The Genocide Convention and Challenges to its Effective Application

- Devyani Jain, III Year, WBNUJS, B.A./L.L.B (Hons.)

“ It may be true that the law cannot make a man love me. But it can keep him from lynching me, and i
think that`s pretty important- Martin Luther King”

Introduction:
The principle of protection of all individuals is fundamental to the United Nations Charter (UN Charter),
which states, “removal of threats to peace, and.. suppression of acts of aggression or other breaches of
peace” under Article I as one of the purposes of the United Nations. Further, the Universal Declaration of
Human Rights (UDHR)1 adopted in 1948 is based on the guarantee of prevention of monstrous crimes
such as genocide and stresses on action against“.....barbarous acts which have outraged the conscience of
mankind...” and states that “freedom from fear.... has been proclaimed as the highest aspiration of the
common people.” This right can also be read under Article 5 of the U.D.H.R which states “No one shall
be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Although all declarations adopted by the UN are not regarded as binding, UDHR has developed the
position of jus cogens, the universally known norm of customary international law and thus is binding all
states. Therefore, on the lines of the guarantee of protection, provided under the U.N. Charter and the
U.D.H.R, Genocide was declared a crime and condemened by the United Nations (‘UN’) through the
Convention for the Punishment and Prevention of Genocide adopted on December 9, 1948 by UN (‘the
Convention’).2

Identification of the genocide as one of the most heinous crimes against humanity came as a direct
consequence of the holocaust which is described as “Maximum Standard”. Since, it is the most notorius
genocide, all genocides are compared to the holocaust establishing it as the “maximum standard” while
measuring genocide.3 Through the Convention, the definition of ‘genocide’ was internationaly discussed
and its ingredients enumerated furthering the process of finally recognising past acts of genocide and
condemning them as well as identifying future ones.

1
Available at http://www.un.org/en/documents/udhr/.
2
Convention of the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948, accessed
online at <http://treaties.un.org/doc/Pubication/UNTS/Volume%/o2078/volume-78-I-lO2lEnglish.pdf>.
3
Harry M. Rhea, Martin Shaw in What Is Genocide,( polity press, 2007)- 3 Interdisc. J. Hum. Rts. L. 87 2008-2009.

Electronic copy available at: http://ssrn.com/abstract=2050892

Background of the Convention:
The Convention is an International Criminal Law treaty which declares genocide as an International
Crime and at the same time it forms part of International humanitarian law and International human rights
law.4
Article 2 of the Convention defines genocide as acts (killing or other measures calculated to cause
physical destruction) committed with the intent to destroy, in whole or in part, a national, ethnic, racial or
religious group.5 Further, Article 3 of the Convention enumerates the punishable acts which include:
genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to
commit genocide and complicity in genocide.

Therefore, the purpose and intent of the Convention can be construed as three fold: (1) a protest against
past misdeeds, (2) prevention of future crimes by legally enabling action and (3) protection of the
internationally recognised groups’ right to exist.6

Challenges to the Convention

Limiting nature of the definition

A plain reading of Article 2 of U.N. Convention indicates that the definition of genocide is qualified by
certain limitations one of them being, the “intent to destroy”. However, it fails to recognise the fact that
such intent may be difficult to prove in practice thereby, allowing the perpetrator to walk free.7

Further, the Convention forwards protection only to a limited group based upon four qualities: nationality,
ethnicity, race and religion. These groups were identified for the purpose of protection because of their
8
permanent stable nature and history of persecution. On the other hand, the Convention also denies
protection to oft-persecuted associations such as ‘political groups’.9 Moreover, the Convention ignores

