If there is one common, though disturbing, fact about the Ukraine and Gaza conflicts, it is the accusations and counteraccusations of genocide that go hand in hand with them. From expedient use of a notion with horrific evocations to hard facts that could confirm that “the crime of crimes” has been – or is being – committed, clarifications from a legal expert are welcome.
“Genocide is not a new crime. On the contrary, it is an age-old crime that should, at last, be dealt with in a resolute – and new – way.”[1]Olivier Beauvallet, « Lemkin, une oeuvre en un mot : l’invention du génocide », Les Cahiers de la Justice, vol. 4, n° 4, 2014, p. 543-552, about the book by Raphael Lemkin, Axis Rule in … Continue reading The concept and crime of genocide constitute a legal category that is complex to say the least. This relatively recent notion has evolved over the years through international case law, which has, on various occasions, had to issue charges of genocide that have led to many convictions[2]Twenty-two convictions handed down by the International Criminal Tribunal for Rwanda (ICTR) alone. for what often strikes us as the gravest crime in law: the “crime of crimes”, to quote the International Criminal Tribunal for Rwanda (ICTR).
“The notion of genocide is much more than just a legal concept as it is frequently used in politics and the media, along with its misinterpretations and misuse.”
Yet the notion of genocide is much more than just a legal concept as it is frequently used in politics and the media, along with its misinterpretations and misuse, whether deliberate or not. This article outlines the legal aspects of the crime of genocide and its implications over time. It also seeks to present the ongoing clashes over the term “genocide”, between Russia and Ukraine on the one hand and Israel and Palestine on the other.
By combining the Greek word “genos” (race or tribe) with the suffix “-cide” from the Latin “caedo” (to slaughter), the Polish lawyer Raphael Lemkin, who was deeply affected by the Armenian genocide, attempted, as early as in 1943, to describe and classify in legal terms the atrocities that were being committed during the Second World War.[3]See Philippe Sands, Retour à Lemberg, Albin Michel, 2017, in which the author charts in detail the work of Lemkin, who studied law in the city of Lviv, now in Ukraine. Lemkin called for legal recognition of the crime of genocide and he played a key role in the drafting of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations in 1948. Today, it is this Convention, commonly known as the “Genocide Convention”, that remains the main legal instrument both in national and international courts. Indeed, States that have ratified this Convention are duty-bound to judge such crimes under domestic law. Its pivotal Article 2 defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”. In this way, the definition used in international law defines the crime through two constituent aspects: a material aspect – perpetration of acts specifically listed in the same article, which we will look at later – and an intentional aspect, namely genocidal intent.
Though any State may criminalise and prosecute genocide in domestic criminal law, States that have ratified the Convention have the legal obligation to make provision for this crime in their domestic law, and therefore to undertake the delicate task of defining it.[4]It was only introduced into French criminal law by a law passed in 1992, which came into force on1 March 1994. Yet despite efforts to define genocide in numerous domestic legislations, the definition of genocide under international law is the one that has developed with most detail because of various legal disputes over potentially genocidal acts and therefore successive interpretations.
The difficulty of legal classification
“The keystone of the crime of genocide remains its intentional aspect.”
The issue of the material aspect should not be underestimated, particularly in regard to evidence of genocidal acts and the definition of the group targeted. But the keystone of the crime of genocide remains its intentional aspect. Whether this is clear in the writings of Lemkin[5]See for example: Raphaël Lemkin, « Le génocide », Revue générale de droit pénal, 1946, n° 1-2, p. 25. or in the chosen definition under international law, genocide results from a scheme designed with an aim of destruction: we use the term “genocidal plan”. The difficulty for courts, especially international ones, to recognise genocide mainly lies in actually proving this intention to annihilate a whole segment of a population.
The material aspect’s two-fold challenge
Article 2 of the Genocide Convention lists five categories of acts that make up the first part of the material aspect of the crime of genocide. These categories should all be seen in light of the group targeted. It is these two components – the acts and the group – that are at the heart of the material aspect.
As regards acts, the article stipulates the following: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately imposing upon the group conditions of life designed to bring about full or partial destruction of the group physically; applying measures designed to prevent births within the group; and forcibly transferring children of the group to another group. Though this list is limited, it seems to be enough to cover all situations. Even if the impression we intuitively get upon hearing the term genocide is one of mass killings organised on a large scale with a serious violation of the basic human rights of the folly’s victims, the scale of the acts is not actually taken into account in the material definition of the crime of genocide. Evidence that these acts have been committed is commonly acknowledged by courts in the form of testimonies. For example, in the Akayesu[6]Jean-Paul Akayesu is the first person to have been convicted of the crime of genocide by an international court. Akayesu – ICTR Judgement (Trial Chamber I), 2 September 1998. case, the ICTR accepted testimonies that directly implicated Jean-Paul Akayesu, in particular from people called to the witness stand to recount things that they had actually seen or experienced.[7]For further information on the material aspect of the crime of genocide see: Anne-Marie La Rosa, « Chapitre VII. Appréciation des preuves relatives aux éléments matériel et mental des … Continue reading Yet no presumption of time, place or context has ever been used to conclude that a person could have committed a genocidal act. There must therefore be direct evidence of an individual’s involvement for the offence to be upheld.
