Open Access Research Article
“GENOCIDE” (By- Rohit Kaushik (Advocate))
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Article Details
“GENOCIDE”
Authored By- Rohit
Kaushik (Advocate)
Punjab
& Haryana High Court
Abstract
The paper explains the meaning, definition and elements
of Crime of Genocide by discussing the history of genocide including the
examples of countries like Bosnia and Rawanda explaining the factors and
reasons which led to the happening of this crime in these countries and failure
of international community to prevent it. The paper explains the meaning of
different categories of persons falling under the definition of Protected
Groups by citing The U.N Convention on Genocide. The paper concludes that how
the study of Genocide makes us understand the processes through which millions
of people have suffered at the brutal hands of others.
The author has used Descriptive Research Methodology
technique in writing this paper.
Introduction
Definition & Meaning of Genocide
The term ‘genocide’ was coined by a Polish-Jewish lawyer
named Raphael Lemkin who formed the word by combining the Greek word for race
or tribe (Geno) with the Latin word
for killing (cide). In proposing this
new term, Lemkin had in mind "a coordinated plan of different actions
aiming at the destruction of essential foundations of the life of national
groups, with the aim of annihilating the groups themselves.”
“The deliberate and systematic destruction of a racial, political, or
cultural group”.
After witnessing the horrors of what would later become known
as the Holocaust, in which every member of his family except his brother was
killed, Dr Lemkin campaigned to have genocide recognized as a crime under
international law. However it is important to note at this point, that although
the terminology and criminal law of genocide is a product of the Holocaust,
genocide has occurred numerous times throughout history.
In 1948, the U.N. approved its Convention on the Prevention
and Punishment of the Crime of Genocide (“the Convention”). This Convention
establishes "genocide” as an international crime, which signatory nations
“undertake to prevent and punish.” It defines genocide as:
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;
Forcibly
transferring children of the group to another group.
The first draft of the Convention included political killings
but these stipulations were subsequently removed in a last-minute political and
diplomatic compromise. However, politicide
is increasingly being recognised by scholars and the international community
alike as being a crime against humanity. This is reflective of the constantly
evolving nature
of the law of genocide. It is important to consider that the
legal framework surrounding genocide is not static and thus one of the purposes
of this paper is to provide a platform from which you can develop your own
opinion of how genocide should be defined in law.
Protected Groups
According to the Convention, in order for a perpetrator to be
guilty of genocide, the people he intends to destroy must belong to one of the
following four categories:
A national group:
a set of individuals whose identity is defined by a common country of
nationality or national origin.
An ethnic group: a
set of individuals whose identity is defined by common cultural traditions,
language or heritage.
A racial group: a set of individuals whose identity is defined by
physical characteristics.
A religious group:
a set of individuals whose identity is defined by common religious creeds,
beliefs, doctrines, practices, or rituals.
Generally, people are born into these groups. Whilst some
individuals may change nationality or religion once cannot change their racial,
ethnic, or cultural group identity. Group identity is often imposed by the
perpetrators. Perpetrators of genocide frequently make group categories more
rigid or create new definitions which impose group identity on individuals,
without regard to people’s individual choices.
Elements Of The Crime Of Genocide
Under Article II of the Convention, the crime of genocide
will be considered committed if two distinct elements are simultaneously
present: firstly, the intent to destroy in whole or in part a national, ethnic,
racial or religious group as such (which is actually comprised of two separate
requirements); secondly, the execution of any of the prohibited acts against
any (member of the) protected group. In legal terminology, these are the “mens
rea” and “actus reus”.
General Intent: The ‘Intent To
Destroy’
The offence of genocide has two separate mental elements. The
first is the ‘general intent’, and the specific ‘intent to destroy’.
‘General intent’ normally relates to all objective elements
of the offence definition and has now been defined in international criminal
law by Article 30 of the Statute of the International Criminal Court (ICC) as
basically encompassing a volitional (intent) and/or a cognitive or intellectual
(knowledge) element. In other words the ‘general intent’ requirement of
genocide is satisfied if the perpetrator acts with the knowledge that his
actions are targeting a specific group.
This requirement actually distinguishes genocide from other
crimes against humanity, such as ethnic cleansing which aims at forcibly
expelling a group from a geographic area (by killing, forced deportation and
other methods).