4
Steven R Ratner, The Genocide Convention After Fifty Years: Contemporary Strategies For Combating A Crime
Against Humanity, 92 Am. Soc'y Int'l L. Proc. 1 1998.
5
Convention on the Prevention and Punishment of the Crime of Genocide, Art . 2, Dec. 9, 1948, 102 Stat, 3045, 78
U.N.T.S. 277, 280.
6
David Alonso – Maizlish, In Whole or in Prt: Group Rights , the Intent Elements of Genocide and ‘Quantitative
Criterion,’ New York University Law review 77 (5), 1369-1403, November 2002, p. 1375.
7
Steven R Ratner, The Genocide Convention After Fifty Years: Contemporary Strategies For Combating A Crime
Against Humanity , The Genocide Convention After Fifty Years, 92 Am. Soc'y Int'l L. Proc. 1 1998.
8
Peter Quayle, Unimaginable evil: The Legislative Limitations of the Genocide Convention, International Criminal
Law Review 5: 363-372, 2005
9
Political groups were the first to swell the Nazi Concentration camps however, they were conspicuously not
included under the ambit of the definition of genocide of the Convention

Electronic copy available at: http://ssrn.com/abstract=2050892

‘Cultural Genocide’ which is an attack on ideas instead of an attack on the physical existence of a group.10
Therefore, culture; one of the essential qualities of distinctive people is excluded from protection under
the Convention.11 Hence, the language of the current definition is considered to be under-inclusive with
regard to exclusion of political, social and economic groups.12

The definition is also criticised for being ambiguous in nature. For instance, terms of the definition such
as “in whole or in part” have been interpreted by ad-hoc international tribunals without great certainty
who have done so, with respect to ‘their’ conflicts (according to facts of their cases).13 Further, the
‘whole’ in the definition may be equated to the ‘global’ whole (beyond which expansion is impossible)
while the part may be an equated to a significant number whose annihilation might affect the whole
group. Therefore, elimination of a small enough part might not be significant enough to fall under the
definition of genocide even if it atrocity against a group.

In favour of the current definition, it is often argued that vagueness of the definition is political in nature
and allows the nations to intercede in early stages of genocide through diplomacy, military use etc.
However, the events in Cambodia, Darfur, Bosnia, and Kosovo clearly indicate that vagueness of the
definition has failed the purpose of preventing genocide. Such imprecision of definition as a legal
description is unacceptable for prosecution and punishing offenders, it lies contrary to universally
accepted norms of ‘legality’ and ‘due process’.14

The vagueness of definition of genocide in the Convention has been clarified to a certain extent through
the interpretation of the International Court of Justice in the year 2000. For instance The Preparatory
Commission15 for the Court explained that, the elements of genocide by killings are identified in part as
follows: “the perpetrator killed one or more persons..who belonged to a particular national, ethical ,
racial or religious group” with the intent “to destroy, in whole or in part” that group, and that this

10
The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (n. 4), p. 44
11
Peter Quayle, Unimaginable evil: The Legislative Limitations of the Genocide Convention, International Criminal
Law Review 5: 363-372, 2005.
12
Kurt Jonasshon, What is Genocide?, in GENOCIDE WATCH 17, 18 (Helen Fein ed. 1992).
13
Peter Quayle, Unimaginable evil: The Legislative Limitations of the Genocide Convention, International Criminal
Law Review 5: 363-372, 2005.
14
Ralph Ruebner, The Evolving nature of Crime of Genocide, 38 J. Marshall L. Rev. 1227.
15
Preparatory Commission on Establishment of an ICC Report of the Preparatory Commission on the establishment
of an ICC, Addendum, Part II, Finalized Draft Text of the Elements of Crime, U.N.Doc, PCNICC/2000/1/Add. 2
(2000).
“conduct took place in the context of a manifest pattern of similar conduct against that group or was
conduct that could itself effect such destruction”.16

One of the possible solutions to correct the imprecision and narrowness of definition provided under the
Convention is to seek further clarifications of the Convention by the Preparatory Commission and
Judicial Construction by international tribunals. This approach is more promising given the time
consumption in ratification and the uncertainties which may arise out of political debates.17 An instance of
such judicial construction is when the ICTR equated the term ‘intent of the Convention to ‘special intent’
in the case of Prosecutor v Akayesu. 18

