THE THORNY ROAD OF

“GENOCIDE” AS A

CRIME:

To truly understand the sudden shift from the original concept of genocide to how it is portrayed now, it is essential to dive deeper into how politics and shadowy agreements during the Nuremberg trials influenced the definition of “genocide” as well as comprehend the turbulent relations between Rafał Lemkin and the representatives of U.N. in general.

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“the darkest day” for the concept of genocide.

THE NUREMBERG TRIALS

Only a year after publishing “Axis Rule in Occupied Europe”, Lemkin was

finally given a chance to publicly put his ideas into practice. With his

eccentric persistence, he became an advisor to the Nuremberg Trial’s

Chief Counsel Robert H. Jackson, and thus guaranteeing his concept of

genocide topublication, however, the interpretation of the crime of

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genocide has a very broad approach be a part of the discussion.

 

Yet what was at first a promising day for the legal recognition of the “crime of genocide”, ultimately resulted in “the blackest day” of Dr. Lemkin’s life. 

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First, genocide was listed as a war crime and was joined by two other international crimescrimes against peace (issued for waging a war) and crimes against humanity (issued for attacks on civilians). In the indictment it was described as:

“The extermination of racial and national groups among civilian populations in occupied regions, in order to destroy particular races and classes of people and national, racial or religious groups”.

IT WAS CLEAR THAT NOT EVERYONE WANTED A TERM SUCH AS GENOCIDE TO EXIST. FOR THIS WOULD CONSTITUTE A HUGE PROBLEM FOR POWERFUL COUNTRIES TO PURSUE THEIR PERMANENT SECURITY AS THEY SEE FIT. AND THE CONSEQUENCES OF THIS EXACT POLICY WOULD NOT AT ALL BE DEALT WITH EVEN NOWADAYS...

RESOLUTION 96 

To say that Lemkin was outraged is an understatement. 

He was completely shocked that the Nazi’s actions committed until 1939 did not find their legal 

condemnation and that, in general, mass violence and mass acts of persecution against identifiable

groups were not punished by legal means.

 

Such a horrific ignorance from the participants in the process became the impetus for him to find his own allies from among the countries that fought primarily against colonialism to back up his concept of genocide, thus bettering the chances for this term to finally enter the international arena. And it worked.

Just a few days after the publication of the Nuremberg Trial’s decision in 1946, Lemkin was able to lobby the UN General Assembly for the adoption of a resolution condemning the crime of genocide. With this, Resolution 96 was conscripted, which for the first time mentions the concept of genocide in the practice of the United Nations Assembly. According to this declaration:

“Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.”

“Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part.”

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AT THE CONCLUSION OF THE

FIFTY-FIFTH PLENARY

MEETING, THE UN ASSEMBLY

RECOMMENDED THAT:

“..International co-operation be organized between States with a view to facilitating the speedy prevention and punishment of the crime of genocide, and, to this end, requests the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft convention on the crime of genocide to be submitted to the next regular session of the General Assembly.”

Petition to the Members of the U.N. General Assembly in Paris

Ironically, it was adopted immediately after the implementation of Resolution 95, which recognized the principles of international law documented in the statute of the Nuremberg trials. Such a sequence of these two resolutions undoubtfully implies that Rafał Lemkin wanted to oppose the overall glorification of the Nuremberg tribunal and the way it categorized international crimes. Knowing that Resolution 95 would not reference genocide (because it was not mentioned in the tribunal's decision) he lobbied for Resolution 96, which reflected the lacunae (or white spots of the Nuremberg Process).

Despite this Resolution being just a predecessor of the Genocide Convention, which later established the definition of genocide known today, one has to realize that this document in itself has marked an enormous shift in the history of international law. Without it, not only would there be no evidence for the Convention of 1948 that genocide was a pre-existing crime, but there would also be no immediate effect both in the drafting and eventual adoption of the Genocide Convention. 

