The Significance of the Convention
With the end of World War 2, the international community understood the need to establish instruments for ensuring world peace and security. The international community after experiencing the horrors of WW2 followed by the Holocaust cried out loud ‘never again’ and demanded peaceful resolution mechanisms to prevent atrocities by States and their officials. Although history is filled with violence and atrocities, the Holocaust appeared as something new to the world, it created the term Genocide. Holocaust became a turning point in recognizing the need for collective actions by the states to prevent such horrific acts of violence and cruelty. Such incidents were declared unacceptable by the international community and against their moral standards. Subsequently, world leaders came together to create an instrument to prevent and punish such monstrous acts. As a result, the Convention on the Prevention and Punishment of the Crime of Genocide was created and came into force on 12th January 1951. The convention declared genocide a crime under international law. However, the convention required States to become its parties to achieve the objectives of the convention, i.e., to prevent and punish Genocide.
The convention has been widely criticized for its failure to avert Genocides, even by its Contracting members. Some of the Examples of Genocide are, the Rwandan Genocide of 1994, the Darfur Genocide of 2007, and the latest example is Russia’s invasion of Ukraine in February 2022. In addition to this, there are numerous incidents where the international community failed to comply with the provisions of the Convention. One of the reasoning behind the failure of the Convention to prevent Genocide lies within the narrow definition of the term ‘Genocide’ under Article II of the convention. There are a few shortcomings due to which States escape from their obligatory duty to prevent and punish incidents of Genocide. In order to evaluate the convention and its narrow definition, the outline of the paper shall include a historical perspective of the Convention, its significance, and its signatories. The paper discusses the relevant provisions of the Convention in detail to understand its drawbacks. The status of ICJ and ICC shall also be discussed in the context of the Convention. Furthermore, it shall include the implications of the convention on the world community with various examples.
Until WW2 and the events of the Holocaust, the term “genocide” was a new concept for the world. This does not mean Genocide did not occur prior Holocaust. Previously, mass killing of people on the grounds of religion, race, ethnicity, and place of birth was widely known as barbarity and not Genocide. It was in 1943, when a polish jurist, Raphael Lemkin, labeled the killing of groups on the basis of intrinsic traits as Genocide. He studied the historical patterns and reasonings behind the mass killings and then coined the term ‘genocide’ to represent killings or violence on specific grounds. The rationale for coining the word was to segregate the crime of Genocide from other similar crimes. Also, to reflect the deep-rooted prevalence of Genocide throughout history. International leaders could feel the pressure created by Mr. Lemkin to recognize the horrors and evils of Genocide and to introduce instruments to prevent it. Soon with the conceptualization of the term Genocide, world leaders recognized the need to stop potential Genocide and to take measures for promoting world peace and security. Subsequently, the United Nations adopted a declaration to strictly prevent Genocide. Finally, the Genocide Convention was adopted in 1948 obligating its contracting members to suppress, and prevent the Genocide and punish people guilty of acts enumerated under Article II and Article III of the Convention. The Convention came into force in 1951.
Definitions of Genocide and its Exclusives
International law for the first time codified the crimes of genocide under the Convention on the prevention and punishment of the Crime of Genocide (CPPCG), 1948. The Convention originated in the UN on December 11, 1946, by the adoption of a declaration by the General Assembly. The declaration stated Genocide is abhorrent to the spiritual and moral laws of the United Nations. Also, it defeats the very purpose of the UN. The declaration required the member states to take measures to prevent and punish Genocide and the perpetrators, respectively.
The Genocide Convention recognizes the evils of genocide and its implications on humanity throughout history. The rationale behind the Convention is to liberate humankind from the abhorrent bane and for preventing crimes of Genocide, international cooperation is required. The convention states, that genocide can take place at the time of war and also at the time of peace.
The meaning of genocide under the convention is given under Article II, describing a crime to become must be committed with the intention to destroy racial, national, religious, or ethnic groups, in part or in whole. The definition specifically excluded political groups and cultures.
After a series of negotiations and compromises amongst the member states of the UN, determined the definition to be accepted by the international community. The drafting of the 1948 convention shows the compromises by defining the meaning of Genocide.
Article IV of the Convention imposes the State party to the Convention with the duty to take preventive measures with respect to Genocide, and also to punish those involved in the crime of genocide by legislating strict laws to punish the perpetrators. Act to include private individuals, public officials, and, even rulers of the country.
With the adoption of the Genocide Convention, the international community took a step closer to ensuring world peace and security. Contemporary international human rights and criminal law owes much of their origin to the adoption of the Genocide Convention.
