The modern definition of ‘genocide’ refers to the intent to destroy, in whole or in part, a group of people based exclusively on their membership to a national, ethnic, racial or religious group. While genocides have occurred throughout human history, it wasn’t until WWII that the term or the legal framework used to define them were established by Polish-Jewish lawyer, Raphael Lemkin. Lemkin believed that there should be a special gravity given to instances of mass violence against national groups and coined the term ‘genocide’ in 1944 from the ancient Greek words genos (race, tribe) and the Latin cide (killing). Today, genocide is collectively understood to be the worst and most severe crime committable. Yet, the definition of genocide remains both narrow and broad, two criteria that render it difficult to apply in international law proceedings. The global nature of its application also creates both a strength and a weakness, for while the charge can be brought against anyone by anyone, it is subject to the same geopolitical dynamics as all international proceedings. Nevertheless, the term and its legal framework are important aspects of international law and governance.
The man who invented the word genocide was no stranger to it. As a young lawyer in the 1920s and 30s, Lemkin was influenced by the violence against the Armenians during WWI (now known as the Armenian Genocide) as well as the violent progroms inflicted upon the Jewish people of Europe. Lemkin managed to escape to the US at the onset of WWII, however, 49 members of his family would later be killed in the Holocaust. During his time in the US, Lemkin worked for the War Department, where he wrote a book analyzing Nazi atrocities titled Axis Rule in Occupied Europe. It was in this book that he introduced the term genocide. After the war, Lemkin served on the American delegation of the Nuremberg trials, where he advocated to include genocide in the indictments against top Nazi leaders as part of their war crimes, though it did not appear in the final convictions. After Nuremberg, ‘genocide’ was defined by the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, known today as the Genocide Convention.
There are a variety of mechanisms by which the crime of genocide can be tried today. At the time of the UN’s founding, the International Court of Justice (ICJ) was also created to settle disputes between UN member states. However, Cold War dynamics in the following decades stymied international law development and practice. In the 1990s, two ad hoc tribunals were created by the UN to prosecute genocide (among other things) within the Yugoslav Wars and the Rwandan genocide. Around this time, the international community recognized the need for a centralized and permanent institution to hear such cases. In 1998, a group of states developed the Rome Statute, which served as the basis for the International Criminal Court (ICC) and came into effect in 2002. The ICC tries four different types of cases: crimes against humanity, war crimes, crimes of aggression, and genocide. While the ICJ and the ICC are both able to hear genocide cases, they serve different purposes. The ICJ is a UN entity specifically intended to handle grievances between states, while the ICC is an independent criminal court of “last resort” to hold individuals accountable. Furthermore, due to the severity of the crime, genocide can also be tried in any national court on the principle of universal jurisdiction, though the specifics of this vary widely.
Simultaneously broad and narrow, genocide is both widely applicable and difficult to prove. In order for an event to legally be considered a genocide, its violence must have been intentional, against a national, ethnic, or religious group (either in whole or in part), and intended to invoke the immediate or eventual biological destruction of the group as such. In other words, there must be perpetrator intent (mens rea) to destroy the group through any measures calculated to bring serious harm or the prevention of reproduction. This includes, of course, murder, but also includes starvation, child displacement, and rape – essential any act intended to cause serious bodily or mental harm and to limit the particular group’s continuing existence. The persecuted group can be defined by any national, ethnic, or religious identities, which is determined by the possession of hereditary features, common language, or shared religious practices. Additionally, the group could be identified as such by themselves or identified as such by the perpetrator. Notably, other identities such as political affiliation, sexual orientation, and social class are not potential criteria for the identification of the group. Because these criteria are difficult to prove all at once, the ICC more often uses the charge ‘crimes against humanity,’ which has a similar definition but excludes the ‘group’ aspect, making it often easier to prove while carrying the same severity of punishment.
While the laws against genocide and crimes against humanity are seemingly rigid, several weaknesses remain in their application. The institutions created to enforce them are not properly equipped to halt genocides as they are happening. No matter how early the case is submitted, even emergent decisions can take months, while full genocide trials take years to prosecute. When a decision is finally granted, it is difficult to enforce against states, a common weakness of international law. States and leaders often choose to oppose or ignore international court directives in pursuit of their own policy agenda. One prime example of this is the US’s record of sanctions imposed against the ICC. The US has used sanctions to block investigations by the ICC firstly during the US invasion of Afghanistan, and more recently into Israel’s crimes in the Occupied Palestinian Territories.
Genocides and crimes against humanity did not end when those terms were codified. Despite their flaws, it is important not to lose sight of the importance of existing international laws and mechanisms to prosecute genocide. Institutions such as the ICC and ICJ are only effective when they are treated as such, which is why it remains essential that states recognise the courts’ rulings and legitimize their authority. Yet, the prevention and cessation of genocide will never be entirely dependent on the ICC or ICJ. Genocides are created by state leaders, but they are only made possible when broad sectors of society participate, whether willfully or through complacency. It therefore additionally remains the responsibility of the public to remain vigilant, recognising and mobilizing against rhetorics and acts of genocide, whether these be by their own governments, or others.
Edited by Madeline Chisholm
