In this blogpost,  Abhishek Khandelwal, Student, Institute Of Law, Nirma University, writes about, what is genocide, ingredients of the crime of genocide and the extent of crime of genocide and evolution of legal framework for the same – a short timeline.

Introduction

In the past centenary, tens of millions of men, women and children have lost their lives in Genocides or mass atrocities. That is a very significant swath of the population that has been raped, tortured or forced from their homes. In the present article, author has tried to give a comprehensive understanding of the underlying aspects of this horrendous crime by discussing the convention, institutions and case laws that helped in giving a legal framework aimed at obliterating this menace to humanity.

What is Genocide?

Ralphein Lemkin, a Polish-Jewish lawyer, coined the term ‘Genocide’ by combining Greek prefix geno (meaning tribe or race) and caedere ( the Latin equivalent for ‘killing’). When he was growing as a child in Poland, he was horrified beyond repair when he got to know the accounts of Turkish massacre of hundreds of thousands of Armenians during World War I. It was this harrowing impact of that ghastly slaughter in his childhood that prompted him to come up with a term to describe Nazi crimes against European jews during World War II . He was the one who facilitated the inclusion of this term into the world of International Law in the hopes of preventing and punishing such atrocious crime against innocent individuals. Though the term ‘genocide’ was coined in 1944 but acts of genocide have been committed throughout history. Arguably, the first modern genocide took place in the 13^th century, where heretics in medieval Europe were massacred during the Albigensian crusade.

The UN General Assembly described ‘genocide’ as “a denial of the right of existence of entire human groups, as homicide is the denial of the right to life of individual human beings”.

Article 6 of ICC (International Criminal Court) Statute defines genocide as:

Any of the following acts committed with intent to destroy, whole or in part, a national, ethical, racial or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) defines the crime of genocide as identical to Article 6 of the ICC statute, except the fact that Rome Statute expanded the definition given by CPPCG by applying it to times of both war and peace. An important characteristic of genocide is the targeting of a victim not as an individual or for any reason peculiar to him personally, but because he is a member of a national, ethnical, racial, or religious group.

The phrase “ in whole or in part” in the definition of Genocide has been subject to interpretation by the International Criminal Tribunal for the Former Yugoslavia in the case of Prosecutor v. Radislav Krstic. The tribunal in its judgment had held that “the part must be a substantial part of that group. The part targeted must be significant enough to have an impact on the group as a whole.”

It should be noted that ‘killing’ is not necessary to hold someone liable for ‘Genocide.’ According to R.J. Rummel ( who was professor emeritus of political science at the University of Hawaii), the acts of non-killings such as preventing births or forcibly transferring children out of the group to another group that eventually eliminate the group also comes under the ambit of the crime of Genocide.

Extent of crime of genocide and evolution of legal framework for the same – A short timeline

William Rubinstein in his book, Genocide : a history, gives an idea of the extent and origin of genocides of the 20^th century. He wrote in this acclaimed book that the ‘Age of Totalitarianism’ included nearly all of the ignominious examples of genocide in modern history, headed by the Jewish Holocaust, but also comprising mass murders and purges of the communist world, other mass killings carried out by Nazi Germany and its allies and also the Armenian genocide of 1915. He further stated that all these genocides had a common origin which was the collapse of the elite structure and normal modes of government of much of central , eastern and southern Europe as a result of First World War, without which surely neither communism nor fascism would have existed except in the minds of unknown agitators and crackpots.

After Lemkin coined the term ‘genocide’ in 1944, it was in 1946 that U.N. General Assembly passed a resolution making the crime of genocide punishable under international law. Soon after 2 years in 1948, the UN General Assembly adopted the Convention on the Prevention and Punishment of Crime of Genocide (CPPCG). It was this convention that provided us with the legal definition of Genocide.  The definition of genocide given by CPPCG was later on incorporated into the Rome Statute of International Criminal Court, which established the International Criminal Court (ICC).  Since the convention came into force in January 1951, about 80 nation United Nations member states including India have passed legislation that incorporates the provisions of CPPCG into their municipal law.

The Nuremberg Trials (1945-1946), was the first instance in modern history when for the first time 24 Nazi leaders were indicted for the deliberate and systematic genocide of a particular group. Thereafter, International Criminal Tribunal for the Former Yugoslavia (ICTY) (1993-present) was set up which indicted about 30 people for participating in genocide or complexity in genocide of Bosniak Muslims and Croatian civilians.