After the second world war, the world learned its lesson after witnessing ‘hues and cries’ everywhere. To prevent potential wars, the UN General Assembly adopted the convention and many states became a party to it by signing the instrument. They pledged to never resort to violence or atrocities of mass killing, Genocide.
In 1948, American Bar Association expressed serious concern and held America as a civilized nation against Genocide. It is contrary to the very principle of America’s moral laws and objectionable by every civilized nation that respects human lives and dignity with regard to race, nationality, ethnicity, and religion.
The definition of genocide contained in the Convention has been widely accepted by States at both international and national levels.
There are various statutes where the exact definition of the Genocide has been included, such as the Rome Statute of the International Criminal Court (ICC), conferring jurisdiction to the ICC with respect to crimes of Genocide. Also, a similar definition was adopted in the International Criminal Tribunals Statute for erstwhile Yugoslavia, and the Extraordinary Chambers used the definition given under the Convention.
Shortcomings of the Convention
Importantly, the Article VI of the Convention has made it clear that the accountability of the crime of Genocide and its jurisdiction matters does not only limit to States but authorizes the international tribunals, accepted by contracting parties, to have jurisdiction as well.
The ICJ states that the convention contains principles of customary international law, including principles prohibiting crimes amounting to Genocide. It also imposes obligations on the state to take measures to prevent and punish the perpetrators of the Genocide.
The Customary International Laws are obligatory to all states, whether states have ratified them or not. The scope of Article I of the Convention has been widened by the ICJ by adding the extraterritorial scope to it. Article I lay obligations on the States to Prevent Genocide. Furthermore, States have a duty to take all the reasonable measures to prevent genocide even those outside their national borders, if they have the capacity to avert it.
At present, there is a total of 152 state parties, that ratified and acceded to the Genocide Convention.
In 1946, United Nations General Assembly for the first-time recognized Genocide as a crime under international law. It codified the Genocide crime as an independent crime under the CPPCG of 1948. The legal definition of genocide has been provided under Article II and III of the Genocide Convention, and therefore regarded as the ‘heart’ of the Convention. The definition is significant for the effective application of other relevant provisions of the Genocide Convention, such as Articles raging I to VII. In a stricter sense, the relevance of Article II is narrowed to define the term ‘genocide’ for the purpose of the Genocide Convention.
Article I impose an obligation on the States to refrain from committing genocide, as interpreted by the ICJ. According to the ICJ, Article I obligate states to take effective measures in preventing genocide, even by acting extraterritorial. Additionally, lays an obligation on states to enact legislation to punish perpetrators of Genocide.
Article II includes two essential elements significant for considering any crime as a Genocide. The first element includes the presence of a mental factor, i.e., the intention of the perpetrator for committing the crime. If the intent was to destroy any racial, ethnic, religious, or national groups, then it shall be considered Genocide. The second element is the physical act of committing the crime of Genocide including the five acts enumerated under subsections of Article II, such as deliberate infliction of physical destruction on a specific group, killing individuals belonging to a group, causing physical or mental harm to the people of the same group, imposition of measures to deliberately prevent births a specific group, and transferring children of one group to another by using force. Thus, a crime must include all the elements to be considered Genocide.
Article III describes the punishment for all forms of Genocide, i.e., Attempt, Conspiracy, Public Incitement, Complicity, and final act of Genocide. Thus, an act of crime falling under Article III shall be punishable under the convention.
Evaluation of Relevant Provisions
Genocidal acts need not be the final commission of killing of members of a group. An Act can be regarded as Genocide when attempted or conspired to kill members of a specific group on the grounds of their race, nationality, ethnicity, and religion. For instance, forceful transfer of children from one group to another, or imposing birth prevention in a particular group with the intent to destroy.
The Convention protects four major groups, which include race, nationality, ethnicity, and religion of a person. However, perpetrators of Genocide often come up with their own new categories and definitions of these groups to identify individuals.
Article IV states that everyone shall be punished under the Convention if commits any act enumerated in Article III, including private individuals, public officials, or even ruler themselves.
Article V imposes obligations on contracting parties to legislate domestic acts to give effect to the Convention and its provisions. Additionally, it obligates states to ensure the effective imposition of penalties on the perpetrator of the Genocide.
Article VI obligates States to try accused of genocide in a tribunal of the State where the said has been committed or in an International Tribunal.
Article VII imposes an obligation on the state to grant extradition, in accordance with the current treaties and laws, when charges of genocide are in question. in accordance with laws and treaties in force. However, Article VII cannot be enforced for a crime of political nature for the purpose of granting extradition.
