Published on 25th March 2025
Authored By: Bhoomi Siddharth Aru
MMSCLC
INTRODUCTION
The intentional and organized extermination of a group of people because of their race, religion, nationality, or ethnicity is known as genocide. Originating from the Greek genos, which means “race,” “tribe,” or “nation,” and the Latin cide, which means “killing,” Raphael Lemkin, a Polish-born judge who advised the U.S. Department of War during World War II, came up with the word.
In layman’s language genocide is referred to as wiping out of a particular human race due to societal thinking and particularly when the larger part of a society considers a particular human race as a threat to the remaining mankind.
In contemporary international law the crime of genocide is part of the broader category of “crimes against humanity,” which were defined by the Charter of the International Military Tribunal (Nürnberg Charter).
The prevention and punishment of genocide, as an international crime, was laid down in a UN Convention adopted in the aftermath of the Second World War. The crime of genocide generally involves the deliberate and systematic extermination of a group. Art. II of the UN Genocide Convention notes that the following acts, if committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, may constitute genocide:
Killing members of the group;
Causing serious bodily or mental harm to members of the group;
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another group.
In addition to the genocidal acts themselves being punishable as international crimes, other punishable conduct includes conspiracy to commit genocide, direct and public incitement to commit genocide, attempts to commit genocide and complicity in genocide (Art. III of UN Genocide Convention).
Genocide may occur in the absence of an armed conflict. If committed in time of war, acts of genocide also correspond to war crimes.[1]
This legal definition has been incorporated into the statutes of international adjudicatory bodies, including the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Criminal Court (ICC). Nonetheless, proving genocidal intent remains a significant evidentiary hurdle in prosecutorial efforts.
HISTORICAL BACKGROUND
The term “genocide” was first used by the Polish-Jewish legal
Scholar Raphael Lemkin at a conference in Madrid in 1933, but a legal definition
Of genocide was not incorporated into international law until 1948, following
The programs of mass murder carried out by the Nazis during World War II.
These programs included the extermination of such diverse groups as the
Jewish and Gypsy populations of Europe, ethnic Poles and Russians, political
Opponents, children and adults with disabilities, homosexuals, and religious
Groups such as Jehovah’s Witnesses, among others.[2]
Raphael Lemkin’s whole life was informed by the search for why there existed a name for the killing of one human being, the word ‘murder’ but there did not exist a name for the killing of many people based on their identity. And when his own family, 49 members, were killed in the Holocaust, it was inconceivable that the world could therefore exist without an International law, for the killing of many people based on identity. And so Raphael Lemkin coined the term ‘genocide’.
The UN was coming into shape at that particular time, and he was very conscious as a lawyer that this was going to become a very important body and that if it was to find a home that home would be the United Nations.
So he began to lobby, and the argument was a very profound argument because he said small countries do not have any protection. Big countries can protect themselves with arms, but small countries can only protect themselves through international law. And eventually he succeeded in getting a committee created, and he was one of the members of that committee that then drafted the convention for the prevention and punishment of the crime of genocide.
And so through his tireless efforts we got the United Nations to adopt as its very first human rights treaty, the convention on the prevention and punishment of the crime of genocide that was adopted on December 9, 1948.
Raphael Lemkin said, “ I hope this convention becomes a living force in world society.”
CASE STUDIES
- The Genocide of the Armenians (1915–1918):
The Ottoman Empire’s “Young Turk” administration committed the Armenian Genocide between 1915 and 1918. Armenians who served independently in unarmed labor battalions in the Ottoman armies began to be expelled and killed in April 1915. Under the supervision of Young Turk officials, the adult and teenage males who made up the residual population were taken from the deportation wagons and slaughtered. Women and children were frequently raped, tortured, and disfigured throughout the months-long drive across the desert and mountains. Along the way to the desert, hundreds of thousands of them perished from lack of food and water. In the end, 1,500,000 Armenians, or more than half of the population, were destroyed.
- Nanking’s Rape (1937) :
When the Japanese Imperial Army invaded Nanking, the capital of China, in December 1937, they killed 300,000 of the 600,000 residents and soldiers who were there. Japanese troops stormed into the city with orders to “kill all captives” after only four days of warfare. The horrific violence, which included rapes, thefts, drownings, stabbings, and citywide burnings, continued for around six weeks. The most well-known aspect of this tragedy is the crimes committed against the women of Nanking. Over 20,000 women were raped by Japanese troops; the majority were killed as a result, making them unable to testify.[3]
- The Holocaust (1941–1945) :
Hitler and his Nazi supporters tried to eradicate every Jew in Europe, starting with a straightforward boycott of Jewish-owned businesses and ending in the Auschwitz extermination chambers. During World War II, about six million Jews perished in the Holocaust. Nazi ideology was based mostly on anti-Semitism. Only the Jews were supposed to be completely exterminated, even though the Nazis also killed millions of Poles, Russians, Roma, Sinti, Serbs, Czechs, homosexuals, and political opponents. The genocide process helped the “final solution” to some extent. Jews were initially singled out by the Nazi Party, who subsequently segregated them into ghettos before sending their victims to concentration camps, where the majority of them perished.