While on one hand the definition under Article II is criticised for being narrow in nature resulting in
limitation of cases falling under the ambit of the Convention, Article III of the Convention which states
the punishable acts, is considered more inclusive in nature and helps the prosecution process. For
instance, ‘conspiracy’ has a great prosecutorial advantage because it is impossible to impose cumulative
liability on all the co-conspirators for all the acts which follow an agreement to commit genocide.19
Further, it also allows for joinder of several accused, which expedites the presentation of evidence and the
optimization of the very limited resources at the disposal of international criminal courts in addition to
other concerns such as preventing the re-traumatisation of victims.20

Weak enforcement mechanisms

Penal enforcement of the prohibition against the crime of genocide is fraught with various enforcement
anomalies. For instance, the crimes of genocide cannot be punished retrospectively. The judgement in the
case of Eichmann v Attorney General of Israel recognized that the Convention cannot be applied
retrospectively.21

Further, Article VI of the Convention provides that persons charged with genocide "shall be tried by a
competent tribunal of the State in the territory of which the act was committed." But since genocide is
invariably committed by states or with the acquiescence of their leaders, prosecutions before national

16
Id. at art. 6 (a).
17
Ralph Ruebner, The Evolving nature of Crime of Genocide, 38 J. Marshall L. Rev. 1227.
18
Prosecutor v Akaseyu, Case No. ICTR-96-4-T,Judgement, pages 498-499(Sept, 2,,1998) available at
http;//www.ictr.org/ENGLISH/cases/Akayesu/judgment /akay001.htm.
19
Remarks by Payam Akhavan, The Genocide Convention After Fifty Years: Contemporary Strategies For
Combating A Crime Against Humanity, 92 Am. Soc'y Int'l L. Proc. 1 1998 at 13.
20
Ibid at 13.
21
Crim A 336/61 Eichmann v. Att’y Gen of Isr. [1962] IsrSC 16 (1) 2033, reprinted in 36I.L.R. 277 (1968).
courts have been ineffective except in cases where the regime is overthrown or defeated in war when
justice is long overdue.22 For instance, after the overthrow of the Khmer Rouge in 1979 by Vietnamese
forces, the Cambodian leader Pol Pot was tried for genocide in absentia. Similarly, the commission of the
crime of Genocide is not possible without the support or at the minimum, acquiescence of the citizens of a
nation.23 For instance, it was the ordinary German citizens who embraced Hitler’s` Genocide plan.24 In the
above mentioned cases, it is unwise to expect enforcement to the principles of convention.

Moreover, Article IV of the Convention also refers to "such international penal tribunal as may have
jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction." This
provision can now be enforced through the International Criminal Court (‘ICC’) which was adopted at
the 1988 Rome Diplomatic Conference. However, in such case the ICC exercises its jurisdiction under its
own statute and not the Convention. Thus, the crime of genocide becomes a part of the jurisdiction of ICC
but like all treaty mechanisms ICC too, is a consent–based scheme of enforcement and states having a
history of genocide are highly unlikely to ratify an international instrument that could be used to take
action against their own officials.25

Weak adherence to the normative principles of the Convention

Genocide is often described as a mixture of atrocity and a man-made calamity.26 The recognition of the
crime of genocide during the Nuremberg Trials and the subsequent sluggish response of the nations of the
world to counter this cruelty is epitomized in the annihilation of five million people in China's Cultural
Revolution (1966-1976), the death of two million victims in Cambodia's killing fields (1976-1979) or the
massacre of 750,000 individuals in Uganda (1971-1987). 27 In none of those cases was there even an
attempt to bring the perpetrators to justice. This scenario, prompted the U.N. High Commissioner for
Human Rights to decry: "A person stands a better chance of being tried and judged for killing one human
being than for killing 100,000."28

