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The Law and Genocide

Abstract and Keywords

This article discusses genocide as a legal concept. The crime of genocide has been incorporated within the national legal systems of many countries, where national legislators have imposed their own views on the term, some of them varying slightly or even considerably from the established international definition. The term itself was invented by a lawyer, Raphael Lemkin. He intended to fill a gap in international law, as it then stood in the final days of the Second World War. Over the years, the limited definition of genocide in the 1948 Genocide Convention has provoked much criticism and many proposals for reform. But by the 1990s, when international criminal law went through a period of stunning developments, it was the atrophied concept of crimes against humanity that emerged as the best legal tool to address atrocities.

Keywords: Raphael Lemkin, international law, genocide, World War, crimes against humanity, 1948 Genocide Convention

Genocide is, first and foremost, a legal concept. Like many other terms—murder, rape, theft—it is also used in other contexts and by other disciplines, where its meaning may vary. Many historians and sociologists employ the term genocide to describe a range of atrocities involving killing large numbers of people. But even in law, it is imprecise to speak of a single, universally recognized meaning of genocide. There is a widely accepted definition, first set out in article II of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide.1 Like most legal definitions, its language is subject to various interpretations, and important controversies remain about the scope of the concept even within the framework of what is a concise and carefully worded definition. The crime of genocide has been incorporated within the national legal systems of many countries, where national legislators have imposed their own views on the term, some of them varying slightly or even considerably from the established international definition. As a result, even in law, one can speak of many definitions or interpretations of the concept of genocide.

The term itself was invented by a lawyer, Raphael Lemkin. He intended to fill a gap in international law, as it then stood in the final days of the Second World War. For more than two decades, Lemkin had been engaged at an international level in attempts to codify new categories of international crimes involving atrocities committed against vulnerable civilians. Even before Lemkin's time, international law recognized a limited number of so‐called international crimes. As a general (p. 124) rule, they were so designated not because of their shocking scale and extent, but for more mundane reasons, namely because they escaped the territorial jurisdiction of states. Piracy is the classic example, a crime committed on the high seas. Lemkin and others argued from a different perspective, proposing the recognition of international crimes where these represented serious human rights violations.

The beginnings of international prosecution for atrocities were already apparent at the time of the First World War, when Britain, France, and Russia warned that they would hold perpetrators to account for ‘these new crimes of Turkey against humanity and civilization’. But the idea that a state could be held accountable for atrocities committed against its own nationals remained extremely controversial, and it was this gap in the law that Lemkin worked to fill. His initial proposal evidenced a much broader concept of genocide than what was eventually agreed to in the 1948 Convention. But Lemkin actively participated in the negotiations leading to the Convention's adoption, and while he would no doubt have hoped for a somewhat different result, he cannot be detached from the Convention definition. Indeed, following its adoption he campaigned aggressively for its ratification.

Lemkin's famous proposal, contained in a chapter entitled ‘Genocide’ in his book Axis Rule in Occupied Europe, called for the ‘prohibition of genocide in war and peace’. Lemkin insisted upon the relationship between genocide and the growing interest in the protection of peoples and minorities manifested in several treaties and declarations adopted following the First World War. He noted the need to revisit international legal instruments, pointing out particularly the inadequacies of the Hague Convention of 1907, which he explained was ‘silent regarding the preservation of the integrity of a people’. According to Lemkin,

the definition of genocide in the Hague Regulations thus amended should consist of two essential parts: in the first should be included every action infringing upon the life, liberty, health, corporal integrity, economic existence, and the honor of the inhabitants when committed because they belong to a national, religious, or racial group; and in the second, every policy aiming at the destruction or the aggrandizement of one of such groups to the prejudice or detriment of another.2

Genocide and Crimes against Humanity

The legal concept of genocide was forged in the crucible of post‐Second World War efforts to prosecute Nazi atrocities. Its development took place in conjunction with (p. 125) that of other international crimes, especially crimes against humanity, with which it bears a close but complex and difficult relationship. The development and history of genocide as a legal concept cannot be properly understood without considering the parallel existence of crimes against humanity.

Although the participants in the UN War Crimes Commission, established in November 1943, and in the London Conference, which met from late June to early August 1945 to prepare the Nuremberg trial of the major war criminals, opted to use the term crimes against humanity in the prosecutions, they also employed the word genocide as if it was more or less synonymous. In his ‘Planning Memorandum distributed to Delegations at Beginning of London Conference, June 1945’, where Justice Robert Jackson outlined the evidence to be adduced in the Nuremberg trial, he spoke of ‘[g]enocide or destruction of racial minorities and subjugated populations by such means and methods as (1) underfeeding; (2) sterilization and castration; (3) depriving them of clothing, shelter, fuel, sanitation, medical care; (4) deporting them for forced labor; (5) working them in inhumane conditions.’3 The indictment of the International Military Tribunal charged the Nazi defendants with ‘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, particularly Jews, Poles, and Gypsies.’4 The term ‘genocide’ was also used on several occasions by the prosecutors during the trial itself. Sir David Maxwell‐Fyfe, the British prosecutor, reminded one of the accused, von Neurath, that he had been charged with genocide, ‘which we say is the extermination of racial and national groups, or, as it has been put in the well‐known book of Professor Lemkin, “a co‐ordinated 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.” ’5 Lemkin later wrote that ‘[t]he evidence produced at the Nuremberg trial gave full support to the concept of genocide.’6

