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The Gravest Crime against Humanity

The word ‘genocide’ has been in headlines in international media. It first hit the headlines when, after the killing of more than 20 civilians in Bucha (Ukraine) – some with their hands and feet bound – Ukraine’s president Volodymyr Zelensky warned that Russia was attempting to commit genocide in his country.

Then, UK prime minister Boris Johnson also agreed with his assessment and said, somewhat imprecisely: “I’m afraid when you look at what’s happening in Bucha, the revelations that we are seeing from what Putin has done in Ukraine doesn’t look far short of genocide to me.”

In the wake of these serious allegations, the chief prosecutor at the International Criminal Court (ICC) in The Hague, the Netherlands, Karim Khan, announced an investigation into the allegations, declaring: “I am satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.”

Later, on 21 March, the Biden administration declared that Myanmar’s military committed genocide against the Rohingya minority. According to Secretary of State Antony Blinken, the US has seen evidence pointing to a clear intent to destroy the Rohingya, with reports of killings, mass rape and arson. He said the administration’s determination was based on a review by the US state department that included documents gathered by organisations like Amnesty International and Human Rights Watch, as well as independent research by the US.

More recently, on April 12, US President Joe Biden claimed that his Russian counterpart Vladimir Putin was committing “genocide” in Ukraine, where concerns are mounting over the killing of civilians and the prospects of a new Russian offensive in the country’s east. “Yes, I called it genocide because it has become clearer and clearer that Putin is just trying to wipe out the idea of being able to be Ukrainian and the evidence is mounting,” Biden said, adding that it would ultimately be up to courts to determine whether Russia’s actions against its pro-Western neighbour constitute genocide.

In the wake of the use of ‘genocide’ word multiple times, JWT readers would certainly want to know as to what exactly is genocide and how is it prosecuted. Here is a brief primer on ‘genocide’.

What is genocide?
Genocide is understood by most to be the gravest crime against humanity. It is generally defined as a mass extermination of a particular group of people. But behind that simple definition is a complicated tangle of legal concepts concerning what constitutes genocide and when the term can be applied.

On August 24, 1941, only two months after Germany’s surprise attack on Soviet Russia on June 22, British Prime Minister Winston Churchill delivered a live broadcast from London. After describing dramatically the barbarity of the German occupation in Russia, he concluded his speech saying, “We are in the presence of a crime without a name.”

A few years later, this ‘crime without a name’ finally got a name when as per the United Nations Office on Genocide Prevention, the word was coined, in 1943, by the Jewish-Polish lawyer Raphael Lemkin in his book Axis Rule in Occupied Europe (1944). He combined the Greek word “genos” (race or tribe) with the Latin word “cide” (to kill).

Lemkin’s efforts gave way to the adoption of the United Nations Genocide Convention in December 1948, which came into effect in January 1951.

The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) is an instrument of international law that codified for the first time the crime of genocide. Under this Convention, the crime is trying to destroy a national, ethnic, racial or religious group, in part or in whole. That includes not only mass killings but also forced sterilization, abuse that inflicts serious harm or mental suffering, or wrenching children of a targeted group away to be raised by others.

Article II of the Genocide Convention
Article II of the Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as:

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.
Genocide as an international crime

On December 9, 1948, with the signing of the United Nations-approved written international agreement known as the Convention on the Prevention and Punishment of the Crime of Genocide, genocide became an international crime, which signatory nations “undertake to prevent and punish.” Preventing genocide, the other major obligation of the Convention, remains a challenge that nations, institutions and individuals continue to face. This Convention entered into force on January 12, 1951, after more than 20 countries from around the world ratified it.

Elements of the crime
Article II of the Genocide Convention contains a narrow definition of the crime of genocide, which includes two main elements:
1. A mental element: the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”; and
2. A physical element: which includes the above-mentioned five acts.
Trying genocide
The International Criminal Court has the mandate to prosecute this crime. The ICC has jurisdiction over those who physically committed such crimes, as well as over persons who intentionally ordered the crimes, incited others to commit them, and assisted others in carrying out the crimes. The Court also has jurisdiction over military commanders or persons effectively acting as military commanders who failed to exercise control over their forces when they committed such crimes.
Previous cases

Three cases so far have met international courts’ threshold: the Cambodian Khmer Rouge’s slaughter of minority Cham people and Vietnamese in the 1970s, who were among an estimated 1.7 million dead; the 1994 mass killing of Tutsis in Rwanda that left 800,000 dead; and the 1995 Srebrenica massacre of some 8,000 Muslim men and boys in Bosnia.

The International Criminal Court previously issued an arrest warrant on charges of genocide against former Sudanese President Omar al-Bashir, but his trial cannot begin until he is in custody in The Hague.

Ongoing cases
The ICC, at present, is hearing two cases: one claiming Myanmar committed genocide against Rohingya Muslims, the other brought by Ukraine to argue that Russia is using accusations of genocide as a false pretext for invasion.
How to prove genocide
To establish genocide, prosecutors must first show that the victims were part of a distinct national, ethnic, racial or religious group. This excludes groups targeted for political beliefs.

Genocide is harder to show than other violations of international humanitarian law, such as war crimes and crimes against humanity, because it requires evidence of specific intent which, indeed, is the most difficult element to determine.

To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnic, racial or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group. It is this special intent, or dolus specialis, that makes the crime of genocide so unique. In addition, case law has associated intent with the existence of a State or organizational plan or policy, even if the definition of genocide in international law does not include that element.

Importantly, the victims of genocide are deliberately targeted – not randomly – because of their real or perceived membership of one of the four groups protected under the Convention (which excludes political groups, for example). This means that the target of destruction must be the group, as such, and not its members as individuals. Genocide can also be committed against only a part of the group, as long as that part is identifiable (including within a geographically limited area) and “substantial.”

Criticism on the statute
Some analysts say the definition of genocide is so narrow that none of the mass killings perpetrated since the treaty’s adoption would fall under it. The objections most frequently raised against the treaty include:

The Convention excludes targeted political and social groups
The definition is limited to direct acts against people, and excludes acts against the environment which sustains them or their cultural distinctiveness
Proving intention beyond reasonable doubt is extremely difficult
UN member states are hesitant to single out other members or intervene, as was the case in Rwanda

There is no body of international law to clarify the parameters of the Convention (though this is changing as UN war crimes tribunals issue indictments)
The difficulty of defining or measuring “in part,” and establishing how many deaths equal genocide

But in spite of these criticisms, there are many who say genocide is recognisable.
In his book Rwanda and Genocide in the 20th Century, the former secretary-general of Medecins Sans Frontieres (MSF), Alain Destexhe, wrote: “Genocide is distinguishable from all other crimes by the motivation behind it. Genocide is a crime on a different scale to all other crimes against humanity and implies an intention to completely exterminate the chosen group. Genocide is, therefore, both the gravest and greatest of the crimes against humanity.”

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