Glossary Term: Crime of Genocide

1 2 3

 1. Raphael Lemkin and the coining of the term genocide

The legal use of the term genocide is very closely associated with the name Raphael Lemkin (1900 – 1959). In memory of the massacre of the Armenians during the First World War, which remained almost entirely devoid of legal consequences, and with the Nazi policies of exclusion and annihilation in mind, Lemkin called for the creation of an internationally recognized penal law, based on which the perpetrators of the crimes committed in the name of National Socialism throughout Europe could be called to account. In response to Winston Churchill’s comment that the nature and scale of this crime, which was committed against sectors of the civil population in Germany and, in particular, in the occupied territories, made it a “crime without a name”, Lemkin coined a term to describe it; in 1944, he created the term “genocide” from the Ancient Greek genos (i.e. race, nation, tribe) and Latin caedere (to kill). He understood the term as referring to “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objective of such a plan would be disintegration of the political and social institutions of culture, language, national feelings, religion, and the economic existence of national groups and the destruction of the personal security, liberty, health, dignity and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.” (Lemkin, 1944, 79)

Lemkin’s definition of genocide is both narrow and broad in its scope. Narrow because it stipulated that only the destruction of national groups qualified as genocide, and broad because it deemed not only the physical destruction, i.e. murder, of the members of a national group as genocide, but also all acts targeting the permanent destruction of the foundations of life and culture of such a group. With regard to the course of a genocide, Lemkin highlighted the fact that it consists of two phases, i.e. “[…] one, destruction of the national pattern of the oppressed group; the other, imposition of the national pattern of the oppressor”. (Lemkin, 1944, 79)

 2. The London Agreement and the Genocide Convention

Had Lemkin had his way, a crime of genocide would have had to be included in the Charter of the International Military Tribunal which, as part of the London Agreement of August 8, 1945, specified the offences under international law for the prosecution and punishment of Nazi war crimes. However, the Allies classified the exclusion and annihilation measures implemented by the Nazis under the “crimes against humanity”, or more precisely under the crimes of “extermination” and “persecution on political, racial or religious grounds”. Due to the accessoriness of the crimes against humanity in the London Agreement, the two were not classified as separate offences but connected with the simultaneous perpetration of crimes of aggression or war crimes. Accessoriness was, however, eradicated in the Allied Control Council Act No 10 of December 20, 1945.

Due to the fact that, in the view of the then international community of States, the special nature of the crime of genocide necessitated specific legal measures that reflected the gravity and complexity of such acts, on December 11, 1946, the General Assembly of the United Nations (UN) commissioned the UN Economic and Social Council to develop a draft for a convention on the crime of genocide. Two years later, almost to the day, on December 9, 1948, the draft of a convention to be entitled “Convention on the Prevention and Punishment of the Crime of Genocide” was passed in the form of a resolution by the UN General Assembly with fifty-six votes in favor and none against. This meant that the offence was formulated for the first time in an instrument of international law.

Article I of the Convention clearly states: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.” According to Article II of the Convention, acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” are punishable as genocide. Protection is provided primarily to the physical and social existence of such groups; also protected is the human dignity of the victims. Objectively, genocide involves the committing of one of the individual acts specified in (a) to (e) of Article II of the Convention, i.e.: “(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”. The object of the crime is always the individual member of the group in question. In terms of its typical manifestation, however, the crime is usually carried out in the context of a systematic or large-scale attack on a group.

In addition to premeditation in relation to the individual acts comprising a crime of genocide, from a subjective perspective, all genocidal acts must also involve the intention to destroy completely or in part a national, ethnic, racial or religious group. Thus, it is not essential that the group or a part thereof be actually destroyed.

The acts punishable under the terms of the Convention are defined in Article III. First and, unsurprisingly, comes (a) “genocide” followed by “(b) conspiracy to commit genocide”, (c) “direct and public incitement to commit genocide”, (d) “attempt to commit genocide” and, finally, (e) “complicity in genocide”. Article IV of the Convention takes up a provision of the London Agreement by stipulating that: “Persons committing genocide or any other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.” Article V requires the “Contracting Parties” to take legislative measures to guarantee the application of the Convention and, in particular, “to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in Article III.” The question of jurisdiction is clarified in Article VI, according to which suspects should either “be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal”, the jurisdiction of which is recognized by the Contracting Parties. Finally, Article IX contains a further important provision which states that: “Disputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including those relating to the responsibility of a State for genocide or for any other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”

1 2 3