Conduct
The second element of the crime of
genocide is the conduct itself, as listed in sub-paragraphs
(a) to
(e) of Genocide Convention Article II: It may also take the form of an
omission. In both cases, the acts must be committed either against the physical
or psychological integrity of the members of the targeted group, or against
their existence or biological continuity. It is important to observe at this
point that members of political, social, economic or cultural groups are
excluded from the purview of Article II of the Genocide Convention.
It is important to note that a single (individual) act
directed against one single member of the selected group, with the requisite
intent, may constitute genocide. This is because the intent to destroy a
protected group in whole or in part is the driving force behind the
perpetration of any of the following acts:
(1) Killing members of the group:
this means intentionally causing the death of a person belonging to any of the protected groups on the basis of that
membership;13
(2)
Causing
serious bodily and mental harm to members of the group:
this means inflicting serious injuries
to physical health (e.g. through mutilation and excessive use of force, beating
with rifle butts, wounds inflicted with machetes.) The perpetrator must act
intentionally, and his acts must be directed to at least one member of the
targeted group. In addition, causing ‘serious mental harm’ requires that the
impairment of mental
(3)
faculties be of the
nature that causes “grave and long-term disadvantage to the victim’s ability to
lead a normal and constructive life”. This implies that the harm must be
permanent or irreversible. Instances of acts that Article II (b) of the
Genocide Convention aims at include torture; interrogations combined with
beatings and/or threats of death, rape, or inhuman or degrading treatment;
sexual violence or sexual crimes (in that they cause both serious bodily and
mental injuries);
(4)Deliberately inflicting conditions
of life calculated to bring about the physical destruction of the group:
this subparagraph mainly criminalizes what is generally referred to as slow
death measures imposed on the group
(such measures do not immediately kill the victims, but they ultimately seek
their physical destruction on a long-term basis). Such measures may include
long-term forced labour or physical exertion; deportation; subjecting a group
to a subsistence diet; imprisonment in concentration and extermination camps;
or deliberate deprivation of resources indispensable for survival of the group
(such as food, medical services, clothing and shelter);
(5)Imposing measures intended to
prevent births within the group: such measures,
which must be forcible, threaten the
biological existence of the group by limiting or destroying its capability to
reproduce. Relevant incriminated conduct includes enforced sterilization,
forced birth control or restriction (e.g., sterilization and/or compulsory
abortion), segregation of sexes, prohibition on or erecting obstacles to
marriages. Rape committed with the purpose of changing or modifying the ethnic
composition of the targeted group is also included in this category of
measures. However, public policy measures of general application adopted by densely
populated countries (such as China or India) to lower the birth rate for social
or economic reasons do not reflect genocidal intent;
(5) Forcibly transferring children of
the group to another group: the word ‘forcibly’
may be interpreted to include actual
acts of forceful physical transfer or threats of force or coercion. The
intention behind such transfer is to destroy the group’s existence. The
assumption underlying this prohibition is that when transferred to another
group, children lose the cultural identity of the group to which they
originally belong. However, legally transferring children for any other reason
(social, economic, protection, etc.) would not violate the present provision.
In sum, when any of the acts listed above are committed with
the underlying intent to destroy a protected group in whole or in part, the
perpetrator thereof is fully liable for the commission of genocide.
Examples Of Genocide
BOSNIA
Background
In the aftermath of the Second World War, the
Balkan states of Bosnia-Herzegovina, Serbia, Montenegro, Croatia, Slovenia and
Macedonia became part of the Federal People’s Republic of Yugoslavia. After the
death of long time Yugoslav leader Josip Broz Tito in 1980, economic strife and
growing nationalism among the different Yugoslav republics threatened to split
their union apart. This process intensified after the mid-1980s with the rise
of the Serbian leader Slobodan Milosevic, who realised that stirring nationalist
passions amidst the Yugoslav upheavals was the most effective route to personal
power.
In 1991-92, Yugoslavia descended to a state of
open warfare. In the bloody aftermath of the independence declarations of
Croatia and Slovenia, the Muslim-dominated but multi-ethnic Bosnia-Herzegovina
found itself on the losing end of a zero-sum game; following the Slovenian and
Croatian secession example would inevitably result in further secession by
Bosnian Serbs to integrate ‘their’ zone of influence into Milosevic’s vision of
a Greater Serbia, whilst remaining within the federation meant conceding to
Serb domination.
In February 1992 Bosnia
declared its independence from Yugoslavia.