The statement that “Jews are not humans” is a highly offensive and historically associated with antisemitic propaganda, particularly from Nazi Germany and other extremist ideologies. Adolf Hitler and other Nazi officials, such as Joseph Goebbels and Heinrich Himmler, frequently dehumanized Jewish people in speeches and propaganda, referring to them as subhuman (“Untermenschen”) to justify persecution and genocide.
One must also watch this movie “ The boy in the stripped pyjamas” it is a Holaucast historical drama film written and directed by Mark Herman , based on the novel written by John Boyne . Set in the Nazi occupied Poland , the film follows the son of a Schutzstaffel (paramilitary organisation under Adolf Hitler) officer who befriends a Jewish prisoner of his age .
- Genocide in Bosnia (1992–1995):
More than 8,000 Bosniak men and boys were executed by Bosnian Serb forces during the Srebrenica massacre, which was a crucial part of the genocide in Bosnia. High-ranking officials like Radovan Karadžić and Ratko Mladić were prosecuted by the ICTY, but the drawn-out court case highlights the structural challenges in ensuring prompt accountability for genocide.
- The Rwandan Genocide (1994):
Beginning on April 6, 1994, groups of ethnic Hutu, armed largely with machetes, began a campaign of terror and bloodshed which enveloped the Central African country of Rwanda. For almost 100 days, the Hutu militias, referred to as Interhamwe in Rwanda, carried out what appears to have been a deliberate and transparent effort to eradicate the nation’s ethnic Tutsi majority.
The Rwandan state radio, controlled by Hutu extremists, further encouraged the killings by broadcasting non-stop hate propaganda and even pinpointed the locations of Tutsis in hiding. The atrocities finally ceased after armed Tutsi rebels, invading from neighboring countries, managed to overcome the Hutus and halt the genocide in July 1994. By then, nearly one-tenth of the population, an estimated 800,000 persons, had been slain. A large portion of the populace had been displaced, and the nation’s industrial base had been decimated.
- Rohingya crisis 2017–present):
The Rohingya are a Muslim ethnic minority who live mostly in Rakhine State, Myanmar. They have been subjected to decades of systematic discrimination and persecution. Although they have lived in Myanmar for centuries, they are not recognized as an ethnic group and have been denied citizenship since 1982, which has left many of them stateless. As a result, their rights and freedoms have been severely restricted.
The largest exodus took place in August 2017, when more than 742,000 Rohingya, mostly women and children, were forced to flee to neighboring Bangladesh due to severe violence in Rakhine State. They joined the roughly 300,000 Rohingya who had already gone there to seek safety. Approximately 1.1 million Rohingya refugees currently reside in Bangladesh, and they are totally dependent on humanitarian aid for housing, food, water, medical care, and protection.
The situation in Myanmar is still quite bad. Ninety percent of the more than 2.8 million internally displaced individuals have done so since the military takeover in 2021. The Rohingya are still subject to harsh travel restrictions, restricted access to healthcare and education, and constant threats of violence. The situation has been addressed by international initiatives, including as requests for accountability and humanitarian assistance. But because of Myanmar’s political unrest and the complexity of the situation, difficulties still exist. One of the most urgent humanitarian problems in the world today is the Rohingya situation, which calls for constant international attention and response.
JURISDICTIONAL HURDLES
Prosecuting genocide presents significant jurisdictional challenges that complicate the pursuit of justice. These challenges include:
- State Consent and Sovereignty
State permission is necessary for international courts, like the International Criminal Court (ICC), to have jurisdiction. By claiming national interest and sovereignty, states can thwart international legal proceedings and erect significant obstacles to prosecution. When dealing with politically strong states, this opposition is especially noticeable, which makes the pursuit of justice more difficult and results in complicated court cases.[4]
- The Principle of Complementarity
According to the complementarity principle, the ICC can only bring charges when national jurisdictions are unable or unwilling to do so. Determining whether the ICC should assume jurisdiction, especially in cases where national prosecutions have occurred, raises considerable obstacles. It was especially difficult to negotiate standards for the ICC’s assumption of jurisdiction in these situations during the discussions of the Rome Statute.
