GLOBAL POLITICS AND GOVERNANCE PROJECT

ON

GENOCIDE AND INTERNATIONAL LAW

GUIDED BY: PRESENTED BY:

PROF. (DR.) HIMA BINDU M. SHASHANK KHARE

ASSISTANT PROFESSOR 14/B.A./L.L.B./043

NATIONAL LAW UNIVERSITY, ODISHA

 TABLE OF CONTENTS

1. INTRODUCTION ........................................................................................................................... 3

1.1 DEFINING GENOCIDE ............................................................................................................ 4

2. REVIEW OF LITERATURE ............................................................................................................ 6

3. RESEARCH QUESTION ................................................................................................................. 8

4. RESEARCH METHODOLOGY........................................................................................................ 9

5. STAGES OF GENOCIDE............................................................................................................... 10

6. UN CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE ... 14

RWANDA ....................................................................................................................................... 15

YUGOSLAVIA ................................................................................................................................ 16

6.1 INTERNATIONAL COURTS ................................................................................................... 16

6.2 LEGAL ANALYSIS OF ON APPLICABILITY OF UN CONVENTION ON GENOCIDES .............. 17

6.3 LOOPHOLES IN UN DEFINITION OF GENOCIDE .................................................................. 18

7. The INTERNATIONAL LAW PROHIBITION AGAINST GENOCIDE ....................... 19

8. HORROS OF GENOCIDE ............................................................................................................. 23

8.1 ARMENIAN GENOCIDE ......................................................................................................... 23

8.2 GENOCIDE IN RWANDA....................................................................................................... 24

8.3 SYRIAN GENOCIDE ............................................................................................................. 25

9. CONCLUSION ............................................................................................................................. 26

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10. BIBLIOGRAPHY ....................................................................................................................... 27

1. INTRODUCTION

Genocide, the intentional destruction of a specific group, is an important subject for scholars of
state crimes, yet it remains underexplored within the discipline. In light of the increasing
pervasiveness of genocide in the twentieth century, it is perhaps surprising that genocide studies
have tended to be the remit of historians and theologians. Social scientists rarely turned their
attention to the study of this particular type of criminality until the 1970s.

The word "genocide"' brings to mind images of tangled corpses and mass graves. Genocide is a
serious contemporary problem and the subject evokes powerful emotional responses. In the last
fifty years, the international community has recognized and attempted to redress the problem of
genocide. Unfortunately, the responses of the international community are most accurately
characterized as expressions of moral approbation which lack legally binding quality or effective
means of enforcement. As a result of the emotionally charged nature of genocide and the
character of the international community's response, the legal problems of identifying and
prosecuting genocide are generally obscured.

The term ‘genocide’ was invented for the crime that Churchill could not name. The term was the
brainchild of Rapheal Lemkin, a Polish Lawyer who himself narrowly escaped persecution, and
who spent the war working in Washington analyzing Nazi occupation policy. In 1944 Lemkin
produced Axia Rule in Occupied Europe, which described atrocities in each country occupied by
the Third Reich.1

Lemin suggested the term ‘genocide’ to describe the Nazi occupation practices. Modelling on
such terms as tyrannicide, homicide, and infanticide, Lemkin pieced the term together from the
Greek genos (a people), and the Latin suffix cida (kill). ‘Genocide is effected’,

1
Quigley J, The Genocide Convention (Ashgate Pub 2006) pg 5

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through a synchronized attack on different aspects of life of the captive peoples; in the political
field (by destroying institutions of self-government and imposing a German pattern of
administration, and through colonization by Germans); in the social field (by disrupting the
social cohesion of the nation involved and killing or removing elements such as the
intelligentsia, which provide spiritual leadership- according to Hitler’s statement in Mein
Kampf, ‘the greatest of spirits can liquidated if is bearer is beaten to death with rubber
truncheon’); in the cultural field (by prohibiting or destroying ciltural institutions and cultural
activities; by substituting vocational education for education in the liberal arts); in economic
field (by shifting the wealth to Germans and by prohibiting the exercises of trades and
occupations y the peole do not promote Germanism “without reservation”); in the biological
field (by a policy of depopulation bypromoting procreation of rmans in occupied countries); in
the field of the physical existence ( by the introducting a starvarationing or the non-Germ mass
killings and mainly Jews , Poles,Slovens nd Russians.2

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide prohibits
physical and biological genocide but makes no mention of cultural genocide. This omission was
deliberate. Early drafts of the Genocide Convention directly prohibited cultural genocide. As the
treaty was finalized, however, a debate emerged over its proper scope. Many state
representatives drafting the treaty understood cultural genocide to be analytically distinct, with
one arguing forcefully that it defied both logic and proportion “to include in the same convention
both mass murders in gas chambers and the closing of libraries.” Others agreed with Lemkin’s
broader initial conception that a group could be effectively destroyed by an attack on its cultural
institutions, even without the physical/biological obliteration of its members.

