Defining the Unspeakable

Perhaps the most discussed aspect of the Genocide Convention is Article II; the article which sets forth a definition the crime of genocide. In Axis Rule in Occupied Europe Lemkin defined genocide as:

"[A] coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions of culture, language, national feelings, religion and economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individual belonging to such groups. Genocide is directed against individuals, not in their individual capacity, but as members of the national group."

The experts charged with producing the Secretariat Draft agreed that there should be a strict definition of genocide. Matters of international law should have precise definitions it was argued. Additionally, a broad definition would make it difficult to achieve the consensus necessary to ratify the Convention. This, however, is where agreement among the experts ended. De Vabres and Pella both disagreed with adding cultural genocide to the draft, arguing that this improperly extended the definition of genocide. Lemkin believed a destruction of a group's culture was nearly as bad as physical destruction of the group itself.  It was Lemkin that eventually won out.

A criticism often leveled against the definition of genocide in Article II is that it lacks any mention of political groups. It is interesting to note that it was Lemkin who opposed this inclusion. He argued that political groups lack permanency and warned against including a group which would divide UN members.  Although he did not say it outright Lemkin quite obviously had the Soviet Union in mind. By 1948 Soviet leaders had already produced numerous examples of brutal repression of people based on political affiliation. These actions were indeed criminal, but any explicit acknowledgment of that fact would raise the ire of the USSR and possibly doom the Convention to failure.

The Ad Hoc draft defined genocide as "deliberate acts committed with the intent to destroy a national, racial, religious, or political group, on grounds of the national or racial origin, religious belief, or political opinions of its members." The Committee unanimously voted to include national, racial and religious groups but was split four-to-three, with the USSR, Poland, and Venezuela voting against, to include political groups. The argument was again that the membership of political groups was less stable than that of the other categories. Delegates also raised the point that if crackdowns on domestic subversion were interpreted as genocide then support among member states would falter.

The Sixth Committee initially included political groups in its definition. Delegates pointed out that the Nazis had persecuted members of certain political groups and that UN Resolution 96(I) included political groups in its definition of genocide. However, the delegate from Iran once again pressed the point that membership in political groups was voluntary where as membership in the other categories was by chance. This, coupled with the inclusion of political groups being seen as a potential interference with a state's ability to quell internal disturbances, lead to political groups being struck from the final draft.

The definition of genocide has gone through an evolution since it first entered the realm of international law in 1948.  Scholars have greatly expanded the definition of genocide, some have stressed the social aspects over the legal. But the legal definition has gone through some tinkering as well. In Akayesu, the first genocide case since the Convention came into force, the ICTR determined that rape is a form of genocide and even went so far as to rule that accomplices need not possess special intent. Outside of the court rooms some countries, such as France, Peru and Costa Rica, have adopted expanded definitions of genocide into their domestic law. Even though genocide was born out of a particular historical context it is not cemented there. It must change and adapt to new circumstances in order for it to be truly effective in bringing down the full weight of the law on perpetrators.

Next time we will begin a discussion on the acts of genocide as enumerated in Article III of the Genocide Convention and their subsequent development.

[Photo of a child dressed as a Khmer Rouge solider from Wikimedia Commons.]