Genocide Convention

Genocide Convention

Convention on the Prevention and Punishment of the Crime of Genocide
Signed	9 December 1948
Location	Palais de Chaillot, Paris, France
Effective	12 January 1951
Signatories	39
Parties	153 (complete list)
Depositary	Secretary-General of the United Nations
Full text
Genocide Convention at Wikisource

The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), or the Genocide Convention, is an international treaty that criminalizes genocide and obligates state parties to pursue the enforcement of its prohibition. It was the first legal instrument to codify genocide as a crime, and the first human rights treaty unanimously adopted by the United Nations General Assembly, on 9 December 1948, during the third session of the United Nations General Assembly. ^[1] The Convention entered into force on 12 January 1951 and has 153 state parties as of June 2024 ^[update] . ^[2]

The Genocide Convention was conceived largely in response to World War II, which saw atrocities such as the Holocaust that lacked an adequate description or legal definition. Polish-Jewish lawyer Raphael Lemkin, who had coined the term genocide in 1944 to describe Nazi policies in occupied Europe and the Armenian genocide, campaigned for its recognition as a crime under international law. ^[3] Lemkin also linked colonialism with genocide, mentioning colonial genocides outside of Europe in his writings. ^[4] In a 1946 resolution, the General Assembly recognized genocide as an international crime and called for the creation of a binding treaty to prevent and punish its perpetration. ^[5] Subsequent discussions and negotiations among UN member states resulted in the CPPCG.

The Convention defines genocide as any of five "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group." These five acts include killing members of the group, causing them serious bodily or mental harm, imposing living conditions intended to destroy the group, preventing births, and forcibly transferring children out of the group. Victims are targeted because of their real or perceived membership of a group, not randomly. ^[6] The convention further criminalizes "complicity, attempt, or incitement of its commission." Member states are prohibited from engaging in genocide and obligated to pursue the enforcement of this prohibition. All perpetrators are to be tried regardless of whether they are private individuals, public officials, or political leaders with sovereign immunity.

The CPPCG has influenced law at both the national and international level. Its definition of genocide has been adopted by international and hybrid tribunals, such as the International Criminal Court, and incorporated into the domestic law of several countries. ^[7] Its provisions are widely considered to be reflective of customary law and therefore binding on all nations whether or not they are parties. The International Court of Justice (ICJ) has likewise ruled that the principles underlying the Convention represent a peremptory norm against genocide that no government can derogate. ^[8] The Genocide Convention authorizes the mandatory jurisdiction of the ICJ to adjudicate disputes, leading to international litigation such as the Rohingya genocide case and dispute over the 2022 Russian invasion of Ukraine.

Definition of genocide

Article 2 of the Convention defines genocide as:

... 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.

— Convention on the Prevention and Punishment of the Crime of Genocide, Article 2 ^[9]

Article 3 defines the crimes that can be punished under the convention:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

— Convention on the Prevention and Punishment of the Crime of Genocide, Article 3 ^[9]

The convention was passed to outlaw actions similar to the Armenian genocide and the Holocaust. ^[10]

The first draft of the Convention included political killing, but the USSR ^[11] along with some other nations would not accept that actions against groups identified as holding similar political opinions or social status would constitute genocide, ^[12] so these stipulations were subsequently removed in a political and diplomatic compromise.

Early drafts also included acts of cultural destruction in the concept of genocide, but these were opposed by former European colonial powers and some settler countries. ^[13] Such acts, which Lemkin saw as part and parcel of the concept of genocide, have since often been discussed as cultural genocide (a term also not enshrined in international law). In June 2021, the International Criminal Court issued new guidelines for how cultural destruction, when occurring alongside other recognized acts of genocide, can potentially be corroborating evidence for the intent of the crime of genocide. ^[14]

The Genocide Convention establishes five prohibited acts that, when committed with the requisite intent, amount to genocide. Genocide is not just defined as wide scale massacre-style killings that are visible and well-documented. International law recognizes a broad range of forms of violence in which the crime of genocide can be enacted. ^[15]