1.1 DEFINING GENOCIDE

The UN Charter,adopted in the year 1945,proclaimed human rights as a goal of the new UNO
and committed member states to work wit the UN to promote the observance of rights. One of
the first orders of business of the UN was to put rights protection into written form, with the aim

2
Ibid

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of establishing specific obligations for states. The prohibition against genocide developed as part
of the entrenchment of theconcept of the rights of the individual.3

In 1947 and1948, the UN worked along two tracts to protect human rights. One tract aimed ay
getting to observe rights in their treatment of individuals. This task was complex, since it
required defining a broad range of rights4. As a preliminary step to an anticipated general treaty
on human rights, the UN devised a bill of rights as an aspirational document. This became the
Universal Declaration of Human Rights, adopted by the UN General Assembly on 10 December
1948.5

In this context, the term “genocide” appeared for the first time in a formal document. The UN
General Assembly adopted a resolution asking the UN Economic and Social Council, which was
responsible under the UN structure for the human rights, to draft a treaty on “the crime of
genocide”.In its resolution, the General Assembly affirmed that genocide is a crime under
internaiton law for which individuals are punishable, and characterized genocide as a ‘denial of
the right of the existence of entire human groups, as homicide is the denial of the right to live of
individual human being.’6

A crime definition, however required more than a name. The UN Economic and Social Council
undertook to concretize the General Assembly’s concept of genocide. It asked the UN Secretary-
General to prepare the draft trart on “the crime of genocide.”7

In 1974 the UN General Assembly asked the UN ECOSOC to move the project of a genocide
treaty forward, working from the Secretary General’s draft.8 The Sixth Committee of the General
Assembly was a committee of a whole, so that each member state state of the United Nations
was represented. Each member state appointed a person to represent it in the Sixth Committee,
and some states added alternate representatives and advisors.

3
Supra note 1 page 7
4
Balakian, Peter. 2008. ‘The Armenian Genocide and the modern age’. The Sydney Papers: 144-161
5
Morsink, J.(1999), The Universal Declaration of Human Rights: Origin, Drafting, and Intent, University of
Pensylvania Press, Philadelphia
6
GA Res. 96, UN GAOR, 1st sess., Part 2, Resolutions, p. 188, UN Doc. A/64/Add.1 (1946)
7
ECOSOC Res. 47, UN ECOSOCOR, 4th sess., Resolutions Adopted by the Economic and Social Council during its
Forth Session from 28 February to 29th March 1947, p. 33, UN Doc. E/437 (1947)
8
Draft Convention on genocide, GA Res. 180, UN GAOR, 2 nd sess., Resolutions, p.129, UN Doc. A/519 (1948)

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The Sixth Committee pored over the definition of genocide with great care through the fall in
1948. The process itself was novel. By 2 December, the Sixth Committee produced a new text,
which the General Assemble adopted a week later as the Convention on the Prevention and
Punishment of the Crime of Genocide.9

2. REVIEW OF LITERATURE

 Abowitz, D. A. (2002). Bringing the sociological into the discussion: Teaching the
sociology of genocide and the Holocaust. Teaching Sociology, 30(1), 26-38.

Discusses the necessity and challenge of integrating sociology and sociological insight into
teaching and research on genocide and the Holocaust in the 21st century. It is posited that the
absence of a strong and recognized core of sociology (and sociologists) in Holocaust and
genocide studies (more broadly), limits how much people have learned and can learn about these
phenomena, past, present, and future. What sociology can contribute, it is argued, is the
theoretical foundation for analyzing these events and situating them in sociohistorical context.
Sociology has the theoretical tools necessary to begin to put the pieces together, and to integrate
research, teaching, and learning in this area. A sociology of genocide and the Holocaust is
needed, one grounded in the study of collective behavior and social movement theory, social
groups and group dynamics, interaction of structure and agency, and the social construction of
race in the 20th century. That is what has been missing; it can be achieved only by bringing the
"sociological" back into the discussion and by bringing the sociology of genocide and the
Holocaust into curricula.

 Allen, R. (2000). Springboards into Holocaust: Five activities for secondary social studies
students. Southern Social Studies, 25(2), 17-29.

Explains that in a study of the Holocaust teachers must connect the stories of the Holocaust to
the lives of their students. Provides five activities about the Holocaust that focus upon teaching

9
GA Res. 260, UN GAOR, 3rd sess., Part 1, Resolutions p. 174, UN Doc. A/810 ( 1948)

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tolerance. Addresses the children of the Holocaust, difference versus deviance, social identity,
and The Night of Broken Glass.

 Albrecht, T. L., & Nelson, C. E. (2001). Teaching the Holocaust as an interdisciplinary

course in psychology. Teaching of Psychology, 28(4), 289-291.

Teaching the Holocaust in psychology provides an important opportunity to explain to

students how social prejudice, hate group activity, and even genocide are grounded in
explanatory concepts of bias, social prejudice, and language. At the same time, research on
prosocial behavior helps explain the motivations and actions of rescuers. The subject of the
Holocaust creates a powerful cognitive and emotional impact on students, provides a powerful
illustration for studying important aspects of human behavior, and readily illustrates several key
concepts in social psychology.

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 3. RESEARCH QUESTION

Following research questions have been formulated by the author.

 What is the definition of genocide

 What are international laws related to genocide
 What are the different stages of genocide
 What are the legal loopholes in genocide

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 4. RESEARCH METHODOLOGY

Genocide studies and studies of other types of mass violence may be either comparative or non-
comparative. Non-comparative studies often seek to describe a particular situation or event. In
this project I have compared various incidents of genocide what were there causes and what were
the impacts.

