WHAT IS GENOCIDE?

The crime of genocide is defined in international law in the Convention on the Prevention and Punishment of Genocide. "Article II: In the present Convention, genocide means 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. Article III: The following acts shall be 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. The Genocide Convention was adopted by the United Nations General Assembly on 9 December 1948. The Convention entered into force on 12 January 1951. More than 130 nations have ratified the Genocide Convention and over 70 nations have made provisions for the punishment of genocide in domestic criminal law. The text of Article II of the Genocide Convention

was included as a crime in Article 6 of the 1998 Rome Statute of the International Criminal Court. However, the term genocide has also been defined more broadly or narrowly, on the one hand by historians and sociologists and on the other by legal experts or diplomats. Most generally, genocide is the deliberate destruction of a social identity. Various parties at various times have defined it in more limited ways. One popular limitation is to limit it to deliberate killing. This limitation was, however, explicitly rejected by the first formal definition of genocide under the Geneva Convention. Likewise, that Convention limited the social identities covered to national identity alone. Others have limited genocide to cover just ethnicity, race, and religion as social identities. Sometimes political identities are covered. With the rise of anti-nationalist sentiment, national identity, itself, is frequently identified as a cause of genocide and is therefore a social identity deliberately targeted for destruction by policies opposed to genocide. It is apparent that not only is there no clear consensus as to the meaning of the word genocide, but that some definitions are contradictory. The term "genocide" was coined by Raphael Lemkin (19001959), a Polish Jewish legal scholar, in 1943, from the roots genos (Greek for family, tribe or race) and -cide (Latin - occidere, to massacre). In the wake of the Nazi Holocaust, Lemkin successfully campaigned for the universal acceptance of international laws, defining and forbidding genocide. This was achieved in 1948, with the promulgation of the Convention on the Prevention and Punishment of the Crime of Genocide.

After the minimum 20 countries became parties to the Convention, it came into force as international law on 12 January 1951. At that time however, only two of the five permanent members of the UN Security Council (UNSC) were parties to the treaty: France and the Republic of China. Eventually the Soviet Union ratified in 1954, the United Kingdom in 1970, the People's Republic of China in 1983 (having replaced the Taiwan-based Republic of China on the UNSC in 1971), and the United States in 1988. This long delay in support for the Genocide Convention by the world's most powerful nations caused the Convention to languish for over four decades. Only in the 1990s did the international law on the crime of genocide begin to be enforced.

UNDERSTANDING THE CONCEPT

Punishable Acts The following are genocidal acts when committed as part of a policy to destroy a groups existence: Killing members of the group includes direct killing and actions causing death. Causing serious bodily or mental harm includes inflicting trauma on members of the group through widespread torture, rape, sexual violence, forced or coerced use of drugs, and mutilation. Deliberately inflicting conditions of life calculated to destroy a group includes the deliberate deprivation of resources needed for the groups physical survival, such as clean water, food, clothing, shelter or medical services. Deprivation of the means to sustain life can be imposed through confiscation of harvests, blockade of foodstuffs, detention in camps, forcible relocation or expulsion into deserts. Prevention of births includes involuntary sterilization, forced abortion, prohibition of marriage, and long-term separation of men and women intended to prevent procreation. Forcible transfer of children may be imposed by direct force or by through fear of violence, duress, detention, psychological oppression or other methods of coercion. The Convention on the Rights of the Child defines children as persons under the age of 14 years.

Genocidal acts need not kill or cause the death of members of a group. Causing serious bodily or mental harm, prevention of births and transfer of children are acts of genocide when committed as part of a policy to destroy a groups existence: It is a crime to plan or incite genocide, even before killing starts, and to aid or abet genocide: Criminal acts include conspiracy, direct and public incitement, attempts to commit genocide, and complicity in genocide.

Key Terms The crime of genocide has two elements: intent and action. Intentional means purposeful. Intent can be proven directly from statements or orders. But more often, it must be inferred from a systematic pattern of coordinated acts. Intent is different from motive. Whatever may be the motive for the crime (land expropriation, national security, territorial integrity etc.) if the perpetrators commit acts intended to destroy a group, even part of a group, it is genocide. The phrase "in whole or in part" is important. Perpetrators need not intend to destroy the entire group. Destruction of only part of a group (such as its educated members, or members living in one region) is also genocide. Most authorities require intent to destroy a substantial number of group members mass murder. But an individual criminal may be guilty of genocide even if he kills only one person, so long as he knew he was participating in a larger plan to destroy the group.

The law protects four groups - national, ethnical, racial or religious groups. A national group means a set of individuals whose identity is defined by a common country of nationality or national origin. An ethnical group is a set of individuals whose identity is defined by common cultural traditions, language or heritage. A racial group means a set of individuals whose identity is defined by physical characteristics. A religious group is a set of individuals whose identity is defined by common religious creeds, beliefs, doctrines, practices, or rituals.

STAGES OF GENOCIDE AND PREVENTION

According to President of Genocide Watch Gregory Stanton, genocide develops in eight stages that are "predictable but not inexorable":
Stage Characteristics Preventive measures

"The main preventive measure at

1. Classification

People are divided into "us and them". "When combined with

this early stage is to develop universalistic institutions that transcend... divisions."

2. Symbolization

hatred, symbols may be forced upon unwilling members of pariah groups..." "Dehumanization

"To combat symbolization, hate symbols can be legally forbidden as can hate speech".

