Genocide

Genocide is the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group.

While precise definition varies among genocide scholars, a legal definition is found in the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). Article 2, of this convention 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: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group." According to a CNN article published December 7th, 2008, a man by the name of Raphael Lemkin coined the word Genocide: "In 1944, Raphael Lemkin wrote a book about the Nazis. In it, he combined the Greek "genos" for race with the Latin "-cide" for killing: Genocide."

The preamble to the CPPCG states that instances of genocide have taken place throughout history, but it was not until Raphael Lemkin coined the term genocide and the prosecution of perpetrators of the Holocaust at the Nuremberg trials that the international community agreed to the CPPCG which defined the crime of genocide under international law.

There was a gap of more than forty years between the CPPCG coming into force and the first prosecution under the provision of the treaty. To date all international prosecutions of genocide, for the Rwandan Genocide, the Srebrenica Genocide, have been by ad hoc international tribunals. The International Criminal Court came into existence in 2002 and it has the authority to try people from the states that have signed the treaty, but to date it has not tried anyone.

Since the CPPCG came into effect in January 1951 about 80 member states of the United Nations have passed legislation that incorporates the provisions of the CPPCG into their municipal law, and some perpetrators of genocide have been found guilty under such municipal laws such as Nikola Jorgic who was found guilt of genocide by a German court (Jorgic v. Germany).

Critics of the CPPCG point to the narrow definition of the groups that are protected under the treaty, particularly the lack of protection for political groups for what has been termed politicide. One of the problems was that until there was a body of case law from prosecutions, the precise definition of what the treaty meant had not been tested in court. For example what precisely did the term "in part" mean? As more perpetrators have been tried under international tribunals and municipal court cases, a body of legal arguments and legal interpretations are helping to address these issues.

Another criticism of the CPPCG is that when it provisions have been invoked by the United Nations Security Council, they have only been invoked to punish those who have already committed genocide and been foolish enough to leave a paper trail. It was this criticism that lead to the adoption of UN Security Council Resolution 1674 by the United Nations Security Council on 28 April 2006 commits the Council to action to protect civilians in armed conflict and to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

Genocide scholars such Gregory Stanton have postulated that conditions and acts that often occur before, during, and after genocide— such as dehumanization of victim groups, strong organization of genocidal groups, and denial of genocide by its perpetrators— can be identified and actions taken to stop genocides before they happen. Critics of this approach such as Dirk Moses think that this is unrealistic and that for example "Darfur will end when it suits the great powers that have a stake in the region".

Coining of the term genocide
The term "genocide" was coined by Raphael Lemkin (1900–1959), a Polish-Jewish legal scholar, in 1943, firstly from the Latin "gens, gentis," meaning "tribe, clan, or race," or the Greek root génos (γένος) (family, tribe or race - gene); secondly from Latin -cide (occido—to massacre, kill).

In Noah 1933, Lemkin prepared an essay entitled the Crime of Barbarity in which genocide was portrayed as a crime against international law. The concept of the crime, which later evolved into the idea of genocide, originated with the experience of the Assyrians massacred in Iraq on 11 August 1933. To Lemkin, the event in Iraq evoked "memories of the slaughter of Armenians" during World War I. He presented his first proposal to outlaw such "acts of barbarism" to the Legal Council of the League of Nations in Madrid the same year. The proposal failed, and his work incurred the disapproval of the Polish government, which was at the time pursuing a policy of conciliation with Nazi Germany.

In 1944,the Carnegie Endowment for International Peace published Lemkin's most important work, entitled Axis Rule in Occupied Europe, in the United States. This book included an extensive legal analysis of German rule in countries occupied by Nazi Germany during the course of World War II, along with the definition of the term genocide. Lemkin's idea of genocide as an offense against international law was widely accepted by the international community and was one of the legal bases of the Nuremberg Trials (the indictment of the 24 Nazi leaders specifies in Count 3 that the defendants "conducted deliberate and systematic genocide—namely, the extermination of racial and national groups..." ) Lemkin presented a draft resolution for a Genocide Convention treaty to a number of countries in an effort to persuade them to sponsor the resolution. With the support of the United States, the resolution was placed before the General Assembly for consideration. Defining genocide in 1943, Lemkin wrote:

Under international law
In the wake of the 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.