I have followed the descriptive purpose.These are studies that seek to provide details on a limited
set of situations. They may focus on a single episode and provide rich detail or use statistical
methods to describe overall patterns.

I have primarily relied upon vaiours book, and UN’s convention on Genocide. I have also
referred to various cases that went to the International Court of Justice.

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 5. STAGES OF GENOCIDE

Genocide is a process that develops in ten stages that are predictable but not inexorable. At each
stage, preventive measures can stop it. The process is not linear. Stages may occur
simultaneously. Logically, later stages must be preceded by earlier stages. But all stages
continue to operate throughout the process.

This prenomenon was given by Prof Gregory H. Stanton, who is the Research Professor in
Genocide Studies and Prevention at the George Mason University in Fairfax
County, Virginia, United States, and the founder of Genocide Watch, which is the Coordinator of
the International Alliance to End Genocide

1. CLASSIFICATION: All cultures have categories to distinguish people into “us and them” by
ethnicity, race, religion, or nationality: German and Jew, Hutu and Tutsi. Bipolar societies that
lack mixed categories, such as Rwanda and Burundi, are the most likely to have genocide. The
main preventive measure at this early stage is to develop universalistic institutions that transcend
ethnic or racial divisions, that actively promote tolerance and understanding, and that promote
classifications that transcend the divisions.10 The Catholic church could have played this role in
Rwanda, had it not been riven by the same ethnic cleavages as Rwandan society. Promotion of a
common language in countries like Tanzania has also promoted transcendent national identity.
This search for common ground is vital to early prevention of genocide.11

2. SYMBOLIZATION: We give names or other symbols to the classifications. We name

people “Jews” or “Gypsies”, or distinguish them by colors or dress; and apply the symbols to
members of groups. Classification and symbolization are universally human and do not
necessarily result in genocide unless they lead to dehumanization. When combined with hatred,
symbols may be forced upon unwilling members of pariah groups: the yellow star for Jews under
Nazi rule, the blue scarf for people from the Eastern Zone in Khmer Rouge Cambodia. To
combat symbolization, hate symbols can be legally forbidden (swastikas) as can hate speech.
10
Anthony Berteaux Huffingtonpostcom, '' (The Huffington Post, ) <http://www.huffingtonpost.com/anthony-
berteaux/what-causes-genocide-a-pe_b_6655326.html?ir=India> accessed 1 October 2015
11
Mullen, Gary A. 2006. ‘Genocide and the Politics of Identity: Rwanda through the lens of Adorno’.Philosophy
Today 50: 170-175

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Group marking like gang clothing or tribal scarring can be outlawed, as well. The problem is that
legal limitations will fail if unsupported by popular cultural enforcement.

3. DISCRIMINATION: A dominant group uses law, custom, and political power to deny the
rights of other groups. The powerless group may not be accorded full civil rights or even
citizenship. Examples include the Nuremberg Laws of 1935 in Nazi Germany12, which stripped
Jews of their German citizenship, and prohibited their employment by the government and by
universities. Denial of citizenship to the Rohingya Muslim minority in Burma is another
example. Prevention against discrimination means full political empowerment and citizenship
rights for all groups in a society.

4. DEHUMANIZATION: One group denies the humanity of the other group. Members of it are
equated with animals, vermin, insects or diseases. Dehumanization overcomes the normal human
revulsion against murder. At this stage, hate propaganda in print and on hate radios is used to
vilify the victim group. In combating this dehumanization, incitement to genocide should not be
confused with protected speech. Genocidal societies lack constitutional protection for
countervailing speech, and should be treated differently than democracies. Local and
international leaders should condemn the use of hate speech and make it culturally unacceptable.

5. ORGANIZATION: Genocide is always organized, usually by the state, often using militias
to provide deniability of state responsibility (the Janjaweed in Darfur.) Sometimes organization
is informal (Hindu mobs led by local RSS militants) or decentralized (terrorist groups.) Special
army units or militias are often trained and armed. Plans are made for genocidal killings. To
combat this stage, membership in these militias should be outlawed. Their leaders should be
denied visas for foreign travel. The U.N. should impose arms embargoes on governments and
citizens of countries involved in genocidal massacres, and create commissions to investigate
violations, as was done in post-genocide Rwanda.

6. POLARIZATION: Extremists drive the groups apart. Hate groups broadcast polarizing
propaganda. Laws may forbid intermarriage or social interaction. Extremist terrorism targets

12
Peter Stuart
Jewishvirtuallibraryorg, '' (Jewishvirtuallibraryorg, ) <https://www.jewishvirtuallibrary.org/jsource/Holocaust/nurla
ws.html> accessed 1 October 2015

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moderates, intimidating and silencing the center. Moderates from the perpetrators’ own group are
most able to stop genocide, so are the first to be arrested and killed. Prevention may mean
security protection for moderate leaders or assistance to human rights groups. Assets of
extremists may be seized, and visas for international travel denied to them. Coups d’état by
extremists should be opposed by international sanctions.