Nevertheless, the Charter of the International Military Tribunal did not use the word genocide, nor does it appear in the final judgment issued on 30 September and 1 October 1946. The legal concept of crimes against humanity, as defined at Nuremberg, suffered from a very serious limitation, in that it was confined to atrocities committed in association with an aggressive war. This was quite intentional on the part of those who drafted the legal provisions governing prosecutions, especially the four great powers, the United States, the United Kingdom, France, and the Soviet Union. Indeed, extending international law from classic war crimes (p. 126) involving battlefield offences and various forms of persecution of civilians in an occupied territory so that it would also cover atrocities committed by a government against its own civilian population was not only novel and unprecedented, it was also threatening to the very states who were organizing the prosecution. The distinctions were set out quite candidly by the head of the United States delegation, Robert Jackson, at a meeting of the London Conference on 23 July 1945:

It has been a general principle of foreign policy of our Government from time immemorial that the internal affairs of another government are not ordinarily our business; that is to say, the way Germany treats its inhabitants, or any other country treats its inhabitants is not our affair any more than it is the affair of some other government to interpose itself in our problems. The reason that this program of extermination of Jews and destruction of the rights of minorities becomes an international concern is this: it was a part of a plan for making an illegal war. Unless we have a war connection as a basis for reaching them, I would think we have no basis for dealing with atrocities. They were a part of the preparation for war or for the conduct of the war in so far as they occurred inside of Germany and that makes them our concern.7

Speaking of the proposed crime of ‘atrocities, persecutions, and deportations on political, racial or religious grounds’, which would shortly be renamed ‘crimes against humanity’, Justice Jackson indicated the source of the lingering concerns of his government:

[O]rdinarily we do not consider that the acts of a government toward its own citizens warrant our interference. We have some regrettable circumstances at times in our own country in which minorities are unfairly treated. We think it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust or illegal war in which we became involved. We see no other basis on which we are justified in reaching the atrocities which were committed inside Germany, under German law, or even in violation of German law, by authorities of the German state.8

There is little doubt that the British, the French, and the Soviets had reasons of their own to share these concerns. As a result, the definition of crimes against humanity in article VI(c) of the Nuremberg Charter requires that atrocities be committed ‘in furtherance of or in connection with any crime within the jurisdiction of the International Tribunal’.9 In its final judgment, the International Military Tribunal made a distinction between pre‐war persecution of German Jews, which it characterized as ‘severe and repressive’, and German policy during the war in the occupied territories. Although the judgment frequently referred to events during (p. 127) the 1930s, none of the accused was found guilty of an act perpetrated prior to 1 September 1939, the day the war broke out.

Following the judgment, there was considerable outrage about the severe restriction upon the concept of crimes against humanity. A member of the Nuremberg prosecution team, Henry King, has described meeting Raphael Lemkin in the lobby of the Grand Hotel in Nuremberg in October 1946, a few days after the International Military Tribunal completed its work:

When I saw him at Nuremberg, Lemkin was very upset. He was concerned that the decision of the International Military Tribunal (IMT)—the Nuremberg Court—did not go far enough in dealing with genocidal actions. This was because the IMT limited its judgment to wartime genocide and did not include peacetime genocide. At that time, Lemkin was very focussed on pushing his points. After he had buttonholed me several times, I had to tell him that I was powerless to do anything about the limitation in the Court's judgment.10

The disappointment soon manifested itself in the UN General Assembly, which was meeting in New York. India, Cuba, and Panama proposed a resolution that they said would address a shortcoming in the Nuremberg trial by which acts committed prior to the war were left unpunished.11 One of the preambular paragraphs in the draft resolution stated:

Whereas the punishment of the very serious crime of genocide when committed in time of peace lies within the exclusive territorial jurisdiction of the judiciary of every State concerned, while crimes of a relatively lesser importance such as piracy, trade in women, children, drugs, obscene publications are declared as international crimes and have been made matters of international concern.12

This paragraph never made it to the final version of Resolution 96(I), adopted in December 1946, because the majority of the General Assembly was not prepared to recognize universal jurisdiction for the crime of genocide. Nevertheless, the resolution, somewhat toned down from the hopes of those who had proposed it, launched a process that concluded two years later with the adoption of the Convention for the Prevention and Punishment of the Crime of Genocide.13 Proposals that the Genocide Convention make reference to crimes against humanity as a related concept, or as some kind of broader umbrella under which the crime of genocide was situated, were rejected by the drafters so as not to create any confusion about the fact that genocide could be committed in time of peace as well as in wartime. This could not be said with any certainty about crimes against humanity at the time precisely because of the Nuremberg precedent.

(p. 128)

Thus, the recognition of genocide as an international crime by the General Assembly of the United Nations in 1946, and its codification in the 1948 Convention, can be understood as a reaction to the narrow approach to crimes against humanity in the Nuremberg judgment of the International Military Tribunal. It was Nuremberg's failure to recognize the international criminality of atrocities committed in peacetime that prompted the first initiatives at recognizing and defining the crime of genocide. Had Nuremberg affirmed the reach of international criminal law into peacetime atrocities, the Genocide Convention might never have been adopted. The term ‘genocide’ might then have remained a popular or colloquial label used by journalists, historians, and social scientists but absent from legal discourse.

