By Evi Tsakali,
The crime of genocide, or the “most hideous of crimes” -as characterized by the International Criminal Tribunal for Former Yugoslavia and the International Criminal Tribunal for Rwanda- was conceived as a notion in 1944 by the Polish jurist, Raphael Lemkin. It was later defined by the convention 262A signed in Paris on December 9 1948, which was ratified by 152 member states -which draws our attention to the fact that the international community has not recognized the crime of genocide in its totality.
More specifically, in its second article, the Convention considers as genocide “one of the following actions that take place with a view of destroying a racial, ethnic, or national group”:
- Murder
- Serious psychological or bodily harm
- Imposing terrible living conditions in order to assure the destruction
- Taking measures to control the number of births
- Forced movement of children to other groups
However, the legal value of genocide seemed to be underestimated because of its classification under the general umbrella of crimes against humanity. Indeed, even though it was included in the memoranda and some of the advocates’ statements, the notion of genocide was not included at all in article 6 of the statute of the tribunals of Nuremberg (meaning, in other words, that the Nazis were not convicted of genocide).
The aforementioned sparked reactions and critique by the international community that resulted in resolution 96 being adopted by the United Nations’ General Assembly in 1946. Contrary to the Nuremberg trials, that resolution took into consideration how states can commit genocide even in times of peace, and thus established it as a crime itself. It is generally believed that the prohibition of genocide by the Convention could be considered customary law (jus cogens), however not all member-states share that point of view, despite being signatory parties to the Convention. A recent example was proven to be Turkey, with its open letter to the UN on the 16th of October this year, regarding its support towards Azerbaijan in the Nagorno Karabakh region.
Another interesting aspect of the issue is presented by the first article of the Convention related to the international obligation of each state to condemn and prevent genocide; and that is an obligation erga omnes. The most recent example is that of the case of the Rohingya genocide (International Court of Justice, Gambia vs Myanmar). The trial is still in the preliminary stages but Judge Xue Hanqin has already expressed the opinion that there is no actio popularis in international law, meaning that no state can bring another state to the ICJ in order for the latter to conform to international law, if it is not directly affected. Nevertheless, we still have time until the verdict so as to get the full picture.
After the ratification of the Rome Statute, which marked its creation, the International Criminal Court is competent for the judgement of cases regarding crimes against humanity.
References
«Το έγκλημα της γενοκτονίας στο διεθνές δίκαιο», Elsa Komotini (personal notes).
International Criminal Court. Available here.
