Crime of Genocide: Justice and Ethical Issues Report (Assessment)

Out of all the historical events that happened during the existence of mankind, genocide remains to be one of the most terrible acts against humanity. The term ‘genocide’ was introduced by a Polish lawyer, Raphael Lemkin. It is made from the word ‘genos’, which is translated from Greek as ‘race’ or ‘tribe’, and the Latin ‘cide’, which means ‘killing.’ Genocide is usually defined as the ‘destruction of a nation or of an ethnic group.’ ¹ There is no doubt that the destruction of nations should be eradicated to prevent unjustified brutality and massive losses of people’s lives. For this purpose, various international organizations, legislative offices, and legal institutions introduce numerous laws and regulations that impose severe penalties on those who contribute to hatred between nations. New outbreaks and cases of genocide facilitate the development of international criminal law and promote the creation of new rules aimed to stop the unfavorable activity.

Despite the emergence of new regulations aimed to banish genocide, in general, it can be argued that the current law remains faithful to Lemkin’s original ideas about the concept. Moreover, the works of Lemkin still serve as the basis for numerous academic works and legislative acts that help to further learn genocide and protect vulnerable people. This paper will discuss the main concepts that were introduced by Lemkin, examine current international law on genocide and analyze the relationships between these two factors. At the end of the paper, the conclusion that summarises the most important ideas of this work and evidence that support the argument will be provided.

Genocide is one of the most sensitive issues even nowadays, in the era of accessible education, promotion of democratic ideals, and proclamation of racial and human equality. The ongoing crisis in Darfur can serve as an excellent example of the case of nation extermination that occurs in the 21st century as a result of the instability in Sudan. The conflict was declared as genocide for the first time by the USA government, which gave a permit to ‘the UN Security Council to refer a case to the International Criminal Court.’² Therefore, the need to improve the legislative basis as one of the measures to prevent and eliminate genocide is obvious.

Analyzing genocide, Lemkin paid careful attention to its definition, rejecting several terms introduced by other professionals to describe the destruction of nations. Thus, he asserted that genocide could not be called ‘denationalisation’ because sometimes, this term was used to describe only the deprivation of citizenship. Moreover, it ‘does not connote the imposition of the national pattern of the oppressor.’³ It does not imply the destruction of the biological structure either. For the same reason, the words ‘Germanisation’ or ‘Italianisation,’ which were used during World War II for describing the spread of German or Italian culture among people, cannot adequately describe genocide.

Lemkin considers the main fields where the destruction of a national pattern happens. These fields include political, social, cultural, economic, biological, physical, religious, and moral areas. In his work ‘Axis Rule in Occupied Europe,’ Lemkin gives recommendations on what should be done in the area of international law to eradicate genocide. Thus, he asserts that it should be prohibited both in wartime and peacetime.⁴ The author gives an example of European countries, where some national groups have to live as minorities. It leads to international disturbances, as the groups of vulnerable people immigrate to other countries to find protection. Therefore, Lemkin demonstrates the significance of having legal protection of minorities in combating genocide. Racism, discrimination, and other issues faced by minority groups, Lemkin considered as part of cultural genocide, as well as the separation of children from their native communities.

As a result, Lemkin’s theoretical and practical work allowed advancing legal practices that relate to detecting and battling genocide. In addition, Lemkin insisted on the modification of the Regulations of the Hague Convention to establish a specialized agency, which would be in charge of visiting occupied countries. Also, this agency should be given specific powers to analyze how people are treated in prisons.⁵ Moreover, the author suggested including genocide in the list of the so-called ‘delista juris gentium.’ It is translated as ‘wrong against the law of nations.’ ⁶To put it another way, Lemkin focused his efforts on having a clear definition of genocide, which would serve as a basis for international regulations helping punish individuals or groups engaged in genocide. This part of his work is essential since he outlined possible issues of viewing genocide as merely relating to citizenship, suggesting that this notion is connected mainly to the cultural and national identity of an individual and oppressions that target these distinct features.

The fact that he incorporated a variety of cultural, social, and political factors as part of genocide allows viewing it as a cohesive and targeted action against a person’s national identity. One can argue that the ideas of defining decide and distinguishing it from other actions that target a specific nationality or individual is essential and helped the global community develop and implement legal regulations that help prosecute genocide. Therefore, one can argue that Lemkin’s ideas helped develop and implement international law on genocide.

