I The Criminalization and Charge of Genocide in International Law
International law, as we know it today, did not exist in the early modern period. Scholars disagree on its precise origins and scope, but they generally link it to the emergence of rules governing interaction between European states that recognized each other’s sovereignty. This was long before the widespread recognition of an all-embracing concept of humanity that deems all human beings morally equal by virtue of being human, and before the international acceptance of the right of all peoples to self-determination.
It was the mid-nineteenth century that brought the first treaties and conventions establishing the rules of war and defining their violation as a war crime. Until the mid-twentieth century, however, there was no term – let alone legal definition – for the crime of genocide. The term originated during World War II and was officially adopted by the United Nations soon after its founding, amid the heavy pall cast by the Nazis’ attempt to exterminate the Jews of Europe and the atrocities perpetrated towards this end (the attempted extermination of the Roma received less attention). On 9 December 1948, the UN adopted the
Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), often shortened to the Genocide Convention.[1]
The Nazi leaders who were brought before the International Military Tribunal (IMT), established by the Allies in Nuremberg (1945-1946), were charged with “waging wars of aggression against a number of other states”. This crime was deemed distinct from other war crimes in that “it contains within itself the accumulated evil of the whole”.[2] War of aggression was thus elevated to a “crime of crimes”, a characterization that would subsequently be associated with genocide following the adoption of the convention to prevent and punish it.
The defendants in Nuremberg were tried for war crimes in violation of customary international law and the Hague Conventions on the rules of war (1899 and 1907), as well as for crimes against humanity. The latter included crimes committed in both wartime and peacetime and targeting both other states’ populations and a state’s own citizens. The hearings also addressed the deliberate targeting and mass murder of Jews. Although the term genocide was used – specifically during the trials of the third group of defendants – it was not treated as a crime in and of itself, but rather to denote an aspect of the crimes against humanity committed during wartime. The defendants at Nuremberg were not tried for genocide because a crime by that name did not exist in international law.
It was the Polish-Jewish lawyer Raphael Lemkin who coined the term genocide to designate a distinct crime, devoting a chapter to the subject in
Axis Rule in Occupied Europe (1944). Lemkin had been concerned with what he would subsequently term the Armenian genocide (1914-1923) and the Assyrian massacre in Iraq (1933). He was struck by the absence of a legal term for these crimes, which were distinguished not only by the number of dead, wounded, and displaced, but also by the fact that the victims were a distinct human group and targeted because they were members of that group. He also observed that the purpose was to destroy that group, along with its culture, way of life, and identity, thereby depriving humankind of its contribution to the richness of human diversity. Ultimately, the Nazi Holocaust led him to coin the term, which fuses the Greek
genos (tribe or race) with the Latin
cide (killing) to signify the destruction of a distinct national group. He writes:
“Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group”.[3]
As we will see below, the CPPCG did not limit its protection to just national groups. Lemkin goes on to observe:
“Genocide has two phases: one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population, which is allowed to remain, or upon the territory alone, after removal of the population and the colonization of the area by the oppressor's own nationals. Denationalization was the word used in the past to describe the destruction of a national pattern”.[4]
Lemkin adds that, in his opinion, the term “denationalization” is inadequate. This is because the aim is not only to deprive an indigenous population of their national character through peaceful or other means, but also to forcibly or otherwise impose another national pattern. This description applies to the settler colonialist processes that occurred in several countries. It perfectly fits the Nakba of the Palestinian people, as though it were formulated specifically with that catastrophe in mind.
It is clear from his discussion on genocide that Lemkin intends the term to apply not only to the crime committed against Jews but also to Germany’s practices towards the occupied peoples in the territories that fell under its control. He wrote
Axis Rule between 1942 and 1943. At the time, the magnitude of the genocide against the Jews was not yet known, and the term “Holocaust” had not yet come into use. He identified the techniques of genocide in the political, social, cultural, economic, religious, moral, biological, and physical fields, and he examined the role of racial discrimination in food rationing, endangering health, lowering birthrates, and provoking mass killings. He was particularly interested in the link between the Nazis’ crimes and their intent, which was to annihilate the national existence of European peoples classed as non-Germanic in Nazi racial theory.[5] Over time, significant differences arose between the concepts encompassed in Lemkin’s definition of genocide and later scholars’ interpretations of the term, which included the perceived need for a political actor (such as Hitler) set on implementing a pre-existing vision and the requirement of intent to target of a group based on its ethnic or religious identity. These differences have become a source of confusion for researchers.[6]
On 11 December 1946, the UN General Assembly adopted resolution 96 (I), defining genocide as follows:
“Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations. Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part”.[7]
The subsequent CPPCG of 1948, which was drafted in implementation of the UNGA resolution, specified the types of groups that could become victims of genocide. As the resolution stated, the genocide entails the intent to destroy the group.
