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The Shackles of The Genocide Convention

Attempts at Intervention

By Thomas TomePublished about a year ago 12 min read
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The Shackles of The Genocide Convention
Photo by Annie Spratt on Unsplash

Following the events of World War II the countries of the world came together and agreed on a legal document. A legal document that would ensure the prevention and punishment of genocide. The Genocide Convention. Sadly due to state sovereignty, the document is useless. Since its creation, it has not once been employed due to different interpretations and definitions of the Genocide Conventions by the international court on how to prosecute the crime and dictate punishment, as well as the qualifications of a genocide and who is guilty of the crime.

Now a major problem with the employment of the convection is that the international court believes that the crime is only committed by one person and that it is the states responsibility to punish that person. The problem with that is the act of genocide often starts from the top down, take the Holocaust for example, granted it did occur prior to the Genocide Convention being written but it does serve as a decent example to the situation as to how the Genocide Conventions is interpreted by the court. It was planned out by the chancellor of Germany Adolf Hitler, a government official who had the manpower to conduct his killings. Any educated person would suspect that the state is responsible for this crime at this point as it was conducted with government funding and agents of the state and military figures. But Kevin Aquilina and Klejda Mulaj the authors of the article “Limitations in Attributing State Responsibility under the Genocide Convention.” point out that the “international court or tribunal has found that genocide has been perpetrated by an individual and virtually never by the state” (Aquilina 124). While Hitler was the man responsible for the planning and execution of the crime, his soldiers were the ones to do the deeds, they followed his orders. Both are equally guilty for the crime yet due to current interpretations according to the international court system, only a single individual is responsible for the crime. If that is the case the ones who did the killings, the ones who pulled the trigger, the ones who flipped the switch, the ones who lit the fires, are not guilty in the eyes of the court, only Hitler would be found guilty.

There in lies the problem, the court believes that the state, the government, the people in charge who often plan and start a genocide should be responsible to punish themselves, to come clean to the crime and are the only guilty party. It's not correct to think that, in most local courtrooms any and all accomplices to a crime are punished in part or equally to the main criminal. By claiming that the state, or the single person who organized and order the genocide to be the only guilty party lets people who violated human rights, and international law to walk free as if nothing ever happened. Murders get to walk free due to how the international court chooses to interoperate the Conventions. However there are some cases when rogue factions of people often start a genocide due to the disdain of the government. Leaving the state clean of all crime, and innocent, but even then the state doesn’t intervene in the crime. They let it go on, and do nothing to stop it. This is at the fault of the government and court as even then they can’t decide on a single way to look at the Convention. The state didn’t commit the crime, but neither did a single individual, to them it's impossible to place blame on anyone, and instead just label a person as a wanted criminal and never place a label to the crime, they never openly call it a genocide.

Now there have been genocides in which the government didn’t exactly get their hands dirty, one being the Darfur genocide as it was committed by a mercenary group. But at the end the government is the one supplying the means to commit such a crime, they paid the mercenaries to burn villages and poison wells and kill any and all Darfur people. Some have suggested that an “amendment to Article V that made direct reference to the concept of state responsibility for genocide, apart from that of the individual” (Aquilina 125) is the way to go. As article V is mostly aimed at persecuting the individual or the guilty party. Article V of the Genocide Convention states that “contracting parties under take to enact, in accordance with their respective constitutions, the necessary legislation to give effect to the provisions of the present convention, and in particular, to provide effective penalties for persons guilty of genocide or any of the other acts” (Congressional Digest). In the basic English the contracting parties, is often a singular person or a group enlisted by the government or some figure to commit the crime of genocide. Article V is aimed at a person owning up to the crime, which is a mistake as most humans refuse to own up to their own mistakes and wrong doings. By leaving it up to the consciousness of a moral corrupt individual the crime of genocide will never be prosecuted. The victims of the crime will never know justice and any survivors will never know what happened to their families. People will be left knowing only pain and suffering because the criminal was never punished. All because in their mind they did nothing wrong at all, they are innocent.

