Sunday, February 23, 2014

Genocide: Cannot Be Just Another Crime Against Humanity

By Deirdre R. Barthel
Deirdre Barthel is a third-year law student at Albany Law School.  She earned a Bachelor of Arts degree with dual-majors: Russian Language and Russian & East European Studies, as well as a minor in History, from University at Albany.
Ms. Barthel holds multiple leadership roles at the law school, including: Chief Justice of the Rockefeller Chapter of Phi Alpha Delta, Director of Competitions of the Anthony V. Cardona ’70 Moot Court Program, Senior Editor for the Center for Judicial Process, and Senior Editor for International Law Studies.  She is also a competitor on the law school’s travel team for the Philip C. Jessup International Law Moot Court Competition, as well as the coach of the Jerome Prince Memorial Evidence Law Competition.
Ms. Barthel worked as a law clerk at the NYS Liquor Authority, for Judge Victor of the High Court of South Africa, at the NYS Inspector General’s Office, and at NYS’s Committee on Open Government.
This essay was prepared for Professor Bonventre’s International War & Crime seminar, Fall 2013.

Foremost, in an introduction to genocide, it is important to understand what is considered “genocide.”  The term was first used in 1944 by Raphael Lemkin because he “recognized the absence of any crime aimed to prevent and punish the murder and destruction of millions.”[1]

Relatively soon thereafter, the Genocide Convention of 1948 identified conduct that constitutes genocide in terms of actus reus and mens rea.[2]  The actus reus conduct is defined as to:
(a) include the killing of members of a racial, ethic, or religious group;
(b) cause serious mental or bodily harm to members of the group;
(c) bring about the group’s physical destruction in whole or in part;
(d) prevent births within the groups; or
(e) forcibly transfer children of the group to another group.[3]

Along with this activity, “the mens rea, or specific intent, of genocide is that the perpetrator committed one of the aforementioned acts intending to destroy the group in whole or in part.”[4]  This mens rea is most likely the reason why the forced displacement of persons does not comprise genocide.[5]  The physical location of people does not categorize them in the same type of “group” that was intended for recognition by clause (a) of the Convention.

Some consider genocide the “crime of crimes.”[6] Others commonly misconceive that genocide is a crime against humanity, or use the two terms interchangeably.  An understanding of three differences between the two atrocities rectifies this confusion.[7]

Genocide occurs when victims of violence belong to a certain group (defined by race, ethnicity, nationality, or religion); whereas crimes against humanity means a broader victim pool composed of any human beings.[8]  The second distinction is that genocidal violence means the destruction of a particular group (once again, determined by race, ethnicity, nationality, or religion) and crimes against humanity are not so motivated.[9]  Finally, genocide may be an isolated event, while crimes against humanity are recognized by extensive violence.[10]

There is also a legal difference between genocide and crimes against humanity.  Genocide has been clearly defined by the Genocide Convention. This language has been applied to situations over the decades and closely adhered to.[11]  Crimes against humanity are classified in the statutes of international courts or tribunals, which do not have the same controlling power as the Genocide Convention.[12]

Further, this Convention created a duty on states not to commit genocide, to prevent genocide from occurring or continuing, and to punish genocide.[13]  By contrast, such duties are not specifically imposed for crimes against humanity in any similar way.

With this understanding of genocide, the next step is to identify specific behaviors in history that have been deemed genocide.

Armenian people have argued for decades that when the Ottoman Empire, current day Turkey, moved onto their land and forced people from their homes, this was the first genocide the modern world knew.[14]  Several Western countries’ legislatures have signed acknowledgements that genocide was committed in Armenia[15] in 1915. Indeed, the highest Swiss court ruled that the actions constituted genocide.[16]

However, it is arguable that a political revolution along with the forced dislocation of people is not genocide as the Convention is written. On the other hand, the uncontested genocidal event in history is the Holocaust.  That violence occurred based purely on the religious, national, or ethnic traits of people in and around Nazi Germany.

Genocides seem to be occurring more frequently,[17] based on the fact that the crime was only recently defined.  During the Bosnian conflict in 1993, war-related events targeted people exclusively for their ethnicity or religion.  These crimes lead to an international discussion about the duty to prevent genocide.[18]

However, when violence erupted in Rwanda in 1994, the international community did not intervene.  These Rwandan events implicated genocide.[19] One group of citizens had purposefully hunted and destroyed another group of citizens with the goal of exterminating that minority ethnicity.

The conflict in Kosovo from 1998 to 1999 targeted groups of people in the same way. This triggered discussions about a duty to prevent genocide that nears the level of jus cogens.[20]

Most recently, history seemed to repeat itself. In 2003, the violence in the Darfur region of Sudan was identified as a conflict against ethnic Africans by the ethnic Arabic-Africans.[21]

Genocide has been clearly defined since the mid-20th century. Incidents have been identified in the decades since then.  Moving forward, the global community must agree on a method of preventing this terror. Moreover, there must be greater enforcement so that such horrors do not continue to repeat themselves through history. 

[1] Sirkin, Micol, Expanding the Crime of Genocide to Include Ethnic Cleansing: A Return to Established Principles in Light of Contemporary Interpretations, 33 Seattle U. L. Rev. 489, 494 (2010) (citing Raphael Lemkin, Axis Rule In Occupied Europe 79 (1944)).
[2] Antonio Cassese, International Law 373, 444-45 (Oxford Univ. Press, 2nd. ed. 2005).
[3] Id. at 444.
[4] Id. at 445. 
[5] Sirkin, supra note 1, at 490. 
[6] Sarah Mazzochi, Humanitarian Intervention in a Post-Iraw, Post-Darfur World: Is There Now A Duty to Prevent Genocide Even Without Security Council Approval?, 17 Ann. Surv. Int’l & Comp. L. 111, 128 (Golden Gate Univ 2011) (citing generally, William A. Schabas, Genocide in International Law: The Crime of Crimes 529 (Cambridge Univ. Press, 2nd. ed. 2009)).
[7] Sirkin, supra note 1, at 493. 
[8] Id
[9] Id.  
[10] Id.  
[11] Id. at 496. 
[12] Id.  
[13] Id.  
[14] Keskin Eren, Armenian Genocide “Yesterday and Today,” 4 U. St. Thomas J. L & Pub. Pol’y 31 (2010). 
[15] Harut Sassouian, Genocide Recognition and a Quest for Justice, 32 Loy. L. A. Int’l & Comp. L. Rev. 115, 117 (2010). 
[16] Sassouian, supra note 15, at 121. 
[17] Recent years is considered as the past twenty years.
[18] Mazzochi, supra note 6, at 123. 
[19] Alette Smeulers & Lotte Hoex, Studying the Microdynamics of the Rwandan Genocide, 50 Brit. J. Criminology 435, 435 (2010).  
[20] Mazzochi, supra note 6, at 123. 
[21] Sirkin, supra note 1, at 516.