Genocide's Customary International Law Inclusion: A Historical Perspective

The term genocide was coined in 1944 by Polish-Jewish lawyer Raphael Lemkin, who sought to create a term to describe the Nazi policies of systematic murder of Jewish people during the Holocaust. Genocide was first recognised as a crime under international law in 1946 by the United Nations General Assembly, and was later codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), also known as the Genocide Convention. The CPPCG is an international treaty that criminalises genocide and obligates state parties to enforce its prohibition. The convention entered into force on 12 January 1951 and has been ratified by 153 states as of June 2024. The provisions of the CPPCG are considered reflective of customary international law and are therefore binding on all nations, regardless of whether they are parties to the convention or not.

The definition of genocide

The term "genocide" was coined by Polish lawyer Raphael Lemkin in 1944 in his book *Axis Rule in Occupied Europe*. It combines the Greek prefix "genos", meaning race or tribe, with the Latin suffix "cide", meaning killing. Lemkin's coinage was partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, and also to previous instances of targeted actions aimed at the destruction of particular groups.

The United Nations General Assembly recognised genocide as a crime under international law in 1946, and it was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The definition of genocide in the convention is the result of a negotiating process and reflects the compromise reached among UN member states at the time.

The convention defines genocide as:

> any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

>

> - Killing members of the group

> - Causing serious bodily or mental harm to members of the group

> - Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

> - Imposing measures intended to prevent births within the group

> - Forcibly transferring children of the group to another group

The Genocide Convention establishes five prohibited acts that, when committed with the requisite intent, amount to genocide. Genocide is not just defined as large-scale massacre-style killings; international law recognises a broad range of forms of violence in which the crime of genocide can be enacted. The five acts need not lead to deaths to be considered acts of genocide.

The intent is the most difficult element to determine. To constitute genocide, there must be a proven intent on the part of the perpetrators to physically destroy a national, ethnical, racial, or religious group. An intention to simply disperse a group is not sufficient. It is this special intent, or *dolus specialis*, that makes the crime of genocide unique.

Victims of genocide are deliberately targeted because of their real or perceived membership of one of the four groups protected under the convention (which excludes political groups, for example). This means that the target of destruction must be the group, as a collective, and not its members as individuals. Genocide can also be committed against only a part of a group, as long as that part is identifiable (including within a geographically limited area) and "substantial".

The Genocide Convention

The Convention defines genocide as any of five "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group." These five acts include killing members of the group, causing them serious bodily or mental harm, imposing living conditions intended to destroy the group, preventing births, and forcibly transferring children out of the group. Victims are targeted because of their real or perceived membership of a group, not randomly. The convention further criminalises "complicity, attempt, or incitement" to commit genocide. Member states are prohibited from engaging in genocide and obligated to pursue the enforcement of this prohibition. All perpetrators are to be tried regardless of whether they are private individuals, public officials, or political leaders with sovereign immunity.

The CPPCG has influenced law at both the national and international levels. Its definition of genocide has been adopted by international and hybrid tribunals, such as the International Criminal Court, and incorporated into the domestic law of several countries. Its provisions are widely considered to be reflective of customary law and therefore binding on all nations, whether or not they are parties to the convention. The International Court of Justice (ICJ) has ruled that the principles underlying the Convention represent a peremptory norm against genocide that no government can derogate.

The first state and parties to be found in breach of the Genocide Convention were Serbia and Montenegro, and numerous Bosnian Serb leaders. In February 2007, the International Court of Justice presented its judgment, clearing Serbia of direct involvement in genocide during the Bosnian war. However, the International Tribunal found that the acts of and intent to destroy were satisfied, and ruled that Belgrade breached international law by failing to prevent the 1995 Srebrenica genocide and for failing to try or transfer the persons accused of genocide to the ICTY.

Myanmar has also been accused of genocide against its Rohingya community in Rakhine State after around 800,000 Rohingya fled at gunpoint to neighbouring Bangladesh in 2016 and 2017, while their home villages were systematically burned. The International Court of Justice has asked Myanmar to protect its Rohingya population from genocide.