Some people have also found that the way the Convention is defined is what causes it to go unused. Peter Quayle author of “Unimaginable Evil: The Legislative Limitations of the Genocide Convention” has found that the “convention only extend protection to carefully picked groups and who have suffered persecution through history” (Quayle 367). Of course that was a simplified phrasing of his original words but the meaning is the same. Some believe that the Convention is to protect only a select few due to their treatment through history. However, that is not the only issue Quayle mentions. To paraphrase he also mentions that “originally the crime of genocide could only be accused during armed conflict” (Quayle 366). These definitions have long since been abandoned but are still in the minds of the judges and leaders because, they think that genocide can only be done during times of war, and that can be a false statement. A genocide doesn’t need a war to be labeled as such, a genocide is the mass killing and displacement of people of a certain group. In a hypothetical situation a Native American reservation is on a piece of land rich with oil. The American government could attempt to move Native Americans to a different piece of land, but they won't move. If the American were to do it by force, it can be labeled a genocide. A genocide doesn’t need special requirements to labeled as one, it can happen at any point in time.

Now some argue that there is nothing wrong with the Genocide Convention, in fact they argue that the purpose of the Genocide Convention isn’t to prevent genocide. Instead it exists to prevent other issues, such as war. According to George Finch in Vital Speeches of the Day wrote that “the purpose of the Genocide Convention is to assist in preventing future war” (Finch 447). When wars are fought it's the people who start it, they are the cause whether it's due to ideology, religion, hatred or anything else. By having a document prohibit genocide it eliminates one of the reasons for war, which is a step closer to peace. Some also argue that the Genocide Convention in its current state is to dangerous and often an unpredictable to enforce when a genocide is committed due to international relations. Due to the nature of genocide, and it being such a loaded topic many world leaders and international court rooms feel that its best to avoid labeling the crime due to the repercussion that could ensue.

Take the Holocaust for example, following the end of the war and the punishment of the German people the country was split off into two different territories leading to two different forms of government and violations to human rights in one of them. This decisions to punish the crime of genocide inevitably lead to the Cold War and unstable international relations between the US and the USSR for decades. Then take the Bosnian genocide, when the crime was labeled and the perpetrators punished the country of Yugoslavia was dissolved into smaller nations. When the crime is labeled and punished it has the power to change the world and not for the better as it can often lead to further conflicts and problems within the world which Finch points out in his writing.

Some tribunals and international courts also believe that the crime of genocide can only be labeled as such once certain conditions are meet due to article II of the Genocide Convention which states that “genocide means any of the following acts committed with intent to destroy, in hole or in part, a national, ethnical, racial or religious group” (Congressional Digest). For a genocide to be a genocide a group must be destroyed or displaced. Some courts also believe that “a genocide can only be committed during times of war” (Aquilina) as it was originally stated in the Genocide Convention according to Kevin Aquilina and Klejda Mulaj the authors of the article “Limitations in Attributing State Responsibility under the Genocide Convention”.

However those reasons are not a valid excuse for the atrocity of genocide to continue in this world. People will cover up the one solid fact as to why they don't intervene and that is because people cant agree on a definition of genocide. Devrim Aydin author of “The Interpretation of Genocidal Intent under the Genocide Convention and the Jurisprudence of International Courts.” wrote that due to the “lack of a national or international definition of ‘genocide’ and judgments, such atrocities are still politically and historically arguable” (Aydin 425). While the Convention offers a single definition, its to what a genocide is. The Convention offers a definition that can be interpreted by others due to the vagueness found in article II. Article II states that “genocide means any of the following acts committed with intent to destroy, in hole or in part, a national, ethnical, racial or religious group” (Congressional Digest). However it also states that a genocide is “killing, causing serious bodily or mental harm, deliberately inflicting horrible conditions, prevent births, and transfer children from one group to another” (Congressional Digest). When taking those exact measures into account, any government leader could argue that if they were to relocate a certain group from one section of the country to another, say due to some natural disaster; it's for protection and the safety of one's people. While another would argue that its an attempt at genocide if that group was one the receiving end of mistreatment prior or if they were a minority with in the nation.