Killing members of the group Article II(a)

While mass killing is not necessary for genocide to have been committed, it has been present in almost all recognized genocides. In certain instances, men and adolescent boys are singled out for murder in the early stages, such as in the genocide of the Yazidis by Daesh, ^[16] the Ottoman Turks' attack on the Armenians, ^[17] and the Burmese security forces' attacks on the Rohingya. ^[18] Men and boys are typically subject to "fast" killings, such as by gunshot. ^[19] Women and girls are more likely to die slower deaths by slashing, burning, or as a result of sexual violence. ^[20] The jurisprudence of the International Criminal Tribunal for Rwanda (ICTR), among others, shows that both the initial executions and those that quickly follow other acts of extreme violence, such as rape and torture, are recognized as falling under the first prohibited act. ^[21]

A less settled discussion is whether deaths that are further removed from the initial acts of violence can be addressed under this provision of the Genocide Convention. Legal scholars have posited, for example, that deaths resulting from other genocidal acts including causing serious bodily or mental harm or the successful deliberate infliction of conditions of life calculated to bring about physical destruction should be considered genocidal killings. ^[15]

Causing serious bodily or mental harm to members of the group Article II(b)

This second prohibited act can encompass a wide range of non-fatal genocidal acts. ^[22] The ICTR and International Criminal Tribunal for the former Yugoslavia (ICTY) have held that rape and sexual violence may constitute the second prohibited act of genocide by causing both physical and mental harm. In its landmark Akayesu decision, the ICTR held that rapes and sexual violence resulted in "physical and psychological destruction". ^[23] Sexual violence is a hallmark of genocidal violence, with most genocidal campaigns explicitly or implicitly sanctioning it. ^[15] It is estimated that 250,000 to 500,000 women were raped in the three months of the Rwandan genocide, many of whom were subjected to multiple rapes or gang rape. ^[24] In Darfur, a systemic campaign of rape and often sexual mutilation was carried out ^[25] and in Burma public mass rapes and gang rapes were inflicted on the Rohingya by Burmese security forces. ^[26] Sexual slavery was documented in the Armenian genocide by the Ottoman Turks and Daesh's genocide of the Yazidi. ^[27]

Torture and other cruel, inhuman, or degrading treatment or punishment, when committed with the requisite intent, are also genocide by causing serious bodily or mental harm to members of the group. The ICTY found that both experiencing a failed execution and watching the murder of one's family members may constitute torture. ^[28] The Syrian Commission of Inquiry (COI) also found that enslavement, removal of one's children into indoctrination or sexual slavery, and acts of physical and sexual violence rise to the level of torture, as well. While it was subject to some debate, the ICTY and, later, the Syrian COI held that under some circumstances deportation and forcible transfer may also cause serious bodily or mental harm. ^[29]

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction Article II(c)

During the Indian wars, the U.S. federal government promoted bison hunting for various reasons, including as a way of destroying the means of survival of Plains Indians to pressure them to remain on Indian reservations. This has been cited by experts as an example of genocide that involves removing the means of survival.

The third prohibited act is distinguished from the genocidal act of killing because the deaths are not immediate (or may not even come to pass), but rather create circumstances that do not support prolonged life. ^[31] Due to the longer period of time before the actual destruction would be achieved, the ICTR held that courts must consider the duration of time the conditions are imposed as an element of the act. ^[32] In the 19th century the United States federal government supported the extermination of bison, which Native Americans in the Great Plains relied on as a source of food. This was done for various reasons, primarily to pressure them onto reservations during times of conflict. Some genocide experts describe this as an example of genocide that involves removing the means of survival. ^[30]

