An Examination of the United Nations Genocide Convention

This essay provides a detailed analysis of the United Nations Genocide Convention, adopted in 1948. It examines the convention's strengths, including its jus cogens status and the wide discretion granted over the interpretation of Actus Reus, allowing for the prosecution of indirect acts of genocide such as internal displacement and rape. The essay also discusses weaknesses, particularly the difficulty in proving specific intent, a critical element for prosecuting genocide. The analysis includes examples from the former Yugoslavia and the child removal policies of the Australian government. The conclusion highlights the convention's significance as a tool for preventing and punishing genocide, while acknowledging the challenges in its implementation.

Running Head: UNITED NATIONS GENOCIDE CONVENTION
UNITED NATIONS GENOCIDE CONVENTION
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Author Note

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Introduction
The United Nations Genocide Convention had been adopted in the December of 1948 by
the United Nations General Assembly. The purpose of adopting the convention was give effect
to what has become the foundation of International law. It can be mentioned that the significance
of the convention was the remarkable progress made in the protection and the acknowledgement
of the human rights in the world (Meierhenrich 2014). However, despite its implementation and
the achievement in reducing the heinous crimes against humans and protection of human rights
there still is room for exploitation (Quigley 2016). This convention excludes certain groups from
giving protection of human rights. In reality the convention failed to bring criminal charges of
genocide on the German Nazis who were responsible for the holocaust.
At the Nuremberg Trial the German Nazis had been found guilty of various offenses such
as conspiracy to wage wars, crimes against peace and crimes against humanity but they were not
guilty of committing genocide as the word till then had not been legalized. It can be stated that
the there were underlying political factors which influenced the Nuremberg Trial (Sadat 2016).
Although the Nuremberg Trial aimed to punish the German Nazis for the horrors of committing
the holocaust, there was also the intention of the European powers to delegitimize the Nazi Party
who sought to influence future German Regimes and provide the framework for an allied
dominated United Nations. However the Nazi victims of Holocaust were not avenged by this
Convention.
Discussion
Unique strengths of the Genocide Convention

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The two unique strengths of the UN Genocide conventions will be discussed in this essay. Firstly
any person who brings any action under the provisions of the convention will benefit from
entailing the jus cogens statuts.
Jus cogens status
The jus cogens status is a Latin term which refers to overriding and fundamental
principles of international law. Any derogation from such principles is not permitted by the law
(Tasioulas 2015). It can be stated that the convention places non derogable obligations on the
states to comply with the requirements of this convention. The act of Genocide can be defined as
one of the major and heinous crimes under the International law which is identified to have the
jus cogens status (Shaw 2015). It is to be mentioned that the norm of jus cogens affect all those
persons who constitute the members of the international community. It can be stated in
accordance with the principles of the Barcelona Traction case that all states have the general
obligation to prevent any acts of genocide. The jus cogens status of Genocide provides many
distinct benefits to those who seek to bring actions against those who contravene the provisions
of convention (Quigley 2016).
The first advantage of the jus cogens status is that all states have the primary duty to
bring justice to any person who violates the provisions of the convention. As opined by M Cherif
Bassiouni, states have the duty of prosecuting and extraditing those persons who are suspected of
genocide or culpable genocide including the head of such member states. The second advantage
of the convention is that the states cannot grant impunity to any person who has been alleged to
have committed genocide by the operations of statutes of limitations. The states also have the
obligations to punish those who are found to be guilty of committing genocide by the courts.

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This duty of the states is non derogable. Such duty also extends to states who have not ratified
the convention. The recent example of the application of this convention was the identification of
the Rwandan massacres as genocide. Initially the Americans had been unwilling to identify
correctly the Rwanadan Massacres of 1997 as genocide as it had been assessed by the
Americans, that characterizing the massacres as genocide would impose a burden upon the states
to punish all the perpetrators of the crimes (Magnarella 2018). However, article VIII of the
convention clearly states that the states have the duty which is non derogable to perform acts
which aim to prevent genocide from occurring ex ante. It is mandatory that any judicial action
which is brought under the convention has to e respected by the states.
Wide discretion over the convention’s requirement of Actus Reus
Under Article II of the convention it has been provided that the courts have the discretion to
construe the facts of the genocide (Ohchr.org 2018). This can be considered to be a unique
strength of the convention. It is important to assess the element of Actus Reus as the acts of
genocide are not simply related to those acts which cause death of the members of an ethnic
community; genocide also causes indirect destruction of the ethnic group which can be punished
by the courts by the application of the provisions of this convention (Lippman 2017). Article II
of the convention prohibits any acts which are committed with the intention to destroy partly or
wholly any national, religious or ethnic groups (Ohchr.org 2018). . Examples of such act involve:
a) Mass killing of members of ethnic group
b) Causing serious mental and bodily harm to the members of ethnic, religious or national
groups.

