Jakarta –
Ukraine says Russia’s removal of thousands of children from Ukraine – during its invasion in February 2022 – constitutes a “crime of genocide”. In the current conflict between Israel and the militant group Hamas, some parties have also accused Israel of committing genocide. But what exactly is meant by genocide, and when can the term be applied?
The term genocide was first coined to refer to Nazi crimes against Jews during World War II. Polish Jewish lawyer Raphael Lemkin coined the term for his 1944 book, “Axis Rule in Occupied Europe.” The Holocaust was Nazi Germany’s systematic murder of Jews carried out by Hitler. Raphael Lemkin campaigned for genocide to be recognized as a crime under international law, then enshrined in the United Nations Genocide Convention in 1948, which came into force in 1951.
Article two of the Convention defines genocide as any act “committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.” According to the UN definition, genocide can include killing, inflicting serious physical or mental injury or life-threatening conditions, acts aimed at preventing the birth and forcible removal of children.
Who can be prosecuted and how can you prove it?
The United Nations Genocide Convention states that anyone can be prosecuted and punished for genocide, including elected leaders. The ICC’s International Criminal Court in The Hague has the mandate to investigate and prosecute perpetrators of genocide, war crimes and crimes against humanity. Anyone who commits, orders, aids and even incites genocide can be prosecuted.
“Often the term genocide is used loosely in everyday language to refer to the most serious and serious crimes, because it seems much worse than war crimes or crimes against humanity,” said Valérie Gabard , expert in international law based in The Hague. DW.
“But, legally speaking, the definition of genocide is very narrow,” he added. “It is not a question of numbers that determines whether genocide has occurred or not. The intention to physically exterminate a group is the main criterion for this crime.”
But experts say it’s not easy to prove “specific intent” because there is often no direct evidence. “The problem… is that the perpetrator probably won’t admit it directly in court,” William Schabas, professor of international law at Middlesex University in London, told DW.
“So the court has to infer the intentions of the perpetrators based on their actions. So you have to rely on circumstantial evidence. And the rule is that this has to be done beyond reasonable doubt. That’s where It becomes more difficult.”
Valérie Gabard, who has worked at international criminal tribunals for Cambodia, Rwanda and the former Yugoslavia, said genocide prosecutions take a very long time. “It took a long time, especially because of the scale of the crime,” he explained.
Genocide or not?
In 2021, the governments of the United States, Canada, and the Netherlands accused China of committing genocide against the Uyghur people of Xinjiang, while several other countries passed parliamentary resolutions making the same accusations. But many experts disagree.
After the Jewish genocide perpetrated by Nazi Germany, there are to date two cases recognized as genocide, namely the 1994 genocide in Rwanda, where approximately 800,000 Tutsis and Hutu were killed, and the 1995 massacre in Srebrenica. Regarding the mass murder carried out by the Khmer Rouge in Cambodia in the 1970s, also called the Cambodian genocide, there are differing opinions among experts. In fact, many Khmer Rouge victims were targeted because of their political or social status, placing the matter outside the UN’s definition of genocide.
“We have a legal definition of genocide that is used in cases before the International Court of Justice and in rulings by Rwandan courts. We have very clear laws on what genocide is.” said William Schabas. “But there have been attempts to use the label genocide that does not fit the legal definition of genocide, whether with the Uyghurs in China or the war in Ukraine,” he concluded.
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Also watch the video “Contents of Craig Mokhiber’s resignation letter, saying the UN failed to act on the genocide in Gaza”:
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