I WOULD GO EVEN FURTHER TO STATE THAT WITHOUT THIS DECLARATION, THE CONCEPT OF GENOCIDE WOULD HAVE SIMPLY DISAPPEARED WITH LEMKIN’S PASSING, THUS ENABLING THIS METHOD OF CRIME TO FLOURISH WITHOUT APPROPRIATE LEGAL RECOGNITION AND RETRIBUTION.

THE GENOCIDE CONVENTION OF ’48 

After countless drafts and rewritings of the resolution to be presented in the next regular session of the General Assembly, the United Nations officially adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948, which ultimately classified genocide as a crime under international law as well as enshrined a narrowed-down version of Lemkin’s concept in an international treaty. 

It committed signatories to prevent and punish “acts committed with intent to destroy, in 

whole or in part, a national, ethnical, racial or religious group, as such.”

 

At its core, the choice of narrowing some abstract ideas and concepts down to organized chunks is an incredibly helpful thing to do, if done with careful consideration of all factors given by all the participants. In this case, however, Lemkin felt the same omission of his well-thought notions regarding the crime of genocide was happening just as it had during the Nuremberg trials. 

BUT WITH THE REASONING BEHIND THIS DECISION GIVEN IN THE FIRST CHAPTER, IT IS UNSURPRISING THAT AFTER THE ADOPTION OF THIS DOCUMENT CERTAIN STATES STILL MANAGED TO EVADE CONSEQUENCES, UNTIL THE FIRST INTERNATIONAL TRIBUNALS WERE ESTABLISHED.

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Nevertheless, one of Lemkin’s essential concepts did make it to the official publication of the document: the crime of genocide does not contain links to armed conflict. 

This correlates back to the message he published in his book “Axis Rule in Occupied Europe”, namely that violent practices against groups should be prohibited and should be subject to criminal prosecution regardless of whether they were committed in peacetime or in situations of armed conflict. 

Such recognition can also be classified as Rafał Lemkin’s legal payback for the injustice Nuremberg trials carried out on countless victims of the Third Reich’s discriminatory policies before 1939.

ICTY AND ICTR

During the period after genocide was legally established as a crime, the geopolitical situation of the

situation of the world was far from perfect. Countless regional and political conflicts between

numerous states after World War II were turning out to be more gruesome and appalling each year

onward, with rapid escalations in the world resulting in two of the most brutal historical events: 

The

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After showcasing shocking violations of numerous international principles and displays of horrific sufferings, the likes of which were not seen since World War II, both tragedies have for the first time made the international community establish two ad hoc International Criminal Tribunals to prosecute individuals responsible for the atrocities committed.

 

The International Criminal Tribunal for Rwanda was established in 1994 to judge those responsible for the Rwandan genocide (which resulted in around 500,000 to 662,000 Tutsi deaths) was the first process to interpret the concept of genocide in judicial practice. Overall, two main cases made massive changes in the spectrum of punishment for the crime of genocide.

ICTR

The International Criminal Tribunal for the former Yugoslavia was a U.N. court of law that dealt with war crimes during the conflicts in the Balkans in the 1990s, including the Srebrenica massacre, where more than 8,000 Bosniak Muslim men and boys in and around the town of Srebrenica were brutally executed – marking the peak of “ethnic cleansing” carried out by Serb nationalist forces.

ICTY

 
 

Article 6 (1):

A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute, shall be individually responsible for the crime.

Article 6 (3):

 

The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

According to the Article 6 (1) and (3) of the Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States, between 1 January 1994 and 31 December 1994:

 

In spite of how much these two tribunals contributed to strengthening the position of genocide inside the ICL, a broader interpretation of genocide (at least in the sense that extermination can occur not only by taking life but also by destroying cultural heritage and changing history) has unfortunately not yet been reflected in international law. 

THAT IN ITS OWN CONTEXT PRESENTS THE ISSUE MUCH LARGER THAN ONE WOULD IMAGINE – IT CREATES “THE PROBLEM OF GENOCIDE”

which results in the incomplete punishment of the perpetrators and the overall injustice from such an omission.