22
Steven R Ratner, The Genocide Convention After Fifty Years: Contemporary Strategies For Combating A Crime
Against Humanity, 92 Am. Soc'y Int'l L. Proc. 1 1998.
23
George P. Fletcher, in ROMANTICS AT WAR: GLORY AND GUILT IN THE AGE OF TERRORISM 45 (2002) at 159.
24
Daniel Jonah Goldhagen, in HITLER`S WILLING EXECUTIONERS:ORDINARY GERMANS AND THE HOLOCAUST 393
(1996).
25
Remarks By Payam Akhavan, , The Genocide Convention After Fifty Years: Contemporary Strategies For
Combating A Crime Against Humanity, 92 Am. Soc'y Int'l L. Proc. 1 1998 at 9.
26
Peter Quayle, Unimaginable evil: The Legislative Limitations of the Genocide Convention, International Criminal
Law Review 5: 363-372, 2005.
27
Michael P. Scharf, BALKAN JUSTICE: THE STORY BEHIND THE FIRST INTERNATIONAL WAR CRIMES TRIAL SINCE
NUREMBERG xii-xiv (1997).
28
Ibid at xiv.
The basic aim of preventing future acts of genocide and punishing past crimes of genocide suffers great
detriment due to weak adherence to the normative principles enshrined under the Convention. Article IX
of the Convention states that "Disputes between the Contracting Parties relating to the interpretation,
application, or fulfilment of the present Convention, including those relating to the responsibility of a
State for genocide ... shall be submitted to the International Court of Justice at the request of any of the
parties to the dispute." However, this interstate mechanism is unsurprisingly futile because states are
unlikely to sacrifice their individual interest in lieu of protection of common interests of all.29 A stellar
example of this is the, failure of Non-Government Human Rights Organizations to invoke Article IX for
the trial of the government of Democratic Kampuchea for committing the Khmer Rouge atrocities.

Incorporation of the genocide definition in International Penal Tribunals and the Rome Statute:
The International Criminal Tribunal for the former Yugoslavia (‘ICTY’)30 and the International Criminal
Tribunal for Rwanda (‘ICTR’)31 were established under the auspices of the U.N. in year 1993 and 1994,
respectively. Both the ICTY and ICTR defined the term ‘genocide’ using the definition of the crime as
described in the U.N. Convention.32Further ICC formulated by the Rome Statute in 1998 indentified
‘genocide’ under its jurisdiction and integrated the Convention’s definition.33 This indicates that the
definition of Genocide has not got undergone any change since its incorporation in the Convention and
continues to be integrated in other international forum.

Since, penal prohibitions against genocide have largely been unsuccessful, mechanisms outside the
convention such as ad hoc penal tribunals- ICTY and ICTR, have been resorted to. Moreover, as these
tribunals utilise the same definition of genocide as the convention they have been employed to enforce the
measures under Chapter VII, creating legally binding obligations for all States in matters of judicial

29
Remarks By Payam Akhavan, The Genocide Convention After Fifty Years: Contemporary Strategies For
Combating A Crime Against Humanity, 92 Am. Soc'y Int'l L. Proc. 1 1998.
30
Statute Of The International Tribunal For The Prosecution Of Persons Responsible For Serious Violations Of
International Humanitarian Law Committed In The Territory Of The Former Yugoslavia since 1991, S.C. Res. 808,
art, U.N. Doc. S/RES/25704 ( May 2, 1993), amended by S.C. Res. 1166, U.N. S/RES/1166(1988).
31
Statute Of The International Tribunal For The Prosecution Of Persons Responsible for Serious Violations Of
International Humanitarian Law Committed In The Territory if Rwanda and Rwanda Citizens Responsible for
Genocide and other such Violations Committed in the Territory of Neighbouring States, between 1 January 1994
and 31 December 1994, S.C.Res. 955, ART. 2(2), U.N. Doc.
32
Peter Quayle, Unimaginable evil: The Legislative Limitations of the Genocide Convention, International Criminal
Law Review 5: 363-372, 2005.
33
Rome Statute of the ICC, Art. 5-6, U.N. Doc. A/COF.183/9 (1998) [as corrected by the process- verbaux on
November 10, 1998 and July 12, 1999], reprinted in 37I.L.M. 999 (1998), amended act available at
www.un.org/law/icc/statute /99_corr.html.
cooperation and assistance, including the arrest and surrender of indicted persons.34 With regard to
application of the legal definition of genocide to the fact situations by the tribunals, the major hurdle was
the ‘relative legal indeterminacy’.35 The essential element of genocide is the particular intent to destroy a
group as such wherein one needs to prove a secondary element of mens rea or the desire to achieve a
certain objective. Therefore, in order to increase the certainty in the elements of ‘genocide’ it is
recommend that a criteria of ‘full intent’ i.e. foresight of the consequences of one's actions should be
followed.36