The 1948 Genocide Convention

The Convention for the Prevention and Punishment of the Crime of Genocide was adopted unanimously by the UN General Assembly on 9 December 1948. It provides the following definition of the crime of genocide:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  1. (a) Killing members of the group;

  2. (b) Causing serious bodily or mental harm to members of the group;

  3. (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

  4. (d) Imposing measures intended to prevent births within the group;

  5. (e) Forcibly transferring children of the group to another group.

In one sense, the definition is considerably narrower than that of crimes against humanity, which can apply to a broad range of acts of persecution and other atrocities committed against ‘any civilian population’. However, the definition is manifestly broader because of the absence of any requirement of a link with aggressive war.

Besides defining the crime, the Convention imposes several obligations upon states that ratify it. They are required to enact legislation to provide for punishment of persons guilty of genocide committed on their own territory. The legislation must not allow offenders to invoke in defence that they were acting in an official capacity. States are also required to cooperate in extradition when persons suspected of committing genocide elsewhere find refuge on their territory. They may not treat genocide as a political crime, which is an historic bar to extradition. (p. 129) Disputes between states about genocide are automatically subject to the jurisdiction of the International Court of Justice.

The title of the Convention speaks of prevention, but aside from a perfunctory undertaking ‘to prevent’ genocide, there is nothing to suggest the scope of this obligation. In 2007, in a case filed by Bosnia and Herzegovina against Serbia, the International Court of Justice said there had been a breach of the Genocide Convention because Serbia failed to intervene with its allies, the Bosnian Serbs, so as to prevent the Srebrenica massacre of July 1995. The Court said that in view of Serbia's ‘undeniable influence’, the authorities should have ‘made the best efforts within their power to try and prevent the tragic events then taking shape, whose scale, though it could not have been foreseen with certainty, might at least have been surmised’.14 The judgment clarifies that the obligation to prevent extends beyond a country's own borders. The principle it establishes should apply to other States who take little or no action to respond when mass atrocity posing a risk of genocide is threatened. This pronouncement is in the same spirit as an emerging doctrine in international law expressed in a unanimous resolution of the UN General Assembly, adopted in 2005, declaring that States have a ‘responsibility to protect’ populations in cases of genocide, crimes against humanity, war crimes, and ethnic cleansing.15

The Convention specifies that genocide is to be prosecuted by the courts of the country where the crime took place or ‘by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’. The original General Assembly resolution proposed by Cuba, India, and Panama called for recognition of universal jurisdiction over genocide. This would mean that the courts of any state could punish the crime, no matter where it was committed. The idea was rejected by the General Assembly in favour of an approach combining territorial jurisdiction and an international institution. The promised international court was not established for more than half a century, when the Rome Statute of the International Criminal Court entered into force on 1 July 2002.16 Despite the Convention's rejection of universal jurisdiction, in the Eichmann prosecution the Israeli courts decided that it was accepted by customary international law. Although no treaty authorizes universal jurisdiction over genocide, and there is as yet no determination of its legitimacy by the International Court of Justice, there now seems little doubt that it is permitted by international law. In 2006 and 2007, the International Criminal Tribunal for Rwanda authorized transfer of suspects for trial on the basis of universal jurisdiction with the approval (p. 130) of the UN Security Council, further evidence of the broad acceptance of universal jurisdiction over genocide.17

The Genocide Convention entered into force in 1951, after it had been ratified by 20 states. Approximately 140 states have now ratified the Convention. Several of them have limited their commitments in the form of reservations. Most of these are directed at excluding the jurisdiction of the International Criminal Court in the event of disputes about the application of the Convention.

The definition of genocide set out in article II of the Convention has frequently been criticized for its narrowness. For example, it applies to a limited number of protected groups, and it requires an intent directed at the ultimate physical destruction of the victimized group. There was disappointment when the International Court of Justice, in the Bosnia and Herzegovina case, dismissed attempts to broaden the definition by interpreting the words ‘to destroy’ so as to encompass the notion of ‘ethnic cleansing’. The Court said that ‘ethnic cleansing’, which it described as the ‘deportation or displacement of the members of a group, even if effected by force’, was not necessarily equivalent to destruction of that group, and that destruction was not an automatic consequence of such displacement.18 The relatively conservative approach to interpreting the definition, and a resistance to broadening the scope through judicial action rather than amendment of the Convention, is also reflected in judgments of the International Criminal Tribunal for the former Yugoslavia19 and an authoritative report by a United Nations fact‐finding commission.20

Nor has there been any serious effort at the political level to amend or modify the definition in Article II of the Convention. The ideal opportunity for such a development would have been the adoption of the Rome Statute of the International Criminal Court, when the definitions of the other core international crimes, crimes against humanity and war crimes, were quite dramatically modernized. But when it came to genocide, there were a few modest proposals, and these did not gain any traction during the negotiations.21 At the Rome Conference, only Cuba argued for (p. 131) amendment of the definition, proposing it be expanded to include social and political groups.22

There is some evidence of innovation by national lawmakers when the provisions of the Genocide Convention are translated into domestic criminal legislation. The French Code pénal, for example, defines genocide as the destruction of any group whose identification is based on arbitrary criteria.23 The Canadian implementing legislation for the Rome Statute states that ‘“genocide” means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that, at the time and in the place of its commission, constitutes genocide according to customary international law’, explaining that the definition in the Rome Statute, which is identical to that of the Convention, is deemed a crime according to customary international law. The legislation adds, in anticipation: ‘This does not limit or prejudice in any way the application of existing or developing rules of international law.’24

Genocide and Customary International Law

Although written conventions or treaties are fundamental as a source of public international law, binding norms may also be derived from custom, that is, a pattern of behaviour or practice that exists because the parties believe it to be required as a matter of legal obligation. Many rules and principles of international law exist in this manner, without any treaty being required. Classic examples include diplomatic immunities, the humane treatment of prisoners of war, and recognition that there is a maritime perimeter surrounding a country that forms part of its sovereign territory.

