Genocide is still a word used a lot in current affairs. It is considered by some to be the most odious of the international crimes. The Convention was originally drafted in response to Nazi crimes against Jews and other groups and the definition makes explicit mention of four groups in particular: national, ethnic, religious and racial groups.
However, the particular reprehension that genocide produces means that those groups not protected by the Convention are in some sense considered not as valuable. The distinctions the Convention creates are sometimes morally arbitrary and the Convention itself suffered from its drafters choosing wording that could be ratified as widely as possible rather than accurately reflecting what Raphael Lemkin, who coined the term, originally had wanted to describe, or the concept itself. So, could the Convention itself discriminate?
You might ask why some groups are covered and other groups are not. Lemkin originally intended political to be included within the scope of the Convention and the Women’s International Democratic Federation formally requested that women be protected by the Convention, so why are they now not mentioned?
Indeed, Hitler himself targeted groups not mentioned in the Convention. He authorised that every ‘incurably sick’ German be granted a merciful death and 70,000 Germans with hereditary diseases were exterminated. He targeted homosexuals, communists, liberals, trade unionists, and other oppositionists and also at one point speculated that he might exterminate the intellectual classes. All of these groups add value to society and so it seems peculiar that they are not protected.
One possibility is that the Convention can implicitly be extended to other groups. But, this is incorrect. Resolution 96(I) mentioned “other groups” whereas the final draft of the Convention did not, disallowing any attempt to expand the Convention’s protection to analogous groups. Under the terms of the Vienna Treaty, if the wording of a treaty (such as the Genocide Convention) is not clear, the preparatory work should be examined to discover what the drafters intended the treaty to say. It can be determined from this fact that the drafters intended to restrict the terms of the Convention to the four groups.
Political groups were included in the Secretariat and Ad Hoc Committee Drafts of the Convention but it did not make it into the final Convention.
Firstly, it was argued that they would be difficult to define, though the representative of the US pointed out that this was sufficiently well achieved in the Nuremberg Military Tribunal.
Secondly, some delegates were concerned that their inclusion would prevent governments taking legitimate action against subversive groups though again this would not be a problem unless the government intended to destroy the group “in whole or in part” – a point also mentioned.
Thirdly, and most commonly, it was argued that political groups do not possess stability or permanence. The representative of Iran, for example, stated that:
‘There was a distinction between those groups, membership of which was inevitable, such as racial, religious or national groups, whose distinctive features were permanent; and those, membership of which was voluntary, such as political groups, whose distinctive features were not permanent, it must be admitted that the destruction of the first type appeared most heinous in the light of the conscience of humanity, since it was directed against human beings whom chance alone had grouped together’
A few states (mostly Western) pointed out that some political groups would consider themselves just as stable as some religious groups, and yet political groups were not included and religious groups were.
If the concern was that membership of the group was involuntary, the fact that groups defined by gender, sexuality or disability are not included, nor able to be included as analogous, is questionable especially given how often groups are discriminated against on these grounds.
The idea has not been applied in the jurisprudence, especially considering whether a person’s membership of a group is actual or perceived. Of course, it would not be right fair to find someone innocent of genocide merely because they misidentified the victim’s group membership. ICTY case law reveals a greater emphasis on the subjective identification of a group. Perhaps surprisingly, the ICTR faced difficulty in determining that Rwanda was a genocide, noting that the Tutsi are not a group distinct from other Rwandans (excluding the Twa), either in terms of race, language or nationality; an issue that was brought up again in relation to the “tribes” in Darfur in the Commission of Inquiry Report.
Although the Defence in the Akuyesu case conceded that genocide had occurred in Rwanda this was disputed in other cases and as a solution the ICTR had to then give the issue some attention. It ultimately declared that there was, at least in part, a subjective element. The Trial Chamber argued that factors such as a census, which included a description of ethnicity, though the categories were originally based on whether or not they were agricultural or owned cattle and “ethnicised” by German and Belgian occupation, which only ran through the male line.
The Genocide Convention itself is not discriminatory and there would be no issue if it was widely and properly understood. To say that causing harm, killing or any of the other actions described by Article II of the Convention against racial groups but not against, say, women is genocide is not in itself discriminatory.
The issue is that the “g-word” has acquired such moral force that when an atrocity is committed against a political class or another group is declared to be not genocide, it implicitly says something about that group in the mind of the public. A law pertaining to apples does not discriminate against oranges unless the former is the worst crime that can be committed. There is little consideration of the fact that a horrendous act may be not a genocide purely because of a technicality.
Consider two particular groups: women and the disabled. The members of these groups are almost never voluntarily part of the group, and so would not be affected by the objection that was voiced by the representative of Iran. However, despite the fact that women are a disproportionate victim of genocides, the way the drafters dealt with a submission from the Women’s International Democratic Federation demonstrates a deliberate intention to exclude women from the list of groups covered. We’ll apply the Vienna Treaty rule again: women were intentionally excluded.
Secondly, discrimination against the disabled is a very real concern. Hitler, as described above, engaged in eugenics and targeted the disabled. In the modern day, the Democratic People’s Republic of Korea is similarly targeting disabled groups as well as others. The Commission of Inquiry Report for the DPRK determined that there was no good reason why the situation should not be called a genocide. The actus reus – or the physical component of genocide, in contrast to the intention – was fulfilled by the North Korean state, which had formed concentration camps and was preventing births by segregation, forced abortion, and infanticide.
The difficulty with the DPRK is that the victims of the measures imposed by the Kims are selected on the basis of political groups, classes in the songbun system or disability.
The vital point to remember is that saying something isn’t genocide is not diminishing its gravity in any way.
The Darfur Commission of Inquiry Report noted was that it did not seem necessary to refer to the situation in Darfur as a genocide, as ‘crimes against humanity’ ought to be sufficient. The drafters of the Convention also emphasised that every reprehensible act need not be included in the Convention. The difficulty is that in the view of the general public, despite the intention of the drafters on this point and the legal understanding, ‘genocide’ has acquired a primacy in the hierarchy of reprehensible acts; genocide is the most heinous of crimes. This, in turn, implies that non-genocides are not as bad as genocides, which is where the discrimination comes in.
I would like to make clear that I do not intend to diminish genocide in any way. Rather, my point is only that non-genocides might be no less abhorrent.