Classifying a group raises, in turn, various issues. First, Article 2 implies that two groups must exist. In other words, the aggressor and aggressed group must be distinct from each other. This may seem simply logical, but it had a particular impact in the case of crimes committed by the Khmer Rouge in Cambodia. The Extraordinary Chambers that were set up to judge the crimes committed ended up classifying the offences as crimes against humanity, rather than genocide, because both the aggressors and victims belonged to the same ethnic group: the Khmers. On the other hand, for crimes committed from 1977 onwards – still in Cambodia, but specifically against the Cham and Vietnamese minorities – the group-based criterion was met, so the crimes could be classified as genocide.
International case law has also defined the scope of “the harm” that has to have been caused to the targeted group for a classification as genocide. On the one hand, the International Criminal Tribunal for the former Yugoslavia (ICTY) ruled that, for this classification, genocidal acts could be committed in only a limited geographical area. So it is accepted that the harm does not necessarily have to have affected the entire territory of the group targeted. For example, this was the case when the Srebrenica massacre was classified as genocide. On the other hand, based on both the doctrine of Lemkin’s works and the legal precedents of the ICTR, the court interpreted the expression “in part” by noting that the harm caused to the group had to be substantial. The International Court of Justice (ICJ) has also adopted this concept of substantial harm, notably in its ruling on the Gaza situation in its Order of 26 January 2024: South Africa v. Israel. The Court, reiterating the legal precedents in its Bosnia-Herzegovina v. Serbia and Montenegro Judgement of 26 February 2007, stated that:
“The Palestinians appear to constitute a distinct ‘national, ethnical, racial or religious group’, and hence a protected group within the meaning of Article II of the Genocide Convention. The Court observes that, according to United Nations sources, the Palestinian population of the Gaza Strip comprises over 2 million people. Palestinians in the Gaza Strip form a substantial part of the protected group.”[8]International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Press Release, 26 January 2024, … Continue reading
Evidence of genocidal intent
For Lemkin, the purpose of genocide is:
“disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups”.[9]Raphael Lemkin, Axis Rule in Occupied Europe, Carnegie Endowment for International Peace, 1944.
Case law quickly incorporated this aspect. The international criminal courts, whether the ICTY in the Karadzic and Mladic case or the ICTR in the Kayishema case, confirmed the necessity of demonstrating this specific intention:
“It follows from this definition that genocide requires that acts are perpetrated against a group, with a clear criminal intention, that of destroying the group, in whole or in part. The effectiveness of the partial or total destruction of the group is not necessary to confirm the existence of genocide; it is sufficient for one of the acts listed in the definition to be perpetrated with a specific intention.”[10]See for example: Karadzic and Mladic, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, 11 July 1996, §92.
So the definition of the crime of genocide expressly requires that the accused party had a specific intention, that of genocide, namely the destruction of all or part of a given group. This is the central feature of genocide. But, despite this, the specific intention is not defined objectively, leaving a wide margin of discretion for judges hearing each case. So, case after case, international courts have had to interpret, define and provide a framework for the concept.
First, judges considered that the specific intention must have existed prior to the acts being committed,[11]ICTR Judgement Kayishema and Ruzindana (Trial Chamber I), 21 May 1999, §91, https://ucr.irmct.org/LegalRef/CMSDocStore/Public/English/Judgement/NotIndexable/ICTR-95-01/MSC17800R0000620215.PDF but also that this could be inferred from the accused party’s acts and course of action[12]See for example ICTR Judgement The Prosecutor v. Laurent Semanza (Trial Chamber I), 15 May 2003, §313, https://violences-sexuelles.ifjd.org/wp-content/uploads/2021/05/7.-TPIR-Laurent-Semanza-min.pdf or even from the context in which the acts constituting the material aspect had been perpetrated.[13]ICTR Judgement Bagilishema (Trial Chamber I), 7 June 2001, §63, https://unictr.irmct.org/en/news/tribunal-acquits-bagilishema
In addition, case law recognised a series of factors that should be taken into account to determine whether there was genocidal intent, such as a deliberate and systematic choice of victims because of them belonging to a particular group, repeated discriminatory acts of destruction, perpetration of acts undermining the foundation of the targeted group, or even utterances from the perpetrator of the acts.[14]ICTR Judgement Akayesu, op. cit. §523-524.