Shortly after the Genocide Convention was adopted, the International Court of Justice issued an advisory opinion to clarify whether states that had ratified the Convention but with reservations were actually party to the instrument. This was at least theoretically relevant to a determination of when the treaty entered into force, as this required twenty valid ratifications. The Court wrote that:

The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as ‘a crime under international law’ involving a denial of the (p. 132) right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations. The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation.25

This important statement is often cited as the judicial recognition of the prohibition of genocide as a customary legal norm, although the Court did not actually refer to it expressly in this way. There is much subsequent authority for the proposition that the prohibition of genocide, and the basic principles set out in the Convention, form part of customary international law.26 According to the International Court of Justice, in its 2007 ruling in the Bosnia and Herzegovina case, the affirmation in article I of the Convention that genocide is a crime under international law means it sets out ‘the existing requirements of customary international law, a matter emphasized by the Court in 1951.’27 In 2006, the International Court of Justice said that the prohibition of genocide was ‘assuredly’ a peremptory norm (jus cogens) of public international law, the first time it has ever made such a declaration about any legal rule.28 A peremptory or jus cogens norm is so fundamental to customary international law that it cannot be subject to derogation.

Protected Groups

The definition in the 1948 Convention applies to ‘national, ethnic, racial and religious groups’. The concept is broadly analogous to what, at the time the Convention was adopted, were considered as ‘national minorities’. This was clearly the perspective of (p. 133) Raphael Lemkin and one of the other international experts who assisted the United Nations in preparing the first draft of the Convention, Vespasian Pella.29

During the negotiations, there was an important debate about whether to include political groups within the definition. Persecution on the grounds of membership in a political group had been recognized at Nuremberg as a crime against humanity. But the drafters of the Genocide Convention, Lemkin among them, quite decisively rejected the inclusion of political groups. Some of the subsequent literature on the subject has suggested that exclusion of political groups was the result of pressure from the Soviet Union, but a careful reading of the drafting history shows that opposition on this point was widespread.

In the first prosecution using a text derived from Article II of the Convention, identification of the victim group did not raise any legal difficulties. Israeli law avoided any discussion about the nature of ‘groups’ by simply reformulating the definition of genocide so as to refer to ‘crimes against the Jewish people’,30 and nothing in the trial record suggests that Eichmann ever challenged the fact that the victims of Nazi atrocities were the ‘Jewish people’.31 The issue does not appear to have been particularly controversial in litigation concerning the conflict in Bosnia and Herzegovina. A Trial Chamber of the International Criminal Tribunal for the former Yugoslavia concluded that ‘Bosnian Muslims’ were a ‘national group’,32 a finding that was not challenged on appeal and that was accepted by the Appeals Chamber.33 After some initial uncertainty, probably driven by discomfort with the contemporary legitimacy of the concept of ‘racial groups’, Trial Chambers of the International Criminal Tribunal for Rwanda have taken judicial notice of the fact that the Tutsi, as well as the Hutu and the Twa, were ethnic groups within Rwanda at the time of the 1994 genocide.34 In an innovative interpretation, a Trial Chamber of the International Criminal Tribunal for Rwanda held that the all ‘stable and permanent groups’ were protected by the Convention,35 but its theory has had little resonance in subsequent case law.36

Generally, it is the perpetrator of genocide who defines the individual victim's status as a member of a group protected by the Convention. The Nazis, for example, had detailed rules establishing, according to objective criteria, who was Jewish and who was not. It made no difference if the individual, perhaps a non‐observant Jew of mixed parentage, denied belonging to the group. As Jean‐Paul Sartre wrote: ‘Le juif est un (p. 134) homme que les autres hommes tiennent pour juif.’37 With considerable frustration, lawyers and courts have searched for objective definitions of the protected groups. But most of the judgments treat the identification of the protected group as an essentially subjective matter. For example, Trial Chambers of the International Criminal Tribunal for Rwanda have concluded that the Tutsi were an ethnic group based on the existence of government‐issued official identity cards describing them as such.38 A Trial Chamber of the International Criminal Tribunal for the former Yugoslavia wrote that ‘the relevant protected group may be identified by means of the subjective criterion of the stigmatization of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics. In some instances, the victim may perceive himself or herself to belong to the aforesaid group.’39 The prevailing view is that determination of the relevant protected group should be made on a case‐by‐case, relying upon both objective and subjective criteria.40

