Genocide in international criminal law
Srebrenica–Potočari Memorial and Cemetery for the Victims of the 1995 Genocide
"Why is the killing of a million people a lesser crime than the killing of an individual?" asked International legal scholar Raphael Lemkin. Lemkin was a survivor of the Nazi Holocaust; 49 of his relatives were killed. He devised the term "genocide" in 1944, to describe the destruction of a nation or group. In his time, there was no universal law criminalising such acts.
Lemkin's formidable legacy is the recognition and criminalisation of genocide in international law. Genocide is now one of the core international crimes for which individuals may be prosecuted by the International Criminal Tribunal (ICC). States have international legal obligations to prevent, prosecute and punish genocide under domestic laws.
In law, under Article II Genocide Convention and Article 6 ICC Statute, genocide means acts aimed at the destruction of an identifiable group or nation of people through violence against members of the group or nation.
The distinguishing characteristics of the international crime of genocide are:
i. the collective, persecutory and discriminatory context of individual acts of violence (the “chapeau” or contextual element; and
ii. a wider intention to annihilate the group (dolus specialis or special intent).
Genocide as an international crime is different to the other three core international crimes (war crimes, crimes of aggression, crimes against humanity). First, individual acts may amount to genocide without any direct or indirect involvement of nation states. Secondly, the specific crime of genocide did not emerge out of customary international law. Recognition of genocide as a crime against the international community is relatively modern, evolving as a direct consequence of, and response to, the Nazi atrocities, most notably the Holocaust, or Shoah, of the Second World War.
The term “genocide” was first used by Lemkin in 1944. The term combines the Greek word “genos” meaning race, or tribe, with the Latin word “cide”, meaning kill or killer.
Early drafts of the Charter of the International Military Tribunal at Nuremberg (IMT) contemplated including “genocide” in the list of indictable crimes under the IMT’s jurisdiction. At the time this was a novel concept, with no established precedent in international law. The early drafts of the IMT Charter proposed defining such a crime committed through various means, including forced sterilization, denial of the essentials of life (food, water, shelter, clothing, sanitation, medical care), forced labour, deportation, and inhumane conditions. Ultimately, “genocide” was not included in the IMT Charter as an indictable offence. However, under the charge of war crimes, “genocide” was a term used in the indictments, alleging deliberate and systematic acts against national, racial or religious groups. Undoubtedly, by incorporating genocide as a concept into the language of the IMT proceedings, the proceedings provided impetus and momentum for recognition of genocide as a crime in international law.
In 1946, the UN General Assembly adopted Resolution 96(I) which defined genocide as a
“denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings” and affirmed that
“genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices — whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds — are punishable”.
Resolution 96(I) started the process that led to adoption of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 (the Genocide Convention).
Under article II of the Genocide Convention, genocide means any of the following acts committed against members of a national, ethnical, racial or religious group with intent to destroy the group in whole or part:
(a) Killing members of the group
(b) Causing serious bodily or mental harm to members of the group
(c) Deliberately inflicting conditions of life calculated to bring about its physical destruction in whole or in part
(d) Imposing measures intended to prevent births within the group
(e) Forcibly transferring children of the group to another group.
The Genocide Convention established legal obligations on state parties to prevent and punish direct acts of genocide, and conspiracy, incitement, and attempts to commit, and complicity in, genocide. To fulfil these treaty obligations, states parties should in national laws criminalise such acts committed with genocidal intent. However, whilst state compliance of obligations under the Genocide Convention could be subject to action by the UN, the Convention lacked provision for a specific international tribunal with jurisdiction over individual alleged acts of genocide. The Genocide Convention left enforcement against individual perpetrators to the states in the territory where the acts were committed, or for “such international penal tribunal as may have jurisdiction” (article VI).
As such, the Genocide Convention founded the legal basis in international law for universal recognition of the crime of genocide. However, it lacked any direct provision for universal enforcement through a specialist international criminal tribunal with jurisdiction over individual suspects. State parties undertook, in ratifying the Genocide Convention, to prevent and punish genocide, but the crime itself requires no state participation: it is in international crime committed by individual people, against other individuals targeted because of perceived group or collective identity. Yet international treaty law is the law between states, enforceable against states. Thus, a fault-line in the effectiveness of the Genocide Convention is the absence of provision for an international mechanism, and/or concrete obligations on state parties to enact and apply universal rules in national criminal justice systems, for the prosecution and punishment of individual acts of genocide. That situation evolved during the latter twentieth century. By UN Security Council resolutions, jurisdiction to prosecute crimes of genocide was included in the Statutes of the International Criminal Tribunals for the Former Yugoslavia (ICTY), and Rwanda (ICTR). Similar provisions enabled prosecution of crimes of genocide by the Extraordinary Chambers in the Courts of Cambodia (ECCC); by the East Timor Serious Crimes Panel; and the Special Criminal Court in the Central African Republic. A further significant development was the adoption in 2014 of the Malabo Protocol of the African Court of Justice and Human Rights, Article 28 of which provides for jurisdiction over international crimes, including genocide. The Malabo Protocol requires formal ratification by at least 15 member states of the AU before it can come into force; currently 15 member states have signed, but none have ratified the Protocol.
Consequent to the Genocide Convention, and the principles established in the expansive body of jurisprudence of special tribunals and courts referred to above, genocide has now attained recognition in customary international law, and is accepted as a peremptory norm (jus cogens), that binds all states of the international community (erga omnes). That means that, without exception, all states are bound by the prohibition of, and have obligations to prevent and punish, genocide, regardless of ratification of the Genocide Convention. By extension, the erga omnes nature of these obligations mean that the whole international community has an interest in preventing and punishing genocide, justifying states in electing to exercise universal jurisdiction over suspected perpetrators of genocide who are non-nationals present in the territorial jurisdiction.
Perhaps the most significant development of individual liability for crimes of genocide in international law was achieved with the establishment of the International Criminal Court in 2000. In the context of the substantial body of jurisprudence of the special tribunals and extraordinary courts, and recognition of the crime of genocide as a peremptory customary norm in international law, genocide was included as one of the core international crimes falling under the ICC’s jurisdiction.
Article 6 of the ICC’s Rome Statute defines the crime of genocide in substantially similar terms to the statutes of the special tribunals.
Article 6, Rome Statute of the International Criminal Court
Article 6 Genocide
For the purpose of this Statute, "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:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.