IHL Primer #2 - Genocide

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April 2008
 
As a crime under international law whether it is “committed in time of peace or in time of war," [1] genocide extends beyond the framework of international humanitarian law and is distinguished by its unique stigma and precise definition. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide went into effect in 1951 and has been ratified to date by 140 states. The prohibition against genocide is now recognized as customary international law and has been recognized by the International Court of Justice  (ICJ) as a peremptory norm of international law, meaning that it is binding on states regardless of their conventional obligations.

To constitute genocide, the Convention requires the commission of at least one of five acts with the “intent to destroy in whole or in part a religious, racial, national or ethnic group as such." [2] The Genocide Convention’s definition of the crime has been incorporated into the statute of the ad hoc international tribunals and the International Criminal Court (ICC), and a better understanding of the various elements that must be met has emerged from the jurisprudence of these courts. [3]

What is important to note is that committing one of the enumerated acts alone is not enough; the crime of genocide requires the specific intent not to kill or ill-treat individuals but to annihilate, in whole or in part, the group to which those individuals belong. Additionally, the Convention’s list of protected persons is considered exhaustive, meaning that other targeted groups, such as women, economic or social classes and political groups, are not covered [4] -- this gap in the Genocide Convention is covered by crimes against humanity and war crimes, which impose liability for crimes that are waged against civilian groups that fall outside the protection of the Genocide Convention or that lack the required specific intent. Further, it is often argued that the application of the crime of genocide is properly limited so that it does not lose its powerful deterrent capabilities. [5]

The term “genocide” is not used in the Geneva Conventions or in their Additional Protocols, but the acts that constitute genocide also fall under the category of grave breaches of the Geneva Conventions and would be war crimes if committed in the course of an international armed conflict. [6]  Additionally, any act that constitutes genocide and is committed in the course of a non-international armed conflict is a violation of Common Article 3 and of Protocol II. These grave breaches, or war crimes, are those violations of international humanitarian law (IHL) that incur individual criminal responsibility, including but not limited to murder, the ill-treatment of civilian populations or prisoners of war, the plunder of public or private property and devastation that is not justified by military necessity.

Crimes against humanity were originally conceived to fill in the gap in IHL in cases where the State abused its own people, but can also apply to crimes committed during armed conflicts and against enemy civilians. While crimes against humanity have been defined somewhat differently in various international instruments, they in essence include inhumane acts such as murder, torture, enslavement and persecution [7] that are committed as part of a widespread or systematic attack against a civilian population. Crimes against humanity thus do not need to be connected to any armed conflict [8] but may overlap with war crimes if they do. Crimes against humanity may also encompass acts of genocide but include a wider range of groups than genocide and many additional kinds of acts. [9]

Genocide, war crimes and crimes against humanity are subject to universal jurisdiction, meaning that any state has the power under international law to prosecute offenders, wherever the crime was committed and whatever the nationality of the perpetrator and victim, as long as the prosecuting state has personal jurisdiction over the defendant. The ICC and ad hoc tribunals all have been granted jurisdiction to prosecute these crimes. Within the restraints of specific elements that must be proven for each of the crimes, the choice of how to charge an individual will at least initially and often entirely be that of the prosecutor. [10]  Given the requirements of each category, a single act or set of actions can simultaneously form the basis for charges of genocide, war crimes and several separate charges of crimes against humanity. [11]




[1] See Art. 1 of the 1948 Genocide Convention

[2] See Art. 2 and Art. 3 of the 1948 Convention

[3] For example, the specific intent requirement is often extremely difficult to prove, and the ICTR therefore held that it must sometimes be deduced from factors such as the words or general behavior of the perpetrator, the systematic manner in which the crimes are committed, the fact that the choice of victims excluded members of other groups, premeditated planning, and the scale of the atrocities committed. See The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T (para. 492-523).

[4] Note that there is still ongoing debate on whether the events in Darfur, Sudan, can be construed as genocide. In July 2004, both the U.S. Senate and the House of Representatives declared “the atrocities unfolding in Darfur, Sudan are genocide.” In September 2004 Secretary of State Colin Powell and President George Bush affirmed that genocide was ongoing in Darfur. A week later, the European Parliament passed a resolution indicating that activities in Darfur can be “construed as tantamount to genocide.” The United Nations has not formally recognized the situation as genocide: the UN’s Report of the International Commission of Inquiry on Darfur states that although there may have been “genocidal intent,” the criteria for genocide in Art. II of the Convention had not been met, in that the attacks on villages were not meant to annihilate a particular group but were primarily targeting an insurgency.

[5] See Wald, Patricia. “Genocide and Crimes Against Humanity.” Washington University Global Studies Law Review. Vol. 6 (2007) 621-633.

[6] See Articles 50, 51, 130, 147 of the Geneva Conventions (I-IV respectively) and Article 85 of Protocol I

[7] The ICTY and ICTR statutes added rape and torture to the list of crimes against humanity, while the ICC statute expanded it to include the crimes of enforced disappearance, forcible displacement of persons and apartheid.

[8] Under the ICC statute, crimes against humanity do not include attacks carried out solely against armed forces; only attacks against primarily civilian populations are encompassed. Armed forces are protected against violations of international humanitarian law by the provisions on war crimes and arguably by the provisions of the ICC statute related to genocide.

[9] However, a single individual cannot commit a crime against humanity all by himself, as in a genocide, without a wider campaign against civilians that is carried out as part of a planned attack.

[10] The exact parameters of genocide will often be difficult to prove, as discussed in the Akayesu case; crimes against humanity have some additional burdens of proof beyond that of war crimes.

[11] For example, acts could be charged as stand-alone murders or exterminations or inhumane treatment or as the acts underlying persecution. “So long as both crimes have an independent element not found in each other, they can support separate convictions.” See Wald, Patricia. “Genocide and Crimes Against Humanity.” Washington University Global Studies Law Review. Vol. 6 (2007) 621-633.

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