The CPPCG was adopted by the United Nations General Assembly on 9 December 1948 and came into effect on 12 January 1951 (Resolution 260 (III)). It contains an internationally-recognized 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:

The first draft of the Convention included political killings, but the USSR along with some other nations would not accept that actions against groups identified as holding similar political opinions or social status would constitute genocide, so these stipulations were subsequently removed in a political and diplomatic compromise.

Intent to destroy
In 2007 the European Court of Human Rights (ECHR), noted in its judgement on Jorgic v. Germany case that in 1992 the majority of legal scholars took the narrow view that "intent to destroy" in the CPPCG meant the intended physical-biological destruction of the protected group and that this was still the majority opinion. But the ECHR also noted that a minority took a broader view and did not consider biological-physical destruction was necessary as the intent to destroy a national, racial, religious or ethnical group was enough to qualify as genocide.

In the same judgement the ECHR reviewed the judgements of several international and municipal courts judgements. It noted that International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice had agreed with the narrow interpretation, that biological-physical destruction was necessary for an act to qualify as genocide. The ECHR also noted that at the time of its the judgement, apart from courts in Germany which had taken a broad view, that there had been few cases of genocide under other Convention States municipal laws and that "There are no reported cases in which the courts of these States have defined the type of group destruction the perpetrator must have intended in order to be found guilty of genocide".

In part
The phrase "in whole or in part" has been subject to much discussion by scholars of international humanitarian law. The International Criminal Tribunal for the Former Yugoslavia found in Prosecutor v. Radislav Krstic - Trial Chamber I - Judgment - IT-98-33 (2001) ICTY8 (2 August 2001) that Genocide had been committed. In Prosecutor v. Radislav Krstic - Appeals Chamber - Judgment - IT-98-33 (2004) ICTY 7 (19 April 2004) paragraphs 8, 9, 10, and 11 addressed the issue of in part and found that "the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole." The Appeals Chamber goes into details of other cases and the opinions of respected commentators on the Genocide Convention to explain how they came to this conclusion.

The judges continue in paragraph 12, "The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4 [of the Tribunal's Statute]."

In paragraph 13 the judges raise the issue of the perpetrators' access to the victims: "The historical examples of genocide also suggest that the area of the perpetrators’ activity and control, as well as the possible extent of their reach, should be considered. ... The intent to destroy formed by a perpetrator of genocide will always be limited by the opportunity presented to him. While this factor alone will not indicate whether the targeted group is substantial, it can - in combination with other factors - inform the analysis."

CPPCG coming into force
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.

Security Council responsibility to protect
UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity". The resolution commits the Council to action to protect civilians in armed conflict.

Under municipal law
Since the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) came into effect in January 1951 about 80 member states of the United Nations have passed legislation that incorporates the provisions of the CPPCG into their municipal law.

Criticisms of the CPPCG and other definitions of genocide
Much debate about genocides revolves around the proper definition of the word "genocide." The exclusion of social and political groups as targets of genocide in the CPPCG legal definition has been criticized by some historians and sociologists, for example M. Hassan Kakar in his book The Soviet Invasion and the Afghan Response, 1979-1982 argues that the international definition of genocide is too restricted, and that it should include political groups or any group so defined by the perpetrator and quotes Chalk and Jonassohn: "Genocide is a form of one-sided mass killing in which a state or other authority intends to destroy a group, as that group and membership in it are defined by the perpetrator." While there are various definitions of the term, Adam Jones states that the majority of genocide scholars consider that "intent to destroy" is a requirement for any act to be labelled genocide, and that there is growing agreement on the inclusion of the physical destruction criterion.

Barbara Harff and Ted Gurr defined genocide as "the promotion and execution of policies by a state or its agents which result in the deaths of a substantial portion of a group ...[when] the victimized groups are defined primarily in terms of their communal characteristics, i.e., ethnicity, religion or nationality." Harff and Gurr also differentiate between genocides and politicides by the characteristics by which members of a group are identified by the state. In genocides, the victimized groups are defined primarily in terms of their communal characteristics, i.e., ethnicity, religion or nationality. In politicides the victim groups are defined primarily in terms of their hierarchical position or political opposition to the regime and dominant groups. Daniel D. Polsby and Don B. Kates, Jr. state that "... we follow Harff's distinction between genocides and 'pogroms,' which she describes as 'short-lived outbursts by mobs, which, although often condoned by authorities, rarely persist.' If the violence persists for long enough, however, Harff argues, the distinction between condonation and complicity collapses."

