actions against groups identified as holding similar political opinions or social status would constitute genocide, so these stipulations were subsequently removed in a political and diplomatic compromise.
In the same judgement the ECHR reviewed the judgements of several international and municipal courts judgements. It noted that International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice had agreed with the narrow interpretation, that biological-physical destruction was necessary for an act to qualify as genocide. The ECHR also noted that at the time of its the judgement, apart from courts in Germany which had taken a broad view, that there had been few cases of genocide under other Convention States municipal laws and that "There are no reported cases in which the courts of these States have defined the type of group destruction the perpetrator must have intended in order to be found guilty of genocide".
The judges continue in paragraph 12, "The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4 [of the Tribunal's Statute]."
In paragraph 13 the judges raise the issue of the perpetrators' access to the victims: "The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered. ... The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can—in combination with other factors—inform the analysis."
Since the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) came into effect in January 1951 about 80 member states of the United Nations have passed legislation that incorporates the provisions of the CPPCG into their municipal law.
William Schabas has suggested that a permanent body as recommended by the Whitaker Report to monitor the implementation of the Genocide Convention, and require States to issue reports on their compliance with the convention (such as were incorporated into the United Nations Optional Protocol to the Convention against Torture), would make the convention more effective.
Writing in 1998 Kurt Jonassohn and Karin Björnson stated that the CPPCG was a legal instrument resulting from a diplomatic compromise. As such the wording of the treaty is not intended to be a definition suitable as a research tool, and although it is used for this purpose, as it has an international legal credibility that others lack, other definitions have also been postulated. Jonassohn and Björnson go on to say that none of these alternative definitions have gained widespread support for various reasons.
Jonassohn and Björnson postulate that the major reason why no single generally accepted genocide definition has emerged is because academics have adjusted their focus to emphasise different periods and have found it expedient to use slightly different definitions to help them interpret events. For example Frank Chalk and Kurt Jonassohn studied the whole of human history, while Leo Kuper and R. J. Rummel in their more recent works concentrated on the 20th century, and Helen Fein, Barbara Harff and Ted Gurr have looked at post World War II events. Jonassohn and Björnson are critical of some of these studies arguing that they are too expansive and concludes that the academic discipline of genocide studies is too young to have a canon of work on which to build an academic paradigm.
The exclusion of social and political groups as targets of genocide in the CPPCG legal definition has been criticized by some historians and sociologists, for example M. Hassan Kakar in his book The Soviet Invasion and the Afghan Response, 1979–1982 argues that the international definition of genocide is too restricted, and that it should include political groups or any group so defined by the perpetrator and quotes Chalk and Jonassohn: "Genocide is a form of one-sided mass killing in which a state or other authority intends to destroy a group, as that group and membership in it are defined by the perpetrator." While there are various definitions of the term, Adam Jones states that the majority of genocide scholars consider that "intent to destroy" is a requirement for any act to be labelled genocide, and that there is growing agreement on the inclusion of the physical destruction criterion.
Barbara Harff and Ted Gurr defined genocide as "the promotion and execution of policies by a state or its agents which result in the deaths of a substantial portion of a group ...[when] the victimized groups are defined primarily in terms of their communal characteristics, i.e., ethnicity, religion or nationality." Harff and Gurr also differentiate between genocides and politicides by the characteristics by which members of a group are identified by the state. In genocides, the victimized groups are defined primarily in terms of their communal characteristics, i.e., ethnicity, religion or nationality. In politicides the victim groups are defined primarily in terms of their hierarchical position or political opposition to the regime and dominant groups. Daniel D. Polsby and Don B. Kates, Jr. state that "... we follow Harff's distinction between genocides and 'pogroms,' which she describes as 'short-lived outbursts by mobs, which, although often condoned by authorities, rarely persist.' If the violence persists for long enough, however, Harff argues, the distinction between condonation and complicity collapses."
According to R. J. Rummel, genocide has 3 different meanings. The ordinary meaning is murder by government of people due to their national, ethnic, racial, or religious group membership. The legal meaning of genocide refers to the international treaty, the Convention on the Prevention and Punishment of the Crime of Genocide. This also includes non-killings that in the end eliminate the group, such as preventing births or forcibly transferring children out of the group to another group. A generalized meaning of genocide is similar to the ordinary meaning but also includes government killings of political opponents or otherwise intentional murder. It is to avoid confusion regarding what meaning is intended that Rummel created the term democide for the third meaning.