Indeed, Raphael Lemkin facilitated the development of international criminal law and made a significant contribution to the protection of defenseless people. For example, investigating the violence against indigenous women in Canada, Catherine Savard, a coordinator of the Canadian Partnership for International Justice, bases her research on the works of Lemkin. She considers the acts of violence as the destruction of groups of people and tries to reveal if it belongs to social or cultural genocide. ⁷ She concludes that social bonds, ‘as well as cultural and spiritual considerations are crucial to a group’s social unity.’ ⁸ This conclusion goes along with the idea of Lemkin, as he emphasized the close connection between social unity and cultural genocide. Therefore, Lemkin and his theoretical work on genocide continue to help legal professionals in different countries prosecute individuals and groups engaged in genocide.

The original ideas of Lemkin about genocide and his recommendations on how international criminal law should be improved were gradually implemented. The agency, which would be in charge of visiting occupied countries, was established a year later after the publication of his work “Axis Rule in Occupied Europe” in 1944. The United Nations (UN), which is now one of the most prominent institutions in the world, was founded in 1945, as a response to the violence of World War II. After the world military conflict, humanity realized that it was necessary to prevent similar contradictions in the future and resolve the issues between countries peacefully. Therefore, the central purposes of the UN are ‘to maintain international peace and security and take effective measures for the prevention and removal of threats to peace.’⁹

As genocide remains to be a threat to the global community, and the UN’s efforts are directed at mitigating this problem. Initially, there were only fifty states that were united by the UN.¹⁰ Nowadays, almost all the countries of the world are members of the UN.

Examining the work of the organization against the destruction of nations, it becomes evident that many ideas of Lemkin about genocide were used for the successful performance of the UN. Initially, racial extermination was defined by the UN as ‘denationalisation.’¹¹ According to Lemkin’s approach, this does not reflect the scope of actions committed against a nation. Therefore, the member states of the UN started thinking about the replacement of this word with the term ‘genocide’.¹² In 1946, the UN General Assembly adopted the Resolution of the Crime of Genocide 96 or A/RES/96, which confirmed the substitution of the word ‘denationalisation.’ Two years later, the UN implemented another idea of Lemkin about fighting with race extermination both in peacetime and wartime. In 1948, the General Assembly issued a Convention on the Prevention and Punishment of the Crime on Genocide. The first article of the convention states that ‘genocide, whether committed in time of peace or in time of war, is a crime under international law.’¹³

It was confirmed by the contracting parties, which demonstrated their readiness to take measures to prevent the destruction of human beings.

Some scholars may argue that not all principles of Lemkin were taken into account during the creation of international criminal law.¹⁴ For example, the Genocide Convention considered three components of the destruction of nations, namely, physical, biological, and cultural. Eventually, out of all the parts of cultural genocide suggested by Lemkin, only one element remained, which is the removal of children from their communities.¹⁵ Nevertheless, despite this fact, it can still be proved that the majority of international documents and laws are created with the help of Lemkin’s works, such as the Convention on the Prevention and Punishment of the Crime on Genocide, the Universal Declaration of Human Rights and more.

Similarly, the UN-supported the ideas about the significance of the support of minorities. As Lemkin stated, minorities should be protected from violence and cultural genocide and have the same rights and opportunities as the indigenous population. The UN War Crimes Commission (UNWCC) partially implemented this goal during World War II. The UN dealt not only with physical genocide but also with the acts committed against humans because of their race, religion, or nationality.¹⁶ Further acts and measures only confirmed the commitment of the UN to protect minorities.

Numerous laws and acts were created by the UN in the first half of the 20th century. For instance, the UN adopted the Universal Declaration of Human Rights and the Resolution on the Fate of Minorities.¹⁷ The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and the Hague Protocol ensured the protection and restitution of cultural objects during the war. Primary points for the protection of minorities were survival and existence, protection of their identity, equality, and non-discrimination.¹⁸ These ideas found reflection in the documents issued in modern times. These documents include the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992) and the Framework Convention for the Protection of National Minorities (1998). Another important source for determining customary international law, also relating to indigenous peoples, is the United Nations Declaration of the Rights of Indigenous People, formulated in 1993. Therefore, the institution put a lot of effort into its attempt to combat genocide.

