It hurts the same whether an atrocity is genocidal or not even though proving genocidal intent is almost impossible.

9 December 2024- Mukesh Kapila

First released 9 December at The National News

Every year, on 9 December, we honour the victims of genocide. The date marks the Genocide Convention’s adoption by the United Nations in 1948.  Seventy-six years on, is the Convention still fit for purpose?

That purpose, as stated in its title, is the “prevention and punishment” of a most heinous crime that has occurred since times immemorial in all cultures and continents. But it had no name until 1942 when Raphael Lemkin gave it one by combining the Greek word genos (race, tribe) and the Latin cide (killing).

Lemkin was outraged by Nazi terror against Jews during the Second World War that had, in turn, drawn confidence from the non-punishment of Ottoman brutalities against Armenians in 1915-16. It was obvious to the lawyerly Lemkin that to prevent a crime required, first, its recognition and then, accountability.

The first UN General Assembly in 1946 declared genocide a crime in international law. The pairing of punishment and prevention has been problematic ever since.  So has the definition of genocide.

Genocide concerns the targetting of a national, ethnic, racial, social, or religious group with the intention to destroy it in whole or part through killing, causing serious bodily or mental harm, preventing births within the group or forcibly transferring children out of it.

The bar to prove genocidal intent was set almost impossibly high.  This was a political compromise to avoid embarrassing the young UN by failing to agree its earliest reaction to the Holocaust.

The narrow definition suited powerful states not wanting their own misdeeds to be swept under the genocide label. For example, the Soviet Union’s policies that caused horrendous suffering (‘Holodomor’) in 1930s Ukraine.  The Europeans were not keen for slavery and colonialism to be categorised as genocidal – nor was the US its treatment of indigenous and  black citizens.

In particular,  ‘politicide’ or the destruction of political opponents – one of history’s commonest abuses – was excluded from the Convention. As also cultural destruction, such as the Taliban’s s destruction of the Bamiyan Buddhas and Islamic State’s wrecking of  ancient Syrian and Iraqi heritage.

Other common atrocities such as sexual violence, myriad tortures, and starving civilians, or denying them water and healthcare are violations of humanitarian law and war crimes, but not necessarily genocide. This causes divisive debates today as in Gaza or Sudan.

And so, the Genocide Convention was born feeble. So far, only 153 of 193 states have fully joined, not quite reflecting the universal shock to the “conscience of mankind” originally envisaged.

The Convention is further weakened through some 30 states including  US and China registering reservations, mostly around  accountability. That calls for states where genocides occur to prosecute and penalise perpetrators. It misses the point that jurisdictions experiencing genocide are unlikely to possess robust political will, strong constitutions, and independent judicial capacities.  Relevant here is Sudan, in the dock for the 2003-05 Darfur genocide which is being echoed today.

When the accountability challenge was initially identified, genocide – originally cast as a “moral crime” that shamed all humanity –  was downgraded to a dispute between the Convention’s  “Contracting Parties”, to be adjudicated at the International Court of Justice (ICJ). That happens rarely and only when a state is sufficiently bothered to invest political capital in complaining about another state.

Thus, prosecuting a crime that affronted all humanity became discretionary. When  Bosnia and Herzegovina complained to ICJ against Yugoslavia (and its successor, Serbia) in 1993, and Serbia and Croatia filed charges against each other in 1999-2010, there was little practical impact.

More recently, Gambia initiated an ICJ case in 2019 accusing Myanmar of genocide against Rohingya, as did South Africa in 2023 alleging Israeli genocide against Palestinians in Gaza.   Dispute over ICJ’s jurisdiction consumed considerable time, and its definitive rulings are expected to take several years. Justice delayed is justice denied, even in the unlikely circumstances that genocidal intents are proven.

In any case, the ICJ has no enforcement powers and it is arguable if  the Convention’s prevention objective through imposing specific measures has ever been realised. However, military or peacekeeping interventions in places such as Cambodia, Darfur and Rwanda may have blunted its impact although this failed spectacularly in Srebrenica.