These constant changes in interpretation and the lack of agreement on a single definition and meaning is what causes the lack of use of the Genocide Convention. What one deems to be a part of genocide another would deem it to be nothing at all. Most of these different definitions and interpretations are mostly done to protect their own assets and international reputation, due to the nature of the topic of genocide. But some have also argued that genocide is only a crime when a person admits to committing it. Now to paraphrase Devrim Aydin writer of “The Interpretation of Genocidal Intent under the Genocide Convention and the Jurisprudence of International Courts.” he wrote something along the lines that “the reason can be broken down into two concepts, the material or objective element and the mental or subjective element. Therefore, if genocide is to be labeled as a crime, the perpetrator must admit to both the material and mental element” (Aydin 429). Yet another mistake that limits the Convention. Humans by nature lie, for better or for worse so why expect someone to feel guilty for committing a mass murder. Anyone who commits this crime won’t care, they did it because they hated a certain aspect of one particular group of people. They did it because they wanted to solve a problem. People who commit this crime have no regrets, so why expect them to admit to it, why expect an attack of guilt. This is a big weight that holds the Convention back, and it should not be possible. If the purpose of the Convention is to punish the crime of genocide, than should the criminal openly admit to committing the crime and there is evidence to incriminate them.

If the Genocide Convention was created as a way to determine what a genocide is and how to punish the crime, than why has the document never been utilized? It is because it is left up to interpretation on how a genocide should be handled, and what qualifies as a genocide. A genocide is a genocide so long as one group is being either killed, or forcibly displaced from their homes, their land during a time of war or during a time of peace. The state is responsible, the people are responsible, and the individual is responsible.

Due to the many different interpretations and definitions assigned to the Genocide Convention is has gone unused since its creation. It can be linked to the repercussions of prosecuting the crime of genocide, whether the individual or the state government is to blame, or the writing of the document itself. Some believe the document to be fine, but the severity of the crime and the punishment can lead to more problems and strain international relations. But the crime of genocide should be punished and the Genocide Convention should not be shackled down by different interpretations or definitions.

Works Cited

Aquilina, Kevin, and Klejda Mulaj. “Limitations in Attributing State Responsibility under the Genocide Convention.” Journal of Human Rights, vol. 17, no. 1, Jan. 2018, pp. 123–139. EBSCOhost, doi:10.1080/14754835.2017.1300521.

Aydin, Devrim. “The Interpretation of Genocidal Intent under the Genocide Convention and the Jurisprudence of International Courts.” Journal of Criminal Law, vol. 78, no. 5, Oct. 2014, pp. 423–442. EBSCOhost, search-ebscohost-com.camdencc.idm.oclc.org/login.aspx?direct=true&db=edshol&AN=edshol.hein.journals.jcriml78.65&site=eds-live&scope=site.

Congressional Digest, vol. 29, no. 12, Dec. 1950, pp. 296–320. EBSCOhost, search-ebscohost-com.camdencc.idm.oclc.org/login.aspx?direct=true&db=pwh&AN=12177617&site=eds-live&scope=site.

Finch, George A. Vital Speeches of the Day, vol. 16, no. 14, May 1950, p. 444. EBSCOhost, search-ebscohost-com.camdencc.idm.oclc.org/login.aspx?direct=true&db=pwh&AN=9764099&site=eds-live&scope=site.

Quayle, Peter. “Unimaginable Evil: The Legislative of the Genocide Convention.” International Criminal Law Review, vol. 5, no. 3, Jan. 2005, pp. 363–372. EBSCOhost, search-ebscohost-com.camdencc.idm.oclc.org/login.aspx?direct=true&db=edshol&AN=edshol.hein.journals.intcrimlrb5.24&site=eds-live&scope=site.

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About the Creator

Thomas Tome

Hello, my name is Thomas, and I love to write. I have a lot of ideas for stories and poems and I want to start sharing them with other people and hopefully get a bit of a following. FYI I am a huge nerd as well.

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