Article IX states that the Contracting Parties to resolve their dispute regarding the application, interpretation, application, or fulfillment of the Genocide Convention, to be decided by the International Court of Justice (ICJ), with either of the parties’ requests. Disputes include state responsibility for genocide or any other acts mentioned in Article III of the Convention shall be heard by the ICJ if requested by any of the disputing parties.
Definition formulated by UNGA with heavy influence from the U.S. and its western allies. The selection for inclusion of words in defining the Genocide was majorly by the western nations and the communist bloc. Narrowing the scope for third-world countries.
The language used in the Convention is vague and broad. The provisions of the Convention raise a substantial question of vagueness. For instance, Article II includes terms like ‘mental harm’, any serious harm would amount to Genocide. This creates grave doubt in interpreting the act of mental harm. Additionally, Convention requires States to enact legislation to Prevent Genocide including the act of serious mental harm. Enactment of such legislation requires broader and more specific details of the problem.
Another shortfall of the Convention is the removal of ‘Political Groups’ from the definition of Genocide under the Convention. Originally, the UN declaration condemned Genocide involving killings on the grounds of Religion, Race, Political, or any other grounds. However, when the declaration was being converted into a Convention, the term ‘political’ was removed from the definition by the opposition of the communist bloc. This was a reaction to the U.S efforts to include ‘government complicity’ in the meaning of the Genocide. Thus, making all the communist nations free from the charge of Genocide for inflicting intolerable pain with the intent to destroy members of a political group. When this issue was raised in the U.S. House of delegates, it was stated that the removal of the ground ‘political group’ was a trade, more of a compromise between communist and western nations. The trade was to include ‘ethnical’ groups instead of ‘political’ groups. The western nations compromised with the removal of the significant term ‘political’ groups knowing they are on the losing side since the definition already had a ground of ‘racial’ groups which is closely associated with the meaning of ethnicity. The removal was criticized by many scholars stating it as a major pitfall in the Genocide definition given under the Convention. The removal of the ground ‘political’ has a negative implication for the fundamental aim of the Convention, i.e., the prevention of Genocide. It made the Genocide definition narrow because killings or assassination of political groups is not prohibited and punishable under the Convention.
ICJ and ICC Status in the Context of the Convention
Another limitation of the convention is “where Genocide trial will be held”. Article VI of the Convention states Genocide crime shall be tried by a competent tribunal of a state where the act has been committed, or by an international tribunal, which shall have the jurisdiction for the trial crimes of Genocide of the Contracting parties. However, the report by the House of the senate in 1970 raised concern that the jurisdiction of the international tribunal shall be violative of the constitutional rights of jury trial of the American citizens. This appears to conflict with the principle enshrined under Article VII of the Convention, which states each contracting party has pledged themselves to abide by the rules of extradition if the act was committed outside the territory of the home state. Historically, the U.S. has already faced the practical problem of extradition and jurisdictional rules of the Convention, when the U.S. armed forces were accused of committing Genocide in the Vietnamese villages. By following the jurisdictional rules laid by the Convention then the armed forces have to be tried in the tribunal of Vietnam as per Article VI. Or if the U.S and Vietnam were signatories of the extradition treaty then also the U.S. prisoners to be tried in Vietnam. However, the U.S. cited the Nuremberg defense as sanctioning precedent stating the prisoners merely obeyed the orders of their superiors and did not act on their own.
Another complication witnessed by the Convention is the inconsistency between the Nuremberg Defense and Article IV of the Convention. Nuremberg defense is a universal pleading in trials of war crimes, where the accused, being subordinate, did not act on his own but rather followed the orders of the superior rank holding officers of the State. Whereas, Article IV states no one, including private individuals, government officials, or even rulers of the nation, can escape the responsibility of their part played in the Genocide.
Another conflicting issue related to the Convention was with respect to the provisions enumerated under Article III (c) of the Convention which uses terms like ‘direct and public incitement’ by anyone to commit genocide to be punishable under the Convention. The conflict arose between fundamental principles of ‘freedom of speech and expression guaranteed to citizens by domestic laws and provisions of Article III (c) of the Convention. There is a lack of clarity by the Convention, as to which decision of the tribunal, domestic or international shall prevail. However, Article IX of the Convention states that all the matters relating to Genocide shall be subjected to the International Court of Justice (ICJ) for the application, interpretation, and fulfillment of the Convention if any of the state parties’ requests such a dispute. Thus, it is obligatory for each contracting party to abide by the decision of the International Court of Justice (ICJ).