Researchers have identified critical risks for genocide, such as governance deficits and social fragmentation, as well as triggering factors like discrimination and hate speech. But their predictive ability is poor.  Furthermore, the Convention’s genocide criteria are usually too difficult to satisfy while the crime is underway. And so, the task of genocide determination is left to courts, historians, archaeologists, and forensic pathologists, when it is far too late.

The ICJ’s further limitation is that it judges states while crimes are committed by individuals. Thus, while the once-nameless crime got a name, its perpetrators were rendered nameless under the state umbrella.   Sovereign nations are notoriously difficult to hold accountable and, without personal accountability, criminal enterprises  recur. Despite many solemn promises, “never again” becomes “again and again”.

To hold individuals accountable, the UN Security Council, established special tribunals for the former Yugoslavia (1993), Rwanda (1994), and Cambodia (2003).  Ultimately a  permanent International Criminal Court got underway under the 1998 Rome Statute. It made history by indicting a sitting head of state – then-president Omar Al Bashir of Sudan. But he remains a fugitive, as states – including some the 124 ICC subscribers –  are reluctant to co-operate.

The ICC has recently  indicted the leaders of Russia, Israel, Gaza, and Myanmar. But not for genocide, as that this is too difficult to prove legally. Instead, ICC has gone for lesser crimes against humanity and war crimes which are more likely to stick. But that will be tested only if the ICC apprehends its indictees, most of whom remain immune from arrest.

The  ICC policy of going for leaders is criticised while its chambers and detention cells lie empty.  Should it not also go for lesser criminals? Meanwhile,  the few convictions secured long after ground circumstances have changed, feed scepticism over the deterrence value of  justice and its contribution to peace and stability, even as atrocities multiply worldwide.

The glacial pace of international accountability has generated judicial activism within countries.  So, Canadian, British, and French lawmakers have recognised the treatment of China’s Uyghurs as genocide, and Germany has acknowledged its Herero and Nama genocide in colonial-era Namibia. The Yazidi genocide has been recognised by a dozen countries and France is prosecuting perpetrators in domestic courts.

National determinations of genocide – perhaps under the doctrine of universal jurisdiction for crimes against humanity – is useful only if it leads to practical remedies for survivors including enhanced protection, restitution and recovery. There is no systematic process for that and may, conversely, have victimisation or stigmatising consequences.

Meanwhile, national genocide determinations are angrily contested by those with opposing beliefs, as for example with historical Ottoman atrocities or the recent Armenian exodus from Nagorno-Karabakh. Thus, the recognition of genocide  – which should unite humanity against egregious immorality – causes further polarisation.

There is further frustration when groups such as Tigrayans in Ethiopia and Hazaras in Afghanistan feel neglected in the lottery of international attention. For them, as with Gazans, cries of genocide become a rallying call, even as their suffering worsens, and redress comes too late or never.

It appears that the original tightly-defined legal usage of genocide terminology is increasingly misused as a political tool or expression of social anger.  Playing fast and loose this way is not helpful in preventing or reducing high prevalent levels of atrocity.

Does that mean that genocide has lost meaning and the Genocide Convention should be jettisoned?  Of course not, because it still provides essential inspiration, however flawed the concept and imperfect its application. Besides, prevalent geopolitics mean that we are unlikely to agree a better norm.

For desperate victims, it matters little if their suffering from assorted atrocities -physical and mental – are considered genocide or not. They hurt just the same and, as it happens, the legal penalties for perpetrators  – genocidal and non-genocidal – are of similar magnitude.  So, would we do better by focusing more on realising the spirit of the Convention than on getting blinkered by its wording?

Ultimately, that is about making the world more humane. It requires less rhetoric around genocide per se and more effort on curbing its constituent cruelties wherever they occur.