Further, Article 6 of the Rome Statute which incorporates the definition of the crime of genocide as given
under the Genocide Convention has certain variance with respect to Article III of the Convention. It fails
to mention the "other acts" such as incitement and conspiracy to commit genocide that are enumerated in
Article III of the Convention. This is a divergence from the approach of the ICTY and ICTR statutes,
which include "other acts" while defining genocide. Alternatively, Article III of the Convention is
incorporated in Article 25 of the Rome Statute, which refers to "Individual Criminal Responsibility"
which means that for all practical purposes, the crime of conspiracy to commit genocide has
disappeared.37 Although, under Article 25 there exists provision regarding ‘aiding and abetting’38 and
‘contributing to the commission’ of crime39, the Article fails to fully recognise in International Criminal
Law, the specific crime of conspiracy to commit genocide.40 This in turn might lead to, “an inconsistency
between customary international law and the Rome Statute.”41

While it is contended that elements of ‘conspiracy’ can be read under the provisions of Article 25 (3)(d),
that is problematic because the inherent requirement of ‘groups of persons acting with a common person’
are more parallel to the concepts of joint criminal enterprise or co-perpetration than conspiracy.42 Further,
the official records of negotiations reveal that characterization of ‘conspiracy to commit genocide’ was in
the form of an inchoate crime.43 If Article 25 (3)(d) of the Rome Statute is read so as to include the
concept of conspiracy then it would include 'the commission or attempted commission of such a crime by

34
Steven R Ratner, The Genocide Convention After Fifty Years: Contemporary Strategies For Combating A Crime
Against Humanity, 92 Am. Soc'y Int'l L. Proc. 1 1998.
35
Ibid at pg 10.
36
Ibid at pg 11.
37
Evan Sliedregt, the Criminal Responsibility of Individuals for Violations of International Humanitarian L aw
(T.M.C. Asser Press, 2003) 65.
38
Article 25(3) c of the Rome Statute.
39
Article 25(3) d of the Rome Statute.
40
Direct Participation In Hostilities': A Legal And Practical Road Test ,17 Austl. Int'l L.J. 24 2010.
41
Cassese, 'Genocide', 347.
42
Supra note 40.
43
See Prosecutor v Alfred Musema (ICTR, Case No. ICTR-96-13-A, 17 January 2000) 198.
a group of persons acting with a common purpose'. This in turn would translate into a requirement under
this article according to which ‘conspiracy’ should be accompanied with ‘commission or attempted
commission of the crime’, while going against the intention of the drafters of the Convention to envisage
conspiracy as an inchoate crime.44