The ICTR provided guidance into what constitutes a violation of the third act. In Akayesu, it identified "subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement" ^[33] as rising to genocide. In Kayishema and Ruzindana, it extended the list to include: "lack of proper housing, clothing, hygiene and medical care or excessive work or physical exertion" among the conditions. ^[32] It further noted that, in addition to deprivation of necessary resources, rape could also fit within this prohibited act. ^[32] In August 2023, founding chief prosecutor of the International Criminal Court (ICC) Luis Moreno Ocampo published a report presenting evidence that Azerbaijan was committing genocide against the ethnic Armenians of Artsakh Nagorno-Karabakh under Article II(c) of the Genocide Convention by placing their historic land under a comprehensive blockade, cutting all access to food, medical supplies, electricity, gas, internet, and stopping all movement of people to and from Armenia. ^[34]

Imposing measures intended to prevent births within the group Article II(d)

See also: Compulsory sterilization

The fourth prohibited act is aimed at preventing the protected group from regenerating through reproduction. It encompasses acts affecting reproduction and intimate relationships, such as involuntary sterilization, forced abortion, the prohibition of marriage, and long-term separation of men and women intended to prevent procreation. ^[31] Rape has been found to violate the fourth prohibited act on two bases: where the rape was committed with the intent to impregnate a woman and thereby force her to carry a child of another group (in societies where group identity is determined by patrilineal identity) and where the person raped subsequently refuses to procreate as a result of the trauma. ^[35] Accordingly, it can take into account both physical and mental measures imposed by the perpetrators.

Forcibly transferring children of the group to another group Article II(e)

See also: Forced assimilation

The final prohibited act is the only prohibited act that does not lead to physical or biological destruction, but rather to destruction of the group as a cultural and social unit. ^[15] It occurs when children of the protected group are transferred to the perpetrator group. Boys are typically taken into the group by changing their names to those common of the perpetrator group, converting their religion, and using them for labor or as soldiers. ^[36] Girls who are transferred are not generally converted to the perpetrator group, but instead treated as chattel, as played out in both the Yazidi and Armenian genocides. ^[15]

Parties

Main article: List of parties to the Genocide Convention

Participation in the Genocide Convention

  Signed and ratified

  Acceded or succeeded

  Only signed

As of June 2024 ^[update] , there are 153 state parties to the Genocide Convention—representing the vast majority of sovereign nations—with the most recent being Zambia in April 2022; one state, the Dominican Republic, has signed but not ratified the treaty. Forty-four states have neither signed nor ratified the convention. ^[2]

Despite its delegates playing a key role in drafting the convention, the United States did not become a party until 1988—a full forty years after it was opened for signature ^[37] —and did so only with reservations precluding punishment of the country if it were ever accused of genocide. ^[38] These were due to traditional American suspicion of any international authority that could override US law. U.S. ratification of the convention was owed in large part to campaigning by Senator William Proxmire, who addressed the Senate in support of the treaty every day it was in session between 1967 and 1986. ^[39]

Reservations

Immunity from prosecutions

Several parties conditioned their ratification of the Convention on reservations that grant immunity from prosecution for genocide without the consent of the national government: ^{[40] [41]}

Parties making reservations from prosecution	Note
Bahrain
Bangladesh
China
India
Malaysia	Opposed by Netherlands, United Kingdom
Morocco
Myanmar
Singapore	Opposed by Netherlands, United Kingdom
United Arab Emirates
United States of America	Opposed by Denmark, Estonia, Finland, Greece, Ireland, Italy, Mexico, Netherlands, Norway, Spain, Sweden, Turkey and United Kingdom
Venezuela
Vietnam	Opposed by United Kingdom
Yemen	Opposed by United Kingdom

Application to non-self-governing territories

Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible

— Convention on the Prevention and Punishment of the Crime of Genocide, Article 12 ^[9]

Several countries opposed this article, considering that the convention automatically also should apply to Non-Self-Governing Territories:

• Albania
• Belarus
• Bulgaria
• Hungary
• Mongolia
• Myanmar
• Poland
• Romania
• Russian Federation
• Ukraine

The opposition of those countries were in turn opposed by:

• Australia
• Belgium
• Brazil
• Ecuador
• China
• Netherlands
• Sri Lanka
• United Kingdom

(However, exceptionally, Australia did make such a notification at the same time as the ratification of the convention for Australia proper, 8 July 1949, with the effect that the convention did apply also to all territories under Australian control simultaneously, as the USSR et alii had demanded. The European colonial powers in general did not then make such notifications.)

