The Genocide Convention: its origins and interpretation.

• Author: Robinson, Nehemiah
• Position: International Conference in Commemoration of the Sixtieth Anniversary of the Negotiation of the Genocide Convention

Table of Contents Preface Part I. The Preparation of the Convention 1. Initial Action 2. Genocide before the ECOSOC 3. The First Draft 4. Action on the Draft 5. The Second Draft 6. Action by the General Assemble Part II. Interpretation of the Convention 1. The General Structure of the Convention 2. The Preamble 3. Article I 4. Article II 5. Article III 6. Article IV 7. Article V 8. Article VI 9. Article VII 10. Article VIII 11. Article IX 12. Article X-XIX 13. Article X 14. Article XI 15. Article XII 16. Article XIII 17. Article XIV 18. Article XV 19. Article XVI 20. Article XVII 21. Article XVIII 22. Article XIX Annexes Annex I Annex II Annex III Annex IV Annex V Annex VI Annex VII Annex VIII Annex IX Preface

The object of this study, the Convention on the Prevention and Punishment of Genocide, is the result of intensive work by the United Nations. The Secretariat, the Economic and Social Council, a special Committee set up for this purpose, the Sixth Committee of the General Assembly, and finally, the Assembly itself worked to formulate it. It became the first international treaty ever prepared by the United Nations to be proposed for signature and ratification by the States of the world.

The problem of Genocide engaged much public attention since the word was coined by Prof. Rafael Lemkin, the indefatigable champion of the Convention. During the last two years the question of formulating and setting in motion an international treaty to outlaw and punish this "heineous crime" commanded much interest the world over. Many organizations, especially those engaged in the protection of human rights, took a strong lead in this movement. The World Jewish Congress followed the evolution of the Convention from its very inception and submitted to the United Nations a number of suggestions and recommendations relating to the object, scope, and provisions of the various drafts.

There are divergent views on the import of the Convention. The Australian Prime Minister, Evatt, described its approval by the General Assembly as an "epoch-making event." On the other hand, the British Attorney General, Sir Hartley Shawcross, said that the Assembly should beware of deluding people into thinking that a great step forward had been taken through the adoption of the Convention, whereas, in reality, nothing had been changed. The latter point of view was sup" ported by Prof. J.L. Brierly ("The Genocide Convention, The Listener, London, March 10, 1949); according to him, "the real danger is if we allow it to go out in the world, as has been done with this Convention, that an important advance has been made when in fact nothing important has happened at all."

The present commentary strives to provide, in a totally detached way, a clue to the value of the Convention, for only on the basis of a detailed study can its importance be properly estimated.

Prof. Brierly's approach is what he calls "instinctively cautious and empirical." It is the right and duty of a lawyer to be cautious and empirical, but it serves no good purpose to proclaim in advance, on the basis of such an approach, the uselessness of the Genocide Convention. It would be much more proper to put it into practice and judge its usefullness on the basis of experience. But for this the Convention must first be set in motion, i.e. the necessary number of States must ratify it.

It was signed, immediately upon its approval by the Assembly by twenty governments, and several more attached their signatures subsequently. To date, however, it has been ratified only by three States: Australia, Ethiopia, and Norway.

N.R.

New York, July 1949

Part I. The Preparation of the Convention

1. Initial Action

   Action on Genocide in the United Nations began with the request Of the delegations of Cuba, India, and Panama (November 2, 1946) to the Secretary General to include in the agenda of the General Assembly an item on the prevention and punishment of Genocide. (1) The request was accompanied by a draft resolution, to be adopted by the Assembly, drawing the attention of the Economic and Social Council to this crime, inviting it to study the problem and prepare a report on the possibilities of declaring Genocide an international crime.

   The General Assembly discussed this question on Nov. 9 and 12, 1946, and referred it to the Sixth Committee, which, after discussion in the full committee (2) and its subcommittee No. 3, submitted to the General Assembly the report of its subcommittee (3) and a draft resolution on Genocide. (4) The General Assembly adopted on Dec. 11, 1946, unanimously and without debate, the draft resolution which be came General Assembly's resolution 96(I) (5). By this resolution, the General Assembly affirmed Genocide to be a crime Under international law and invited the Member States of the UN to enact the necessary legislation for the prevention and punishment of this crime. It also requested the Economic and Social Council to undertake the necessary studies with a view to drawing up a draft convention on the crime of Genocide to be submitted to the next regular session of the General Assembly.