Ethnic Cleansing and Cultural Genocide

The Convention definition of genocide refers to the ‘intent to destroy’ without further precision. The five punishable acts that follow consist of a combination of physical, biological, and cultural attacks. For example, the fifth act of genocide in the definition, forcibly transferring children from one group to another, quite evidently does not involve their physical destruction. Rather, the elimination of a group is contemplated by destroying the cultural memory and the national language, through assimilation at a very young age. A literal reading of the definition can therefore support an interpretation whereby acts of ‘ethnic cleansing’ or of cultural genocide falling short of physical destruction would be punishable, a view that some judgments appear to support.41

When the Convention was being drafted, the punishable acts were divided into three categories, physical, biological, and cultural genocide. The UN General Assembly voted (p. 135) quite deliberately to exclude cultural genocide from the Convention.42 It also rejected an amendment from Syria to include as an act of genocide behaviour that today might be called ‘ethnic cleansing’. The Syrian amendment read: ‘Imposing measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill‐treatment.’43 When the General Assembly agreed to include forcible transfer of children, this was presented as an exception to the agreed upon exclusion of cultural genocide.44 Consequently, a reading of the Convention definition that takes into account the intent of its drafters will tend to reject inclusion of cultural genocide and ethnic cleansing, and construe the words ‘to destroy’ as if they are modified by ‘physically’ and ‘biologically’. On the other hand, a purely literal reading sustains the view that cultural genocide is comprised within the words ‘to destroy’.

There are strong arguments for rejecting an approach to treaty interpretation that puts too much emphasis on legislative intent, particularly in the field of human rights law. Reliance upon the drafting history tends to freeze the provision, preventing it from evolving so as to take into account historical developments and changed attitudes. Be that as it may, courts to this day have shown great respect for the relatively narrow perspective adopted by the General Assembly in 1948. This tendency is only partially explained by an inherent conservatism, however. Just as the crime of genocide emerged in international law as a reaction to the limitations on crimes against humanity, more recently the law on crimes against humanity has evolved to such an extent that it can now cover acts of ethnic cleansing and cultural genocide, even when committed in peacetime. As a result, there is no ‘impunity gap’, and there is little or no pressure in a legal sense for the expansion of the definition of genocide by interpretation. Of course, there are important political prerogatives and much symbolism associated with the label ‘genocide’, and many victims are deeply disappointed when their own suffering is acknowledged as ‘mere’ crimes against humanity. They do not fully appreciate the importance of the legal distinctions, which are the result of a complex historical debate. Thus, while the distinction between genocide and crimes against humanity no longer has significant legal consequences, it remains fundamental in other contexts.

Numbers and Genocide

The 1948 definition of genocide speaks of destruction of a group ‘in whole or in part’. It was a noble attempt by the drafters to reach consensus on the numerical (p. 136) issue, but in reality the General Assembly used ambiguous terms and left their clarification to judges in subsequent prosecutions. Several theories have emerged with a view to circumscribing the notion of ‘in part’. Because the terms appear in the preliminary paragraph of the definition, it is quite clear that they refer to the genocidal intent. As a result, the fundamental question is not how many victims were actually killed or injured, but rather how many victims the perpetrator intended to attack. Even where there is a small number of victims, or none at all—the Convention also criminalizes attempted genocide—the crime can be committed if the genocidal intent is present. The actual result, in terms of quantity, will nevertheless be relevant in that it assists in assessing the perpetrator's intent. The greater the number of actual victims, the more plausible becomes the deduction that the perpetrator intended to destroy the group, in whole or in part.

But there are other issues involved in construing the meaning of the term ‘in part’. Could it be genocide to target only a few persons for murder because of their membership in a particular ethnic group? A literal reading of the definition seems to support such an interpretation. Nevertheless, this construction is rather too extreme, and inconsistent with the drafting history, as well as with the context and the object and purpose of the Genocide Convention. Two basic approaches to the scope of the term ‘in part’ have emerged, each adding a modifying adjective, ‘substantial’ or ‘significant’, to the word ‘part’.

According to the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, ‘[i]t is well established that where a conviction for genocide relies on the intent to destroy a protected group “in part,” the part must be a substantial part of that group.’45 Noting that the Nazis did not realistically intend to destroy all Jews, but only those in Europe, and that the Hutu extremists in Rwanda sought to kill Tutsis within Rwanda, the Appeals Chamber said: ‘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.’46 In the factual context, the Appeals Chamber considered that the Bosnian Muslim community in Srebrenica constituted a ‘substantial part’ of the Bosnian Muslims as a whole, and that the attempt to destroy it amounted to genocide.47

Another approach takes more of a qualitative than a quantitative perspective, reading in the adjective ‘significant’. There is nothing to support this interpretation in the drafting history of the Convention, and the idea seems to have been launched by Benjamin Whitaker in a 1985 report to the UN Sub‐commission for the Protection and Promotion of Human Rights. He wrote that the term ‘in part’ (p. 137) denotes ‘a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership’.48 Citing Whitaker's report, an expert body established by the UN Security Council in 1992 to investigate violations of international humanitarian law in the former Yugoslavia held that ‘in part’ had not only a quantitative but also a qualitative dimension. According to the Commission's chair, Professor M. Cherif Bassiouni, the definition in the Genocide Convention was deemed ‘sufficiently pliable to encompass not only the targeting of an entire group, as stated in the convention, but also the targeting of certain segments of a given group, such as the Muslim elite or Muslim women.’49

