Ukraine is a victim of aggression – but is it a victim of Genocide?
Genocide is a legal term used by politicians, journalists, and ordinary people in their discussions to describe the atrocities caused by the different wars around the world from the Syrian War to the Yemeni War and recently in the Russo-Ukrainian conflict. Indeed, recently in a speech, the President of the United States, Joe Biden, stated: “Yes, I called it genocide…”. In addition, many people use this word to discuss current events, which could create confusion. This is why, aside from the terrible events, it is interesting to look at the context of the word “genocide” from a legal point of view.
Genocide is a word that combines the Greek word “genos,” which means “race, people,” and the Latin suffix “caedo,” which translates to “act of killing.” 1 Therefore, it is used to describe an act of killing a race or a group of people.
Genocide in International Public Law
This crime was codified for the first time by the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the General Assembly of the United Nations on December 9, 1948. This means that the crime of genocide was recognized as an international crime for the first time. It is defined by Article II of the Genocide Convention as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” and this article continues by mentioning the acts that can be considered genocide. 2
From this definition, it is possible to identify the elements that constitute the crime of genocide. Two elements define this crime:
- There should be an intention to do the crime.
- An act that translates this intention, has to be one of the acts enumerated exhaustively by the article.
Brief History of Genocide
This crime has been punished several times by special tribunals, such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. However, under the Nuremberg trials, genocide was not yet considered an international crime, this is why the German war criminals, including those responsible for the Holocaust, were punished on the basis of crimes against humanity. Before 1948, there was a certain confusion between the crime against humanity and the crime of genocide. In addition, in Bosnia and Herzegovina v. Yugoslavia, 3 the International Court of Justice considered that the state is responsible for acts of genocide, which means that states under the Genocide Convention should aim to prevent and punish acts of genocide. It was later in 1998, for the first time, that there was a conviction for acts of genocide by the International Criminal Tribunal for Rwanda, that is to say, for the first time when an individual was convicted of acts of genocide.
The victims of genocide are precisely targeted, they are not random victims. Indeed, the acts covered by the article are those that target individuals because they are a member of a national, racial, ethnic, or religious group, those acts aim to annihilate the group. This destruction can be measured either by quantitative criteria, such as by the number of victims in the group or by qualitative criteria, such as the status of the victims in the group, as determined by the Jelisic Case, International Criminal Tribunal for the former Yugoslavia, July 5, 2001.
In addition, it can be difficult to prove the intention to commit this crime. Indeed, additionally, to prove the act of the offender, it is important to prove that by doing this act, the offender was aiming to destroy a specific group. As for the International Criminal Court, the existence of the intent is studied case by case, depending on the elements of each case.
In conclusion, it is important to understand the legal context of the word “genocide” in order to avoid confusion when discussing current events.
, Convention on the Prevention and Punishment of the crime of Genocide, United Nations, Treaty Series, Volume 78, p. 277 .
Court Decisions & Jurisprudence:
, Appeal Chamber of the International Criminal Court, Courtroom III, Shahabuddeen (Presiding), Vohrah, Nieto-Navia, Wald and Pocar, The Prosecutor v. Goran Jelisic.
Johan D. van der Vyver, , Prosecution and Punishment of the Crime of Genocide, Fordham International Law Journal, Volume 23, Issue 2, Article 2