According to R. J. Rummel, genocide has 3 different meanings. The ordinary meaning is murder by government of people due to their national, ethnic, racial, or religious group membership. The legal meaning of genocide refers to the international treaty, the Convention on the Prevention and Punishment of the Crime of Genocide. This also includes non-killings that in the end eliminate the group, such as preventing births or forcibly transferring children out of the group to another group. A generalized meaning of genocide is similar to the ordinary meaning but also includes government killings of political opponents or otherwise intentional murder. It is to avoid confusion regarding what meaning is intended that Rummel created the term democide for the third meaning.

A major criticism of the international community's response to the Rwandan Genocide was that it was reactive, not proactive. The international community has developed a mechanism for prosecuting the perpetrators of genocide but has not developed the will or the mechanisms for intervening in a genocide as it happens. Critics point to the Darfur conflict and suggest that if anyone is found guilty of genocide after the conflict either by prosecutions brought in the International Criminal Court or in an ad hoc International Criminal Tribunal, this will confirm this perception.

By ad hoc tribunals
All signatories to the CPPCG 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 &mdash; namely, Bahrain, Bangladesh, India, Malaysia, the Philippines, Singapore, the United States, Vietnam, Yemen, and Yugoslavia &mdash; signed with the proviso that no claim of genocide could be brought against them at the International Court of Justice without their consent. 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, because a chain of accountability must be established. International criminal courts and tribunals function primarily because the states involved are incapable or unwilling to prosecute crimes of this magnitude themselves.

Nuremberg Trials
Because the universal acceptance of international laws, defining and forbidding genocide was achieved in 1948, with the promulgation of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), those criminals who were prosecuted after the war in international courts, for taking part in the Holocaust were found guilty of crimes against humanity and other more specific crimes like murder. Nevertheless the Holocaust is universally recognized to have been a genocide and the term, that had been coined the year before by Raphael Lemkin, appeared in the indictment of the 24 Nazi leaders, Count 3, stated that all the defendants had "conducted deliberate and systematic genocide – namely, the extermination of racial and national groups..."

Rwanda
The International Criminal Tribunal for Rwanda (ICTR) is a court under the auspices of the United Nations for the prosecution of offenses committed in Rwanda during the genocide which occurred there during April, 1994, commencing on 6 April. The ICTR was created on 8 November 1994 by the Security Council of the United Nations in order to judge those people responsible for the acts of genocide and other serious violations of the international law performed in the territory of Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994.

So far, the ICTR has finished nineteen trials and convicted twenty five accused persons. Another twenty five persons are still on trial. Nineteen are awaiting trial in detention. Ten are still at large. The first trial, of Jean-Paul Akayesu, began in 1997. Jean Kambanda, interim Prime Minister, pleaded guilty.

Former Yugoslavia
The term Bosnian Genocide is used to refer either to the genocide committed by Serb forces in Srebrenica in 1995, or to ethnic cleansing that took place during the 1992-1995 Bosnian War (an interpretation rejected by a majority of scholars).

In 2001 the International Criminal Tribunal for the Former Yugoslavia (ICTY) judged that the 1995 Srebrenica massacre was an act of genocide.

On 26 February 2007 the International Court of Justice (ICJ), in the Bosnian Genocide Case upheld the ICTY's earlier finding that the Srebrenica massacre constituted genocide, but found that the Serbian government had not participated in a wider genocide on the territory of Bosnia and Herzegovina during the war, as the Bosnian government had claimed.

On 12 July 2007, European Court of Human Rights when dismissing the appeal by Nikola Jorgic against his conviction for genocide by a German court (Jorgic v. Germany) noted that the German courts wider interpretation of genocide has since been rejected by international courts considering similar cases. The ECHR also noted that in the 21 century "Amongst scholars, the majority have taken the view that ethnic cleansing, in the way in which it was carried out by the Serb forces in Bosnia and Herzegovina in order to expel Muslims and Croats from their homes, did not constitute genocide. However, there are also a considerable number of scholars who have suggested that these acts did amount to genocide"

About 30 Serbs have been indicted for participating in genocide or complicity in genocide during the early 1990s in Bosnia. To date after several plea bargains and some convictions that were successfully challenged on appeal only Radislav Krstic had been found guilty of complicity in genocide in an international court. Three others have been found guilty of participating in genocides in Bosnia by German courts, one of whom Nikola Jorgic lost an appeal against his conviction in the European Court of Human Rights. Several former members of the Bosnian Serb security forces are currently on trial in Bosnia and Herzegovina indited on several charges including genocide.