This approach was adopted by the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, in some of the initial indictments,50 and was subsequently accepted by trial judges.51 Although not explicitly endorsing the ‘significant part’ gloss on the Convention, the Appeals Chamber of the Tribunal considered the relevance to the Srebrenica Muslim community of the destruction of approximately 7,000 men. It referred to an observation of the Trial Chamber about the patriarchal character of Bosnian Muslim society in Srebrenica, and the consequent impact upon the future of the community that would result from the killing of its adult male population. ‘Evidence introduced at trial supported this finding, by showing that, with the majority of the men killed officially listed as missing, their spouses are unable to remarry and, consequently, to have new children. The physical destruction of the men therefore had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinction.’52 In other words, the adult males were a ‘significant part’ of a community, the Srebrenica Muslims, that was itself a ‘substantial part’ of the group as a whole, namely, Bosnian Muslims.

Genocidal Intent

In principle, what sets criminal law apart from other areas of legal liability is its insistence upon establishing that the punishable act was committed intentionally. At best, inadvertent or negligent behaviour lies at the fringes of criminal law, and will certainly not apply when the most serious crimes, including genocide, are (p. 138) concerned. As a rule, criminal legislation does not spell out a requirement of intent, as this stipulation is considered to be implicit. Exceptionally, the definition in the Convention refers to the intent of the perpetrator, which must be to destroy the protected group in whole or in part. There are actually two distinct intents involved, because the underlying genocidal act, for example killing or causing serious bodily or mental harm to a member of the group, must also be carried out intentionally.

Courts often refer to the ‘specific intent’ of genocide, or the dolus specialis, so as to distinguish it from non‐genocidal killing. In principle, all crimes must be committed intentionally, in the sense that they are the result of an active mind operating consciously. The definitions of some crimes go beyond this general presumption, and state expressly that they must be committed with a special or specific intent. The assertion that genocide is committed when one of the punishable acts, killing for example, is perpetrated ‘with intent to destroy’ a protected group, leads to the observation that it is a crime of ‘specific intent’ or, according to jurists trained in continental law, one of dolus specialis. Application of this classic criminal law paradigm to genocide has resulted in what may be an exaggerated focus by some judges on the individual perpetrator, taken in isolation. The International Criminal Tribunal for the former Yugoslavia has adopted the view that an individual, acting alone, can commit an act of genocide to the extent that he or she engages in killing with a genocidal intent.53 The problem with such analysis is that it loses sight of the importance of the plan or policy of a state or analogous entity. In practice, genocide within the framework of international law is not the crime of a lone deviant but the act of a state. The importance of a state policy becomes more apparent when the context shifts from individual prosecution to a broader and more political determination.

For example, in September 2005, the UN Security Council commissioned a study to determine whether genocide was being committed in Darfur. The resulting expert report did not seriously attempt to determine whether any single individual within Sudan had killed with genocidal intent. Rather, it examined the policy of the Sudanese government, stating: ‘The Commission concludes that the Government of Sudan has not pursued a policy of genocide.’54 The Commission said that there was evidence of two elements of the crime of genocide. The first was the presence of material acts corresponding to paragraphs in the definition of the crime set out in article II of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide. It observed that ‘the gross violations of human rights perpetrated by Government forces and the militias under their control’ included reports of killing, causing serious bodily or mental harm, and deliberate infliction of conditions of (p. 139) life likely to bring about physical destruction. The second was the subjective perception that the victims and perpetrators, African and Arab tribes respectively, made up two distinct ethnic groups. But, said the Commission,

one central element appears to be missing, at least as far as the central Government authorities are concerned: genocidal intent. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds.55

Article III of the Genocide Convention establishes that in addition to criminal liability for the actual perpetrators of the crime, accomplices are also punishable. The transposition of concepts of complicity drawn from ordinary criminal law to the international setting of mass atrocity lacks some precision. In reality, it is the organizers and instigators of genocide who bear the greatest responsibility; the physical acts themselves are committed by individuals who are low in the hierarchy, and who may well be ignorant of the genocidal intent.

The statutes of the international criminal tribunals make provision for prosecution of the commander or superior where the acts themselves are committed by subordinates, even in the absence of evidence that actual orders or directions were given. This approach to liability, drawn from a notorious post‐Second World War case,56 has proven to be of only theoretical interest. The scenario whereby a superior is convicted for failing to prevent subordinates from committing genocide is implausible once it is understood that this is a crime that stems from a state or organizational plan or policy.

Many contemporary international criminal prosecutions are based upon a theory known as ‘joint criminal enterprise’. It recognizes that atrocities that qualify as international crimes, including genocide, are committed by groups and organizations, acting with a common purpose. In practice, it means that the leaders or organizers will be held responsible for the crimes committed by their associates, even those that they did not specifically intend, to the extent that these were a reasonable and foreseeable outcome of the common purpose or joint enterprise.57

State Responsibility

Although the definition of genocide is framed as a crime, implying that it applies only to individuals, the 1948 Genocide Convention imposes duties upon states to (p. 140) prevent genocide and clearly envisages their liability before the International Court of Justice. Any doubts on this point were resolved in the February 2007 judgment of the International Court. There remains an ongoing debate among international lawyers as to whether states actually commit crimes. The Court avoided the question when it ruled that Serbia was liable for failing to prevent genocide, whether qualified as a crime or as an internationally wrongful act.