Struggle
for Control in Bosnia
Amidst the upheaval populations sought safety
and stability in ethnic exclusivity. Bosnia quickly became the most brutal
battlefield of the Balkan wars. In early May 1992, two days after the US and
the European Community recognized Bosnia’s independence Serb forces launched
the bombardment and siege of Bosnia’s capital, Sarajevo. The global
condemnation of the attack on Sarajevo and its cultural landmarks distracted
attention from the far greater scale of killing taking place in Bosnia’s
industrialized east.
In August 1992 the first stories of Serb-run
concentration camps in Bosnia broke in the Western Press. The harrowing images
of the Muslim (mostly male) victims, reminiscent of the Nazi concentration
camps, sparked the first mainstream application of the term ‘genocide’ to the
Balkans. The strategy was to ensure military victory and establish the borders
of the envisioned post-genocide, ethnically-pure Greater Serbia. The strategy
of
gender-selective killing of Muslim male
civilians was systematically implemented throughout the Bosnian war, primarily
though not solely, by Serb military and paramilitary forces. The sexual
assaults of women were central to the broader campaign of ‘cleansing’, and it
was in the Bosnian context that the term ‘genocidal rape’ was introduced to the
vocabulary of international criminal law, although Bosnia was not the first
instance of rape as part of a broader genocidal strategy.
RWANDA
From April to July 1994 approximately one
million people were murdered, primarily by machetes, clubs and small arms, in
the ‘most concentrated mass killing ever seen’. Sparked by the shooting down of
President Habyarimana’s plane as it approached the landing strip at Kigali
airport on 6th April the genocide spread throughout the country with staggering
speed and brutality as ordinary Hutu civilians raped and hacked their
neighbours to death. The international community had received numerous warnings
of impending genocide, and the UN ‘assistance mission’ (UNAMIR) had been
in-country since October 1993 to monitor the implementation of the Arusha
Accords that had ended the Habyarimana government’s civil war with the Rwandan
Patriotic Front, Rwandan Tutsi exiles in Uganda. When genocide broke out
well-armed international forces arrived, to evacuate whites. UNAMIR’s
commander, General Dallaire, illegally defied the Security Council order to
withdraw all but 270 UNAMIR personnel and managed to keep 470 peacekeepers in
country. Despite the weakness of their mandate, which prevented them from using
force to protect civilians, even these few managed to save thousands of lives
from the genocidal frenzy over the next few weeks.
Background
to Genocide
The issues behind
genocide in Rwanda in 1994 include:
· The country’s colonial and post-colonial history, particularly
the politicisation of Hutu and Tutsi ethnic identities, institutionalised
through the introduction of ethnically-defined identity cards, under Belgian
rule beginning in 1959.
· The authoritarian political system installed by Rwanda’s
post-independence rulers and the second-class status it assigned to Tutsis,
which motivated the formation of a rebel movement led by Tutsi exiles based in
Uganda, the Rwandan Patriotic Front (RPF).
· The
role of international actors, especially France, in financing, arming and
nurturing
Rwanda’s
Hutu extremist elite.
· The pervasive economic crisis facing one of the world’s poorest
and most density populated countries.
· The international factors governing humanitarian interventions
in the 1990s, and the impact that the Bosnian and Somalian interventions had on
thwarting international will to intervene in Rwanda.
Conclusion
Whenever one engages with the study of genocide there is a
sense of confrontation with the greatest scourge of human history. Genocide is
integral to our historical inheritance: all stages of human existence, in
almost all parts of the world, have experienced genocide at one time or another
and it is as prevalent today as at any other time in history. Yet understanding
and confronting genocide is a means of empowerment: in doing so one is coming
face to face with the processes through which hundreds of millions of people
have suffered at the brutal hands of others, the blind rush to hatred which
countless others have bravely resisted. Taking in account all the reasons for
this crime- The U.N has declared Genocide as a crime under its various
declarations and protocols. Many countries have also declared Genocide as a
criminal act which is punishable under their respective laws.
“To remain silent and indifferent is the
greatest sin of all.”
-
Elie Wiesel
References
1.
Jones Adam : Genocide : A comprehensive introduction
2. Power
Samantha : “A Problem from Hell” – America and the age of Genocide
3. Quigley
John : The Genocide Convention – An International Law analysis
4. Prunier
Gerard : The Rwanda Crisis – History of a Genocide
5. Melvern
Linda : Conspiracy to Murder , The Rwanda
Article Information
“GENOCIDE” (By- Rohit Kaushik (Advocate))
Author Name: Rohit Kaushik (Advocate)
Title: “GENOCIDE”
Email Id: rohit.kaushik5186@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/06/29
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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