Genocide: the crime of the century; the jurisprudence of death at the dawn of the new millennium.

• Author: Lippman, Matthew

The twentieth century was terrorized by the terrible triad of nationalism,(1) communism(2) and totalitarianism.(3) There were considerable costs. Substantial portions of various ethnic, racial and religious groups were exterminated in the service of these higher callings.(4) In the last decade, the decline of communism and the transcendence of totalitarianism, rather than alleviating atrocities, has unleashed ancient animosities which threaten to further fracture and splinter the territorial integrity of many states.(5)

This article traces the international legal response to a century of global genocide. Initially, the development of the concept of genocide is discussed. Next, the doctrine's application and refinement in post-World War II war crimes trials is traced. In the next section, the drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide is sketched. This is followed by a discussion of the evolution of the law of genocide in the Eichmann trial, Vietnam War and in the decisions of the Yugoslav and Rwandan war crimes tribunals and International Court of Justice. The article concludes with various observations on the legal efforts to deter and punish genocide.

1. THE UNITED NATIONS

   1. The Need for a Binding International Convention

      In 1946, the General Assembly passed a resolution that proclaimed that genocide was the deprivation of a group's right to exist in the same fashion that homicide was the denial of an individual's right to exist.(6) Acts of genocide were viewed as having resulted in a great loss to humanity in terms of culture and other possible contributions.(7) This form of mass murder was described as constituting a shock to the conscience of mankind and was considered contrary to moral law and the spirit of the United Nations Charter.(8) The resolution observed that racial, religious, and political groups had been the particular target of genocide and had been destroyed in whole or in part, and that such atrocities were of international concern.(9) This text limited genocide to physical extermination, but stressed the resulting cultural loss to the human family.(10) The resolution also noted that such instances of mass murder were violative of moral norms that transcended national boundaries.(11) The resolution also suggested that the loss resulting from genocide did not merely lie in the number of individuals who were killed.(12) In addition, there was the suggestion that a group, like an individual, is distinctive and unique and has a right to exist and to prosper.(13) The eradication of a collectivity deprives the world community of an irreplaceable part.(14)

      In the main body of the resolution, the General Assembly affirmed that genocide is a crime under international law which the civilized world condemned and which carried criminal liability, whether committed by private individuals or public officials.(15) It was an offense whether undertaken on religious, racial, political, or any other grounds.(16) The latter was an unprecedented affirmation by an international body that genocide was an international offense regardless of the animus motivating the act.(17)

      States were invited to enact the necessary legislation for the prevention and punishment of genocide.(18) The Economic and Social Council was requested to draw up a draft convention that was to be submitted to the General Assembly.(19)

      In 1947, the Sixth Committee considered the merits of adopting an international convention on genocide. The Sixth Committee Resolution was resolutely rejected by the United Nations General Assembly.(20) A Cuban, Egyptian, and Panamanian draft, as amended by China, was adopted by a vote of thirty-four to fifteen with two abstentions.(21) General Assembly Resolution 180(II) provided, in part, that the Economic and Social Council should "continue the work it has begun concerning the suppression of genocide" and should "proceed with the completion of a convention."(22) A Chinese amendment attempted to accommodate the British and Soviet views by providing that the Council should take into account the work of the International Law Commission which had been "charged with the formulation of the principles recognized in the Charter of the Nuremberg Tribunal, as well as the preparation of a draft code of offenses against peace and security."(23)

      The International Law Commission was content to defer to the Economic and Social Council and the Sixth Committee.(24) The Commission's formulation of the Nuremberg Principles restricted crimes against humanity to acts undertaken during, or in connection with, a crime against peace and declined to define or discuss the relationship between crimes against humanity and genocide.(25)

