The genocide definition under International Law, is the intentional action to destroy a people (usually defined as an ethnic, national, racial, or religious group) in whole or in part.
The term was coined in 1943 by the Jewish-Polish lawyer Raphael Lemkin. The word genocide is the combination of the Greek prefix geno- (γένος, meaning ‘race’ or ‘people’) and caedere (the Latin word for “to kill”). Before 1944 terms like “massacre,” “extermination,” and “crimes against humanity” were used to describe the systematic killing of people.
The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) first came into force as International law on 12 January 1951. However it took nearly four decades for all the major countries to recognise the crime and legal genocide definition. Since the 1990’s the CPPCG has been actively enforced as International law by over 80 countries.
Article 5, 6 and 7 of the CPPCG cover the obligations of sovereign states that are parties to the convention, which include provision under Municipal Law: to provide effective penalties for persons guilty of genocide, persons charged with genocide must be tried by a competent tribunal in the territory in which the act was committed and genocidal acts shall not be considered as political crimes for the purpose of extradition.
The first case of genocide under the convention was that of Jean Paul Akayesu, the Hutu mayor of the Rwandan town of Taba. In a landmark ruling, a special international tribunal convicted him of genocide and crimes against humanity on 2 September 1998. More than 30 ringleaders of the Rwandan genocide have now been convicted by the International Criminal Tribunal for Rwanda.
Under international law and the legal genocide definition, two elements are considered. The general mental element and the element of specific intent (dolus specialis). The general element refers to whether the prohibited acts were committed with intent, knowledge, recklessness, or negligence “to destroy in part or as a whole”.
In 2007, the European Court of Human Rights (ECHR) noted in its judgement on Jorgic v. Germany, that the majority of legal scholars view “intent to destroy” to mean the physical-biological destruction of the protected group. But the ECHR also noted that a broader view, do not consider biological-physical destruction to be necessary, as the intent to destroy a group was enough to qualify as genocide.
The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole. The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The number of victims is just a starting point, evaluations must also consider the overall size of the group or if a specific part of the group is essential to its survival in addition to factors such as access to the victims by the perpetrators.
Criminal courts typically apply a mix of objective and subjective markers for determining whether a targeted population is a distinct national, ethnic, racial or religious group. Differences in language, physical appearance, religion, and cultural practices are objective criterion that may show that the groups are distinct. Courts also use a subjective standard that “if a victim was perceived by a perpetrator as belonging to a distinct group, then the victim should be considered as a member of the protected group”
While massacre-style killings are commonly identified and punished as genocide, the range of violence that is contemplated by the law is significantly broader and include: killing members of a group, causing serious bodily or mental harm to members of a group, inflicting on the group conditions of life calculated to bring about its physical destruction, imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group.
In 2008 the UN Security Council adopted resolution 1820, which noted that “rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide.”
Criticisms of the Genocide Definition
Some analysts contend that the definition is so narrow that none of the crimes perpetrated since the adoption if the convention would qualify. Typical objections include:
- The convention excludes targeted political and social groups.
- The definition is limited to direct acts against people, and excludes acts against the environment or cultural distinctiveness.
- Proving intention beyond reasonable doubt is extremely difficult
- UN member states are hesitant to single out other members or intervene, as was the case in Rwanda.
- There is no body of International law to clarify the parameters of the convention.
- The difficulty of defining or measuring “in part”, and establishing how many deaths equal genocide.
Genocide is Distinguishable from other Crimes
In his book Rwanda and Genocide in the 20th Century, former secretary-general of Medecins Sans Frontieres, Alain Destexhe, says:
“Genocide is therefore both the gravest and greatest of the crimes against humanity.”
The Stanton Report
In a paper called the “The Ten Stages of Genocide”, originally released as the Eight Stages of Genocide, presented to the US State Department in 1996, Dr. Gregory H. Stanton, a peer-reviewed academic on the subject of genocide, defines the Ten Stages of Genocide. Read the report.
Genocide Definition in a Christian Context
A report from July 2019, on support for persecuted Christians, released by the British Secretary of State for Foreign and Commonwealth Affairs, state that the number of countries where Christians suffer, rose from 125 in 2015 to 144, a year later.
The independent review prepared by the Bishop of Truro, state that in some regions the level and nature of Persecution, is arguably coming close to meeting the International definition of Genocide, according to the Genocide Convention, adopted by the United Nations.
Genocide Definition in a South African Context.
In South Africa, minority groups are particularly targeted, by hate crime and economic discrimination, encouraged by political leaders with communist ideologies, leading to large scale hardship and involuntary displacement of Christians.
Despite a mountain of evidence – South Africa is not even mentioned in the Bishop’s report.
Reference: United Nations Analysis Framework
Reference: Ten Stages of Genocide