7. PREPARATION: National or perpetrator group leaders plan the “Final Solution” to the
Jewish, Armenian, Tutsi or other targeted group “question.” They often use euphemisms to
cloak their intentions, such as referring to their goals as “ethnic cleansing,” “purification,” or
“counter-terrorism.” They build armies, buy weapons and train their troops and militias. They
indoctrinate the populace with fear of the victim group. Leaders often claim that “if we don’t kill
them, they will kill us.” Prevention of preparation may include arms embargos and commissions
to enforce them. It should include prosecution of incitement and conspiracy to commit genocide,
both crimes under Article 3 of the Genocide Convention.

8. PERSECUTION: Victims are identified and separated out because of their ethnic or religious
identity. Death lists are drawn up. In state sponsored genocide, members of victim groups may
be forced to wear identifying symbols. Their property is often expropriated. Sometimes they are
even segregated into ghettoes, deported into concentration camps, or confined to a famine-struck
region and starved. Genocidal massacres begin. They are acts of genocide because they
intentionally destroy part of a group. At this stage, a Genocide Emergency must be declared. If
the political will of the great powers, regional alliances, or the U.N. Security Council can be
mobilized, armed international intervention should be prepared, or heavy assistance provided to
the victim group to prepare for its self-defense. Humanitarian assistance should be organized by
the U.N. and private relief groups for the inevitable tide of refugees to come.

9. EXTERMINATION begins, and quickly becomes the mass killing legally called “genocide.”
It is “extermination” to the killers because they do not believe their victims to be fully human.
When it is sponsored by the state, the armed forces often work with militias to do the killing.
Sometimes the genocide results in revenge killings by groups against each other, creating the
downward whirlpool-like cycle of bilateral genocide (as in Burundi).13 At this stage, only rapid

13
James T. Fussell, A Crime without a Name, <http://www.preventgenocide.org/genocide/crimewithoutaname.htm.>

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and overwhelming armed intervention can stop genocide. Real safe areas or refugee escape
corridors should be established with heavily armed international protection. (An unsafe “safe”
area is worse than none at all.) The U.N. Standing High Readiness Brigade, EU Rapid Response
Force, or regional forces -- should be authorized to act by the U.N. Security Council if the
genocide is small. For larger interventions, a multilateral force authorized by the U.N. should
intervene. If the U.N. is paralyzed, regional alliances must act. It is time to recognize that the
international responsibility to protect transcends the narrow interests of individual nation states.
If strong nations will not provide troops to intervene directly, they should provide the airlift,
equipment, and financial means necessary for regional states to intervene.14

10. DENIAL is the final stage that lasts throughout and always follows a genocide. It is among
the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the
mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They
deny that they committed any crimes, and often blame what happened on the victims. They block
investigations of the crimes, and continue to govern until driven from power by force, when they
flee into exile. There they remain with impunity, like Pol Pot or Idi Amin, unless they are
captured and a tribunal is established to try them. The response to denial is punishment by an
international tribunal or national courts. There the evidence can be heard, and the perpetrators
punished. Tribunals like the Yugoslav or Rwanda Tribunals, or an international tribunal to try the
Khmer Rouge in Cambodia, or an International Criminal Court may not deter the worst
genocidal killers. But with the political will to arrest and prosecute them, some may be brought
to justice.15

14
Dr. Nafeez Mosaddeq Ahmed, Colonial Dynamics of Genocide Imperialism, Identity and Mass Violence, Journal
of Conflict Transformation & Security, April 2011
15
GregoryHStanton Genocidewatch, '' (Genocide
Watch, ) <http://www.genocidewatch.org/genocide/tenstagesofgenocide.html> accessed 5 October 2015

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 6. UN CONVENTION ON THE PREVENTION AND PUNISHMENT OF
THE CRIME OF GENOCIDE

The Convention on Genocide was among the first United Nations conventions addressing
humanitarian issues. It was adopted on 9 December 1948 in response to the atrocities committed
during World War II and followed G.A. Res. 180(II) of 21 December 1947 in which the UN
recognised that "genocide is an international crime, which entails the national and international
responsibility of individual persons and states." The Convention has since then been widely
accepted by the international community and ratified by the overwhelmingly majority of States.

The jurisprudence of the International Court of Justice considers the prohibition of genocide as
peremptory norms of international law. Moreover, the ICJ recognises that the principles
underlying the Convention are principles which are recognised by civilised nations binding on
States, even without any conventional obligation.

Noteworthy, the Convention provides for a precise definition of the crime of genocide, in
particular in terms of the required intent and the prohibited acts (Article II). It also specifies that
the crime of genocide may be committed in time of peace or in time of war.