In 1994, members of Hutu majority in Rawanda murdered some 800,000 people, mostly of Tutsi minority, with terrorizing speed and viciousness. In order to bring justice to the victims, the International Criminal Tribunal For Rawanda (ICTR) (1994-present) was created on 8^th November,1994 by the Security Council of United Nations and had convicted 29 accused for the barbaric crimes that they committed. Subsequently on 6^th June, 2003, the Cambodian government and United Nations set up the Extraordinary Chambers in the Courts of Cambodia (ECCC) to focus exclusively on the mass killings (approx. 1.7 million) of ideologically suspect groups by the most senior Khmej Rouge (the followers of Communist Party of Kampuchea in Cambodia) officials in the period between 1975-1979. On 18^th July, 2007, the investigating judges indicted five possible suspects of genocide. Further, it should be noted that since 2002, the International Criminal Court (ICC) has got the jurisdiction for any international crime such as genocide if the national courts are unwilling or unable to investigate or prosecute genocide, thus being the ‘court of last resort.’ However, due to their personal concerns over the efficiency of ICC;  U.S.A , China and Russia are not a party to the Rome Statute and prefer International Tribunals for such investigations and possible prosecutions. After its establishment, ICC initiated trials against leaders in Congo and Sudan, when abominable acts committed by the janjawid militia against civilians in the western regions of Darfur were criticized by numerous international officials ( including former U.S. Secretary of State, Collin Powell ) as genocide.

Ingredients of crime of genocide

The offense of genocide is based on the particular mens rea of the perpetrator i.e. his intention must be to destroy in whole or in part a particular group. This element makes genocide a specific intent crime (dolus specialis) and differentiates it from other crimes of mass destruction. The judicial assessment of the dolus specialis by the ad hoc tribunals began by first examining the existence of a genocidal plan and the commission of genocide, then inquiring into the genocidal intent of the accused, which is distinct but yet interrelated to that of the underlying plan. Genocidal intent must be present at the moment the acts are committed, but does not have to be formed prior to committing the acts. The Appeal Chamber in Media judgment also held that an important characteristic of genocide is that the targeting of the victim is not as an individual or for any reason peculiar to him personally, but because he is a member of a national, ethnical, racial, or religious group.

So, in short, genocide is a crime with a double mental element, i.e. a general intent as to the underlying acts, and an ulterior intent with regard to the ultimate aim of the destruction of the group.

In Gacumbitsi Appeal judgment, the Chamber held that recognizing the specific intent may be difficult, if not impossible, to establish through direct evidence. The trial and appeal chamber of both ad hoc tribunals have concluded that genocidal intent may be inferred from the circumstances surrounding the commission of the alleged offense.^[1] Further, the Krstic Appeal Chamber held that ‘the inference that a particular atrocity was motivated by genocidal intent may be drawn….even where the individuals to whom the intent is attributable are not precisely identified’.

Conclusion

Although the establishment of ad hoc tribunals like ICTY, ICTR, ICC and organization of convention like CPPCG has established an awareness that the evils of genocide existed, its actual efficacy in stopping such crimes seems to be dubious because not one country invoked the convention during 1975 to 1979, when the Khmer Rouge officials killed some 1.7 million people in Cambodia (a country that had ratified the CPPCG in 1950).

Genocide often occurs in societies in which different national, racial, ethnic or religious groups become locked in identity-related conflicts i.e. the gross inequalities associated with those differences in terms of access to power and resources, development opportunities and the enjoyment of fundamental rights and freedoms. Given the fact that there are no perfectly homogenized societies, early prevention, therefore, becomes a challenge of good governance and equitable management of diversity, which can be met only by eliminating gross political and economic inequalities, and promoting a common sense of belonging on equal footing.

References

1. Convention on the Prevention and Punishment of Genocide, adopted December 9, 1948.
2. GA Res 96/1 UN Doc A/Res/96/1 (Dec 11, 1946).
3. Article 6, ICC Statute
4. Prosecutor v. Kambanda, Case No.ICTR-97-23-S, Judgment and Sentence, Sept 4, 1998, ¶ 16. G Verdirame,

5. The Genocide definition in the Jurisprudence of the Ad Hoc Tribunals’, 49 ICLQ (2000) ,.

6. Aloys Simba, Case No. ICTR-01-76-A, Appeal Judgment, Nov 27, 2007, ¶ 266.

7. Prosecutor v. Nahimana, Barayagwiza and Ngeze, (Media Appeal Judgment), Case

No.ITCR-99-52-A, Nov 28, 2007, ¶ 523.

8. Prosecutor v. Gacumbitsi, Appeal Judgment, ¶ 40.

9. Prosecutor v. Krstic, Appeal Judgment, ¶ 34.