Nevertheless, consider that a group exists through its individuals and their interrelationships, its culture, institutions, and moral personality. The act of annihilating or attempting to annihilate a group entails multiple acts of killing and destruction of these components. At what point does the accumulation of such crimes coalesce into the single crime of genocide? Clearly, some relative quantitative threshold must be met. While difficult to quantify, it is self-evident that the term genocide implies large-scale acts of violence and destruction, including mass slaughter.
The Genocide Convention narrowed Lemkin’s definition of genocide and added a psychological criterion, namely intent – i.e., the intent to destroy or kill a group through acts of murder and destruction. This is what distinguishes this crime from massacring large numbers of a group, bombing a building or several buildings, or levelling entire neighbourhoods or towns, as horrific as these atrocities are in themselves. The preamble and the first two articles of the CPPCG state:
The Contracting Parties,
Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world,
Recognizing that at all periods of history genocide has inflicted great losses on humanity, and
Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required,
Hereby agree as hereinafter provided :
Article I
The Contracting Parties confirm that genocide,
whether committed in time of peace or in time of war,[8] is a crime under international law which they undertake to prevent and to punish.
Article II
In the present Convention, genocide means any of the following acts committed with intent to destroy,
in whole or in part,[9] a national, ethnical, racial or religious group,
as such:[10]
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.[11]
The convention identified the following groups as meriting protection under its terms: national, racial, ethnic, and religious groups. Consequently, proving an allegation of genocide would entail establishing that the victims belonged to one of these groups. The convention – unjustly in the opinion of some – excludes cases of mass killings against political and social class groups. In Cambodia, the brutal genocidal acts committed by the Khmer Rouge targeted so-called class enemies. This illustrates how a political group perceived as an enemy could become a victim of genocide without necessarily falling under one of the four protected categories.[12]
Class-based, political and other groups not specified in the convention are protected under treaties that prohibit war crimes and crimes against humanity. However, since the adoption of the Genocide Convention, prosecutors and rights advocates have had a strong urge to classify the atrocities committed against them as genocide, which may indeed be the case if genocide is understood as the destruction of a group. However, the drafters of the convention consciously chose to limit its protection exclusively to major identity groups with a civilizational character clearly distinguishable from that of the oppressor group. This choice was based on the historical experiences of such identity groups falling victim to attempted genocide.
The qualifier “as such” has also sparked considerable debate among legal scholars.[13] The insertion of this problematic phrase into the convention is a source of ambiguity. It could theoretically be interpreted to mean that the crime is committed with the purpose of destroying the group "as such”, and for no other reason, such as to win a war. If this interpretation were adopted, it could complicate the process of establishing intent. It narrows the definition of genocide to instances where the crime is committed for its own sake – i.e., to annihilate a group for the sole purpose of annihilating it (out of racist, ethnonationalist, or sectarian motives).