Genocide as customary international law

The term "genocide" was coined by Polish-Jewish lawyer Raphael Lemkin in 1944 to describe Nazi policies in occupied Europe and the Armenian genocide. Lemkin also linked colonialism with genocide, mentioning colonial genocides outside of Europe in his writings. In 1946, the United Nations General Assembly recognised genocide as a crime under international law and called for the creation of a binding treaty to prevent and punish its perpetration. This led to the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), or the Genocide Convention, which was adopted by the UN General Assembly on 9 December 1948, and entered into force on 12 January 1951. The convention defines genocide as:

> any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

>

> - Killing members of the group

> - Causing serious bodily or mental harm to members of the group

> - Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

> - Imposing measures intended to prevent births within the group

> - Forcibly transferring children of the group to another group

The Genocide Convention was the first legal instrument to codify genocide as a crime and it is considered reflective of customary international law, meaning it is binding on all nations, regardless of whether they are parties to the convention or not. The International Court of Justice (ICJ) has ruled that the principles of the convention represent a peremptory norm against genocide, from which no government can derogate.

The Genocide Convention has influenced law at both the national and international level. Its definition of genocide has been adopted by international and hybrid tribunals, such as the International Criminal Court (ICC), and incorporated into the domestic law of several countries. The convention establishes five prohibited acts that, when committed with the requisite intent, amount to genocide.

The CPPCG has been ratified by 153 states as of June 2024, with Zambia being the most recent signatory in April 2022. However, it is important to note that the provisions of the convention are applicable even to states that have not ratified it, as per the ICJ ruling that recognised the convention as codifying customary international law.

The prevention of genocide

The United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) on 9 December 1948, during its third session. The Convention, which entered into force on 12 January 1951, is an international treaty that criminalises genocide and obliges state parties to enforce its prohibition.

The CPPCG defines genocide as any of five "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group." These acts include killing members of the group, causing them serious bodily or mental harm, imposing living conditions intended to destroy the group, preventing births, and forcibly transferring children out of the group.

The CPPCG has influenced both national and international law. Its definition of genocide has been adopted by international tribunals, such as the International Criminal Court, and incorporated into the domestic law of several countries. The International Court of Justice (ICJ) has ruled that the principles of the Convention reflect customary law and are therefore binding on all nations, regardless of their status as parties to the Convention.

The ICJ has also stated that the prohibition of genocide is a peremptory norm of international law (ius cogens) from which no derogation is allowed. This means that even if a country has not ratified the CPPCG, they are still bound by the principle that genocide is a crime prohibited under international law.

The CPPCG establishes that genocide may occur in the context of an armed conflict or in a peaceful situation, with the obligation of contracting parties being to prevent and punish the crime of genocide. The Convention further criminalises "complicity, attempt, or incitement of its commission." Member states are prohibited from engaging in genocide and are obligated to enforce this prohibition, regardless of whether the perpetrators are private individuals, public officials, or political leaders with sovereign immunity.

The punishment of genocide

Genocide was first recognised as a crime under international law in 1946 by the United Nations General Assembly. It was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The convention was the first legal instrument to codify genocide as a crime and the first human rights treaty unanimously adopted by the United Nations General Assembly. The convention came into force on 12 January 1951.

The convention defines genocide as any of five "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group". These five acts include:

• Killing members of the group
• Causing serious bodily or mental harm to members of the group
• Imposing living conditions intended to destroy the group
• Preventing births
• Forcibly transferring children out of the group

The convention further criminalises "complicity, attempt, or incitement" to commit genocide. It also outlines the following acts that shall be punishable:

• Conspiracy to commit genocide
• Direct and public incitement to commit genocide
• Attempt to commit genocide
• Complicity in genocide

The convention obligates member states to pursue the enforcement of its prohibition and try all perpetrators, regardless of whether they are private individuals, public officials, or political leaders with sovereign immunity. The punishment for genocide varies depending on the specific act committed and the jurisdiction in which the offence takes place. For example, in the United States, the punishment for killing members of a group with the intent to destroy that group in whole or in substantial part is death or imprisonment for life and a fine of up to $1,000,000, or both.

The Genocide Convention has influenced law at both the national and international levels. Its definition of genocide has been adopted by international tribunals such as the International Criminal Court and incorporated into the domestic law of several countries. The International Court of Justice (ICJ) has ruled that the principles underlying the convention represent a peremptory norm against genocide that no government can derogate from. The convention authorises the mandatory jurisdiction of the ICJ to adjudicate disputes related to genocide.

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