A major criticism of the international community's response to the Rwandan Genocide was that it was reactive, not proactive. The international community has developed a mechanism for prosecuting the perpetrators of genocide but has not developed the will or the mechanisms for intervening in a genocide as it happens. Critics point to the Darfur conflict and suggest that if anyone is found guilty of genocide after the conflict either by prosecutions brought in the International Criminal Court or in an ad hoc International Criminal Tribunal, this will confirm this perception.
It is commonly accepted that, at least since World War II, genocide has been illegal under customary international law as a peremptory norm, as well as under conventional international law. Acts of genocide are generally difficult to establish for prosecution, because a chain of accountability must be established. International criminal courts and tribunals function primarily because the states involved are incapable or unwilling to prosecute crimes of this magnitude themselves.
Because the universal acceptance of international laws, defining and forbidding genocide was achieved in 1948, with the promulgation of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), those criminals who were prosecuted after the war in international courts, for taking part in the Holocaust were found guilty of crimes against humanity and other more specific crimes like murder. Nevertheless the Holocaust is universally recognized to have been a genocide and the term, that had been coined the year before by Raphael Lemkin, appeared in the indictment of the 24 Nazi leaders, Count 3, stated that all the defendants had "conducted deliberate and systematic genocide—namely, the extermination of racial and national groups..."
So far, the ICTR has finished nineteen trials and convicted twenty seven accused persons. On December 14, 2009 two more men were accused and convicted for their crimes. Another twenty five persons are still on trial. Twenty-one are awaiting trial in detention, two more added on December 14, 2009. Ten are still at large. The first trial, of Jean-Paul Akayesu, began in 1997. In October, 1998, Akayesu was sentenced to life imprisonment. Jean Kambanda, interim Prime Minister, pled guilty.
In 2001 the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was an act of genocide.
On 26 February 2007 the International Court of Justice (ICJ), in the Bosnian Genocide Case upheld the ICTY's earlier finding that the Srebrenica massacre constituted genocide, but found that the Serbian government had not participated in a wider genocide on the territory of Bosnia and Herzegovina during the war, as the Bosnian government had claimed.
On 12 July 2007, European Court of Human Rights when dismissing the appeal by Nikola Jorgic against his conviction for genocide by a German court (Jorgic v. Germany) noted that the German courts wider interpretation of genocide has since been rejected by international courts considering similar cases. The ECHR also noted that in the 21st century "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide"
About 30 people have been indicted for participating in genocide or complicity in genocide during the early 1990s in Bosnia. To date after several plea bargains and some convictions that were successfully challenged on appeal two men, Vujadin Popović and Ljubiša Beara, have been found guilty of genocide, and two others, Radislav Krstic and Drago Nikolic, have been found guilty of aiding and abetting genocide. Three others have been found guilty of participating in genocides in Bosnia by German courts, one of whom Nikola Jorgic lost an appeal against his conviction in the European Court of Human Rights. A further eight men, former members of the Bosnian Serb security forces were found guilty of genocide by the State Court of Bosnia and Herzegovina (See List of Bosnian genocide prosecutions).
Slobodan Milosevic, as the former President of Serbia and of Yugoslavia was the most senior political figure to stand trial at the ICTY. He died on 11 March 2006 during his trial where he was accused of genocide or complicity in genocide in territories within Bosnia and Herzegovina, so no verdict was returned. In 1995 the ICTY issued a warrant for the arrest of Bosnian Serbs Radovan Karadzic and Ratko Mladic on several charges including genocide. On 21 July 2008, Karadzic was arrested in Belgrade, and he is currently in The Hague on trial accused of genocide among other crimes. Ratko Mladic was arrested on May 26, 2011 by Serbian special police in Lazarevo, Serbia.
The on-going conflict in Darfur, Sudan, which started in 2003, was declared a "genocide" by United States Secretary of State Colin Powell on 9 September 2004 in testimony before the Senate Foreign Relations Committee. Since that time however, no other permanent member of the UN Security Council followed suit. In fact, in January 2005, an International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, issued a report to the Secretary-General stating that "the Government of the Sudan has not pursued a policy of genocide." Nevertheless, the Commission cautioned that "The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide."
In March 2005, the Security Council formally referred the situation in Darfur to the Prosecutor of the International Criminal Court, taking into account the Commission report but without mentioning any specific crimes. Two permanent members of the Security Council, the United States and China, abstained from the vote on the referral resolution. As of his fourth report to the Security Council, the Prosecutor has found "reasonable grounds to believe that the individuals identified [in the UN Security Council Resolution 1593] have committed crimes against humanity and war crimes," but did not find sufficient evidence to prosecute for genocide.
