Reflections on the anniversary of the Genocide Convention

author : Marco Rosaire Rossi topic : Genocide Convention

by Marco Rosaire Rossi

This December 9 marks the 59th anniversary of the “Convention on the Prevention and the Punishment of Crimes of Genocide Convention,” also known as the Genocide Convention. The Genocide Convention is an example of the small and often spotted steps made toward realizing human rights. In our age, where our conventional conception of warfare has been displaced with the on-going and never ending “war on terror,” it is worth reflecting on the relevance of the Genocide Convention and how it could still serve (or hinder) our efforts to “liberate mankind.”

The Genocide Convention was approved three years after the end of the Second World War, and a day before the Universal Declaration on Human Rights was also approved by the United Nations general assembly. The horrors of the war—especially the gruesome annihilation of the Nazi holocaust—still hung painfully on to the collective consciousness of people throughout the world. At the same time, the hope of a real internationalism was very much alive. The divide of the Cold War represented both the tragedy of humanity (authoritarianism and exploitation), and its idealism (socialism and democracy.) This duality of sorrow and hope was demonstrated in the Convention. Its opening statements spoke of recognizing “that in all periods of history genocide has inflicted great losses on humanity,” while at the same time acknowledging that international cooperation could “liberate mankind from such an odious scourge.”

The purpose of the Convention was to prevent any country from becoming—in the words of holocaust scholar Michael Berenbaum—“a genocidal nation” like Germany had during the war. It legally protects any “national, ethnical, racial or religious” group from destruction “in whole or in part.” Though better than no protection, the groups listed under the convention have been criticized for being too narrow. For example, Douglas Porpora in his book How Holocausts Happen: The United States in Central America, argues that the holocaust perpetuated by Nazi Germany in Eastern Europe was extremely similar to the holocaust perpetuated by United States in Latin America. Take for example the accounts by Rev. Daniel Santiago, an advocate for the poor in El Salvador, on the US sponsored death squads:

People are not just killed by death squads in El Salvador—they are decapitated and then their heads are placed on pikes and used to dot the landscape. Men are not just disemboweled by the Salvadoran Treasury Police; their severed genitalia are stuffed into their mouths. Salvadoran women are not just raped by the National Guard; their wombs are cut from their bodies and used to cover their faces. It is not enough to kill children; they are dragged over barbed wire until the flesh falls from their bones, while parents are forced to watch.

As Porpora points out, there are few actual differences between the two events. However, the Nazi crimes in Europe are universally condemned, while the US crimes in Latin America still haven’t received global recognition. In regards to the Genocide Convention, the Nazi crimes—if repeated—would be considered illegal because the victims were Jews, while the US crimes fall outside of its jurisdiction because its victims were peasants and so-called “communists.” Thus many human rights activist have advocated adding “social” and “political” identities to the list of protected groups.

However, it is difficult to criticize the Genocide Convention for what it doesn’t have, because even what it does have has been applied with less than satisfying results. The International Court of Justice has only dealt with the Genocide Convention once in its history. That is the case of Bosnia and Herzegovina vs. Serbia and Montenegro—which was ruled on in February of this year.

The wait for the Genocide Convention to actually be used as a legal document before the Court had been a long time coming. Many atrocities had occurred from 1948 to 1995 where the case for genocide could have been made. It wasn’t until Serbia’s war on Bosnia that a situation arose with the international outrage and the political will to bring it before the Court. To the disappointment of many, the ICJ decided to take a conservative reading of the Convention. The Court concluded that genocide had only occurred in one area: the region of Srebrenica; and that the Serbian government was only guilty of failing to prevent and punish genocide—not of the crime of genocide itself. Judge Al-Khasawneh, one of the dissenting opinions in the case, boldly reprimanded the Court for reaching its results “in the face of vast and compelling evidence to the contrary” and dismissing “facts that did not fit the Court’s conclusions.” In general, the Court’s application of the Genocide Convention has been a bitter blessing: finally, the Convention is alive, but its birth is rather still.

The application of the Genocide Convention in international tribunals—though making greater headway—has also had a troubling history. The International Criminal Tribunal for Yugoslavia and the International Criminal Tribunal for Rwanda both saw a wider interpretation of the Genocide Convention than what the ICJ was willing to consider, but it is impossible to not get the feeling that both Tribunals are tainted with a sense of “victor’s justice.” The Security Council created both tribunals even though it did not have the explicit powers to do so. In Rwanda, the Tribunal has been dotted with controversy, including a tenuous relationship between the Tribunal and the government of Rwanda, accusation that some of the Tribunal’s own employees participated in the genocide, and calls to bring current president of Rwanda, Paul Kagame, before the Tribunal.

The Tribunal in the former Yugoslavia has undergone similar turmoil. Chief prosecutor Louise Arbour publicly announced in May of 1999 that the Yugoslavia Tribunal would not bother investigating allegations against NATO for the bombing of the area in 1994–1995 and 1999. This was the case even though it was reported that the NATO bombing knowingly escalated the massacre of ethnic Albanians in 1999 and exposed both Serbs and Bosnians to over 10,000 ammunitions of depleted uranium in 1994–1995. These crimes could be violations of the Articles of State Responsibility to prevent genocide, but since NATO member states paid for the Yugoslavia Tribunal we will never know.

Perhaps the most difficult feature of the Genocide Convention is how the accusations of genocide, and cries to its adherence, are so selectively applied. What are often considered to be “genocidal crimes” or examples of “ethnic cleansing” depend more on who is making the accusation than the actual crime. For example, in the West, it is routine to hear cries of genocide against Sudan for the violent outbreaks in Darfur, but the situations in Somalia and the Congo are far worse.

The contrast between Burma and Iraq is even more appalling. The recent violent crackdown from the military junta and its treatment of ethnic minorities in the south has been widely condemned. According to the British press, as many as 1,000 people have died in the past few months. But in Iraq, over 1,220,000 people have died in the US led invasion; accusations of genocide and ethnic cleansing—even though the country is becoming even more divided into Kurdish, Sunni, and Shi’ite camps—are completely absent.

The reason for this contrast becomes apparent when the responsibility for the crimes is examined. In Sudan and Burma, powerful Eastern states are involved, therefore they are condemned. In Somalia, the Congo, and Iraq, powerful Western states are involved—particularly the United States—therefore they are ignored.

Needless to say, work still needs to be done before we are fully liberated from the “odious scourge.” Monks are still resisting in Burma, attempts at peace are being made in Sudan, and even though the Congo and Somalia are deteriorating, there is less willingness to allow the international community to sit back and watch.

As for Iraq, it seems that neither the people in Iraq nor in the United States are willing to tolerate it. Since September, hundreds of Iraqis have protested the “security wall” that divides the country along ethnic lines—while over 60 people in the small town of Olympia got arrested in November—citing the Nuremburg decisions as their inspiration—for protesting the use of their port as a “revolving door” for the war.

There is still work to be done, but there is also work being done. If it continues, then those small steps towards realizing human rights will eventually get bigger, and the history of human rights fuller.

Marco Rosaire Rossi is a student in the Masters in International Law Program at the United Nations mandate school the University for Peace in San Jose, Costa Rica.