Litigation

United States

Main article: We Charge Genocide

One of the first accusations of genocide submitted to the UN after the Convention entered into force concerned the treatment of Black Americans. The Civil Rights Congress drafted a 237-page petition arguing that even after 1945, the United States had been responsible for hundreds of wrongful deaths, both legal and extra-legal, as well as numerous other supposedly genocidal abuses. Leaders from the Black community and left activists William Patterson, Paul Robeson, and W. E. B. Du Bois presented this petition to the UN in December 1951. It was rejected as a misuse of the intent of the treaty. ^[42] Charges under We Charge Genocide entailed the lynching of more than 10,000 African Americans with an average of more than 100 per year, with the full number being unconfirmed at the time due to unreported murder cases. ^[43]

Yugoslavia

The first state and parties to be found in breach of the Genocide Convention were Serbia and Montenegro, and numerous Bosnian Serb leaders. In Bosnia and Herzegovina v. Serbia and Montenegro, the International Court of Justice presented its judgment on 26 February 2007. It cleared Serbia of direct involvement in genocide during the Bosnian war. International Tribunal findings have addressed two allegations of genocidal events, including the 1992 ethnic cleansing campaign in municipalities throughout Bosnia, as well as the convictions found in regards to the Srebrenica massacre of 1995 in which the tribunal found, "Bosnian Serb forces committed genocide, they targeted for extinction, the 40,000 Bosnian Muslims of Srebrenica ... the trial chamber refers to the crimes by their appropriate name, genocide ..." However, individual convictions applicable to the 1992 ethnic cleansings have not been secured. A number of domestic courts and legislatures have found these events to have met the criteria of genocide, and the ICTY found the acts of, and intent to destroy to have been satisfied, the "dolus specialis" still in question and before the MICT, a UN war crimes court, ^{[44] [45]} but ruled that Belgrade did breach international law by failing to prevent the 1995 Srebrenica genocide, and for failing to try or transfer the persons accused of genocide to the ICTY, in order to comply with its obligations under Articles I and VI of the Genocide Convention, in particular in respect of General Ratko Mladić. ^{[46] [47]}

Myanmar

Main article: Rohingya genocide case

Myanmar has been accused of genocide against its Rohingya community in Rakhine State after around 800,000 Rohingya fled at gunpoint to neighbouring Bangladesh in 2016 and 2017, while their home villages were systematically burned. The International Court of Justice has given its first circular in 2018 asking Myanmar to protect its Rohingya from genocide. ^{[48] [49] [50]} Myanmar's civilian government was overthrown by the military on 1 February 2021; since the military is widely seen as the main culprit of the genocide, the coup presents a further challenge to the ICJ.

Russia

Main article: Ukraine v. Russian Federation (2022)

Russian accusations of genocide by Ukraine

Main article: Accusations of genocide in Donbas

In February 2022, Russia invaded Ukraine, claiming that it acted, among other reasons, in order to protect Russian-speaking Ukrainians from genocide. This unfounded and false Russian charge has been widely condemned, and has been called by genocide experts accusation in a mirror, a powerful, historically recurring, form of incitement to genocide. ^[51]

Russian atrocities in Ukraine

Main article: Allegations of genocide of Ukrainians in the Russian invasion of Ukraine

Russian forces committed numerous atrocities and war crimes in Ukraine, including all five of the potentially genocidal acts listed in the Genocide Convention. Canada, Czechia, Estonia, Ireland, Latvia, Lithuania, Poland, and Ukraine have accused Russia of genocide. In April 2022 Genocide Watch issued a genocide alert for Ukraine. ^{[52] [53]} A May 2022 report by 35 legal and genocide experts concluded that Russia has violated the Genocide Convention by the direct and public incitement to commit genocide, and that a pattern of Russian atrocities implies the intent to destroy the Ukrainian national group, and the consequent serious risk of genocide triggers the obligation to prevent it on signatory states. ^{[54] [51]}

