jueves, agosto 6, 2020

60 Years of the Genocide Convention

60 Years of the Genocide Convention

Many thanks to Dapo for inviting me to blog here at EJIL: Talk! – hopefully the blog will turn out to be as successful in the blawgosphere as the EJIL is in print. In the next couple of weeks I intend to write on various topics, first about certain issues regarding the the Genocide Convention, which has had its sixtieth anniversary last week, on December 9th.

On any account, the Convention is an extraordinary treaty, a historic pronouncement by states that the practice of exterminating human groups merely on account of their nation, race, religion or ethnicity, is something that can never condoned or resorted to. At the same time, the Convention is in many ways a deeply disappointing instrument.

One, rather obvious item of disappointment would be its record of compliance. How many genocides, exactly, has the Convention on the Prevention and Punishment of the Crime of Genocide actually prevented or punished? In the face of, say, Darfur, it is hard to escape the impression that the Convention has hardly been a success. Some authors have even conducted empirical studies suggesting that the Convention has contributed little or nothing to the actual compliance with the norms that it enshrines (see here, at 1981-1982).

For what it’s worth, I believe that this initial reflex of disappointment should be resisted. Before we ask ourselves whether the Convention does what it was supposed to do, we need to look at what it actually says. And it says very, very little. The definition of the crime of genocide requires the specific intent to (physically or biologically) destroy a national, ethnic, racial, or religious group, this enumeration of protected groups being exhaustive. The narrowness of this definition is such that it excludes the vast majority of acts that most lawyers, and by far the majority of the general public, think of as genocide.

I never cease to be amazed, for example, with the frequency with which the Extraordinary Chambers in the Courts of Cambodia (ECCC) are called the Cambodia Genocide Tribunal – even though the only crime for which the ECCC defendants are NOT being prosecuted for is genocide, because the killing of millions of ethnic Khmer by other ethnic Khmer on account of their social status does not meet the definition in Article II of the Convention. Bosnia? Not genocide, except in one municipality, Srebrenica, itself a borderline case. Darfur? Probably not really a genocide – see, for example, the Report of the UN Commission of Inquiry, paras. 508-512.

The only situation after the adoption of the Convention which legally unambiguously satisfies the definition of Article II was the 1994 genocide in Rwanda. If that is the case, as I believe it is, empirically assessing compliance with the Convention, especially through quantitative analysis like the study referred to above, becomes not only impossible but also non-sensical. My first disappointment with the Convention is thus not that it is not complied with, but that it contains so little to be complied with in the first place.

Though disappointing, the narrowness of the Convention’s definitions is not at all surprising. It was the most minimal, yet somewhat meaningful treaty that states could have agreed to in the aftermath of the Second World War. If the regime of Stalin, at the time busily murdering people in the millions, mainly on account of their politics, was nonetheless occupied in the drafting of the Convention and happy with the final product, there’s really little else to be said.

There are of course international crimes other than genocide. If the Cambodias, Bosnias and Darfurs of this world do not legally qualify as genocide, they are nonetheless war crimes or crimes against humanity, such as extermination or persecution. Persons who commit these acts are criminally responsible at the international level, and if the acts of these persons are attributable to states, they are internationally wrongful as a matter of state responsibility. Customary law, in other words, fills the gaps of the Convention.

That is true, but only to an extent, because the enforcement mechanism of the Convention – a compromisory clause instituting the jurisdiction of the International Court of Justice in Article IX – still applies only to genocide. More importantly, however, and this brings me to my greatest disappointment, the unique moral stigma that is attached to the crime of genocide (primarily in general public discourse, but also in legal scholarship), in reality does not extend to other international crimes, perhaps because it is only the word ‘genocide’ that successfully evokes the horrors of the Holocaust.

Perversely enough, victims of international crimes are often not satisfied with being victims ‘just’ of war crimes and crimes against humanity, they want to and they need to be victims of genocide. Coupled with the fact that the definition of ‘genocide’ used in public discourse is generally much wider that the legal notion of genocide, political manipulation with the concept is not only possible, but a virtual certainty (see here for a discussion of such manipulations in Bosnia and in Serbia and their intertwinement with litigation before the ICJ).

At any rate, these concerns aside, the Convention remains an instrument of great practical importance. Individuals such as Radovan Karadzic are being prosecuted for the crime, while the ICJ still has one more genocide case to resolve, that of Croatia against Serbia (a case that everybody knows how it will end, but that still continues to the benefit of politicians both in Croatia and in Serbia). In the next few weeks I will blog about state responsibility under the Convention, its territorial application and state succession to the Convention.

Finally, I would like to bring to the readers attention two great books that will be published sometime next year. First, Bill Schabas (who btw runs an excellent solo blog) will be publishing a revised second edition of his masterful book Genocide in International Law. Second, Paola Gaeta is editing an article-by-article commentary on the Convention, which will be published by OUP, and will also contain the collected travaux preparatoires to the Convention. Both works will certainly be indispensable for any further study of the Convention.

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