   2. The Genocide Convention

      The General Assembly, at its 179th meeting on December 9, 1948, unanimously adopted the Convention on the Prevention and Punishment of the Crime of Genocide (the "Genocide Convention" or the "Convention").(26) The President of the General Assembly, Mr. H.V. Evatt of Australia, declared that "the supremacy of international law had been proclaimed and a significant advance had been made in the development of international law."(27) This had resulted in the recognition of the "fundamental right of a human group to exist as a group."(28) Most significantly, the protection of this right would be the responsibility of the United Nations rather than individual states.(29)

      The drafting of the Genocide Convention was strongly influenced by the memory of the Holocaust and the conflicts accompanying the Cold War.(30) A tension existed between the desire to condemn Nazi atrocities and the requirement that the proposed convention be sufficiently expansive to anticipate and prevent future acts of genocide.(31) The United States and the Soviet Union also opposed provisions that might be used to criticize or to condemn their conduct.(32) Member states also aspired to craft a convention against genocide that did not intrude upon their domestic prerogatives.(33)

      The Sixth Committee recognized the role of historic events in propelling the passage of the Convention. It accordingly determined that the preamble should recognize that genocide "at all periods of history has inflicted great losses on humanity" and that "in order to liberate mankind from such an odious scourge, international action is required."(34) The General Assembly accepted this text and concluded that reference to the barbarism of the Third Reich would detract from the Convention's primary purpose, which was to prevent and punish the repetition of state-sponsored genocide, whether committed in times of peace or war.(35)

      Article I provides that "genocide, whether committed in time of peace or in time of war, is a crime under international law which [the Contracting Parties] undertake to prevent and punish."(36) The Sixth Committee combined the text of General Assembly Resolution 96(I)(37) with the language of the Secretary-General's draft in order to form this article.(38)

      The phrase "in time of war and in time of peace" was inserted by the Ad Hoc Committee in order to clarify that, unlike the Nuremberg Charter, the Genocide Convention was not limited to acts committed during armed conflict.(39) The reference to genocide as a "crime under international law" was inserted as a compromise provision.(40) A number of delegates in the Ad Hoc Committee urged that genocide should be referred to as "a crime against humanity" in order to identify the proposed treaty with the proceedings at Nuremberg.(41) There was a consensus that, although genocide was a crime against humanity, this characterization went beyond the boundaries of the relevant General Assembly resolutions.(42) The United States expressed the reservation in the Sixth Committee that such a reference might divert the committee into a discussion of the entire range of crimes against humanity.(43)

      The last clause of Article I obligates the High Contracting Parties to undertake to prevent and to punish genocide.(44) The Sixth Committee shifted this language from the preamble to Article I in order to strengthen the obligation to prevent and to punish genocide.(45) This commitment is reinforced in the last paragraph of the preamble that provides "in order to liberate mankind from such odious scourge [of genocide] international cooperation is required."(46)

      Article II defines genocide as entailing the commission of any one of a series of enumerated acts that are committed with the "intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such."(47) These acts include killing members of the group,(48) causing serious bodily or mental harm,(49) deliberately inflicting conditions of life calculated to bring about its physical destruction in whole or in part,(50) imposing measures intended to prevent births,(51) and forcibly transferring children to another group.(52)

      This prefatory paragraph presents five central components: motive, intent, extent of destruction, premeditation, and protected groups.(53) Sub-paragraphs (a) through (e) then enumerate acts which, when undertaken with the requisite mental state, comprise the international crime of genocide.(54)

      The decision was made to omit a motive requirement.(55) The United Kingdom persuaded the Sixth Committee that listing motives would enable defendants to claim that their actions had been animated by motives other than those enumerated.(56) The killing of members of a racial, ethnic, national or religious group qua members of that group thus may be inspired by various motives, including national security and a desire to expel a group from a territory or state.(57)

      Genocide requires a specific intent to destroy a group "in whole or in part."(58) The phrase "in whole or in part" was inserted initiative. The Soviet Union as a result of a Norwegian initiative.(59) admonished that individuals might claim they lacked the specific intent to wholly...