Genocide is often regarded as the most heinous international crime. Although human history has witnessed many acts of genocide, the concept of the crime of genocide is relatively new and developed primarily in the aftermath of the Nazi atrocities of World War II. Emerging from the traumatic barbarism of the Holocaust, the crime came to be authoritatively codified in a single, widely accepted international instrument – the Genocide Convention of 1948.
Until the late 1990s, there were very few prosecutions for the crime, the Israeli prosecution of Adolf Eichman (who was abducted from Argentina in 1960 to stand trial) being the most famous. The creation of the UN tribunals to prosecute atrocities in the former Yugoslavia and Rwanda and the International Criminal Court altered this pattern drastically, as they have now issued numerous opinions applying the law of genocide. As a result, the body of legal guidance interpreting the ambiguities and gaps of the Genocide Convention’s definition of genocide, so limited for many years, has expanded at a rapid pace. Thus, genocide remains a central conceptual component of international criminal law and international human rights law.
The Genocide Convention is a child of the United Nations, which took up the subject in the years following the Nuremberg Trials. Within a few years, the UN succeeded in preparing and adopting the Convention, which entered into force in 1951. The Convention’s authoritative definition of the crime is echoed in the charters of the Yugoslavia and Rwanda Tribunals and the International Criminal Court, as well as the national laws of many countries.
The definition of genocide is found in Article II of the Convention, which defines the crime 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:
- 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 to prevent births within the group;
- Forcibly transferring children of the group to another
Thus, genocide is comprised of three main elements: (1) the commission of at least one of the acts enumerated in paragraphs (a) through (e) above; (2) the direction of that act at one of the enumerated types of groups; and (3) the intent to destroy the group in whole or in part. Notably, the definition of the crime is deliberately more limited than many commentators and governments would have preferred, largely because it was the product of a negotiating process aimed at securing the widest possible adherence to the Convention.
While certain of the enumerated acts are straightforward enough, others are rather vague. However, the central notion is that the acts must be aimed at the physical or biological destruction of a group in order to constitute genocide. Serious bodily or mental harm has been interpreted to include torture, inhumane and degrading treatment, rape, and mutilation. Conditions of life calculated to bring about physical destruction have been deemed to include the sorts of conditions existing in Nazi concentration camps. Measures to prevent births would, of course, include sterilization, but has also been interpreted to include separation of the sexes and prohibition of marriage.
Significantly, the drafters of the Convention rejected the inclusion of so-called “cultural genocide,” which refers to acts aimed at the destruction of a group by elimination of its cultural attributes, such as the destruction of schools and houses of worship, as opposed to the actual physical destruction of the group’s members. Nevertheless, such acts can serve as evidence of the intent to destroy a group required by the Convention’s definition. Notably, the forcible transfer of members of a group from their homes, so relevant to the phenomenon of ethnic cleansing, has also been deemed not to qualify as genocide in and of itself, though again it may constitute evidence of genocidal intent.
As noted above, the definition of genocide only covers certain types of groups. The attributes that determine whether a group is protected as an enumerated group under the Convention are not always clear-cut. A racial group will normally be defined by common physical characteristics, a religious group by reference to a common religion, denomination, or mode of worship, and an ethnic group by reference to a common language or culture. Sometimes, a group, such as an indigenous population, will fall under more than one category.
However, a group’s status as a protected group will sometimes be more complex, such as in the case of the Tutsi in Rwanda, who share the same culture, religion, and language as the Hutu (the group that committed the massacres), do not always exhibit physical differences, and frequently intermarry. Taking a liberal approach, the Rwanda Tribunal nevertheless deemed them to be a protected group. Significantly, the Convention’s definition does not cover political, economic, and professional groups, leaving some cases of mass extermination, such as most of the Khmer Rouge’s atrocities in Cambodia, outside the ambit of the definition. Finally, it should be noted that the definition does not require that a group be a minority in order for acts against it to qualify as genocide.
No act, no matter how atrocious, can constitute genocide unless committed with the intent to destroy the target group in whole or in part. Not surprisingly, this element of the crime has given rise to substantial confusion and debate. Intent is the most difficult element of genocide to prove and it will often present challenging evidentiary issues in any determination of responsibility for genocide. Evidence of written or oral orders to eliminate a protected group would obviously establish the requisite intent. Often, circumstantial factors, such as the number of victims, acts of cultural genocide, or, in the case of the former Yugoslavia, forced expulsions, will be relevant. Significantly, the intent need not be to destroy the group in its entirety; intent to destroy an identifiable subset will suffice. This was an important element in the case of acts committed by Serbs against Muslims in Bosnia, as the relevant acts were committed against only Muslims who lived in a certain part of Bosnia and were not aimed at all Bosnian Muslims.