In the present Convention, genocide means as given under Article-2 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;

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(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group16

Also, as per the Article 3 of the Convention, the following acts are punishable;

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.17

One of the first accusations of genocide submitted to the UN after the convention entered into
force concerned treatment of black people in the United States. The Civil Rights
Congress drafted a 237-page petition stating, among other things, that "the lynching and other
forms of assault on the lives and livelihoods of African Americans from 1945 to 1951, especially
the frenzied attacks on returning black American veterans, amounted to genocide." Black
activists William Patterson, Paul Robeson, and W. E. B. Du Boispresented this petition to the
UN in December 1951. Raphael Lemkin, originator of the term genocide, however, "argued
vehemently that the provisions of the Genocide Convention bore no relation to the US
Government or its position vis-à-vis Black citizens.18

There have been on many instances, breach of this convention some of which are:

RWANDA

The first time that the 1948 law was enforced occurred on 2 September 1998 when
the International Criminal Tribunal for Rwanda found Jean-Paul Akayesu, the former mayor of a
small town in Rwanda, guilty of nine counts of genocide. The lead prosecutor in this case

16
Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948, Article- 2
17
Ibid Article 3.
18
John Docker, "Raphaël Lemkin, creator of the concept of genocide: a world history perspective", Humanities
Research 16(2), 2010

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was Pierre-Richard Prosper. Two days later, Jean Kambanda became the first head of
government to be convicted of genocide

YUGOSLAVIA

The first state to be found in breach of the Genocide convention was Serbia. In the Bosnia and
Herzegovina v. Serbia and Montenegro19 case the International Court of Justicepresented its
judgment on 26 February 2007. It cleared Serbia of direct involvement in genocide during the
Bosnian war,20 but ruled that Serbia did breach international law by failing to prevent the
1995 Srebrenica genocide, and for failing to try or transfer the persons accused of genocide to
the ICTY, in order to comply with its obligations under Articles I and VI of the Genocide
Convention, in particular in respect of General Ratko Mladić.21

6.1 INTERNATIONAL COURTS

In 1993, in response to massive atrocities in Croatia and Bosnia-Herzegovina, the United Nations
Security Council created the International Criminal Tribunal for the Former Yugoslavia (ICTY).
It was the first international criminal tribunal since Nuremberg and the first ever mandated to
prosecute the crime of genocide. A year later, in response to devastating violence in Rwanda, the
Security Council established the International Criminal Tribunal for Rwanda (ICTR). Nearing
the completion of their mandates, both of tribunals have contributed detail, nuance, and
precedent to the application of the law of genocide.22

In 1998, the Rome Statue of the International Criminal Court (ICC) established the first
permanent international criminal court. The Rome Statute’s drafting process and the ICC’s
ongoing case against the president of Sudan have added further clarifications to the international
law of genocide. In 2007, the International Court of Justice (ICJ), which hears cases between

19
[2007] ICJ 2
20
Hudson, Alexandra (26 February 2007). "Serbia cleared of genocide, failed to stop killing". Reuters.
21
Court Declares Bosnia Killings Were Genocide The New York Times, 26 February 2000
22
Alexander K. A. Greenawalt, Rethinking Genocidal Intent: The Case for a Knowledge-Based
Interpretation (1999), Columbia L. Rev., V. 99, pp. 2259, 1999

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states, issued a landmark decision addressing state responsibility to prevent and punish genocide
in the case of Bosnia and Herzegovina v. Serbia and Montenegro.

6.2 LEGAL ANALYSIS OF ON APPLICABILITY OF UN CONVENTION ON GENOCIDES

International law generally prohibits the retroactive application of treaties unless a different
intention appears from the treaty or is otherwise established. The Genocide Convention contains
no provision mandating its retroactive application. To the contrary, the text of the Convention
strongly suggests that it was intended to impose prospective obligations only on the States party
to it. Therefore, no legal, financial or territorial claim arising out of the Events could
successfully be made against any individual or state under the Convention.

The term genocide, as used in the Convention to describe the international crime of that name,
may be applied, however, to many and various events that occurred prior to the entry into force
of the Convention. References to genocide as a historical fact are contained in the text of the
Convention and its travaux preparatoires.

As it has been developed by the International Criminal Court (whose Statute adopts the
Convention's definition of genocide), the crime of genocide has four elements: (i) the perpetrator
killed one or more persons; (ii) such person or persons belonged to a particular national, ethnical,
racial or religious group; (iii) the perpetrator intended to destroy, in whole or in part, that group,
as such; and (iv) the conduct took place in the context of a manifest pattern of similar conduct
directed against that group or was conduct that could itself effect such destruction.

There are many accounts of the Events, and significant disagreement among them on many
issues of fact. Notwithstanding these disagreements, the core facts common to all of the various
accounts of the Events reviewed establish that three of the elements listed above were met: (1)
one or more persons were killed; (2) such persons belonged to a particular national, ethnical,
racial or religious group; and (3) the conduct took place in the context of a manifest pattern of
similar conduct directed against that group. For purposes of assessing whether the Events,
viewed collectively, constituted genocide, the only relevant area of disagreement is on whether

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the Events were perpetrated with the intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such. While this legal memorandum is not intended to definitively

resolve particular factual disputes, we believe that the most reasonable conclusion to draw from
the various accounts of the Events is that at least some of the perpetrators of the Events knew
that the consequence of their actions would be the destruction, in whole or in part, of the
Armenians of eastern Anatolia, as such, or acted purposively towards this goal, and, therefore,
possessed the requisite genocidal intent. Because the other three elements identified above have
been definitively established, the Events, viewed collectively, can thus be said to include all of
the elements of the crime of genocide as defined in the Convention, and legal scholars as well as
historians, politicians, journalists and other people would be justified in continuing to so describe
them.