The Court also held that where charges of genocide are made, they must be established by proof ‘at a high level of certainty appropriate to the seriousness of the allegation’.58 This is a considerably more demanding standard than what would normally be applied in ordinary cases involving State responsibility before the International Court of Justice, and it appears to approximate the norm applied in criminal prosecutions. For example, the Rome Statute of the International Criminal Court says that ‘[i]n order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.’59 In adopting this approach, the International Court of Justice greatly reduced the likelihood of a result inconsistent with that of the international criminal tribunals. Its exigent standard of proof with respect to genocide virtually assured that the International Court of Justice, dealing with state responsibility, and the International Criminal Tribunal for the former Yugoslavia, dealing with individual responsibility, would remain very much on the same wavelength.

Concluding remarks

First proposed by Raphael Lemkin in 1944 to fill a gap in the existing law that would adequately address Nazi crimes against minorities, especially European Jews, the crime of genocide was subsequently codified in the first important UN human rights treaty, the Convention on the Prevention and Punishment of the Crime of Genocide, adopted in December 1948. To a large extent, the Convention arose as a response to the inadequate codification of crimes against humanity at Nuremberg, which failed to address atrocities committed during peacetime. The Genocide Convention offered a definition of the crime that covered peacetime acts, but the General Assembly would only agree to this if the crime itself was defined rather narrowly.

(p. 141)

Over the years, the limited definition of genocide in the 1948 Convention has provoked much criticism and many proposals for reform. But by the 1990s, when international criminal law went through a period of stunning developments, it was the atrophied concept of crimes against humanity that emerged as the best legal tool to address atrocities. A gap in the law needed to be filled. Instead of enlarging the definition of genocide in order to accomplish this, the international community opted for an expanded view of crimes against humanity instead. As a result, genocide as a legal concept remains essentially reserved for the clearest of cases of physical destruction of national, ethnic, racial, or religious groups. An important ruling of the International Court of Justice of February 2007 confirms these observations about the stable and relatively conservative approach to genocide that is likely to prevail in the case law for many years to come.

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                  (1) Convention on the Prevention and Punishment of the Crime of Genocide (1951), 78 UNTS 277.

                  (2) Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Washington, DC: Carnegie Endowment for World Peace, 1944), 90–3.

                  (3) Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials (Washington, DC: US Government Printing Office, 1949), 6.

                  (4) France et al. v. Goering et al., (1946) 22 International Military Tribunal (IMT) 45–6.

                  (5) (1947) 17 IMT, 61. See also: (1947) 19 IMT 497, 498, 509, 514, 531.

                  (6) Raphael Lemkin, ‘Genocide as a Crime in International Law’, American Journal of International Law 41 (1947), 145, 147.

                  (7) ‘Minutes of Conference Session of 23 July 1945’, in Report of Jackson, United States Representative, 331.

                  (8) Ibid. 333 (emphasis added).

                  (9) Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the IMT, annex, (1951) 82 UNTS 279.

                  (10) ‘Remarks of Henry T. King, Jr., Case Western Reserve University School of Law, Genocide Conference’, 27 September 2007, 1.

                  (11) UN Doc. A/C.6/SR.22.

                  (12) UN Doc. A/BUR/50.

                  (13) Convention for the Prevention and Punishment of the Crime of Genocide, 277.

                  (14) Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, para. 438.

                  (15) ‘2005 World Summit Outcome’, UN Doc. A/RES/60/1, para. 138.

                  (16) Rome Statute of the International Criminal Court (2002), 2187 UNTS 90.

                  (17) Prosecutor v. Bagaragaza (Case ICTR‐2005–86‐R11bis), Decision on Prosecutor's Request for Referral of the Indictment to the Kingdom of the Netherlands, 13 April 2007. For Security Council acquiescence, see UN Doc. S/PV.5697.

                  (18) Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, para. 190. See also the chapter by Lieberman in this volume.

                  (19) Prosecutor v. Krstić (Case IT‐98–33‐A), Judgment, 19 April 2004. Also Prosecutor v. Stakić (Case IT‐97–24‐T), Judgment, 31 July 2003; Prosecutor v. Britanin (Case IT‐99–36‐T), Judgment, 1 September 2004; Prosecutor v. Blagojević et al. (Case IT‐02–60‐A), Judgment, 9 May 2007.

                  (20) ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary‐General, Pursuant to Security Council Resolution 1564 of 18 September 2004’, Geneva, 25 January 2005, UN Doc. S/2005/60.

                  (21) ‘Report of the Ad Hoc Committee on the Establishment of an International Criminal Court’, UN Doc. A/50/22; para. 61; UN Doc. A/AC.249/1998/CRP.8, p. 2.; Herman von Hebel and Darryl Robinson, ‘Crimes Within the Jurisdiction of the Court’, in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (The Hague/London/Boston: Kluwer Law, 1995), 89 n 37.

                  (22) UN Doc. A/CONF.183/C.1/SR.3, para. 100.

                  (23) Code Pénal (France), Journal officiel, 23 July 1992, art. 211–1.

                  (24) Crimes against Humanity and War Crimes Act, 48–49 Elizabeth II, 1999–2000, C‐19, s. 4.

