Often states deliberate and debate while people die.
Photo: Tsitsernakaberd Genocide Memorial in Yerevan, Armenia (Konrad Lembcke)
On December 9, 1948, the United Nations launched the modern international human rights system with the Convention on the Prevention and Punishment of the Crime of Genocide.
The concept underlying the treaty – genocide – was a new one, coined by Polish-Jewish lawyer Raphael Lemkinjust four years earlier in his 1944 book Axis Rule in Occupied Europe. Although associated with the Holocaust, the treaty has a deeper and more complex history.
Origins of the term “genocide”
Lemkin defines the concept in the book’s ninth chapter, excerpted here:
By ‘genocide’ we mean the destruction of a nation or of an ethnic group. This new word … is made from the ancient Greek word genos (race, tribe) and the Latin cide (killing) … Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated 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. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.
Lemkin completed Axis Rule in the shadow of the Holocaust (1933-1945), a genocide during which an estimated 6 million European Jews were killed by Nazi Germany and its partners, who viewed Jews as racially inferior and dangerous. Roma people also suffered a genocide by the Nazi regime. Similar to Jews, Roma were subjected to “arbitrary internment, sterilization, forced labor in concentration camps, deportation, and mass murder.”
But the genocide that first inspired Lemkin’s thinking was the Armenian Genocide. Between 1915 and 1916, the Ottoman Empire massacred an estimated 1.2 million ethnic Armenians. Following the killings, a survivor named Soghomon Tehlirian plotted to assassinate one the genocide’s architects, Mehmed Talaat, who had fled to Germany. Tehlirian’s plot succeeded but he was soon put on trial for Talaat’s murder.
Though he was ultimately acquitted, Tehlirian’s trial raised many legal and moral questions. Tehlirian did commit a crime, murder, resulting in a man’s death. But Talaat, whose actions resulted in the deaths of more than 1 million people, had not been put on trial. There was no legal offense that fully captured his actions. Lemkin puzzled, “It is a crime for Tehlirian to kill a man, but it is not a crime for his oppressor to kill more than a million men. This is most inconsistent.”
Putting legal force behind the concept
With the new concept in hand, Lemkin began lobbying for legal recognition and criminalization of genocide. In her powerful Pulitzer-prize winning book, A Problem from Hell: America and the Age of Genocide, former U.S. ambassador to the United Nations Samantha Power traces Lemkin’s advocacy and legacy, and confronts the failure of successive U.S. administrations to prevent genocide in different countries, despite the “never again” axiom.
Lemkin succeeded in getting prosecutors to mention genocide in the indictment of Nazi leaders at the Nuremberg tribunals but none were prosecuted for the crime because it was not part of German domestic law or international law at the time that the Holocaust occurred. (This is known as the principle of non-retroactivity.) Instead, Nazi officials were prosecuted for war crimes, crimes against humanity, crimes against peace, and conspiracy to commit these crimes.
In 1946, the U.N. General Assembly passed Resolution 96, to begin formulating a convention against genocide. Two years and six drafts later, the General Assembly adopted the Genocide Convention in 1948. It became officially binding on states in 1951 when the required 20 U.N. member states had ratified it.
Genocide, by definition
The convention defines five physical acts that – if committed against a national, ethnic, racial, or religious group, with the intent to destroy that group in whole or in part – constitute genocide:
Killing members of the group
Causing serious bodily or mental harm to members of the group
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
Imposing measures intended to prevent births within the group
Forcibly transferring children of the group to another group
One common misconception is that mass killings must occur to meet the definition of genocide. It is important to emphasize that killing is one possible act used to commit a genocide, but it is not the only one. Perhaps this misperception arose because the international community has historically failed to intervene prior to mass killings. But under the convention, any one of the five acts listed above can be a crime of genocide if there is the intent to destroy all or part of a national, ethnic, racial, or religious group.
The convention’s definition of genocide departed from Resolution 96 in a few important respects. First, the convention narrowed the resolution’s broad definition of protected groups, which included “political” and “other” groups. Second, the convention expanded the resolution’s limited conception of the physical acts that could constitute genocide – from a group being “destroyed, entirely or in part” to the five acts listed above. And third, the jurisdictional responsibility shifted. Whereas the resolution affirmed genocide as “a matter of international concern,” the convention declared that states have jurisdiction over the crime of genocide and are obligated to prevent and punish it.
Enforcing the convention means interfering with state sovereignty
This is where state sovereignty potentially clashes with human rights enforcement. For the international community to intervene in a genocide, it must set aside a country’s sovereignty. This principle is known as the responsibility to protect (R2P).
But it is very, very difficult to get agreement on when, if ever, to breach sovereignty, which is a bedrock of the international system. This is a major reason why international intervention in genocide often fails to materialize or comes too late to save lives.
For example, in 1994, the Hutu government in Rwanda sought to eliminate the country’s Tutsi minority and killed between 500,000 and 1 million people in 100 days. An independent inquiry later revealed that a lack of political will, inadequate resources, and errors in judgment prevented a more timely international intervention.
To give another example, NATO intervened in the Bosnian war in 1999, four years after the Srebenica Genocide (1992-1995). During this period, Bosnian Serb forces killed an estimated 8,000 Bosniak Muslim men and boys.
The international community has also failed to intervene in Xinjiang, where the United States and others have asserted that China is committing genocide against the Uyghurs, a Muslim minority group in the country. More recently, a U.N. independent commission of inquiry on Ukraine expressed concern about a possible genocide of Ukrainians by Russia.
Likewise, U.N. experts have warned that Palestinians in Gaza are at risk of genocide. Some non-governmental organizations, scholars, practitioners, and politicians around the world have suggested that a genocide may already be occurring. However, other scholars and practitioners disagree.
It is possible that an international consensus for Israel’s siege on Gaza as genocide will coalesce in the future, prompting some type of intervention, though the United States would almost certainly veto any proposal for an intervention at the U.N. Security Council, as Good Authority editor Erik Voeten discusses in a recent piece. But as with historical cases, the risk in Gaza is that multitudes will perish while the world deliberates whether a genocide is taking place in Palestine.
Post-script: This post focuses on the Genocide Convention and highlights how humanity has often failed to prevent genocide. The convention also obliges states to punish genocide, a topic to which I want to return in a future post on the various tribunals that have been established to investigate and prosecute the crime of genocide, including the International Criminal Court.
Kelebogile Zvobgo - December 9, 2023