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c) Deliberately inflicting on the group adverse conditions of life with the intention to cause
physical destruction wholly or partly.
d) Imposing any measure to restrict the births within that particular group.
e) Transferring forcefully the children of a particular group to another group
It can be stated that killing the members of any group as provided in subsection (a) of Article
II of the convention corresponds to more direct acts of genocide in which people are killed in
large numbers due to their affiliation and association with a particular racial, ethnic or religious
group. However any act other than that of killing individuals directly which has been provided in
subsection (a), other acts which are provided in subsections (b)-(e) constitute culpability for
homicide. The rape of women, refugee crisis and forceful impregnation of women in the Former
Yugoslavia can all be termed as acts of culpable genocide although such acts did not involve
direct physical killing of individuals. Thus it can be argued that the greatest strength of this
Convention to identify and recognize acts which cause destruction to an ethnic community
indirectly.
Potential Acts of Genocide: Internal Displacement of Civilians
It can be charged in accordance with the provisions of the Genocide Convention that the
mass internal displacement of the residents of Yugoslavia can also be termed as an act of
genocide. Between the time period of March 1998 and June 1999 an estimated one and half
million Albanians, who were residents of Kosovo had been displaced internally and expelled
from their homes. In Croatia and the Muslim regions of Bosnia an estimated number of six
hundred thousand Serbs had been expelled and displaced from their homes (Weiss 2016). It can
be stated that the mass displacements of the civilians were a part of the ethnic cleansing process

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which aimed to create an ethnically homogenous population in the aforementioned areas. Thus
under Article II subsection (c) of the Convention it can be stated that persons who were
responsible for the internal displacement of the members of the ethnic group could be accused of
committing Culpable Genocide as this section clearly prohibits deliberate infliction of adverse
conditions of life on any group with the intention of causing destruction to that particular group
wholly partly. In the former Yugoslavia, the residents and civilians who had been displaced
from their homes were denied access to the basic essentials of life such food, water, shelter and
clothing. Even after the civilians and the citizens had been replaced in the country, they found
that they were still deprived of the basic essentials of the life. Their homes had been acquired and
occupied by new families whose rights were given more priority by the regulations and the laws
of the state.
Potential acts of Genocide: Rape to force impregnation
One of the particular strengths of this convention is that it can be used to charge the acts
of Rape for the purpose of causing force impregnation in the former nation of Yugoslavia and
identify such acts as culpable genocide. It had been stated by MacKinnon (2017), raping women
to forcefully impregnate them was one of the most heinous forms of crimes and grossest form of
human rights violation. Raping women and for forcefully impregnating them has been
historically perceived as a tool of genocides. This act can be said to be a contravention of
subsections (b), which prohibits any acts which cause serious bodily or harm and subsection (d)
which prohibits imposition of measures to restrict the births within the ethnic community.
Weaknesses of the Convention
The specific intent

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It can be mentioned that to bring actions on any person for committing genocide it is essential to
prove the intention behind committing such act. In spite of having all the strengths as discussed
above this convention has been invoked widely for the purpose of prosecuting genocide which is
culpable in nature (Totten 2017). The first time an action that had been brought for contravention
of provisions of the convention and for committing genocide against any individual was the case
of Prosecutor v Akayesu ICTR-96-4-T, Trial Chamber 1, 2 September 1998. The reason the
Convention is not invoked extensively by the prosecutors before the tribunals is due to the
difficulty faced by the prosecutors in finding evidence which indicates specific intention of the
person committing genocide (Shaw 2015). Another reason why this convention is not invoked by
the prosecution has been illustrated by David Kader.
It has been argued by him that the ineffectiveness of the actions under this convention
cannot be blamed on the inherent defects of this convention, but the reluctance of the
government to take actions necessary to prevent such Genocides. As in the case of the former
Yugoslavia, the issue that was critical to be identified was not whether the Genocide had been
committed but whether there was specific intent of destroying an ethnic race wholly or partly as
provided in Article II. Another example that can be given to illustrate the difficulty in
implementing the provisions of this convention was the child removal policies of the
Commonwealth government to remove mixed blood Aboriginal children from their families
which is a contravention of subsection (e) of Article II. However to date conclusive evidence has
not been found which indicates the specific intent of the government to commit genocide on the
Aboriginal Australians.

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Conclusion
Thus to conclude, it can be said that the United Nations Genocide Convention has both strengths
and weakness. This convention still leaves to the United Nations to decide at what point mass
murder can be called genocide. This convention had been formed as a response to the Holocaust
and to save humanity from facing genocide. Thus in this context it can be said that the
convention did not acknowledge the minorities who had been victims of the holocaust except the
Jews as the Jews made up the majority of the victims. The strengths of the Genocide Convention
for Prevention and Punishment of Crime of Genocide is often reduced significantly by the
difficulty in meeting the requirement of proving the intention to commit genocide as provided in
Article 2 of the convention. It is worth mentioning that this convention is the most powerful
instrument that is available to any prosecutor who wishes to bring actions and punish those who
are responsible for committing heinous crimes and atrocities against humanity in a global
community.
Two of the unique strengths of this convention are that the crime of Genocide is associated with
jus cogens status and that scope of the convention is wide enough to punish any act which may
not directly or immediately cause atrocities on a particular ethnic group but is believed to
indirectly lead to destruction. However the aforementioned convention is generally not invoked
by the prosecutors despite having such strengths as it has been argued that it is very difficult to
find evidence which points out that specific genocidal intent as required by Article 2 of the
convention.

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