Significance of the convention in protection of human rights
Discuss about the United Nations Genocide Convention.
The United Nations Genocide Convention had been adopted in the December of 1948 by the United Nations General Assembly. The purpose of adopting the convention was give effect to what has become the foundation of International law. It can be mentioned that the significance of the convention was the remarkable progress made in the protection and the acknowledgement of the human rights in the world (Meierhenrich 2014). However, despite its implementation and the achievement in reducing the heinous crimes against humans and protection of human rights there still is room for exploitation (Quigley 2016). This convention excludes certain groups from giving protection of human rights. In reality the convention failed to bring criminal charges of genocide on the German Nazis who were responsible for the holocaust.
At the Nuremberg Trial the German Nazis had been found guilty of various offenses such as conspiracy to wage wars, crimes against peace and crimes against humanity but they were not guilty of committing genocide as the word till then had not been legalized. It can be stated that the there were underlying political factors which influenced the Nuremberg Trial (Sadat 2016). Although the Nuremberg Trial aimed to punish the German Nazis for the horrors of committing the holocaust, there was also the intention of the European powers to delegitimize the Nazi Party who sought to influence future German Regimes and provide the framework for an allied dominated United Nations. However the Nazi victims of Holocaust were not avenged by this Convention.
The two unique strengths of the UN Genocide conventions will be discussed in this essay. Firstly any person who brings any action under the provisions of the convention will benefit from entailing the jus cogens statuts.
The jus cogens status is a Latin term which refers to overriding and fundamental principles of international law. Any derogation from such principles is not permitted by the law (Tasioulas 2015). It can be stated that the convention places non derogable obligations on the states to comply with the requirements of this convention. The act of Genocide can be defined as one of the major and heinous crimes under the International law which is identified to have the jus cogens status (Shaw 2015). It is to be mentioned that the norm of jus cogens affect all those persons who constitute the members of the international community. It can be stated in accordance with the principles of the Barcelona Traction case that all states have the general obligation to prevent any acts of genocide. The jus cogens status of Genocide provides many distinct benefits to those who seek to bring actions against those who contravene the provisions of convention (Quigley 2016).
Limitations of the convention in providing protection to all groups
The first advantage of the jus cogens status is that all states have the primary duty to bring justice to any person who violates the provisions of the convention. As opined by M Cherif Bassiouni, states have the duty of prosecuting and extraditing those persons who are suspected of genocide or culpable genocide including the head of such member states. The second advantage of the convention is that the states cannot grant impunity to any person who has been alleged to have committed genocide by the operations of statutes of limitations. The states also have the obligations to punish those who are found to be guilty of committing genocide by the courts. This duty of the states is non derogable. Such duty also extends to states who have not ratified the convention. The recent example of the application of this convention was the identification of the Rwandan massacres as genocide. Initially the Americans had been unwilling to identify correctly the Rwanadan Massacres of 1997 as genocide as it had been assessed by the Americans, that characterizing the massacres as genocide would impose a burden upon the states to punish all the perpetrators of the crimes (Magnarella 2018). However, article VIII of the convention clearly states that the states have the duty which is non derogable to perform acts which aim to prevent genocide from occurring ex ante. It is mandatory that any judicial action which is brought under the convention has to e respected by the states.
Under Article II of the convention it has been provided that the courts have the discretion to construe the facts of the genocide (Ohchr.org 2018). This can be considered to be a unique strength of the convention. It is important to assess the element of Actus Reus as the acts of genocide are not simply related to those acts which cause death of the members of an ethnic community; genocide also causes indirect destruction of the ethnic group which can be punished by the courts by the application of the provisions of this convention (Lippman 2017). Article II of the convention prohibits any acts which are committed with the intention to destroy partly or wholly any national, religious or ethnic groups (Ohchr.org 2018). . Examples of such act involve:
- Mass killing of members of ethnic group
- Causing serious mental and bodily harm to the members of ethnic, religious or national groups.
- Deliberately inflicting on the group adverse conditions of life with the intention to cause physical destruction wholly or partly.
- Imposing any measure to restrict the births within that particular group.
- Transferring forcefully the children of a particular group to another group
It can be stated that killing the members of any group as provided in subsection (a) of Article II of the convention corresponds to more direct acts of genocide in which people are killed in large numbers due to their affiliation and association with a particular racial, ethnic or religious group. However any act other than that of killing individuals directly which has been provided in subsection (a), other acts which are provided in subsections (b)-(e) constitute culpability for homicide. The rape of women, refugee crisis and forceful impregnation of women in the Former Yugoslavia can all be termed as acts of culpable genocide although such acts did not involve direct physical killing of individuals. Thus it can be argued that the greatest strength of this Convention to identify and recognize acts which cause destruction to an ethnic community indirectly.
Jus cogens status and its impact on international law
It can be charged in accordance with the provisions of the Genocide Convention that the mass internal displacement of the residents of Yugoslavia can also be termed as an act of genocide. Between the time period of March 1998 and June 1999 an estimated one and half million Albanians, who were residents of Kosovo had been displaced internally and expelled from their homes. In Croatia and the Muslim regions of Bosnia an estimated number of six hundred thousand Serbs had been expelled and displaced from their homes (Weiss 2016). It can be stated that the mass displacements of the civilians were a part of the ethnic cleansing process which aimed to create an ethnically homogenous population in the aforementioned areas. Thus under Article II subsection (c) of the Convention it can be stated that persons who were responsible for the internal displacement of the members of the ethnic group could be accused of committing Culpable Genocide as this section clearly prohibits deliberate infliction of adverse conditions of life on any group with the intention of causing destruction to that particular group wholly partly. In the former Yugoslavia, the residents and civilians who had been displaced from their homes were denied access to the basic essentials of life such food, water, shelter and clothing. Even after the civilians and the citizens had been replaced in the country, they found that they were still deprived of the basic essentials of the life. Their homes had been acquired and occupied by new families whose rights were given more priority by the regulations and the laws of the state.
