Naming The Crime:
Genocide is the combination of the ancient Greek words “genos” which means race or clan and the Latin suffix “cide” which means killing. Raphael Lemkin came up with this word after the then British Prime Minister Winston Churchill said in his speech, “that this was a crime without a name.” (1) According to Lemkin, Genocide signifies the coordinated plan of various different actions aimed at destroying the very essential functions of life of national groups with the purpose of annihilating the group itself. (2) He also added that Genocide basically has two phases:-
- destruction of the national pattern of the oppressed group and
- Imposition of national pattern of the oppressor. (3)
Lemkin’s definition of Genocide was adopted in 1948 by United Nations in the Convention on the Prevention and Punishment of Crime of Genocide which was enforced in 1951.
Genocide According To The Current Governing Statute
The Rome Statute of International Criminal Court was implemented affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation. (4) The current universally accepted definition of Genocide is mentioned in Article 6 of the Rome Statute and is as follows:-
“…any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.” (5)
The above said definition has some major loopholes because of which the legal consequences of perpetrating genocide remain undelivered against the accused/perpetrator of such a grievous crime. This essay evaluates the shortcomings of the above definition and proposes a more encompassing definition of genocide.
Understanding The Legal Loopholes In The Definition
Firstly, the definition of genocide excludes political and social groups from the list of protected groups. In its first resolution on genocide, the General Assembly had initially opted for a broader definition based on the notion of “denial of the right of existence of entire human groups”. (6) This has restricted the jurisdiction of ad-hoc Tribunals and International Criminal Court. As a result of it, other vicious crimes such as killing of thousands of homosexuals by Nazis because of their sexual orientation remain beyond the scope of this definition.
Secondly, the definition also does not recognize ethnic cleansing and sexual violence as Genocide. The Security Council had already highlighted that investigating ethnic cleansing ought to be an important part of the Tribunal’s work in its resolution establishing the Tribunal. (7) It was held by the Trial Chamber in Prosecutor v. Nikolic (8) that “the policy of ethnic cleansing took the form of discriminatory acts of extreme seriousness which show its genocidal character.” However, in the landmark case of Prosecutor v. Akayesu (9) it was also held that rape and sexual violence “constitute genocide in the same way as any other act as long as they were committed with the specific intent” that characterizes the crime of genocide. Systematic sexual violence against women of a particular group resulting in serious physical, psychological and mental damage can amount to genocide as they fulfill all the criteria of genocide.
Thirdly, as regarding the question of intent, the prevailing interpretation assumes that genocide is a crime of specific or special intent, involving a perpetrator who specifically targets victims on the basis of their group identity with a deliberate desire to inflict destruction upon the group itself. (10) However, it is proposed that in defined situations, culpability for genocide should extend to those who may personally lack a specific genocidal purpose, but who commit genocidal acts while understanding the destructive consequences of their actions for the survival of the relevant victim group. (11)
The author proposes the following definition for Genocide. This definition would run in concurrence with the definition as laid down in the Rome Statute and it widens the ambit of the crime of Genocide:-
“Any systematic or planned act committed by one person or more with the intent to kill, torture, destroy or cause any such violence, in whole or in part, resulting in the loss or impairment of the physical, emotional, psychological or mental state of attacked members who form part of a national, ethnical, racial, religious, political, social, cultural or any other group.”
Genocide is a crime which affects the lives of thousands who are marginalized by a dominant group merely for being from a different social milieu. This crime cannot be allowed to go unpunished on account of ambiguity in the definition of Genocide and it will be a serious failure on the part of the international justice delivery mechanism if the perpetrators of such a heinous crime go scot free after commission of such acts. Therefore, the need of the hour is to amend the definition of genocide and give exemplary punishment to those who are found, beyond reasonable doubt, to be involved in this crime.
(1) James T. Fussell, A Crime without a Name, http://www.preventgenocide.org/genocide/crimewithoutaname.htm.
(2) David Nersessian, Rethinking Cultural Genocide under International Law Human Rights Dialogue: “Cultural Rights”, Carnegie council for ethics in international affair, (Spring 2005) available at https://www.carnegiecouncil.org/publications/archive/dialogue/2_12/section_1/5139.html/:pf_printable.
(3) Dr. Nafeez Mosaddeq Ahmed, Colonial Dynamics of Genocide Imperialism, Identity and Mass Violence, Journal of Conflict Transformation & Security, April 2011 available at http://cesran.org/dergi.php?id=34.
(4) Rome Statute of the International Criminal Court, 2002. Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002.
(5) Ibid at Article 6.
(6) GA Res. 96 (I).
(7) SC Res. 827 (1993).
(8) Rule 61, Case IT-94-2-R61.
(9) Case No. ICTR-96-95-1-T at para 731.
(10) Alexander K. A. Greenawalt, Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation (1999), Columbia L. Rev., V. 99, pp. 2259, 1999.