Convention on the Prevention and Punishment of the Crime of Genocide

This document, which sets out the legal definition of the international crime of genocide as well as the obligations and procedures of the contracting parties connected herewith, was approved by UN General Assembly resolution 260 A (III) of 9 December 1948. It subsequently entered into force on 12 January 1951, and has been ratified by 137 States.[1] The Genocide Convention was conceived by Polish lawyer Rafael Lemkin who coined the term on the backdrop of the Holocaust and first used the expression genocide in his book “Axis Rule in Occupied Europe” in 1944. He advocated successfully for the draft and adoption of the convention during the post-World War II period.[2]

The international crime of genocide is defined in article II of the Covenant 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”.[3]

Since its enactment in 1951, the Genocide Convention has been applied two times: Firstly in the case of Rwanda by the International Criminal Tribunal on Rwanda 1998, and secondly in the case of Bosnia by the International Court of Justice. Despite these cases of successful genocide convictions against both individual persons (Jean-Paul Akayesu & Jean Kambanda) as well as a state (Serbia), the Convention’s raison d’être remains highly disputed[4] on both technical and political grounds.[5]

On the one hand, the technical question of proving the intent of the accusedto commit genocide can be difficult and problematic. As a result, international lawyers tend to fall back on the notion of Crimes against Humanity in order to avoid the technical pitfalls of proving actual intent. On the other hand, the Convention’s political merit is increasingly doubted: While the U.S. administration’s refusal in 1994 to address the unfolding massacres in Rwanda as ‘genocide’ out of concern of being legally obliged to intervene militarily demonstrated the ineffectiveness of the convention, its invocation of the term “genocide” with reference to the crisis in Darfur without taking any more action than transferring the matter to the United Nations Security Council in 2004 highlighted the futility of the convention in the absence of sufficient political will to enforce its provisions.[6] Despite such criticism, the Genocide Convention has not only been realized in theory, but has been integrated literally into article VI of the Rome Statute of the International Criminal Court.[7]

[1] United Nations Treaty Collection, Convention on the Prevention and Punishment of the Crime of Genocide, 1948, available online athttp://www.unhchr.ch/html/menu3/b/treaty1gen.htm (accessed on 6 March 2008)

[2] Power, Samantha. A Problem from Hell. America and the Age of Genocide, Basic Books, 2002

[3] United Nations Treaty Collection, Convention on the Prevention and Punishment of the Crime of Genocide, available online at http://www.unhchr.ch/html/menu3/b/p_genoci.htm (accessed on 6 March 2008)

[4] Compare for an overview: Straus, Scott: Darfur and the Genocide Debate, Foreign Affairs, January/February, 2005, available online at http://www.foreignaffairs.org/20050101faessay84111/scott-straus/darfur-and-the-genocide-debate.html?mode=print (accessed on 6 March 2008)

[5] For a brief examination of the terms of the Genocide Convention, compare: Stanton, Gregory H., What is Genocide?, 2002, available online at http://www.genocidewatch.org/aboutgenocide/whatisit.html (accessed on 6 March 2008)

[6] Compare “Totten, Samuel & Markussen, Eric., Genocide in Darfur. Investigating the Atrocities in the Sudan, Routledge, 2006

[7] Rome Statute of the International Criminal Court, 2002, available online at http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf (accessed on 6 March 2008)

(Keywords: Genocide, Convention on the Prevention and Punishment of the Crime of Genocide, Lemkin, Rwanda, Darfur, Rome Statute of the International Criminal Court)

Convention on the Prevention and Punishment of the Crime of Genocide

This document, which sets out the legal definition of the international crime of genocide as well as the obligations and procedures of the contracting parties connected herewith, was approved by UN General Assembly resolution 260 A (III) of 9 December 1948. It subsequently entered into force on 12 January 1951, and has been ratified by 137 States.[1] The Genocide Convention was conceived by Polish lawyer Rafael Lemkin who coined the term on the backdrop of the Holocaust and first used the expression genocide in his book “Axis Rule in Occupied Europe” in 1944. He advocated successfully for the draft and adoption of the convention during the post-World War II period.[2]

The international crime of genocide is defined in article II of the Covenant 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”.[3]

Since its enactment in 1951, the Genocide Convention has been applied two times: Firstly in the case of Rwanda by the International Criminal Tribunal on Rwanda 1998, and secondly in the case of Bosnia by the International Court of Justice. Despite these cases of successful genocide convictions against both individual persons (Jean-Paul Akayesu & Jean Kambanda) as well as a state (Serbia), the Convention’s raison d’être remains highly disputed[4] on both technical and political grounds.[5]

On the one hand, the technical question of proving the intent of the accusedto commit genocide can be difficult and problematic. As a result, international lawyers tend to fall back on the notion of Crimes against Humanity in order to avoid the technical pitfalls of proving actual intent. On the other hand, the Convention’s political merit is increasingly doubted: While the U.S. administration’s refusal in 1994 to address the unfolding massacres in Rwanda as ‘genocide’ out of concern of being legally obliged to intervene militarily demonstrated the ineffectiveness of the convention, its invocation of the term “genocide” with reference to the crisis in Darfur without taking any more action than transferring the matter to the United Nations Security Council in 2004 highlighted the futility of the convention in the absence of sufficient political will to enforce its provisions.[6] Despite such criticism, the Genocide Convention has not only been realized in theory, but has been integrated literally into article VI of the Rome Statute of the International Criminal Court.[7]

[1] United Nations Treaty Collection, Convention on the Prevention and Punishment of the Crime of Genocide, 1948, available online athttp://www.unhchr.ch/html/menu3/b/treaty1gen.htm (accessed on 6 March 2008)

[2] Power, Samantha. A Problem from Hell. America and the Age of Genocide, Basic Books, 2002

[3] United Nations Treaty Collection, Convention on the Prevention and Punishment of the Crime of Genocide, available online at http://www.unhchr.ch/html/menu3/b/p_genoci.htm (accessed on 6 March 2008)

[4] Compare for an overview: Straus, Scott: Darfur and the Genocide Debate, Foreign Affairs, January/February, 2005, available online at http://www.foreignaffairs.org/20050101faessay84111/scott-straus/darfur-and-the-genocide-debate.html?mode=print (accessed on 6 March 2008)

[5] For a brief examination of the terms of the Genocide Convention, compare: Stanton, Gregory H., What is Genocide?, 2002, available online at http://www.genocidewatch.org/aboutgenocide/whatisit.html (accessed on 6 March 2008)

[6] Compare “Totten, Samuel & Markussen, Eric., Genocide in Darfur. Investigating the Atrocities in the Sudan, Routledge, 2006

[7] Rome Statute of the International Criminal Court, 2002, available online at http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_English.pdf (accessed on 6 March 2008)

(Keywords: Genocide, Convention on the Prevention and Punishment of the Crime of Genocide, Lemkin, Rwanda, Darfur, Rome Statute of the International Criminal Court)