The intent requirement, which it should be noted is different from motive, can present some important challenges to making out a case of genocide. For example, did U.S. forces through their bombings and other attacks during the Vietnam War, intend to destroy the Vietnamese nation in part, or was the intent purely to achieve a military objective? The answer would depend on the nature of the bombings and may, in fact, differ depending on the individual actor. The case brought by South Africa charging Israel with committing genocide in Gaza that is now making its way through the International Court of Justice in The Hague will turn primarily on the question of whether Israel’s acts in Gaza were committed with the requisite intent.
As a product of political compromise arising from the Holocaust and Cold War, the definition of Genocide represents a least-common denominator, incorporating a definition of the crime that is controversial and not as broad as many would like. Not surprisingly, the definition adopted in the Convention hewed closely to the paradigm of the Holocaust and omitted protection for certain groups (e.g., political, economic, and social) with whom many states at the time, including those of the Soviet bloc, wished to retain a free hand.
Nevertheless, international tribunals and commissions have been addressing this concern by using creative approaches for broadening the definition of the crime, for example by recognizing rape as an act of genocide. Some states have chosen to incorporate broader definitions in their national laws. And notably, some have even called for the elaboration of a new formulation of genocide – one which remedies the perceived limitations of the existing definition.
The limitations and requirements of the Genocide Convention have also inevitably precipitated sterile debates over the definition of genocide that run the unfortunate risk of detracting from the enormity of the atrocities themselves. And an opposite, yet equally disconcerting, trend in contemporary discourse on genocide has also resulted – an abuse of the terms that robs the concept of genocide of its definitional integrity. Such is the term’s emotional and political potency that the label “genocide” is used today in a more expansive sense than the legal definition might allow to refer to almost any instance of mass killing. Rescuing genocide from this trend is part of the work which responsible decision-makers and commentators must vigilantly undertake.
At the same time, it is long overdue for the law of genocide to evolve beyond its 1940s roots to more closely reflect the values and political landscape of the 21st century. The Convention’s limited enumeration of protected groups perhaps has some inherent justification in that it attached special opprobrium to attempts to exterminate groups defined by what were traditionally considered immutable traits. However, it is increasingly difficult to justify including within the definition of genocide human collectives based on religion, nationality, and ethnicity, while excluding those based on political views, social status, or economic station. Indeed, the decades since the Genocide Convention’s adoption have seen several episodes of mass killing, including Stalin’s purges, the Khmer Rouge terror, and ethnic cleansing in the former Yugoslavia, which in large part fall outside the Convention’s ambit, but which from today’s perspective are in many ways morally indistinguishable from those that do fall within it. Attributes such as religion and nationality, which in earlier times seemed immutable, are today shed more readily and easily, whereas traits such as political ideology, which in those days were regarded as less stable, are now regarded as an integral part of human identity. And given the end of the Cold War and the development of a core corpus of human rights, the least-common denominator that prevailed in 1948 has certainly increased. Accordingly, only when the legal definition of genocide expands to encompass the mass destruction of any human collective based on any core element of human identity will it fully address the most heinous international offenses.
Indeed, these sentiments have spawned a number of proposals for a modified, or entirely new, definition of genocide. While some of these proposals seek only to bring certain unprotected groups within the ambit of genocide, others go further to bring other means of destruction (e.g., ecological genocide) into the definition. Although some of these proposals are worthy of support, those which go beyond the crime’s essential focus on the physical destruction of human groups dilute the concept of genocide and call into question its status as a unique international crime. Moreover, the political hurdles to amending the Genocide Convention would be daunting.
Accordingly, one promising route for the future evolution of international law on genocide would be through clearer expansion of what is referred to as “customary international law” on the definition of genocide. (“Customary international law” refers to principles of international law that emerge from the consistent practice of states with respect to such principles, rather than from their codification in a written international instrument.) In this connection, states could expand the definition of genocide under their domestic law and press for recognition of a more expansive interpretation of the crime in international fora. Such efforts could do much to shape the definition of genocide in a way worthy of genocide’s status as the most serious of international crimes.