6.3 LOOPHOLES IN UN DEFINITION OF GENOCIDE

Firstly, the definition of genocide excludes political and social groups from the list of protected
groups. In its first resolution on genocide, the General Assembly had initially opted for a broader
definition based on the notion of “denial of the right of existence of entire human groups”.23 This
has restricted the jurisdiction of ad-hoc Tribunals and International Criminal Court. As a result of
it, other vicious crimes such as killing of thousands of homosexuals by Nazis because of their
sexual orientation remain beyond the scope of this definition.

Secondly, the definition also does not recognize ethnic cleansing and sexual violence as
Genocide. The Security Council had already highlighted that investigating ethnic cleansing ought
to be an important part of the Tribunal’s work in its resolution establishing the Tribunal.24 It was
held by the Trial Chamber in Prosecutor v. Nikoli25 that “the policy of ethnic cleansing took the
form of discriminatory acts of extreme seriousness which show its genocidal character.”

23
GA Res. 96 (I).
24
SC Res. 827 (1993)
25
Rule 61, Case IT-94-2-R61

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However, in the landmark case of Prosecutor v. Akayesu26 it was also held that rape and sexual
violence “constitute genocide in the same way as any other act as long as they were committed
with the specific intent” that characterizes the crime of genocide. Systematic sexual violence
against women of a particular group resulting in serious physical, psychological and mental
damage can amount to genocide as they fulfill all the criteria of genocide.

Thirdly, as regarding the question of intent, the prevailing interpretation assumes that genocide is
a crime of specific or special intent, involving a perpetrator who specifically targets victims on
the basis of their group identity with a deliberate desire to inflict destruction upon the group
itself.27However, it is proposed that in defined situations, culpability for genocide should extend
to those who may personally lack a specific genocidal purpose, but who commit genocidal acts
while understanding the destructive consequences of their actions for the survival of the relevant
victim group.28

7. THE INTERNATIONAL LAW PROHIBITION AGAINST GENOCIDE

The first step in maintaining a cause of action in genocide is to establish that international law
imposes a duty to refrain from acts of genocide. Unless a rule prohibiting genocide exists, the
breach of which gives rise to a remedy in the injured party, a cause of action cannot be sustained.
This section of the article considers recognized sources of international law 29 to determine

26
Case No. ICTR-96-95-1-T at para 731
27
Alexander K. A. Greenawalt, Rethinking Genocidal Intent: The Case for a Knowledge-Based
Interpretation (1999),Columbia L. Rev., V. 99, pp. 2259, 1999
28
Ibid
29
The sources of international law are articulated in the U.N. CHARTER, Statute of the International Court of
Justice, art. 38(1) [hereinafter cited as ICJ Statute]. The International Court of Justice, whose function is to decide in
accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions,
whether general or particular, establishing rules expressly recognized by the contesting states; (b) international
custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized

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whether rules prohibiting genocide exist and to examine the sources and content of such rules.
The discussion separately examines conventional law, customary law, and general principles of
international law and jus

A. Conventional International Law

The most significant legal instrument pertaining to genocide in international law, the
Convention on the Prevention and Punishment of the Crime of Genocide,3 was intended to
create a prohibitive rule of international conventional law.30 To that end, the Genocide
Convention establishes a definition of the offense as well as procedural mechanisms for
preventing and sanctioning incidences of genocide. The primary concern of this discussion is to
evaluate the extent to which an effective prohibitive rule of international law has been realized
through the Convention.

In order to give proscriptive force to the offense of genocide, the Genocide Convention obligates
state parties to prevent and punish genocide "whether committed in time of peace or in time of
war." To achieve this objective, the Convention sets forth several procedural mechanisms. State
parties agree to enact domestic laws proscribing genocide and to provide effective penalties
against offenders." The specific content of the domestic legislation as well as the parameters of
"effective" penalties are left to the discretion of the state parties.

B. Customary International Law

In order for genocide to be considered an offense under customary international law, subjects of
international law must refrain from committing acts of genocide as (1) evidenced by a well-
established and substantially uniform practice; and (2) motivated by a sense of legal obligation. 31
Consequently, the following discussion considers these two components of customary
international law by reviewing relevant state practice regarding genocide and inquiring into the
motivation of that state practice, notwithstanding the views of numerous commentators who urge

nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law. Id. art. 38(1).
30
Genocide Convention, supra note 3, preamble
31
. Crawford J and Brownlie I, Brownlie's Principles Of Public International Law (Oxford University Press 2012)

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that the principles embodied in the Genocide Convention reflect customary international
law.32From the date at which the Genocide Convention came into force, the record reveals
considerable evidence of offenses against national, ethnic, racial, and religious groups.33 It may
be argued that much of this conduct satisfies the definitional requirements of genocide. The
examples are indeed too plentiful.