One of the particular strengths of this convention is that it can be used to charge the acts of Rape for the purpose of causing force impregnation in the former nation of Yugoslavia and identify such acts as culpable genocide. It had been stated by MacKinnon (2017), raping women to forcefully impregnate them was one of the most heinous forms of crimes and grossest form of human rights violation. Raping women and for forcefully impregnating them has been historically perceived as a tool of genocides. This act can be said to be a contravention of subsections (b), which prohibits any acts which cause serious bodily or harm and subsection (d) which prohibits imposition of measures to restrict the births within the ethnic community.
The specific intent
It can be mentioned that to bring actions on any person for committing genocide it is essential to prove the intention behind committing such act. In spite of having all the strengths as discussed above this convention has been invoked widely for the purpose of prosecuting genocide which is culpable in nature (Totten 2017). The first time an action that had been brought for contravention of provisions of the convention and for committing genocide against any individual was the case of Prosecutor v Akayesu ICTR-96-4-T, Trial Chamber 1, 2 September 1998. The reason the Convention is not invoked extensively by the prosecutors before the tribunals is due to the difficulty faced by the prosecutors in finding evidence which indicates specific intention of the person committing genocide (Shaw 2015). Another reason why this convention is not invoked by the prosecution has been illustrated by David Kader.
Strengths of the convention in identifying and recognizing indirect acts of genocide
It has been argued by him that the ineffectiveness of the actions under this convention cannot be blamed on the inherent defects of this convention, but the reluctance of the government to take actions necessary to prevent such Genocides. As in the case of the former Yugoslavia, the issue that was critical to be identified was not whether the Genocide had been committed but whether there was specific intent of destroying an ethnic race wholly or partly as provided in Article II. Another example that can be given to illustrate the difficulty in implementing the provisions of this convention was the child removal policies of the Commonwealth government to remove mixed blood Aboriginal children from their families which is a contravention of subsection (e) of Article II. However to date conclusive evidence has not been found which indicates the specific intent of the government to commit genocide on the Aboriginal Australians.
Conclusion
Thus to conclude, it can be said that the United Nations Genocide Convention has both strengths and weakness. This convention still leaves to the United Nations to decide at what point mass murder can be called genocide. This convention had been formed as a response to the Holocaust and to save humanity from facing genocide. Thus in this context it can be said that the convention did not acknowledge the minorities who had been victims of the holocaust except the Jews as the Jews made up the majority of the victims. The strengths of the Genocide Convention for Prevention and Punishment of Crime of Genocide is often reduced significantly by the difficulty in meeting the requirement of proving the intention to commit genocide as provided in Article 2 of the convention. It is worth mentioning that this convention is the most powerful instrument that is available to any prosecutor who wishes to bring actions and punish those who are responsible for committing heinous crimes and atrocities against humanity in a global community.
Two of the unique strengths of this convention are that the crime of Genocide is associated with jus cogens status and that scope of the convention is wide enough to punish any act which may not directly or immediately cause atrocities on a particular ethnic group but is believed to indirectly lead to destruction. However the aforementioned convention is generally not invoked by the prosecutors despite having such strengths as it has been argued that it is very difficult to find evidence which points out that specific genocidal intent as required by Article 2 of the convention.
Meierhenrich, J., 2014. Genocide: A reader. Oxford University Press USA.
Quigley, J., 2016. The genocide convention: An international law analysis. Routledge.
Lippman, M., 2017. The convention on the prevention and punishment of the crime of genocide: fifty years later. In Genocide and Human Rights (pp. 11-110). Routledge.
Jones, A., 2016. Genocide: A comprehensive introduction. Routledge.
Weiss-Wendt, A., 2018. A rhetorical crime: Genocide in the geopolitical discourse of the Cold War. Rutgers University Press.
Shaw, M., 2015. What is genocide?. John Wiley & Sons.
Totten, S., 2017. The United Nations and genocide: Prevention, intervention, and prosecution. In Genocide at the Millennium (pp. 125-158). Routledge.
Magnarella, P.J., 2018. Justice in Africa: Rwanda’s Genocide, Its Courts and the UN Criminal Tribunal: Rwanda’s Genocide, Its Courts and the UN Criminal Tribunal. Routledge.
Bennett, J.T., 2017. The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention. Journal of the History of International Law/Revue d’histoire du droit international, 19(1), pp.1-49.
Shaw, M., 2015. War and genocide: Organised killing in modern society. John Wiley & Sons.
Weiss, T.G., 2016. What’s Wrong with the United Nations and how to Fix it. John Wiley & Sons.
Van Schaack, B., 2017. The crime of political genocide: repairing the genocide convention’s blind spot. In Genocide and Human Rights (pp. 145-177). Routledge.
Sadat, L.N., 2016. The Nuremberg Trial, Seventy Years Later. Wash. U. Global Stud. L. Rev., 15, p.575.
Tasioulas, J., 2015. Custom, jus cogens, and human rights..
Weiss, T.G., 2016. Humanitarian intervention. John Wiley & Sons.
MacKinnon, C.A., 2017. Rape, genocide, and women’s human rights. In Genocide and Human Rights (pp. 133-144). Routledge.
Ohchr.org. (2018). OHCHR | Prevention and Punishment of the Crime of Genocide. [online] Available at: https://www.ohchr.org/EN/ProfessionalInterest/Pages/CrimeOfGenocide.aspx [Accessed 7 May 2018].
Prosecutor v Akayesu ICTR-96-4-T, Trial Chamber 1, 2 September 1998
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