                  (25) Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion), [1951] ICJ Reports 16, p. 23. Quoted in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), [1996] ICJ Reports 226, para. 31; Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, para. 161.

                  (26) Prosecutor v. Sikirica et al. (Case IT‐95–8‐I), Judgment on Defense Motions to Acquit, 3 September 2001, para. 55; Prosecutor v. Musema (Case ICTR‐96–13‐T), Judgment, 27 January 2000, para. 151; Prosecutor v. Bagilishema (Case ICTR‐95–1A‐T), Judgment, 7 June 2001, para. 54. The Australian High Court has written that ‘[g]enocide was not [recognised as a crime under customary international law] until 1948.’ Polyukhovich v. Commonwealth of Australia (1991), 101 ALR 545, at 598 (per Brennan J.).

                  (27) Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, para. 161.

                  (28) Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, 3 February 2006, para. 64.

                  (29) Vespasien V. Pella, La guerre‐crime et les criminels de guerre, Réflexions sur la justice pénale internationale, ce qu'elle est ce qu'elle devrait être (Neuchatel: Éditions de la baconnière, 1964), 80 n 1.

                  (30) Nazi and Nazi Collaborators (Punishment) Law, 1950 (Law 5710/1950), s. I(a).

                  (31) A‐G Israel v. Eichmann, (1968) 36 ILR 5 (District Court, Jerusalem); A‐G Israel v. Eichmann (1968), 36 ILR 277 (Supreme Court of Israel).

                  (32) Prosecutor v. Krstić (Case IT‐98–33‐T), Judgment, 2 August 2001, paras. 559–60.

                  (33) Prosecutor v. Krstić (Case IT‐98–33‐A), Judgment, 19 April 2004, para. 6.

                  (34) Prosecutor v. Kajelijeli (Case ICTR‐98–44A‐T), Judgment, 1 December 2003, para. 241.

                  (35) Prosecutor v. Akayesu (Case ICTR‐96–4‐T), Judgment, 2 September 1998, para. 652.

                  (36) ‘Report of the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur’, UN Doc. S/2005/60, para. 501.

                  (37) Jean‐Paul Sartre, Réflexions sur la question juive (Paris: Gallimard, 1954), 81–4.

                  (38) Prosecutor v. Kayishema et al. (Case ICTR‐95–1‐T), Judgment, 21 May 1999, para. 98.

                  (39) Prosecutor v. Brdanin (Case T‐99–36‐T), Judgment, 1 September 2004, para. 683.

                  (40) Prosecutor v. Brdanin (Case IT‐99–36‐T), Judgment, 1 September 2004, para. 684. Also Prosecutor v. Stakić (Case IT‐97–24‐A), Judgment, 22 March 2006, para. 25; Prosecutor v. Semanza (Case ICTR‐97–20‐T), Judgment and Sentence, 15 May 2003, para. 317; Prosecutor v. Kajelijeli (Case ICTR‐98–44A‐T), Judgment and Sentence, 1 December 2003, para. 811; Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, para. 191.

                  (41) Prosecutor v. Krstić (Case IT‐98–33‐A), Partially Dissenting Opinion of Judge Shahabuddeen, 19 April 2004; Prosecutor v. Blagojević (Case IT‐02–60‐T) Judgment, 17 January 2005; Jorgić v. Germany (App. 74613/01), 12 July 2007, para. 47.

                  (42) UN Doc. A/C.6/SR.83.

                  (43) UN Doc. A/C.6/234.

                  (44) UN Doc. A/C.6/SR.82.

                  (45) Prosecutor v. Krstić (Case IT‐98–33‐A), Judgment, 18 August 2004, para. 8.

                  (46) Ibid. para. 13.

                  (47) Ibid. para 22.

                  (48) Benjamin Whitaker, ‘Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide’, UN Doc. E/CN.4/Sub.2/1985/6, para. 29.

                  (49) ‘Final Report of the Commission of Experts’, UN Doc. S/1994/674, para. 94.

                  (50) Prosecutor v. Karadžić et al. (Case IT‐95–18‐R61, IT‐95–5‐R61), Transcript of hearing of 27 June 1996, p. 15. Also Prosecutor v. Jelisić et al. (Case IT‐95–10‐I), Indictment, 21 July 1995, para. 17.

                  (51) Prosecutor v. Jelisić (Case IT‐95–10‐T), Judgment, 14 December 1999, paras. 82, 93; Prosecutor v. Sikirica et al. (Case IT‐95–8‐T), Judgment on Defense Motions to Acquit, 3 September 2001, para. 80.

                  (52) Prosecutor v. Krstić (Case IT‐98–33‐A), Judgment, 18 August 2004, para. 28.

                  (53) Prosecutor v. Jelisić (Case IT‐95–10‐T), Judgment, 14 December 1999, para. 100.

                  (54) ‘Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur’, UN Doc. S/2005/60, para. 518.

                  (56) United States of America v. Yamashita (1948), 4 LRTWC 1, pp. 36–7; In re Yamashita, 327 U.S. 1 (1945).

                  (57) Prosecutor v. Britanin (Case IT‐99–36‐A), Judgment, 3 April 2007, paras. 420–5.

                  (58) Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Judgment, 26 February 2007, para. 210.

                  (59) Rome Statute of the International Criminal Court (2002), 2187 UNTS 90, art. 66(3).