Furthermore, the Convention failed to prevent the invasion of Czechoslovakia in 1968 by the Soviet Union and its communist allies. Additionally, they were not deterred by the UN Charter’s provision for non-aggression.
Implications of the Convention on the World Community
Many experts opined that the execution process appears complex and problematic since it involves individuals, public officials, or the ruler to be tried in an international tribunal under the rules determined by the Convention. It tends to promote tension and conflict rather than justice and peace.
The role of ICJ is to resolve disputes that are submitted to it at the request of either of the disputing parties. ICJ follows international law while deciding on legal disputes. It also has the power of advisory opinion on legal matters referred to it by either of the organs of the UN or its specialized agencies.
The Genocide Convention confers power and authority to the ICJ of the mandatory jurisdiction of legal disputes concerning matters of Genocide within the meaning of the Convention. For example, the Rohingya Genocide is being heard by the ICJ, the dispute was brought in 2019 by the Republic of The Gambia, in West Africa. In the current dispute the Russia-Ukraine Conflict, the ICJ ruled on 16th March 2022 for Russia to immediately halt its military operations in Ukraine.
ICJ’s contribution to building an extensive legal body of cases has crucially benefitted the Genocide Convention despite its lack of clarity on certain matters. One such example is the case Croatia v. Serbia, 1999, where ICJ noted that the jurisdiction enumerated under Article IX of the Convention is not to be extended to the customary international law (CUL) on genocide allegations of violence. Further, the Court after Referring to the statements in its jurisprudence, that the Convention has obligations towards everyone (erga omnes) and prohibition of genocide has the element of a peremptory norm i.e., jus cogens. ICJ provided clarity of the word ‘intent’ used in the Convention. Court settled the matter by stating neither party committed genocide as the ‘intent’ was missing. The verdict ended a 16-year long battle between Croatia and Serbia. The ICJ’s decision of reconciliation was welcomed by the international community.
In Bosnia and Herzegovina v. Serbia and Montenegro case, ICJ defined the meaning scope of ‘ethnic cleansing’ and convicted Serbia of committing Genocide against the Bosniaks, Muslims of Bosnia and Herzegovina. ICJ held the country failed to comply with the provisions of the Convention i.e., to prevent genocides, and non-cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY) in punishing the perpetrators.
The Rome Statute established the International Criminal Court (ICC) which is a permanent judicial body. ICC adjudicates and prosecutes individuals who are accused of committing genocide, crime against humanity, or war crimes and crimes against humanity. The 74th meeting of the UNGA discussed the need to establish an appropriate international tribunal given under Article VI of the 1948 Convention. Additionally, the Bangkok Conference of 1969, adopted a resolution supporting and assisting the creation of the International Criminal Court (ICC).
Article 6 of the ICC Statute defines Genocide, as an act of violence committed against a specific person or a group violating or endangering their social existence and physical integrity by individuals of another group.
The contribution of the ICC is to eliminate impunity and establish the rule of law by safeguarding the principle of international law and ensuring none of the severe crimes go unpunished. The ICC Act is the last resort for prosecuting individuals accused of committing genocide, war crimes, and crimes against humanity, in the absence of domestic jurisdictions. Many a time, states are either unable to or unwilling to prosecute the perpetrator, the ICC acts as an international forum for adjudication. ICC adjudicated various matters, including investigations in Congo, Uganda, and the Central African Republic.
The Rome Statute confers power on the ICC to prosecute citizens of member states accused of committing acts defined under Article 6 of the ICC Act. Additionally, ICC has jurisdiction to adjudicate non-members states if the act is committed in the member state’s territory.
The crux of the role played by ICC in enforcing and ensuring compliance of member states with the principles of international law aimed to prevent mass killings and violence.
Conclusion
It is concluded, that the Genocide Convention was adopted after witnessing the evils and tragedies of WW2 and the Holocaust. The international community took a collective step in creating an international instrument to prohibit violence and atrocities. In 1948, the UNGA adopted the Genocide Convention with the foremost aim of preventing genocide and punishing perpetrators. ICJ has interpreted the convention while adjudicating matters involving Genocide allegations. ICC is a last resort to prosecute individuals accused of Genocide. The Convention has laid down a narrow definition of the term Genocide, excluding political groups from the definition. The language used in Articles II and III appears vague which has created interpretational issues. Also, the inconsistency between Article IV and Nuremberg Defense posed another limitation for implementing the Convention. It can be said that the Convention has failed to achieve its objective of preventing Genocide. Even after its adoption, numerous incidents of Genocide have occurred.
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