From 1959 to 1960, the People's Republic of China allegedly committed genocide against the
people of Tibet by killing religious leaders, desecrating Buddhist sanctuaries, prohibiting the
practice of the Buddhist religion, and forcibly transferring thousands of Tibetan children to
China in an attempt to destroy the Tibetans as a religious group.34 Similar allegations have been
made regarding the Tutsi people during tribal warfare in Rwanda in 1964.4" During 1966, the
deaths of thousands of Ibos tribespeople at the hands of the Federal Nigerian government during
Nigeria's civil war arguably involved the commission of genocide. Similarly, conduct on the part
of West Pakistan in East Pakistan in 1971 established a strong prima facie case that Pakistan
committed genocide against an estimated 1.3 million Bengalis and Hindus during its attempt to
prevent the emergence of Bangladesh as an independent state. In Burundi, at least 200,000
people were killed in 1972 during what most outside observers agreed was genocide instituted by
the Tutsi-dominated government against members of the Hutu tribe.Recently, allegations have
been made that the Communist government in Laos has instituted a policy of genocide against
the Hmong people and that members of the B'hai religion in Iran have been killed in
circumstances suggesting state-sponsored genocide."

32
Henkin, Louis. 'Restatement Of The Foreign Relations Law Of The United States (Revised): Tentative Draft No.
2'. The American Journal of International Law 75.4 (1981): 987. Web. 5 Oct. 2015.
33
The enumerated incidents of alleged genocide which follow *do not include the estimated 20 million people killed
in the Soviet Union from 1930 to 1959
34
Green, L. C. 'Tibet And The Chinese People's Republic. A Report To The International Commission Of Jurists By
Its Legal Inquiry Committee On Tibet. [Geneva: International Commission Of Jurists, 1960. Xiii And 345 Pp. 7S.
6D.]'. The China Quarterly 5 (1961): 158. Web. 5 Oct. 2015.

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C. General Principles of International Law/Jus Cogens

Genocide also merits consideration as an offense proscribed by general principles of

international law' and as a prohibitive norm embodied in jus cogens.35 By the majority view,
general principles of international law refers to principles of municipal jurisprudence which are
shared by the international community.36 Because in a real and dramatic sense genocide is little
more than the taking of human lives, an offense which is uniformly condemned in municipal
systems of law, it may be argued that genocide is proscribed as a general principle of
international law.37 Similarly, by virtue of the fact that a consensus of the world community finds
genocide morally repugnant, it may be argued that a proscription against genocide is included
within the body of international jus cogens. That is, a prohibition of genocide forms part of a
body of paramount principles of international law which may not be derogated from in any way.
These views of the source of genocide in international law received support from the
International Court of Justice in the case of Barcelona Traction, Light and Power Co., Ltd."38 In
Barcelona Traction, the International Court unambiguously suggested that the subject matter of
genocide gives rise to an obligation to which all states are subject. " The Court viewed the
recognition of " obligations erga omnes, exemplified by the prohibition of genocide, as supported
by a body of general international law and "international instruments of a universal or quasi-
universal character."

35
The concept of jus cogens has long been recognized in international law. Brownlie, supra note at 34 512-15. The
Vienna Convention on the Law of Treaties has accepted this concept:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For
the purposes of the present Convention, a peremptory norm of general international law [jus cogens] is a norm
accepted and recognized by the international community of states as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international law having the same
character.
36
BROWNLIE, supra note 34, at 16.
37
Bassiouni M, Crimes Against Humanity In International Criminal Law (Kluwer Law International 1999)
38
[1970] ICJ 1

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 8. HORROS OF GENOCIDE

8.1 ARMENIAN GENOCIDE

On the eve of World War I, there were two million Armenians in the declining Ottoman Empire.
By 1922, there were fewer than 400,000. The others — some 1.5 million — were killed in what
historians consider a genocide.

As David Fromkin put it in his widely praised history of World War I and its aftermath, “A
Peace to End All Peace”: “Rape and beating were commonplace. Those who were not killed at
once were driven through mountains and deserts without food, drink or shelter. Hundreds of
thousands of Armenians eventually succumbed or were killed .”39

The roots of the genocide lie in the collapse of the Ottoman Empire.

The empire’s ruler was also the caliph, or leader of the Islamic community. Minority religious
communities, like the Christian Armenians, were allowed to maintain their religious, social and
legal structures, but were often subject to extra taxes or other measures.

Concentrated largely in eastern Anatolia, many of them merchants and industrialists, Armenians,
historians say, appeared markedly better off in many ways than their Turkish neighbors, largely
small peasants or ill-paid government functionaries and soldiers.

At the turn of the 20th Century, the once far-flung Ottoman empire was crumbling at the edges,
beset by revolts among Christian subjects to the north — vast swaths of territory were lost in the
Balkan Wars of 1912-13 — and the subject of coffee house grumbling among Arab nationalist
intellectuals in Damascus and elsewhere.

Armenians mark the date April 24, 1915, when several hundred Armenian intellectuals were
rounded up, arrested and later executed as the start of the Armenian genocide and it is
generally said to have extended to 1917. However, there were also massacres of Armenians
in 1894, 1895, 1896, 1909, and a reprise between 1920 and 1923.

39
Fromkin D, A Peace To End All Peace (H Holt 1989)

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There were executions into mass graves, and death marches of men, women and children
across the Syrian desert to concentration camps with many dying along the way of
exhaustion, exposure and starvation.