Current issues in accusations of genocide in Ukraine and Gaza
Beyond the battlefield, these two deadly conflicts are also being played out in law through accusations and counteraccusations of genocide. Whether in Gaza or Ukraine, the rhetoric of genocide is called into question on both sides of these two conflicts. These accusations illustrate the great power of both simple use of the word and misuse of the same word.
“Whether in Gaza or Ukraine, the rhetoric of genocide is called into question on both sides of these two conflicts.”
For example, in the Russia-Ukraine conflict, there are accusations and counteraccusations both in the case that Ukraine lodged with the ICJ, following the Russian army’s invasion of part of its territory in early 2022, and in the words of President Putin justifying the invasion by accusing the Ukrainians of genocide of the country’s Russian-speaking population. The Russian accusation seems to be simply propaganda intended to legitimise an illegal aggression,[15]This is what the ICJ ruled, in part, in its judgement on 2 February 2024, rejecting Russia’s accusations used to justify its military intervention: Judgement of ICJ Ukraine v. Russian Federation, 2 … Continue reading but the issue of the Ukrainian accusation remains. The Ukrainian accusation is mainly based on the massacres that were discovered when the Russian army withdrew from certain regions such as the Bucha area. The question is whether Russia is trying to destroy the Ukrainian people through these massacres. As mentioned earlier, classification of genocide is complex. Despite Vladimir Putin’s murderous madness, it seems unlikely that international courts will ultimately accept the Ukrainian accusations. Yet the ICJ has imposed measures on the Russian government to avoid any genocidal situations arising – measures that Russia has not implemented. Still, an accusation of genocide is not just a legal matter but a political one too. On the one hand, an accusation of genocide is inevitably a strong political driver for getting support for a cause and possibly rousing sympathy for a population’s plight. On the other hand, and this is an especially important point, the 1948 Convention seeks to both suppress and prevent genocide and, for that, it requires each State that has ratified the Convention to intervene to prevent such a crime from being committed or at least bring such a crime to a halt. This second reason explains the restraint shown by various external governments in using the term.
The same issue arises regarding the situation in Gaza. Israel has accused Hamas of having committed genocide in its attack on 7 October 2023. It seems unlikely that this charge brought by the Israeli government will succeed in light of the criteria established by international case law. Yet even if the 7 October 2023 massacre could not likely be classed as genocide, these acts could well be considered crimes against humanity and war crimes.[16]See for example: Human Right Watch, October 7 Crimes Against Humanity, War Crimes by Hamas-led Groups, 17 July 2024, … Continue reading It is not so much a genuine legal accusation as a diversion and political argument. Indeed, the accusation was made in response to the proceedings that South Africa initiated with the ICJ and was also made to justify the war waged in Gaza.
As the competent court for handling disputes between States, the ICJ heard the charge of genocide perpetrated by Israel against the Palestinian population and, as early as in January 2024, it held that, given the situation in the Gaza Strip, there was a risk of genocide. By making this highly political decision and requiring Israel to implement interim measures to immediately end this risk of genocide, the ICJ put pressure on the Israeli government in a historic order and made all the world’s cameras focus on the massacre underway. Yet in no way does this herald a final condemnation. It seems that there are enough aspects to define Israel’s acts as war crimes, crimes of aggression or even crimes against humanity, but the outcome of the accusation of genocide still seems uncertain. These ICJ orders in regard to Israel are significant legally and symbolically; yet they are only part of a preliminary analysis of the situation and the acts committed: they seek to prevent a genocide from taking place. The key difference between different crimes under international law lies in the fact that war crimes or crimes against humanity concern specific facts: it is these facts that show, on their own, that acts of violence have been carried out against a population. In the case of genocide, it is the intentional aspect – the genocidal intent described above – that must be demonstrated. This evidence is terribly difficult to adduce.[17]See interview with Philippe Sands: Rachida El Azzouzi, « Nous sommes très loin de la reconnaissance de génocide », Mediapart, 10 août 2024. But as the days go by, more and more facts seem to support the classification of a genocidal machine in action. The targeting of civilian infrastructure, blind destruction, clear intent to colonise the Gaza Strip and policies pursued by Israel for decades[18]On this point, read the account given by Omer Bartov, a historian of genocide who served in the Israeli army during the Yom Kippur War in 1973: Un historien du génocide face à Israël, OrientXXI, 5 … Continue reading are just some of the aspects that will carry weight in investigations in international justice.
Translated from the French by Fay Guerry
