Monday, March 17, 2014

The Genocide Convention: Promise but Failure

By Kayla Molinaro
Kayla Molinaro is a third year student at Albany Law School. She is an Associate Editor for Albany Law Review and a teaching assistant for Professor Mary Lynch's Domestic Violence Seminar.
Kayla prepared this memorandum for Prof. Bonventre’s International Law of War & Crime Seminar, Fall 2013.

I.    Definition of Genocide 
Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) defines genocide as,
“any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”[1]

II. Genocide Convention and the International Community’s Duty 
Adopted in 1948, the Genocide Convention stated that states were obligated to prevent and punish those who commit genocide because it was a crime under international law.[2]  The Convention further addresses the duty and responsibility of a state when it comes to the punishment of actors of genocide whether they are officials or private individuals.[3]  Under the Genocide Convention, prosecution should take place in a “competent tribunal” and the UN can be called upon to take necessary action to prevent such genocide.[4] 

III.  Empty Promises and More Genocide 
As Sarkin and Fowler point out, the phrase “Never Again” seems to be an empty promise when it comes to genocide.[5]  Attempting to make good on that promise, all the UN has done is adopt the Genocide Convention, but an institution to fulfill these obligations has not been created.[6]  Since there was no place to be held accountable, or even help with the prevention of genocides, genocides continued and a deadly one occurred in Rwanda in 1994.
After years of bitterness towards one another, Hutu extremists completely massacred one million Tutsis and moderate Hutus within 100 days.[7]  Radio broadcasts supported these killings, and whole families were exterminated by machetes, knifes and grenades.[8]  Rwanda is said to be the “most efficient and fastest genocide seen in modern history.”[9]
If genocide is agreed to be an international crime, if countries have a duty to prevent genocide, and if we have all vowed to never let another Holocaust occur, how does an even greater genocide happen—better yet, how does it occur and still get no international response?

IV.    Excuses For Non-Intervention 
April 7, 1994 the killings occurred; April 12th the U.N. knew of the killings; April 13th the killings were characterized as “genocide”; April 19th Belgian forces left; April 21st U.N. began withdrawing forces; April 25th all were withdrawn except for a few.[10]  How is this intervention?
Bottom line is states should have taken action to prevent the killings, not run away from them.  Among the excuses for not intervening were lack of resources, no authorization or mandate to intervene, and lack of or inaccurate media attention.[11]  One could blame the media for not covering the genocide fully and accurately, but at the end of the day, countries adopted the Genocide Convention, and it is the states’ duty to fulfill those obligations.  And even though the concept of genocide is recognized, it still took the United States two months to even acknowledge Rwanda as genocide.[12]

V.          Prosecution
Finally, in November 1994, the International Criminal Tribunal for Rwanda (ICTR) was created for the purpose of prosecuting the crimes of genocide.[13]  Due to the lack of lawyers and judges, Rwanda created Gacaca tribunals, which lead to a number of convictions.[14]  Issues arose with these tribunals however because of the lack of formality and resources afforded to prosecute.[15]  The United States and other states have the duty to prosecute these crimes, as we have seen under the Genocide Convention.  This duty is further recognized that when the International Criminal Court (ICC) was created in 1998, with the purpose and goal of prosecuting war crimes, and with the hope that these crimes will not go unpunished.[16]  With the ICC, came the duty of 160 states to exert jurisdiction over those individuals who have committed crimes such as genocide.[17]  In 2006, the Security Council renewed the emphasis on a state’s responsibility to prosecute those responsible for genocide.[18]  

VI.       Constant Recognition But Constant Failure
Since the Holocaust, genocide has constantly been viewed as an international crime that needs to be prevented; yet when the time comes to act on it, every state drops the ball.  The concept of punishing individuals and intervening when genocide occurs has been recognized prior to 1994, and after 1994, so why was it not recognized in 1994?  Genocide will end when states fulfill their duty to prevent it from happening and prosecute it when it occurs, instead of making excuses.  Justice Jackson hit it on the head when he stated, “We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to law.”[19]

[1] Convention on the Prevention and Punishment of the Crime of Genocide, (Dec. 9, 1948), available at
[2] Jordan J. Paust, Genocide in Rwanda, State Responsibility to Prosecute or Extradite, and Nonimmunity For Heads of State and Other Public Officials34. Hous. J. Int’l L. 57, 64–65 (2011).
[3] Id. at 64.
[4] Id.
[5] Carly Fowler & Jeremy Sarkin, The Responsibility to Protect and the Duty to Prevent Genocide: Lessons to be Learned From the Role of the International Community and the Media During the Rwandan Genocide and the Conflict in the Former Yugoslavia33 Suffolk Transnat’l L. Rev. 35, 35 (2010).
[6] Id. at 37. 
[7] Id. at 40–41.
[8] Id. at 50–51.
[9] Id. at 50.
[10] Id. at 54–57.
[11] See generally id. at 51–60.
[12] Id. at 57.
[13] Paust, supra note 1 at 57.
[14] Id. at 58-60.
[15] Id.
[16] Id. at 65.
[17] Id. 
[18] Id. at 64.
[19] Id. at 85 (quoting Justice Robert H. Jackson at Nuremberg).