The term genocide comes from the Greek word genos, which means race or tribe and the Latin word cide, which means killing . The word genocide only appeared in the indictment for Nuremberg trail, neither in its Charter nor its judgment. For this trial, the crime of genocide has actually been prosecuted as a part of Crime against Humanity. It acquired autonomous significance as a specific crime in 1948, when the UN GA (United Nations General Assembly) adopted the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 . It is impossible to analyse the whole Convention in an essay.
Therefore, even if one can recognize some positive points of this text, such as the punishment of acts related with Genocide, the prohibition of such a crime regardless of whether it is perpetrated in time of war or peace, the responsibility of the perpetrator as well as the State engaged, we will concentrate our topic on the definition of Genocide given by the Convention in its Article II . This provision is replicated in Article 4 (2) of the ICTY Statute, Article 2 (2) of the ICTR Statute, and Article 6 of the ICC Statute. The definition given in the Convention has also become part of customary international law and a norm of jus cogens .
Indeed, the influence of this definition justifies that one wonders about the efficiency of the Convention. As the text has been unable to prevent new Genocide after its entry into force, one can call its effectiveness into question.
[...] It is particularly problematic that the definition be so restrictive whereas the UN General Assembly adopted a resolution during its First Session to affirm that genocide was a crime committed on “religious, racial, political, or any other grounds”[6] It seems however that States refused to include political groups under the protection of the Convention because they considered it would allow interference in the domestic political affairs of States, thereby undermining their national security[7] Without the recognition of political, cultural and economic Genocide in the Convention, this later “confined itself to the physical destruction of groups to which persons in most instances belong “involuntarily” and often by birth”[8] 3 The membership's question Another problem arisen by the definition of groups is that the membership of a group is essentially a subjective concept. [...]
[...] This enumeration constitutes a problem for the efficiency of the Convention as it bound, without reason, the definition of Genocide in a restrictive list. As predict the future horrors of criminal are impossible, confine Genocide's definition in a restrictive enumeration close obviously the door to a certain number of prosecutions. The specific intent: to destroy in whole or in part 1 The intent of destruction It appears fundamental to note that Genocide do not require the actual extermination of group. [...]
[...] International Criminal Law, Oxford Edition page 103 The fact to “deal with political opposition”, even destroying a group, is still not considered as a Genocide Such as its political, religious or intellectuals leaders, its young fertile women See for instance Eichmann, decided in 1961 by the District Court of Jerusalem and subsequently by the Israeli Court. The “crimes against Jewish people” incorporated actually al the elements of the definition of genocide. The Turkish Military Tribunal Investigating the Armenian Genocide did not finish its work Currently, nothing supports the desire of indigenous peoples to make destruction of culture short of physical destruction of such protected groups an act of genocide. [...]
[...] International Criminal Law, Oxford Edition page 67 Text available at http://www.unhchr.ch/html/menu3/b/p_genoci.htm Genocides means: of the following acts committed with intent to destroy, in whole or in part, a national ethnical, radical or religious group, as such: Killing members of the groups Causing serious bodily or mental harm to members of the groups, Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in parts Imposing measures intended to prevent births within the group, Forcibly transferring children of the group to another group” It is now widely recognized that customary rules on genocide impose erga omnes obligations and may not be derogated from by international agreement. A strange effect of this customary norm is that its definition of Genocide is wider that the definition of the Convention (notably because of its extension by jurisdictions and by the UN GA). It appears therefore that non Member States of the Convention are more widely linked by the norm of jus cogens than the Member States of the Convention itself. [...]
[...] Impossibility to prosecute a political genocide This is one of the main gap of the text which does not protect groups from where people are free to enter or to leave whereas the notions of “permanent group” or “membership” themselves appeared indefinable. Nowadays, people are as free to choice a political party as a religion and to change it when they want. The Convention does not include Political Genocide in its definition whereas, for instance, Nazis destroyed many of human beings for their political opinions (notably socialists and communists). [...]
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