2. Genocide before the ECOSOC

   On March 12, 1947, the Secretary General addressed a note to the Economic and Social Council (6) in which he suggested that the tasks of making studies and pre paring a draft convention could be entrusted either to the Human Rights Commission or to a special committee consisting of several members of the Council. He further stated that the Secretariat could be asked to prepare a preliminary draft.

   The ECOSOC dealt with this problem during its fourth session (7) and decided "to refer the question of the implementation of the General Assembly resolution on the crime of Genocide to the committee of the whole on social matters." This committee had before it a U. S. draft resolution (8), and a Cuban amendment suggesting that the preparation of the draft be entrusted to an ad hoc committee. On April 22, 1947, the Social Committee adopted a draft resolution (9), which was later also adopted by the ECOSOC, with a U. S. A. amendment. (10) The resolution of the ECOSOC (11) instructed the Secretary General to undertake, with the assistance of experts in the field of international and criminal law, the necessary studies with a view of drawing up a draft convention in accordance with the resolution of the General Assembly. It also instructed the Secretary General to submit the draft to the next session of the Council, after consultation with the General Assembly's Commission on the Development and Codification of International Law and, if feasible, with the Commission on Human Rights, and after reference to all Member Governments for comments.

3. The First Draft

   Following the instructions given by the ECOSOC, the Secretary General requested the Secretariat's Human Rights Division to draw up a draft convention on the prevention and punishment of Genocide. The preliminary draft was discussed with three experts invited by the Secretary General--Mr. Donnedieu de Vabres (Professor at the Law School in Paris), Professor Pella, Chairman of the international Penal Law Association, and Prof. Lemkin--as well as with experts of the Secretariat. Thereupon, the draft was amended sad expanded, and became the first draft of the Convention. (12)

   The draft consisted of 24 articles; three (Articles X, XVI, and XIX) had two different drafts and for one (Art. XVII) no proposition was put forward at that time. The draft contained definitions of "protected groups," of acts qualified as Genocide and of "punishable offenses"--i. e. punishable acts other than those contained in the definition of Genocide. It dealt with the persons liable to prosecution, the measures for bringing the culprits to trial, reparation to victims of Genocide, and a number of procedural questions relating to the coming into force of the Convention, its duration, renunciation, etc.

   Acts of Genocide, according to the draft, are divided into three main groups: "physical" Genocide (acts causing the death of members of protected groups or injuring their health or physical integrity), "biological" Genocide (restriction of births) and "cultural" Genocide (destruction of the specific characteristics of the persecuted group by Various means, including forced exile, prohibition of the use of the national language, destruction of books and similar acts). In addition, attempts to commit Genocide, acts preparatory to Genocide (for instance, studies and research for purposes of developing techniques of Genocide, setting up installation and other implements with the knowledge that they are intended for Genocide), direct public incitement to Genocide, conspiracy to commit acts of Genocide, and willful participation in such acts were also declared to be deemed crimes of Genocide. The draft also sought to punish public propaganda tending to provoke Genocide.

   The draft proposed to punish all persons responsible for acts of Genocide regardless of their status as ruler, public official or private person, without regard to command of law or superior order. The contracting parties would be held to implement the provisions of the Convention in their municipal legislation and to punish in their courts all offenders. They would have to commit persons guilty of Genocide for trial by an international tribunal, if they were unwilling to try them or extradite them to the competent authority or in case the responsible persons acted as organs of the State or with the support or toleration of the State.

   In order to prevent the commission of acts of Genocide, the draft proposed among other things the disbanding of organizations which participated in acts of Genocide. The contracting parties could also invoke the assistance of the organs of the UN in suppressing or preventing acts of Genocide.

   The draft contained two annexes, viz., a draft statute For an international criminal court and statutes for a special international court to deal with...