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 Convention on the Prevention and Punishment of Genocide

The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations (UN) General Assembly on December 9, 1948. Within three years the Convention obtained the twenty ratifications required for entry into force. By 2003 some 130 states had ratified or acceded to the Convention. Accordingly, they are bound as a matter of international law to respect the obligations that it enumerates. But even for those states which have not, the key provisions of the Convention are widely accepted as a codification of customary legal norms that bind all states.

In his 1944 book Axis Rule in Occupied Europe, the inventor of the term genocide, Raphael Lemkin, deplored the shortcomings in the international legal protection of national minorities. He called for the development within international criminal law of an express prohibition on the destruction of minorities, which he named the crime of genocide. The Nuremberg Trial addressed the Nazi attacks on minorities, especially European Jews, but under the heading "crimes against humanity." The Nuremberg precedent was limited, because it applied only to atrocities committed during international armed conflict.

Within days of the Nuremberg judgment, in October 1946, India, Cuba, and Panama asked that the question of genocide be put on the agenda of the first meeting of the General Assembly, which was then in session. Critical of the failure of the Nuremberg Trial to condemn pre-1939 acts of the Nazi regime, they called on the General Assembly to condemn the crime of genocide, even when committed in peacetime. Also, noting that certain crimes of "relatively lesser importance," such as piracy and trafficking in drugs or pornography, were declared as international crimes, they submitted the same should be the case for genocide. This would authorize the courts of any country to punish the crime, even acts not committed on the territory or by the nationals of such a state, a concept known as universal jurisdiction. In December 1946 the General Assembly adopted a resolution condemning genocide as a crime under international law, and calling for the preparation of a treaty on the subject.

Over the next two years various specialized bodies within the UN labored over the text of the draft convention. The finished text contained a definition of the crime of genocide and made clear that no one—not even a head of state—was exempt. It specified that the crime could be committed in time of peace, and it imposed on states a duty to include the offense in their own national legislation. However, the original hope that the Convention would also recognize universal jurisdiction for genocide failed to obtain sufficient support. It specified that genocide should be punished before the courts of the country where the crime was committed or, alternatively, by an international criminal court. But an international court did not yet exist, and it was only in 2002 when the Rome Statute of the International Criminal Court came into force that the Convention became fully operational in this respect. The text also specified that disputes between states about their obligations under the Convention could be litigated before the International Court of Justice.

The terms of the Convention were a difficult compromise. At the time it was drafted, states were still extremely uncomfortable with the idea that serious violations of human rights, especially those directed against national, ethnic, racial, or religious minorities, committed within their own borders in peacetime might be deemed of concern to the international community. Most of the great powers still held substantial colonial empires, while in the United States racist laws enforced a form of apartheid on the descendants of African slaves, especially in the southern states.

The most important consequence of these issues was an exceedingly narrow definition of the crime of genocide. The General Assembly intended to confine the crime of genocide to intentional acts aimed at the physical destruction of a national, racial, ethnic, or religious group. Acts of cultural genocide, including what might be called ethnic cleansing, were quite intentionally excluded from the Convention. Efforts to include political, economic, and social groups within the Convention were also voted down.

Despite these shortcomings, the Convention on the Prevention and Punishment of the Crime of Genocide remained the preeminent treaty in international criminal law for more than half a decade. By comparison, no similar treaty was ever adopted with respect to the related offense of crimes against humanity. At Nuremberg the scope of crimes against humanity had been restricted by the requirement that they be committed within the context of a war. But the acts that they punished were much broader, including such broad concepts as "persecution" and "inhumane acts" that meant they could extend to a wide range of human rights abuses.

As a result, states were willing to accept a treaty like the Genocide Convention, with its narrow definition, but resisted any similar obligation with respect to crimes against humanity. Over the decades that followed adoption of the Convention, there were many attempts to stretch the definition of genocide so as to include human rights abuses that it did not, on a literal reading of the text, appear to cover.

By the 1990s the distinction between genocide and crimes against humanity became less significant. The Rome Statute, which applies to both genocide and crimes against humanity, imposed many of the same obligations on states that they had assumed under the Genocide Convention. This evolution was largely the result of developments in international human rights law. But although it had become less important in a legal sense to establish that an atrocity met the definition of genocide as set forth in the Convention, the word itself retained a terrible stigma and it remains important for many groups that are victims of human rights violations to claim that genocide has been committed.

The definition of genocide in the 1948 Convention has stood the test of time. In contrast with definitions of crimes against humanity and war crimes in various international legal texts, which have changed and, in a general sense, expanded over the decades, attempts to amend the text adopted by the General Assembly in 1948 have met with resistance. The statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda, as well as the International Criminal Court, reproduce the 1948 definition without any change. This argues strongly for the definition being a statement of customary international law, generally accepted by the international community. However, some of the other provisions of the 1948 Convention, such as the rejection of universal jurisdiction and the establishment of the compulsory jurisdiction of the International Criminal Court, cannot be said to correspond to international custom.

The Convention found little concrete application for many decades after its adoption. By the 1990s, however, it found a new dynamism. There were important prosecutions for the crime before the ad hoc tribunals for the former Yugoslavia and Rwanda, as well as several cases alleging genocide before the International Court of Justice. There has also been an increasing tendency to prosecute the crime before national courts. On the fine points of interpretation of the definition and of the Convention as a whole, considerable uncertainty remains. As long as violent ethnic conflict persists, the Genocide Convention will remain an important component of the international legal protection of human rights.