Israel

Main articles: Gaza genocide and South Africa's genocide case against Israel

In December 2023 South Africa formally accused Israel of violating the Genocide Convention, filing the case South Africa v. Israel (Genocide Convention) , due to Israel's actions during the Israel-Hamas War. In addition to starting the litigation process, South Africa also asked the International Court of Justice to demand that Israel cease their military operations in the Gaza Strip as a provisional measure. ^{[55] [56]}

See also

• List of parties to the Genocide Convention
• States parties to the Rome Statute of the International Criminal Court
• Rome Statute
• List of genocides
• Outline of genocide studies

References

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10. The Armenian Genocide and International Law, Alfred de Zayas – "And yet there are those who claim that the Armenians have no justiciable rights, because the Genocide Convention was only adopted 1948, more than thirty years after the Armenian genocide, and because treaties are not normally applied retroactively. This, of course, is a fallacy, because the Genocide Convention was drafted and adopted precisely in the light of the Armenian genocide and in the light of the Holocaust."
11. Gellately, Robert; Kiernan, Ben (2003). The Specter of Genocide: Mass Murder in Historical Perspective . Cambridge, UK: Cambridge University Press. pp.  267. ISBN   0-521-52750-3. where Stalin was presumably anxious to avoid his purges being subjected to genocidal scrutiny.
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13. Luck, Edward C. (2018). "Cultural Genocide and the Protection of Cultural Heritage. J. Paul Getty Trust Occasional Papers in Cultural Heritage Policy Number 2, 2018" (PDF). J Paul Getty Trust. p. 24. Current or former colonial powers—Belgium, Denmark, France, Netherlands, and the United Kingdom—opposed the retention of references to cultural genocide in the draft convention. So did settler countries that had displaced indigenous peoples but otherwise were champions of the development of international human rights standards, including the United States, Canada, Sweden, Brazil, New Zealand, and Australia.
14. International Criminal Court (ICC), Office of the Prosecutor. "Policy on Cultural Heritage" (PDF). International Criminal Court .
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16. OHCHR 2016, paras. [32–41].
17. Dadrian, Vahakn (1994). "The Secret Young Turk Ittihadist Conference and the Decision for World War I Genocide of the Armenians". Holocaust and Genocide Studies . 7 (2): 173, at [164]. doi:10.1093/hgs/7.2.173. ISSN   1476-7937.
18. Amnesty International (June 2018). 'We Will Destroy Everything:' Military Responsibility for Crimes Against Humanity in Rakhine State, Myanmar (Report).; Fortify Rights; US Holocaust Memorial Museum (November 2017). 'They Tried to Kill Us All' Atrocity Crimes against Rohingya Muslims in Rakhine State, Myanmar (Report).
19. Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Trial Judgment, Int'l Crim. Trib. for the Former Yugoslavia, 24 March 2016
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21. Prosecutor v. Semanza, Case No. ICTR-97-20-T, Trial Judgment, para. [320], 15 May 2003; Prosecutor v. Ntagerura, Case No. ICTR-99-46-T, Trial Judgment, para. [664], 24 February 2004,
22. Totten, Samuel; Theriault, Henry (2019). "The Complexities Inherent in the UNCG". The United Nations Genocide Convention: An Introduction. Toronto: University of Toronto Press. pp. 37–68 (45–46). ISBN   978-1487524081. Direct Killing is Not the Only Way to Commit Genocide ... : Causing serious bodily or mental harm to members of the group...The drafters appreciated that there is more than one way (i.e. killing) to perpetuate genocide. In practice, this could include deaths from the deliberate infection of Tutsi women with HIV/AIDS through rape in the Rwandan genocide or from the abuse and denial of food inflicted by ISIL on Yazidi sex slaves by ISIL's use of sexual slavery. To date, neither has been prosecuted as such.
23. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, para. 731.
24. Wood, Stephanie K. (2004). "A Woman Scorned for the "Least Condemned" War Crime: Precedent and Problems with Prosecuting Rape as a Serious Crime in the International Criminal Tribunal for Rwanda". Columbia Journal of Gender & Law . 13 (274): 299–301.
25. Darfur in Flames: Atrocities in Western Sudan (Report). Human Rights Watch. 2004. pp. 26–29.
26. Shubin, Grant; Sarver, Elena; Smith, Kristin (2018). "Discrimination to Destruction: A Legal Analysis of Gender Crimes Against the Rohingya". Global Justice Center . Retrieved 28 August 2021.
27. OHCHR 2016, paras. 32–41.
28. Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Trial Judgment, para. [545], Int’l Crim. Trib. for the Former Yugoslavia, 24 March 2016, para. 5664; Patricia Viseur Sellers, "Genocide Gendered: The Srebrenica Cases", The Fifth Annual Katherine B. Fite Lecture, Proceedings of the Ninth International Humanitarian Law Dialogs, 30 Aug. – 1 September 2015.
29. Popović, Case No. IT-05-88-T, para. [846]; Tolimir, IT-05-88/2-A, para. [209]; Karadžić, IT-95-5/18-T, para. [545]; OHCHR 2016 , 32–41
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49. "Interview: Landmark World Court Order Protects Rohingya from Genocide". Human Rights Watch . 27 January 2020. Retrieved 20 January 2021.
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51. "Independent Legal Analysis of the Russian Federation's Breaches of the Genocide Convention in Ukraine and the Duty to Prevent" (PDF). New Lines Institute for Strategy and Policy; Raoul Wallenberg Centre for Human Rights. 27 May 2022. Archived (PDF) from the original on 16 June 2022. Retrieved 22 July 2022.
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53. "Genocide Emergency: Ukraine". Genocide Watch. 4 September 2022.
54. "Russia is guilty of inciting genocide in Ukraine, expert report concludes". The Guardian . 27 May 2022. Retrieved 24 December 2022.
55. Corder, Mike (29 December 2023). "South Africa launches case at top UN court accusing Israel of genocide in Gaza". AP News . Retrieved 2 January 2024.
56. "APPLICATION INSTITUTING PROCEEDINGS" (PDF). International Court of Justice . Retrieved 2 January 2024.

