Academic journal article International Journal of Punishment and Sentencing

What Distinguishes the Evil of Genocide and How Should We Respond to It?

Academic journal article International Journal of Punishment and Sentencing

What Distinguishes the Evil of Genocide and How Should We Respond to It?

Article excerpt

Abstract: Despite the Genocide Convention in 1951 pledging to abolish all cruel and unfair forms of torture and death to innocent civilians for religious, national and ethnic reasons, there has been an alarming denunciation from the international rules of genocide in recent years. In the light of the recent difficulties experienced by the people of Zimbabwe under the Zanu-PF party, and Saddam Hussein s trial and subsequent hanging for 'crimes against humanity' in December 2006, an increasingly pressing question must be asked: what impact is the Genocide Convention having over 67 years after its ratification?' This article provides a crucial examination of the history behind the laws on genocide and a detailed discussion of the current legal position of the Genocide Convention in today's international arena. A critical debate as to the very nature of genocide also aims to refresh the severity of the crime in our minds. What distinguishes the act of genocide from all other evil crimes in international law, and how do we deal with it in today's international climate?

1. Introduction.

'Genocide' loosely signifies an act committed with the intent to destroy in whole or in part a national, ethnic, racial or religious group. Many definitions of genocide exist, including the following by Chalk and Jonassohn: 'genocide is a form of one-sided mass killing in which a state or other authority intends to destroy a group.' (1) The word itself was thought up by Dr. Raphael Lemkin (1900-1959) in his work Axis Rule in Occupied Europe. (2) Genocidal acts continue to be committed despite the introduction of a Genocide Convention, (3) and the Courts and Tribunals which have jurisdiction over this crime have had to canvass the vague wording of the provisions themselves. But what distinguishes genocide from other crimes, and are we dealing with it successfully?

2. The development of genocide in international criminal law.

The idea that individuals can be personally liable for international crimes has been slow to develop. The International Military Tribunals at Nuremberg and Tokyo were ad hoc bodies to deal with the aftermath of World War 11. (4) The provisions of the Nuremberg Charter were affirmed by the General Assembly in 1946 in Resolution 95(1). (5) The International Law Commission (ILC) formulated the following crimes under international criminal law:

Principle 6:

The crimes hereinafter set out are punishable as crimes under international law: a) crimes against peace; b) war crimes; c) crimes against humanity. (6)

At this point, genocide was embedded within crimes against humanity. Lemkin proposed an offence of barbarity in 1933. (7) This included acts of economic extermination and brutal attacks on the dignity of individuals causing damage to the collectivity to which they belonged. His ground-breaking legislation proposed: 1) the punishment of acts aimed at destroying the life, bodily integrity, liberty, dignity and the economic existence of a racial, religious or social collectivity; 2) both instigators and accomplices to acts of barbarity carry the same punishment as the author; and 3) all perpetrators were to be prosecuted and punished independently of the place where the act was committed (this was keeping in line with the principle forum loci deprehensionis or 'universal repression' based on the principle that an offender can be brought to justice in the place where he is apprehended because he is regarded as an enemy of the whole international community). (8) Real efforts were made after World War II to develop substantive rules relating to crimes against the peace and security of mankind. (9) On December 13, 1946, the United Nations General Assembly unanimously adopted Resolution 96(I), which condemned genocide as a crime under international law and requested that the Economic and Social Council draft a convention. (10) Lemkin noted that the only obstacle at this point was to draft provisions into criminal law formulae based upon the specific criminal intent to destroy entire human groups. …

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