Common(wealth) Knowledge #86: Genocide under international law

As the Israel genocide case continues, it is important to consider the differences between the definitions of genocide.

With the International Court of Justice holding the first hearings in South Africa’s genocide case against Israel, mainstream media outlets have been rushing to give live updates on the case’s process. But, in their effort to sensationalise the case, most have neglected to consider what international law says about genocide and the difficulties in applying a decision against Israel.

Generally speaking, there are two international definitions of genocide, the ‘narrow’ definition and the ‘broad’ definition. The broader definition also includes the narrow definition.

The effort to create an international definition of genocide dates back to World War II and the Holocaust. Its creator was Raphael Lemkin a Polish-Jewish lawyer who fled Europe when Nazi Germany.

Contrary to popular belief, although Lemkin’s definition was published in 1944, it was not used at the Nuremberg Trials.

Although several of the Allied prosecutors referred to genocide, as it was not a legal concept at the time, the Nuremberg Trials focused on war crimes, crimes against peace, and crimes against humanity.

However, part of his definition was included in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, signed in 1948 by the United Nations’ member states, and has been in effect since 1951.

The Nuremberg Trials referred to separate offences of crimes against peace and war crimes. However, the Genocide Convention made it clear that genocide was a crime that did not depend on a state of war or peace.

The ‘narrow’ definition offered by the Genocide Convention consists of ‘physical and biological genocide.’

However, when Lemkin was writing his definition, he looked at the Holocaust and the Armenian genocide, and concluded that there was a third form of genocide, which he called ’cultural genocide.’

This definition is concerned with the repression, destruction, or forced assimilation of a group’s culture, usually carried out by a dominant culture against a minority. This is something that Lemkin observed in the treatment of German Jews before the concentration camps were used on a larger scale.

However, this was left out of the Genocide Convention. Similarly, when this definition was incorporated into the Criminal Code Act 1995 (Cth) in 2002, as Sections 286.3-286.7, only the narrow definition was included.

The narrow definition is generally the one used by lawyers, while the broader one is used by historians.

The High Court of Australia’s approach to genocide offers some insight into why there is a disconnect between the two definitions.

The best example is found in Kruger v Commonwealth (1997), also known as the Stolen Generations Case. Without getting into the contentious nature of that case and judgment, there are two relevant statements from it.

Justice Dawson referred to an “intent to destroy,” while Justice Gaudron described genocide as being “fundamentally repugnant to basic human rights.”

Because genocide is such a severe offence, Justice Gaudron’s description implies that there must also be a high threshold to pass to prove that a person is guilty of carrying out genocide. Accordingly, she implies that the narrow definition helps to maintain a high threshold.

Although Justice Dawson is known for his controversial dissents in cases like Mabo v Queensland (No 2) (1992), his reference to intent suggests that it may be harder to prove cultural genocide, because the latter may involve negligence, not just malicious intent.

Historians, sociologists, and other non-legal academics don’t have to deal with the confines of the courtroom, making it easier to explore cultural genocide and consider factors that judges and lawyers are unable to.

However, there has been some change in recent years. In Prosecutor v Al Mahdi (2016) the International Criminal Court handed down a conviction for the destruction of cultural property, including religious centres.

Although that was treated as a war crime, the fact remains that the ICC was willing to consider the destruction of cultural property, although the ICC has never handed down a conviction for the destruction of the more intangible parts of a culture.

Unlike the ICC, judgments by the ICJ are only theoretically binding, with a much narrower margin on what is binding on the parties involved,. Often countries must, b forced to accept it by pressure from other states, such as through sanctions. However, such pressure is less effective against stronger countries.

For more on the issue of consent, check out Common(wealth) Knowledge #18.

Although Prosecutor v Al Mahdi suggests that the definition of genocide may be open to changes in the future, this article does not attempt to predict which way the ICJ will rule on South Africa and Israel, only to explore the development of the definition of genocide, as both a legal and historical concept.

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Sources:

Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951).

Criminal Code Act 1995 (Cth).

Kruger v Commonwealth (1997) 190 CLR 1; [1997] HCA 27.

Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23.

Prosecutor v Ahmad Al Faqi Al Madhi (Sentencing Judgement) (International Criminal Court, Trial Chamber VIII, ICC-01/12-01/15-171, 27 September 2016).