Ever since Israel began its war on Hamas in Gaza after the massacre the terrorist group committed on October 7th, 2023, prominent everyday voices have blamed Israel of committing genocide in Gaza.
December 9, 1948 is the day the United Nations General Assembly adopted the “Convention on the Prevention and Punishment of the Crime of Genocide”, exactly 75 years ago. The term “genocide” has been ascribed to a handful of events only, although many parliaments, academics and activists have advocated for its application on other heinous events as well.
To mark this day, we’re going to dig deeper into the origins of this term and when it can be used. To start, we’ll have a look at our prime reference for labelling an event a “genocide.”
Article II of the Convention states:
“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: 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; Forcibly transferring children of the group to another group.” Article III goes even further to state:
“The following acts shall be punishable: Genocide; Conspiracy to commit genocide; Direct and public incitement to commit genocide; Attempt to commit genocide; Complicity in genocide.”
At first glance, article II makes it seem like most mass atrocities are genocide although the key is not in the list of “acts” but in the introductory statement of the article. To determine if an event is a genocide, one must first determine “intent”; is the party accused of genocide intentionally on a deliberate mission to kill (destroy) a group of people, in whole or in part, for belonging to said group?
Without intent, the alleged atrocity might be a “crime against humanity”, a massacre, a war crime and/or ethnic-cleansing. These terms are not synonyms of genocide but could constitute a part of it, which doesn’t mean that the said act or campaign is a genocide.
And although genocide is meant to have a large number of casualties, numbers alone do not determine genocide.
“crimes against humanity” is defined as a systematic attack on a civilian population using methods such as murder, rape, imprisonment, enforced disappearances, enslavement, sexual slavery, torture, apartheid and deportation.
“Ethnic cleansing” is defined as “… rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area.” and “… a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas,” according to an interim report by a UN Commission of Experts mandated to look into violations in the former Yugoslavia. In fact, “ethnic cleansing” is not a legal term, it has not been recognized as an independent crime under international law. Defining “ethnic cleansing” is therefore mostly left to scholars of social sciences as opposed to international criminal lawyers.
Another article in the Genocide Convention to look at is Article IX which states:
“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 or for any of the 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.”
This article of the Convention stipulates that for there to be any repercussions, the ICJ is responsible to determine “intent” and declare an event a genocide. This is especially true for all crimes committed after its founding in 1945. That being said the International Criminal Court (ICC), whose Rome statute, which was signed by 120 countries but ratified by 60, is the main judicial organism that can prosecute mass atrocities such as “crimes against humanity” and genocide, war crimes and the crime of aggression. The ICJ and the ICC can only study and make a decision on any such event when all the states involved in the case in question have accepted the court’s jurisdiction. However, while the ICC prosecutes individuals, the ICJ settles disputes between countries and advises the UN.
There are academics, political scientists and historians, who consider an event a genocide but this cannot carry any weight unless it is for a historical event done in retrospect to the ICC (ie. the individuals who have committed the alleged atrocity have long died), the accusation of genocide is technically void.
To further understand the terminology of “genocide” we should also look at what the person who coined it meant by it. Raphael Lemkin, a Polish-Jew, coined the term to describe the massacre and attempted extermination of European Jewry by the Nazis. He was also particularly influenced by the massacre of the Armenians, which we now know as the Armenian Genocide, during his studies. In his 1944 book, Axis Rule in Occupied Europe, he introduced the word “genocide.” He says:
“By ‘genocide’ we mean the destruction of a nation or of an ethnic group. This new word, coined by the author to denote an old practice in its modern development, is made from the ancient Greek word genos (race, tribe) and the Latin cide (killing)…. Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify 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. 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”.
If you shrug your shoulders in displeasure with this reality, you are not the only one. In fact, in the field of genocide studies there is a rift between scholars who would want to expand the definition of “genocide” or make it easier to prosecute and others who are content with its restrictive nature.
To conclude, it is very important to determine intent first, to then be able to determine genocide. In essence, this is also technically a judicial term and especially post-1945 and subsequently post 2002, only a court through its tribunals can claim an event to be genocide. We must not rush to describe events with the most heinous and most disgusting accusations. Such accusations have grave ramifications on members and descendants of not just the alleged perpetrators but also the victims.
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