More significantly, the convention omitted a crucial element of Lemkin’s definition of genocide: “the destruction of essential foundations of the life of national groups” (including the various cultural dimensions). The CPPCG definition confines genocide to the “physical destruction” of a group or the acts committed with the intent to physically destroy a group. It thus narrows the term with this limitation but broadens it in other ways. The CPPCG definition also omits forced displacement with the aim of destroying the national pattern of one group and supplanting it with that of another. Nor does it include what we now call ethnic cleansing, as some of the great powers that adopted the convention were engaged in or condoned such “projects” at the time.[14]
As soon as the crime was defined and distinguished, it gained notoriety in the aftermath of the Nazi experience. Moreover, as acknowledging the existence of an ongoing genocide requires states to take action to halt it and punish its perpetrators, states began to avoid using the term to describe war crimes and crimes against humanity and to prevent others from doing so, and their legal representatives engaged in endless sophistry to avoid using the term in public. Not only states, but also the UN began to downplay ongoing genocides, opting instead for terms such as “ethnic cleansing”, “war crimes”, and “crimes against humanity”, even though these crimes are also horrific.[15]
In the case of Rwanda, the US under Bill Clinton eventually stated, after a prolonged silence, that acts of genocide “may have occurred”. It understood that if it explicitly acknowledged the genocide, it could trigger public pressure to intervene. A frequently used method to avoid using the term genocide is to dwell on the element of intent and its varying definitions and methods of proof. In
A Problem from Hell, Harvard scholar and later US ambassador to the UN (2013-2017) Samantha Power devoted a full chapter to the Clinton administration's efforts to skirt around referring to the massacres in Rwanda as genocide. She cited Susan Rice of the US National Security Council, who asked during an interagency teleconference: “If we use the word 'genocide' and are seen as doing nothing, what will be the effect on the November [congressional] election?”[16]
The fact is that even if the atrocities committed by a state are labelled genocide, other states’ decisions to intervene in fulfilment of the responsibility to protect the victims remains a sovereign prerogative. Therefore, despite the commitment they undertook as signatories to the convention, states may choose not to implement international court rulings against other states and their officials found guilty of genocide. Often states with the means to intervene shirk their responsibility for political reasons (based on their current alliances), although they will mask their avoidance by disputing the presence of intent or attributing genocide to collateral damage. They might even go so far as to quibble with the International Court of Justice’s definition of genocide even though the ICJ’s rulings on questions of genocide are binding, not advisory.
Herein lies the fatal flaw of international law: it is not sovereign law. Its authority remains purely theoretical in the absence of states able and willing to enforce it. It can, however, be leveraged in political conflicts when political powers have the wherewithal to capitalize on in it. Moreover, the US has effectively claimed the exclusive authority to determine whether the crimes in a given country are genocide. It will characterize Russian forces’ actions in Ukraine[17] and the massacres perpetrated by the Rapid Support Forces (RSF) in Sudan as genocide,[18] and take actions accordingly.[19] Meanwhile, it refuses to accuse Israel of committing genocide in Gaza since October 2023, even though the ICJ found sufficient grounds to investigate it on this charge. Washington has consistently echoed Israel’s claims that it is fighting a war of self-defence, that the civilian casualties in Gaza are “unintended”, and that Hamas is to blame for the suffering of Palestinians in the Strip. Since Trump's return to the White House, the trend to denounce anyone who accuses Israel of genocide as anti-Semitic has been gaining momentum. Employees and university staff members already risk summary dismissal for “committing” this act.
International judicial bodies are very slow to issue rulings. The officials accused of committing genocide were in power for three years in the case of Cambodia and just four months in the case of Rwanda. The proceedings and deliberations of the international tribunals established by the UN for these cases took much, much longer. The Extraordinary Chambers in the Courts of Cambodia (ECCC), formed to try the Khmer Rouge, sat from 1997 to 2022, while the International Criminal Tribunal for Rwanda (ICTR) sat from 1994 to 2015.
ICJ hearings and deliberations regarding violations of the Genocide Convention have been equally lengthy. The case that Bosnia and Herzegovina initiated against the Federal Republic of Yugoslavia (later Serbia and Montenegro) was submitted to the court on 20 March 1993, and the court issued its final verdict fourteen years later, on 26 February 2007. Similarly, Croatia filed its case against Serbia on 2 July 1999, and the court issued its final verdict sixteen years later, on 3 February 2015.
Because of the long deliberation process, the ICJ can call for provisional measures to prevent or minimize irreparable harm in the interim. However, experience has shown that states actively perpetrating a genocide are unlikely to implement such measures voluntarily. Therefore, it is difficult to separate this problem from the question of humanitarian intervention to protect the vulnerable through the deployment of peacekeeping or other forces capable of enforcing the provisional measures. This would entail invoking Chapter VII of the UN Charter which addresses “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”.[20] But here, too, action is impeded by politically motivated differences on the definition and application of the term of genocide, as occurred when the US, followed by most other Western countries, refused so much as to consider the possibility that Israel’s actions in Gaza constituted genocide. The veto power often wielded by certain permanent members of the Security Council has also been a major obstacle to action.