- Limitations of Universal Jurisdiction
Regardless of the location of the crime, governments have the authority to prosecute individuals for major international crimes like genocide under universal jurisdiction. The financial expense of conducting investigations remote from the prosecuting state, political opposition, and evidential hurdles are only a few of the major obstacles this approach must overcome. Evidence may be difficult to gather; witnesses may be difficult to locate and may be too scared to testify; and prosecuting authorities may not be allowed to access the states where atrocities were perpetrated. The investigations are heavily burdened financially by geographic remoteness.[5]
- State Officials’ Immunity
Holding high-ranking state officials accountable for genocide is made more difficult by the fact that they frequently have immunity from prosecution under international law. Because of this immunity, foreign courts may not have the authority to try those most accountable for these crimes. For example, the International Criminal Court’s jurisdiction over aggression is limited, and because of immunity concerns, international tribunals sometimes struggle to bring high-ranking individuals to justice.
- Selective justice and political influence
Selective justice, in which some cases are given priority over others according to political factors rather than the seriousness of the offenses, can result from the influence of strong powers. The prosecution of genocide cases involving powerful states may be hampered by this selectivity, which also damages the reputation of international criminal justice organizations. Powerful states commonly use the defenses of sovereignty and national interest to thwart international legal activities, which significantly hinders prosecution. The pursuit of justice is further complicated by the prolonged court battles that frequently result from the intricate legal and political procedures required to prosecute genocide allegations against powerful regimes.
Addressing these jurisdictional hurdles requires strengthening international legal frameworks, enhancing cooperation among states, and ensuring that political considerations do not impede the impartial pursuit of justice for genocide.
RECENT DEVELOPMENTS
Although the 1948 Genocide Convention laid the groundwork for genocide prosecution, it lacked efficient enforcement tools for many years. Since then, opportunities for prosecution have been made possible by the creation of permanent international institutions like the International Criminal Court (ICC).
Recent Prosecutions and Legal Actions
1.Darfur, Sudan: ICC Prosecutor Karim Khan declared in January 2025 that arrest warrants for those suspected of committing atrocities in Sudan’s Darfur region were being sought. Echoing previous wars, this action tackles the area’s revival of violence.
2.Rwanda: A court in Paris convicted former Rwandan physician Eugène Rwamucyo to 27 years in prison in November 2024 for his involvement in the 1994 genocide. It was determined that he had committed crimes against humanity and involvement in genocide.
3.Israel and Gaza: In late 2024, South Africa accused Israel of committing genocide during military operations in Gaza, bringing the case before the International Court of Justice (ICJ). Although the case is still pending, the ICJ ordered temporary measures.
Evolving Interpretations
In light of a more comprehensive understanding of the crime in modern circumstances, recent debates have urged for extending the concept of genocide to encompass attacks against social and political groups as well as cultural genocide.
These developments underscore the international community’s ongoing commitment to preventing genocide and ensuring accountability for such crimes.[6]
CONCLUSION
Genocide remains one of the most reprehensible violations of international law, necessitating the continuous evolution of legal and institutional mechanisms to facilitate accountability. While international tribunals have made significant strides in prosecuting genocidal actors, persistent jurisdictional, evidentiary, and enforcement challenges impede the full realization of justice. Strengthening international cooperation, enhancing investigatory methodologies, and fortifying enforcement frameworks are imperative to bridging the gap between legal norms and their effective application.
As we speak today the convention for the prevention and punishment of a crime of genocide has never been more relevant and it is absolutely important that we do not give up as humanity ,that we do not give up trying to prevent genocide.
REFERENCES
[1] The convention on the Prevention and Punishment of the Crime of Genocide,1948
https://casebook.icrc.org/a_to_z/glossary/genocide
https://casebook
[2] Daniel Feierstein, Genocide as social practice: Reorganizing society under the Nazis and Argentina’s Military Juntas , 2014 ( book)
http://www.jstor.org/stable/j.ctt6wq9vn.6. Accessed 8 Feb. 2025.)
[3] The Genocide Education project ( cases of genocide)
https://genocideeducation.org/resources/modern-era-genocides/
[4] Douglas C Youvan , Challenges in Prosecuting Politically Powerful States for Genocide : A Comparative Analysis of ICC and ICJ Jurisprudence, 2024/07/29
[5] Evidentiary challenges in Universal jurisdiction cases, Universal Jurisdiction Annual Review 2019 #UJAR
[6] Carolina Montenegro, From “time and again” to “never again” : Refugee law and International Criminal law contributions to preventing genocide , March 5,2024