In April 2007, the Judges of the ICC issued arrest warrants against the former Minister of State for the Interior, Ahmad Harun, and a Militia Janjaweed leader, Ali Kushayb, for crimes against humanity and war crimes.
On 14 July 2008, prosecutors at the International Criminal Court (ICC), filed ten charges of war crimes against Sudan's President Omar al-Bashir: three counts of genocide, five of crimes against humanity and two of murder. The ICC's prosecutors claimed that al-Bashir "masterminded and implemented a plan to destroy in substantial part" three tribal groups in Darfur because of their ethnicity.
On 4 March 2009, the ICC issued a warrant of arrest for Omar Al Bashir, President of Sudan as the ICC Pre-Trial Chamber I concluded that his position as head of state does not grant him immunity against prosecution before the ICC. The warrant was for war crimes and crimes against humanity. It did not include the crime of genocide because the majority of the Chamber did not find that the prosecutors had provided enough evidence to include such a charge.
The preamble to the CPPCG states that "genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world," and that "at all periods of history genocide has inflicted great losses on humanity."
In many cases where accusations of genocide have circulated, partisans have fiercely disputed such an interpretation and the details of the event. This often leads to the promotion of vastly different versions of the event in question.
Revisionist attempts to deny or challenge claims of genocides are illegal in some countries. For example, several European countries ban denying the Holocaust, whilst in Turkey it is illegal to refer to mass killings of Armenians, Greeks and Assyrians by the Ottoman Empire towards the end of the First World War as a genocide.
In 1996 Gregory Stanton, the president of Genocide Watch, presented a briefing paper called "The 8 Stages of Genocide" at the United States Department of State. In it he suggested that genocide develops in eight stages that are "predictable but not inexorable".
The Stanton paper was presented at the State Department, shortly after the Rwanda genocide and much of the analysis is based on why that genocide occurred. The preventative measures suggested, given the original target audience, were those that the United States could implement directly or use their influence on other governments to have implemented.
! Stage | ! Characteristics | ! Preventive measures |
! 1.Classification | People are divided into "us and them". | |
! 2.Symbolization | "When combined with hatred, symbols may be forced upon unwilling members of pariah groups..." | "To combat symbolization, hate symbols can be legally forbidden as can hate speech". |
! 3.Dehumanization | "One group denies the humanity of the other group. Members of it are equated with animals, vermin, insects or diseases." | "Local and international leaders should condemn the use of hate speech and make it culturally unacceptable. Leaders who incite genocide should be banned from international travel and have their foreign finances frozen." |
! 4.Organization | "Genocide is always organized... Special army units or militias are often trained and armed..." | "The U.N. should impose arms embargoes on governments and citizens of countries involved in genocidal massacres, and create commissions to investigate violations" |
! 5.Polarization | "Hate groups broadcast polarizing propaganda..." | "Prevention may mean security protection for moderate leaders or assistance to human rights groups...Coups d’état by extremists should be opposed by international sanctions." |
! 6.Preparation | "Victims are identified and separated out because of their ethnic or religious identity..." | "At this stage, a Genocide Emergency must be declared. ..." |
! 7.Extermination | "It is "extermination" to the killers because they do not believe their victims to be fully human." | "At this stage, only rapid and overwhelming armed intervention can stop genocide. Real safe areas or refugee escape corridors should be established with heavily armed international protection." |
Genocide denial>Denial | "The perpetrators... deny that they committed any crimes..." | "The response to denial is punishment by an international tribunal or national courts" |
In a paper for the Social Science Research Council Dirk Moses criticises the Stanton approach concluding:
Other authors have focused on the structural conditions leading up to genocide and the psychological and social processes that create an evolution toward genocide. Helen Fein showed that pre-existing anti-Semitism and systems that maintained anti-Semitic policies was related the number of Jews killed in different European countries during the Holocaust. Ervin Staub showed that economic deterioration and political confusion and disorganization were starting points of increasing discrimination and violence in many instances of genocides and mass killing. They lead to scapegoating a group and ideologies that identified that group as an enemy. A history of devaluation of the group that becomes the victim, past violence against the group that becomes the perpetrator leading to psychological wounds, authoritarian cultures and political systems, and the passivity of internal and external witnesses (bystanders) all contribute to the probability that the violence develops into genocide. Intense conflict between groups that is unresolved, becomes intractable and violent can also lead to genocide. The conditions that lead to genocide provide guidance to early prevention, such as humanizing a devalued group,creating ideologies that embrace all groups, and activating bystander responses. There is substantial research to indicate how this can be done, but information is only slowly transformed into action.
Research:
Category:Crimes * Category:International criminal law Category:Population Category:United Nations General Assembly resolutions
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