Experts agree that demonstrating intent is one of the most challenging aspects of proving charges of genocide, though they differ on what constitutes intent. This is a main reason why the deliberations of the ICJ and special tribunals take so long. However, their provisional orders to prevent irreparable harm to the victims in the interim can only be enforced if there is a collective will among major powers to compel the perpetrator of genocide to comply. This prerequisite is not available when it comes to Israel. Moreover, if the applicant fails to make its case or if the court determines that it does not have sufficient grounds to classify a respondent’s war crimes and crimes against humanity as genocide, the respondent might appear cleared of all wrongdoing, even though not calling its atrocities genocide would make them no less monstrous. So why take them to court?
Going to court will not yield tangible benefits unless it sets into motion the responsibility to protect. As the likelihood of this is remote for the Palestinians, the benefits can only be moral and political. Nevertheless, these should not be understated. A conviction against Israel for genocide would erode its international standing and undermine its chief propaganda weapon, which combines the claim of self-defence with the advantages of a monopoly on victimhood based on linking the establishment of that state with the Nazi Holocaust against European Jews. A guilty verdict for genocide will strip Israel of that monopoly and offer its Palestinian victims the international recognition their suffering merits, even if this recognition falls short of delivering justice.
[1] United Nations,
Convention on the Prevention and Punishment of the Crime of Genocide, 9/12/1948, accessed on 20/1/2025, at:
https://acr.ps/1L9zR4h
[2]Trial of the Major War Criminals before the International Military Tribunal,
Nuremberg, 14/11/1945–1/10/1946, vol. XXII (Nuremberg, Germany: International Military Tribunal, 1948), p. 427, accessed on 20/1/2025, at:
https://acr.ps/1L9zRfh
[3] Raphaël Lemkin,
Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Washington: Carnegie Endowment for International Peace, 1944), p. 79.
[4] Ibid.
[5] Ibid., pp. 79-80, 82-90.
[6] Samantha Power, “A Problem from Hell”: America and the Age of Genocide (New York/ London: Harper & Perennial, 2002), p. 43.
[7] UN, General Assembly, “96 (1). The Crime of Genocide”, 11/12/1946, pp. 188-189, accessed on 21/11/2023, at:
https://acr.ps/1L9zQEn
[8] Emphasis mine. The phrasing is significant as it counters genocide apologists who hide behind wartime when there may be large numbers of civilian casualties.
[9] Emphasis mine to undescore the importance of intent in the acts mentioned in Article II (a) through (e). Parts of the final paragraphs also appear in: Azmi Bishara, al-Tufan: al-Harb ‘ala Filastin fi Ghaza (The Deluge: The War on Palestine in Gaza) (Doha/Beirut: The Arab Center for Research and Policy Studies, 2024), pp. 140–142.
[10] Emphasis mine.
[11] Emphasis mine. See: United Nations.
[12] Guglielmo Verdirame, “The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals”,
International and Comparative Law Quarterly, vol. 49, no. 3 (2000), p. 581.
[13] Martin Shaw,
What is Genocide? 2nd ed. (Cambridge: Polity Press, 2015), p. 40.
[14] Ibid., p. 41.
[15] Ashley S. Kinseth, “The Trouble of Proving ‘Genocidal Intent’: The Modern Rohingya Crisis in Historical and Political Context”,
Journal of International Law and Politics Online Forum, vol. 51 (Spring 2019), p. 107.
[16] Power, pp. 359-360. ((This URL is just for my reference:
https://archive.org/details/problemfromhella00powe_0/page/358/mode/2up?q=Rice ))
[17] The White House, “Remarks by President Biden on Lowering Energy Costs for Working Families”, 12/4/2022, accessed on 19/1/2025, at:
https://acr.ps/1L9zQmI; The White House, “Remarks by President Biden Before Air Force One Departure”, 12/4/2022, accessed on 19/1/2025, at:
https://acr.ps/1L9zRjU
[18] Antony J. Blinken, “Genocide Determination in Sudan and Imposing Accountability Measures”, US Department of State, 7/1/2025, accessed on 19/1/2025, at:
https://acr.ps/1L9zQjc
[19] The ICJ is still deliberating
the charges against Russia, as well as the case of the Rohingya (Gambia v. Myanmar) while no case has been brought against the RSF despite its crimes against the Sudanese people.
[20] United Nations, “Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression (Articles 39-51)”, accessed on 16/1/2025 at:
https://www.un.org/en/about-us/un-charter/chapter-7