3.

overcomes the normal murder." "Genocide is always

"Hate propaganda should be banned, hate crimes and atrocities should be promptly punished." "To combat this stage, membership in these militias should be outlawed." "Prevention may mean security assistance to human rights

Dehumanization human revulsion against

4. Organization

organized... Special army units or militias are often trained and armed..." "Hate groups broadcast

5. Polarization

polarizing propaganda..." protection for moderate leaders or

groups..." "Victims are identified

6. Identification

and separated out because "At this stage, a Genocide Alert of their ethnic or religious must be called..." identity..." "At this stage, only rapid and "It is extermination to overwhelming armed intervention or refugee escape corridors should be established with heavily armed international protection." "The response to denial is punishment by an international tribunal or national courts." the killers because they do can stop genocide. Real safe areas not believe their victims to be fully human." "The perpetrators... deny that they committed any crimes..."

7. Extermination

8. Denial

GENOCIDE AS CRIME UNDER INTERNATINAL LAW

The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the UN General Assembly on 9 December 1948 and came into effect on 12 January 1951. It contains an internationallyrecognized definition of genocide which was incorporated into the national criminal legislation of many countries, and was also adopted by the Rome Statute of the International Criminal Court, the treaty that established the International Criminal Court (ICC). The Convention (in article 2) defines genocide 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:" The first draft of the Convention included political killings but that language was removed at the insistence of the Soviet Union. The exclusion of social and political groups as targets of genocide in this legal definition has been criticized. In common usage of the word, these target groups are often included. Common usage also sometimes equates genocide with state-sponsored mass murder, but genocide, as defined above, does not imply mass-murder (or any murder) nor is every instance of mass-murder necessarily genocide. Neither is the involvement of a government required. The word "genocide" is also sometimes used in a much broader sense, as in "slavery was genocide", but this usage diverges from the legal definition set out by the UN. Prosecution of genocide

All signatories to the above-mentioned convention are required to prevent and punish acts of genocide, both in peace and wartime, though some barriers make this enforcement difficult. In particular, some of the signatories namely, Bahrain, Bangladesh, India, Malaysia, the Philippines, Singapore, the United States, Vietnam, Yemen, and Yugoslavia signed with the proviso that no claim of genocide could be brought against them at the International Court of Justice without their consent. [1] Despite official protests from other signatories (notably Cyprus and Norway) on the ethics and legal standing of these reservations, the immunity from prosecution they grant has been invoked from time to time, as when the United States refused to allow a charge of genocide brought against it by Yugoslavia following the 1999 Kosovo War. It is commonly accepted that, at least since World War II, genocide has been illegal under customary international law as a peremptory norm, as well as under conventional international law. Acts of genocide are generally difficult to establish, for prosecution, since intent, demonstrating a chain of accountability, has to be established. Due to its gravity, genocide can be prosecuted by any state at any time under its universal jurisdiction. International criminal courts and tribunals function primarily because the states involved are incapable or unwilling to prosecute crimes of this magnitude themselves.

THE DILEMMAS OR THE MISSING LINKS

Many experts, legal and academic, consider these criteria deficient in various respects. Some consider that the criteria are insufficiently broad. For instance, it excludes the physical destruction of certain sub-groups that have regularly been the victims of extensive killing programs. Usually mentioned in this context are members of political or social classes, such as the bourgeoisie, the middle classes, the Kulaks and the intelligentsia. Also, the definition focuses on the physical destruction of the group. There have been many instances in which the group has physically survived but its cultural distinctiveness has been eradicated. A contemporary example is the destruction of Tibetan culture by the Chinese, or that of indigenous tribes in certain countries in South America, Paraguay and Brazil, for instance. These and other deficiencies need to be understood in the context of the background to the passage of this convention. The term genocide is of recent derivation; etymologically, it combines the Greek for group, tribegenos, with the Latin for killing-cide. In 1933, at a time when neither the extensiveness nor character of the barbarous practices subsequently carried out under the auspices of the Third Reich could have been foreseen, the jurist Raphael Lemkin submitted to the International Conference for Unification of Criminal Law a proposal to declare the destruction of racial, religious or social collectivities a crime in international law. There are considerable disagreements among experts concerning whether a specific complex of behaviours merits the designation genocide, even leaving aside clear-cut instances of attempts at moral appropriation of the concept. There are various reasons for this. First, like any other legal instrument, it was the outcome of negotiations between parties that held conflicting views as to the proper scope of its constituent part. Although

Article IX allows for disputes between parties to be adjudicated by the International Court of Justice, because accusations of genocide are invariable made by one state against another, this has never occurred. Consequently, there is no body of international law to clarify the parameters of the convention. A second reason for uncertainty as to how the concept can be fitted to particular complexes of behaviour derives from the fact that the "idealtypical" genocidal complex that Lemkin had in mind was the destruction of European Jewry. This instance of genocide was quite clearly also uppermost in the minds of those who drafted and negotiated the UNCG. Precisely because this particular instance was so central to the genesis of the UNCG, its application to other situations has been problematic.

PUBLIC INTERNATIONAL LAW PROJECT ON GENOCIDE

ARMY INSTITUTE OF LAW MOHALI

SUBMITTED BY:
AVNIT SINGH ARORA ROLL NO. 377 POONAM KAMBOJ ROLL NO. 379

BIBLIOGRAPHY

WWW.GOOGLE.COM

WWW.WILKEPAEDIA.COM

WWW.CONVENTIONS.COM

A BOOK BY GREGORY STANTON

A BOOK ON PUBLIC INTERNATIONAL LAW

CONTENTS

WHAT IS GENOCIDE?

UNDERSTANDING THER TERMS

THE STAGES AND THE PREVENTION

GENOCIDE AS CRIME IN INTERNATIONAL LAW

THE MISSING LINKS AND THE INFERENCE

BIBLIOGRAPHY