The UN contributes to fighting against violence not only through signing documents and diplomatic negotiations. It provides humanitarian aid and organizes missions to unstable regions to assist vulnerable people and ensure the proper function of healthcare services in troubled zones. The employees of the UN are actively engaged in judicial proceedings in cases of the commitment of crimes against humanity. For proceedings, the UN established International Criminal Tribunals around the world. For instance, as a result of genocide, which occurred in Rwanda in the 1990s, the Tribunal of Rwanda considered the indictment of Jean-Paul Akayesu. He ‘was bourgmestre of Taba commune, Prefecture of Gitarama, at the time the crimes alleged in the indictment were perpetrated.’¹⁹ As a result, it was revealed that the genocide took place against many people in the community, including women and children.

It is fair to note that sometimes, the work of international tribunals could not resolve challenging issues, which lead to false results and mistakes. To create a stable and permanent institution that would fight genocide, the International Criminal Court (ICC) was established. ICC was supposed to learn from mistakes made by tribunals and become the primary source of justice for states, which were unable to deal with the most egregious offenders.²⁰

The establishment of the court was embodied by the Rome Statute of the International Criminal Court, which was adopted in 1998. More than 100 countries voted for the adoption of the Statute. Therefore, the importance of the Rome Statute was not only in the creation of the ICC but also in the establishment of regulations between many states of the world. According to Article 86 of the Statute, ‘all the States Parties shall cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the court.’²¹ Thus, this document facilitates international collaboration in the combatting of genocide.

As was mentioned above, Lemkin revealed different types of genocide and created several laws by the type of genocide-related crimes committed by people. He designed the crimes of barbarity and vandalism with different punishments, considering the victims of the criminal acts. Thus, there could be either people or objects who suffer because of the destruction of nations. For those who oppressed human beings, the punishment was supposed to be more substantial. The Rome Statute is structured by separating the crimes against humanity and war crimes.²² Therefore, the Statute reveals various types of crimes against humanity, including murder, enslavement, torture, rape, forced pregnancy, enforced sterilization, deportation or forcible transfer of population, and other inhumane acts.²³ War crimes comprise wilful killing, inhuman treatment, biological experiments, unlawful deportation and transfer of people, attacking civilians or civilian objects, improper use of a flag of truce, and more.

This reflects Lemkin’s ideas since he was dedicated to the notion that targeted actions must prevent genocide and such genocide actions or intentions must be punished, which is reflected in the Convention on the Prevention and Punishment of the Crime of Genocide. Since this Convention was based on Lemkin’s work, although it did not incorporate all of his ideas, one can conclude that the author’s work helped stress the importance of preventing and punishing genocide during the war and in peaceful times, when oppressions of nations may occur as well. The inclusion of war in Lemkin’s idea is essential since it eliminates the possibility of suggesting that the targeted killing of one nation during war times is only an adverse consequence.

However, it is also noticeable that, according to the Statute, the commitment of vandalism is considered a form of genocide as well.²⁴ The objects that are mentioned in the document include emblems of Geneva Conventions and flags, insignia or uniform of the UN or a hostile party.²⁵ Even though the Statute does not contain the words ‘vandalism’ or ‘barbarism,’ it is still obvious that internal segregation is made between the crimes against both humans and objects.

Overall, this paper examined the origins of the term ‘genocide’, as well as the main aspects of legal theory about this issue. The work by Raphael Lemkin contributed to the development of international laws targeting genocide prevention and punishment. Lemkin’s ideas help understand genocide, since he rejects definitions and approaches to defining the concept by other authors, aiming to incorporate denationalization and imposing national patterns by the oppressor. In Lemkin’s view, the following fields – political, social, cultural, economic, biological, physical, religious, and moral areas are the essential elements that distinguish genocide from other forms of oppression. Moreover, his idea of cultural genocide and the separation of children from their communities outlines the essential principles of approaching genocide from a legal perspective.

The Convention on the Prevention and Punishment of the Crime of Genocide was developed based on Lemkin’s work and incorporated many of his ideas. The work of the UN and countries that adopt resolutions on genocide demonstrate the importance of Lemkin’s contribution to the development and implementation of legal actions against genocide by the international community. Moreover, as was mentioned in the paper, the Rome Statute allows using Lemkin’s approach to prosecuting genocide during wartime and peace.

Bibliography

Charter of the United Nations and Statute of the International Court of Justice 1945, s. 20.

Convention on the Prevention and Punishment of the Crime of Genocide 1951, Order 1021, s. 280.

Fellmeth, A. and Horwitz, M., Guide to Latin in International Law, Oxford, Oxford University Press, 2011.

