Academic journal article Houston Journal of International Law

Genocide: The Crime of the Century; the Jurisprudence of Death at the Dawn of the New Millennium

Academic journal article Houston Journal of International Law

Genocide: The Crime of the Century; the Jurisprudence of Death at the Dawn of the New Millennium

Article excerpt

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.

I. THE UNITED NATIONS

A. 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. …

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