Slobodan Milosevic, as the former President of Serbia and of Yugoslavia was the most senior political figure to stand trial at the ICTY. He died on 11 March 2006 during his trial where he was accused of 66 accounts of genocide or complicity in genocide in territories within Bosnia and Herzegovina,Croatia and Kosovo so no verdict was returned. In 1995 the ICTY issued a warrant for the arrest of Bosnian Serbs Radovan Karadzic and Ratko Mladic on several charges including genocide. On 21 July 2008 Karadzic was arrested in Belgrade, and he is currently in The Hague prison awaiting trial. Ratko Mladic is still at large.

By the International Criminal Court
To date all international prosecutions for genocide have been brought in specially convened international tribunals. Since 2002, the International Criminal Court can exercise its jurisdiction if national courts are unwilling or unable to investigate or prosecute genocide, thus being a "court of last resort," leaving the primary responsibility to exercise jurisdiction over alleged criminals to individual states. Due to the United States concerns over the ICC, the United States prefers to continue to use specially convened international tribunals for such investigations and potential prosecutions.

Darfur, Sudan
The on-going conflict in Darfur, Sudan, which started in 2003, was declared a "genocide" by United States Secretary of State Colin Powell on 9 September 2004 in testimony before the Senate Foreign Relations Committee. Since that time however, no other permanent member of the UN Security Council has followed suit. In fact, in January 2005, an International Commission of Inquiry on Darfur, authorized by UN Security Council Resolution 1564 of 2004, issued a report to the Secretary-General stating that "the Government of the Sudan has not pursued a policy of genocide." Nevertheless, the Commission cautioned that "The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide." In March 2005, the Security Council formally referred the situation in Darfur to the Prosecutor of the International Criminal Court, taking into account the Commission report but without mentioning any specific crimes. Two permanent members of the Security Council, the United States and China, abstained from the vote on the referral resolution. As of his fourth report to the Security Council, the Prosecutor has found "reasonable grounds to believe that the individuals identified [in the UN Security Council Resolution 1593] have committed crimes against humanity and war crimes," but did not find sufficient evidence to prosecute for genocide.

In April 2007, the Judges of the ICC issued arrest warrants against the former Minister of State for the Interior, Ahmad Harun, and a Militia Janjaweed leader, Ali Kushayb, for crimes against humanity and war crimes.

On 14 July 2008, prosecutors at the International Criminal Court (ICC), filed ten charges of war crimes against Sudan's President Omar al-Bashir: three counts of genocide, five of crimes against humanity and two of murder. The ICC's prosecutors have claimed that al-Bashir "masterminded and implemented a plan to destroy in substantial part" three tribal groups in Darfur because of their ethnicity. The ICC's prosecutor for Darfur, Luis Moreno-Ocampo, is expected within months to ask a panel of ICC judges to issue an arrest warrant for al-Bashir.

Genocide in history
The preamble to the CPPCG not only states that "genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world", but that "at all periods of history genocide has inflicted great losses on humanity".

Determining which historical events constitute genocide and which are merely criminal or inhuman behavior is not a clear-cut matter. Furthermore, in nearly every case where accusations of genocide have circulated, partisans of various sides have fiercely disputed the interpretation and details of the event, often to the point of promoting wildly different versions of the facts. An accusation of genocide is certainly not taken lightly and will almost always be controversial. Revisionist attempts to deny or challenge genocides (mainly the Holocaust) are, in some countries, illegal.

Stages of genocide and efforts to prevent it
In 1996 Gregory Stanton the president of Genocide Watch presented a briefing paper called "The 8 Stages of Genocide" at the United States Department of State. In it he suggested that genocide develops in eight stages that are "predictable but not inexorable".

The Stanton paper was presented at the State Department, shortly after the Rwanda genocide and much of the analysis is based on why that genocide occurred. The preventative measures suggested, given the original target audience, were those that the United States could implement directly or use their influence on other governments to have implemented.