Moreover, the integration of the ‘secondary forms of genocide’ into the provision of Rome Statute has a
lead to an international debate whether, inclusion of the secondary forms in 'individual criminal
responsibility’ was correct. On one hand, the Convention and the statutes of ICTY and ICTR clearly make
delineation between the ‘crime’ and the ‘form of criminal responsibility’ such that an individuals’
prosecuted for a secondary form of genocide are charged for the commission of the crime of genocide
itself. On the other hand, under the Rome statute a person can be charged with ‘secondary forms of
genocide’ through reading Article 25(3) and Article 6 together, such that it shifts secondary forms of
genocide from being ‘crimes’ to ‘forms of liability’ for the crime of genocide.45 Moreover, as a result of
this, if an individual is found guilty of a ‘secondary form of genocide’ then it translates into him being
guilty of the crime of genocide itself.46 This results in an irregularity because when an individual is
prosecuted through Article 25 for a crime of genocide under Article 6, it requires examination of the fact
whether genocide actually occurred. This goes against the accepted inchoate nature of these crimes and
creates an anomaly.47

Therefore, there is a need to bring into tandem the definition of genocide and its secondary forms in the
International Penal Tribunals-ICTY, ICTR and the ICC (under the Rome Statute) with that of the
Convention. This is imperative to prevent confusion in legal terms thereby allowing successful
prosecution of the crime of genocide as well as its secondary forms.

Conclusion:
It is true that no legal definitions is perfect and all invariably have a loophole but it is axiomatic that
crimes especially those as heinous as genocide should be plainly defined and ingredients clearly proven.
By expounding upon the definition, we might be able to anticipate situations that might eventually lead to
full scale genocide.48 The current definition of genocide as provided in the Convention identifies
genocide as a crime committed in peace or in war. This is a critical step forward in comparison to Charter

44
Supra note 40.
45
Supra note 40.
46
WA Schabas, Genocide in International Law – The Crime of Crimes, (Cambridge University Press, 2000).
47
Supra note 40.
48
Frenda Kabatsi, Defining or Diverting Genocide: Changing the Comportment of Genocide, International
Criminal Law Review 5, pg. 387-400, 2005.
of the International Military Tribunal at Nuremberg, which defined crimes against humanity, of which
genocide was one example, as taking place in connection with armed conflict thereby requiring ‘armed
conflict’ a pre-requisite to alleging genocide.49

In current modern scenario, genocide symbolizes the ultimate crime. And although it has obtained the
exalted status of Jus cogens, the enforcement provisions of the Convention have remained remarkably
ineffective. In view of the fact that the crisis in Darfur continued while legal determination of was
awaited50, it is contended that the Convention in its modern application kills more people than it protects
or prosecutes.

The exclusive and ambiguous character of the definition is a hurdle to the basic aim of the Convention of
identifying the crimes of genocide and expediently prosecuting the actors involved. Further, weak
enforcement mechanism, lack of adherence to the principles and absence of uniformity in national
standards prevent the Convention from achieving its full potential in prevention of genocide. A example
of the this failure is, the cultural genocide being committed by the Chinese in Tibet, where a way of life is
being destroyed through bringing about a change in the political–religious system and change in the
demographic equation by resettlement wherein a hitherto majority has been converted into miniscule
minority.

Therefore, there is requirement that the two purposes of the Convention, prevention of the crime of
genocide and punishment of the acts of genocide need to be recognised and fully enforced.

49
Compare Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948,
Art. 1, 78 UNTS 277, 280 with Charter of the International Military Tribunal, Art. 6(c), in Agreement
for the Prosecution and Punishment of the Major War Criminals of the European Azis, Aug. 8, 1945,
82 UNTS 279, 288.
50
Acting pursuant to Security Council Resolution 1564 (2004) an “ International Commission of inquiry on Darfur
to the U.N.S.C., “ chaired by eminent jurist Antonia Cassese , reported on 25 January, 2005, grave violations of
inter-national Humanitarian Law had taken place but concluded that “ the government of Sudan had not pursued a
policy of genocide” ( p4 of the Report). Furthermore, the commission recommended that the S.C. refer the matter to
the ICC for the investigation and prosecution. Throughout this time, the humanitarian crimes occurring in Darfur
have gone unprevented.