Works cited

• Moses, A. Dirk (2008). "Empire, Colony, Genocide: Keywords and the Philosophy of History". In Moses, A. Dirk (ed.). Empire, Colony, Genocide: Conquest, Occupation, and Subaltern Resistance in World History. Berghahn Books. pp. 3–54. ISBN   978-1-84545-452-4.
• UN Office of the High Commissioner for Human Rights (15 June 2016). They Came to Destroy: ISIS Crimes Against the Yazidis. U.N. Doc. A/HRC/32/CRP.2 (Report).

Further reading

Main article: Bibliography of Genocide studies

• Tams, Christian J.; Berster, Lars; Schiffbauer, Björn (2024). The Genocide Convention – Article-by-Article Commentary, 2nd edition. C.H. Beck / Nomos / Hart Publishing, ISBN   978-3-406-81272-9
• Henham, Ralph J.; Chalfont, Paul; Behrens, Paul (Editors 2007). The criminal law of genocide: international, comparative and contextual aspects, Ashgate Publishing, Ltd., ISBN   0-7546-4898-2, ISBN   978-0-7546-4898-7 p. 98
• Weiss-Wendt, Anton (2017). The Soviet Union and the Gutting of the UN Genocide Convention. Madison: University of Wisconsin Press. ISBN   978-0-299-31290-9.
• Introductory note by William Schabas and procedural history note on the Genocide Convention in the Historic Archives of the United Nations Audiovisual Library of International Law