"THE PROBLEMS OF
With a rather turbulent history aside, it is simply bizarre how much the entire concept of what we now deem as “genocide” has changed. Of course, it is inevitable for any term to stay unaffected for a long time, as the time itself is bound to always change.
Yet one sudden thought has pushed me to remind myself of a universal caution: Each choice has a consequence. It can be either the one that steadily elevates someone or something to perfection or the one that inevitably develops issues with no means to an end.
THE CRIME OF GENOCIDE IS NOT AN EXCEPTION TO THIS CASE. THEREFORE, BEFORE DIVING
DEEPER INTO THE TWO UPCOMING ANALYSES, IT IS ESSENTIAL TO UNDERSTAND THREE MAIN
DILEMMAS OF GENOCIDE, WHICH USUALLY CONTRIBUTE TO HEATED DEBATES OR OUTRIGHT
The first semi-problem already presents itself in the definition of “genocide” portrayed in
the U.N. Convention on the Prevention and Punishment of the Crime of Genocide. It states
that “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” by various means.
The emphasis on “as such” is not at all random, as this requires that victims are to be targeted solely on the ground of their identity and are to be categorized as one of the 4 given groups.
Such a formulation entails the following: if, for instance, a state or criminal group were to organize as well as carry out mass extermination of cyclists or artists (because of their hobby or activity) and we cannot classify these groups as ones that are mentioned in the Convention, then the crimes against them would be classified as crimes against humanity – no matter the number of casualties or the clear genocidal intent.
(ALSO KNOWN AS “ETHNOCIDE”)
is the systematic destruction of traditions, values, language, and other elements that make one group of people distinct from another.
The first mention of this type of genocide was first published in Resolution 96, which called on
states to draft a convention to prevent genocide, and to specify that:
“… 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.”
As was mentioned earlier, Resolution 96 concluded with a call to create a draft for the Genocide Convention. Prepared by an ad hoc committee on genocide, a draft devoted an independent article to cultural genocide.
Nevertheless, the newly presented version exclusively protected the material products of the culture (and not the limitation of educational and cultural practices as Lemkin has initially proposed), which made the cultural genocide no longer associate as an integral part of genocide.
Instead, such a change would pose ethnocide as a less serious crime than physical or biological genocide, as it only protected the cultural commodity of a group.
THE EXCLUSION OF POLITICAL GROUPS IS ALSO REGARDED AS ONE OF THE KEY DIFFERENCES BETWEEN LEMKIN’S ORIGINAL CONCEPT AND THE DEFINITION PUBLISHED BY THE U.N.
is the deliberate physical destruction or elimination of a group whose members share the main characteristic of belonging to a political movement.
It is even more dangerous, as countries can conceal their actions with the color of legitimacy by announcing a "state of emergency" or "state of siege" justifying the application of special powers.
The drafters knew that such an inclusion would not have the support of the
THERE HAVE BEEN COUNTLESS DEBATES WITHIN THE PARTIES IN THE U.N. ASSEMBLY ON WHETHER TO INCLUDE THE PROTECTION OF POLITICAL GROUPS INSIDE THE GENOCIDE CONVENTION.
USSR, which have been carrying out systematic political persecution for
decades – thus establishing a threat of the whole convention not being
accepted at all.
In the end, the consensus was reached, namely that it would be dangerous to extend protection to political groups "in view of the frequent and inevitable changes of political opinion."
Nevertheless, such an elementary response does not establish proper reasoning to completely delete the concept from the Convention.
Even according to Beth Van Schaack’s article “The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot”:
“An examination of the travaux preparatoires of the Convention reveals the compromises - born of politics and the desire to insulate political leaders from scrutiny and liability - that can occur when political bodies attempt to reduce customary law principles to positivistic expression. The exclusion of political groups from the Genocide Convention represents one such compromise. No legal principle can justify this blind spot.”
The draft of the Genocide Convention also mentioned countless diverse forms of discrimination like harassment of women, drug trafficking, and other crimes that should have been criminalized worldwide.
With this, Lemkin and Global South wanted to introduce the principle of universal jurisdiction over a wide range of crimes, which was not only an immensely progressive idea for the 1940s, but for nowadays as well.
In conclusion, the drafting compromises that were mentioned in this block resulted in a legal regime that in some ways protects world leaders from being charged with the very crime that they may be most likely to commit: the forceful assimilatory practices established as an “internal policy” and the extermination of politically threatening groups.
This, however, resulted in the worst issue known to justice – global impunity.
russia’s despicable slaughtering of everything relating to the Ukrainian nation is immensely obvious to see for the whole world. But according to A. Dirk Moses,
“… THE UNGC SIGNATORIES DEFINED GENOCIDE NARROWLY SO THAT LAWYERS WOULD FIND IT MOST DIFFICULT TO DETERMINE RUSSIA’S — AND THEIR OWN — MODE OF WARFARE AS GENOCIDAL.”
That exact quote leads us to the second problem of genocide.
According to the U.N. Genocide Convention, genocide is a crime with double mental
elements: a general one that is simply called “general intent”, and an additional “intent to
A general intent relates to all objective elements of the offense definition (actus reus), while the ‘intent to destroy’ represents a special or specific intent (dolus specialis) emphasizing its voluntary or purpose-based tendency.
In general, determining and proving the intent to exterminate in whole or in part is well-known to be the most difficult element of proving the crime of genocide, mostly because the intention must be connected to the extermination of one of these four groups: national, ethnic, racial, and religious.
As was mentioned earlier, the cultural destruction, as well as an intention to simply disperse a group, do not suffice to be recognized as “a part of genocidal policies”.
GO FOR AN
as well as discouragement for lawyers to fight for a crime to be categorized properly, is unspeakably unjust and disrespectful to all those people, who have been exterminated by various horrific means to only then be forgotten as another “war crime”.
If the legal threshold is, indeed, “impossibly high” and not “appropriately high”, perhaps it is finally time to rethink that exact threshold.
PERHAPS IT IS TIME TO BROADEN THE MEANING OF THE TERM AND BRING IT MORE IN LINE WITH ITS ORIGINAL CONCEPTION…
The problem with
THE PUBLIC IGNORANCE OF GENOCIDE
Usually, when people say that genocide isn’t happening or hasn’t yet reached the bar, they possess the
most extreme archetypal in mind – the model of the Holocaust. And that is not at all coincidental, as the
original concept of genocide was also based around this horrific tragedy.
But even after other disastrous massacres have broadened the characteristics of the crime of genocide, people still hold onto the belief that only the Holocaust is “a true genocide”. That, unfortunately, establishes a rather problematic perception of the term.
For instance, White House National Security Adviser Jake Sullivan once said that
political representatives in the U.S
“ ... have not yet seen a level of systematic deprivation of life of the Ukrainian people to rise to the level of genocide.”
This rhetoric automatically points out that all murders and sexual violence witnessed since 2014 in the occupied regions of Ukraine and the horrid destruction seen nowadays are simply less grave and insignificant in the grand scheme of things if it doesn’t represent the previously mentioned model.
Of course, one has to also know that in modern international law there is no hierarchy of international crimes. That is, the crime of genocide is not more abysmal than a crime against humanity or crime of aggression, as these three categories are equivalent.
Yet this is not where the issue stands.
What troubles me in the first place, is that no major political leader truly explains this to the crowd and the fact that recognizing the genocide in any country is not only a juridical decision – it is a political one. This results in the willful blindness to the “foreign suffering” that contributes an unhealthy amount of insensitivity onto societies.