8.2 GENOCIDE IN RWANDA

In 1994, Rwanda’s population of seven million was composed of three ethnic groups: Hutu
(approximately 85%), Tutsi (14%) and Twa (1%). In the early 1990s, Hutu extremists within
Rwanda’s political elite blamed the entire Tutsi minority population for the country’s increasing
social, economic, and political pressures. Tutsi civilians were also accused of supporting a Tutsi-
dominated rebel group, the Rwandan Patriotic Front (RPF

On April 6, 1994, a plane carrying President Habyarimana, a Hutu, was shot down. Violence
began almost immediately after that. Under the cover of war, Hutu extremists launched their
plans to destroy the entire Tutsi civilian population. Political leaders who might have been able
to take charge of the situation and other high profile opponents of the Hutu extremist plans were
killed immediately. Tutsi and people suspected of being Tutsi were killed in their homes and as
they tried to flee at roadblocks set up across the country during the genocide. Entire families
were killed at a time. Women were systematically and brutally raped. It is estimated that some
200,000 people participated in the perpetration of the Rwandan genocide.

In the weeks after April 6, 1994, 800,000 men, women, and children perished in the Rwandan
genocide, perhaps as many as three quarters of the Tutsi population. At the same time, thousands
of Hutu were murdered because they opposed the killing campaign and the forces directing it.

The Rwandan genocide resulted from the conscious choice of the elite to promote hatred and fear
to keep itself in power. This small, privileged group first set the majority against the minority to
counter a growing political opposition within Rwanda. Then, faced with RPF success on the
battlefield and at the negotiating table, these few power holders transformed the strategy of
ethnic division into genocide. They believed that the extermination campaign would reinstate the
solidarity of the Hutu under their leadership and help them win the war, or at least improve their

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chances of negotiating a favorable peace. They seized control of the state and used its authority
to carry out the massacre.

When international leaders finally voiced disapproval, the genocidal authorities listened well
enough to change their tactics although not their ultimate goal. Far from cause for satisfaction,
this small success only highlights the tragedy: if weak protests produced this result in late April,
imagine what might have been the result if in mid-April the entire world had spoken of.

8.3 SYRIAN GENOCIDE

Since the beginning of March 2011, the stability of the Syrian Arab Republic has degenerated at
an alarming rate. Genocide Watch warns that massacres and mass atrocities against pro-
democracy protesters and the civilian population are being committed by Syrian security forces
under the command of the al-Assad government. Protests turned violent as former Syrian troops
defected and formed the “Free Syrian Army,” which the Syrian government continues to call a
“terrorist” organization to justify its all out war against the rebels and Sunni Muslim civilians.
What began as the violent repression of civilian protests has escalated to a civil war. Whole cities
have been shelled by Syrian tanks and mortars, and investigations have led several countries to
accuse government forces of using chemical weapons against civilians. Reports of human rights
abuses by rebel forces have increased. One group of jihadist rebels has declared itself an al-
Qaeda affiliate. With over one million people displaced and the death toll over 70,000, the war
rages on, threatening the stability of the region.

Violent attacks on civilians by the al-Assad regime have continued to escalate in brutality as the
government and opposition forces vie for control of strategic locations. According to the U.N.
High Commissioner for Human Rights in February 2013, the death toll in Syria was approaching
70,000 – an overwhelming increase since July 2011, when Genocide Watch issued its first
Genocide Alert for Syria. As of April 2012, the U.N. Refugee Agency recorded over 1,300,000
refugees having fled to neighboring countries, mainly Jordan, Lebanon, and Turkey.

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 9. CONCLUSION

This processual project demonstrates that there is a logic to the genocidal process, though it does
not proceed in a linear order. By helping each other understand the logic of genocide, people can
see the early warning signs of genocide and know when it is coming. Leaders can design policies
to counteract the forces that drive each of the stages.

Ultimately the best antidote to genocide is popular education and the development of social and
cultural tolerance for diversity. Finally the movement that will end genocide must come not from
international armed interventions, but rather from popular resistance to every form of
discrimination; dehumanization, hate speech, and formation of hate groups; rise of political
parties that preach hatred, racism or xenophobia; rule by polarizing elites that advocate
exclusionary ideologies; police states that massively violate human rights; closure of borders to
international trade or communications; and denial of past genocides or crimes against humanity
against groups within or without the state that is in denial.

The movement that will end genocide in this century must rise from each of us who have the
courage to challenge discrimination, hatred, and tyranny. We must never let the wreckage of our
barbaric past keep us from envisioning a peaceful future when law and democratic freedom will
rule the earth.

For those who doubt there is any direction in history, our common humanity is enough to give
meaning to our cause. To those of us who know that history is not some directionless accident,
this is our calling and our destiny. John F. Kennedy said, "On earth, God's work must truly be
our own."

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 10. BIBLIOGRAPHY

Book:

1. The Genocide Convention: An International Law Analysis by John Quibley.

2. The Courts of Genocide by Nicholas A. Jones.

3. A Peace To End All Peace by Fromkin D.

4. Brownlie's Principles Of Public International Law by Crawford J and Brownlie I.

5. s

Websites:

1. www.Jstor.org

2. www.heinonline.org

Statutes:

1. Rome Statute of the International Criminal Court

2. Convention on the Prevention and Punishment of the Crime of Genocide

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