International Criminal Court, Rome Statute of the International Criminal Court: Elements of Crimes, Ipskamp, Printpartners, 2011.

Lanz, D., ’Save Darfur: A Movement and its Discontents’, African Affairs, vol. 108, no. 433, 2009, pp. 669-667.

Lemkin, R., Axis Rule in Occupied Europe, Washington, D.C., Carnegie, 1944.

Minority Rights: International Standards and Guidance for Implementation 2010, HR/PUB/10/3, s. 8.

Mutua, M., ’The International Criminal Court: Promise and Politics’, Proceedings of the Annual Meeting (American Society of International Law), vol. 109, 2015, pp. 269-272.

Prosecutor v Akayesu (1998) ICTR-96-4-T.

Rome Statute of the International Criminal Court 2002, s. 42.

Savard, C., ‘Emerging Voices: Destruction of Social Units- Towards the Resurgence of Cultural Genocide?’ Opinio Juris. 2015. Web.

United Nations, ‘History of the UN’ (UN, 2015). Web.

Vrdoljak, A., ’Genocide and Restitution: Ensuring Each Group’s Contribution to Humanity’, European Journal of International Law, vol. 22, no.1, 2011, pp. 17-47.

Footnotes

1. Raphael Lemkin, Axis Rule in Occupied Europe (Carnegie 1944) 79.
2. David Lanz,’Save Darfur: A Movement and its Discontents’ (2009) 108 (433) AA 669, 669.
3. Raphael Lemkin, Axis Rule in Occupied Europe (Carnegie 1944) 80.
4. Raphael Lemkin, Axis Rule in Occupied Europe (Carnegie 1944) 93.
5. Raphael Lemkin, Axis Rule in Occupied Europe (Carnegie 1944) 93
6. A Fellmeth and M Horwitz, Guide to Latin in International Law (Oxford University Press 2011).
7. Catherine Savard, ‘Emerging Voices: Destruction of Social Units- Towards the Resurgence of Cultural Genocide?’ (Opinio Juris, 15 August 2015) para 5.
8. Catherine Savard, ‘Emerging Voices: Destruction of Social Units- Towards the Resurgence of Cultural Genocide?’ (Opinio Juris, 15 August 2015) para 13.
9. Charter of the United Nations and Statute of the International Court of Justice 1945, 20.
10. United Nations, ‘History of the UN’ (UN, 2015) para 1.
11. Ana Vrdoljak, ‘Genocide and Restitution: Ensuring Each Group’s Contribution to Humanity’ (2011) 22(1) EJIL 17, 7.
12. Ana Vrdoljak, ‘Genocide and Restitution: Ensuring Each Group’s Contribution to Humanity’ (2011) 22(1) EJIL 17,7.
13. Convention on the Prevention and Punishment of the Crime of Genocide [1951] Order 1021, 280.
14. Ana Vrdoljak, ‘Genocide and Restitution: Ensuring Each Group’s Contribution to Humanity’ (2011) 22(1) EJIL 17, 9.
15. Ana Vrdoljak, ‘Genocide and Restitution: Ensuring Each Group’s Contribution to Humanity’ (2011) 22(1) EJIL 17, 12.
16. Ana Vrdoljak, ‘Genocide and Restitution: Ensuring Each Group’s Contribution to Humanity’ (2011) 22(1) EJIL 17, 22.
17. Ana Vrdoljak, ‘Genocide and Restitution: Ensuring Each Group’s Contribution to Humanity’ (2011) 22(1) EJIL 17, 28.
18. Minority Rights: International Standards and Guidance for Implementation [2010] HR/PUB/10/3, 8.
19. Prosecutor v Akayesu [1998] ICTR-96-4-T, [1998] 3.
20. Makau Mutua,’The International Criminal Court: Promise and Politics’ (2015) 109 ASIL 269, 269.
21. Rome Statute of the International Criminal Court 2002, 42.
22. International Criminal Court, Rome Statute of the International Criminal Court: Elements of Crimes (Printpartners 2011) 1.
23. International Criminal Court, Rome Statute of the International Criminal Court: Elements of Crimes (Printpartners 2011) 1.
24. International Criminal Court, Rome Statute of the International Criminal Court: Elements of Crimes (Printpartners 2011) 1.
25. International Criminal Court, Rome Statute of the International Criminal Court: Elements of Crimes (Printpartners 2011) 2.