General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, , international law has faced a paradox. The international community resolved to make the systematic annihilation of populations a universal jurisdiction crime with no statute of limitations. But by protecting some groups and excluding others such as political, gender and sexual identity groups from its protection, it created a legal instrument that has proved to be almost useless given that nearly all modern genocides are, to some degree, politically motivated. Indeed, despite the global proliferation of genocide in the second half of the twentieth century, the first conviction for genocide by an international court was not until 50 years later in
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General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, , international law has faced a paradox. The international community resolved to make the systematic annihilation of populations a universal jurisdiction crime with no statute of limitations.
But by protecting some groups and excluding others such as political, gender and sexual identity groups from its protection, it created a legal instrument that has proved to be almost useless given that nearly all modern genocides are, to some degree, politically motivated.
Indeed, despite the global proliferation of genocide in the second half of the twentieth century, the first conviction for genocide by an international court was not until 50 years later in Since then, the number of convictions has been disappointingly low.
The steady stream of protest over the years about the wording of the Convention has made little difference. However, the Whitaker Report — one of two major United Nations documents on genocide — was never even discussed by the U.
General Assembly and when the narrow definition of genocide was included in the Rome Statute of the International Criminal Court in , further discussion seemed useless. Therefore the concept of genocide can be applied to a much wider range of cases than is generally supposed. In such cases, the genocides of the past can easily provide an excuse for armed intervention in quite different situations, to neutralize insurgent or opposition groups.
This idea gives us a useful insight into the workings of power systems in the modern era. In particular, the nation state has tended to destroy the identities of ethnic and religious minorities within its boundaries and impose a new identity on them: the national identity of the oppressor. Although this meaning of genocide is present in the two earlier drafts the Secretariat Draft and the Ad Hoc Committee Draft of the Genocide Convention written in May and April , it was carefully edited out of the final text, which was approved only after two years of intense disagreements.
The illegitimacy of excluding political groups in this way has been discussed by various authors in different works. Many commentators have argued that the national group must necessarily be different from the perpetrator group.
Assumptions about the relationship between victims and perpetrators lie at the heart of different conceptions of genocide. This explains the emphasis of the media and quite a few academics on conflicts in Nigeria, Rwanda, Sudan, and Zimbabwe. Interestingly, the conflict in the former — Yugoslavia also tends to be seen as a tribal clash.
Unfortunately, it has also become the common sense view not just of the media but of scholars who know little about the realities of ex — Yugoslavia in the twentieth century. This idea was pioneered by Spanish Judge Baltasar Garzon in his indictment of Scilingo and other Argentine military officials in and has been adopted by several courts in Argentina.
In this view, the ultimate purpose of genocide is not the destruction of a group as such but the transformation of society as a whole.
This was the aim the Nazis in Germany and Axis- occupied Europe as well as being that of the perpetrators in former Yugoslavia, Rwanda, Indonesia, Cambodia and Latin America, to mention just a few cases in which terror has been used as an instrument of social transformation.
Effects on social memory processes As a paradigmatic case of genocide, the Holocaust provides a good example of how different interpretations can promote ownership of experience or, conversely, alienation. Once stripped of their German, Polish or Lithuanian identities, Jews and Gypsies were could only be seen through the eyes of the perpetrators, as being outside of the German, Polish or Lithuanian national group.
In particular, one of the most enduring effects of the Nazi genocide of Jews and Gypsies was the disappearance of internationalism and cosmopolitanism as constituent parts of German and European identity. It invites societies to reflect on how destruction has shaped their own social practices, avoiding the alienation inherent in treating genocide as the suffering of others. We are forced to ask who has benefited from the disappearance of certain groups and — more importantly — from the social transformation generated by the processes of annihilation and terror.
The business and political sectors behind many genocides have often remained invisible and unpunished, since responsibility is usually attached only to the direct perpetrators, whether military or police, but not to their paymasters.
Genocide or crimes against humanity The specific meaning of genocide as a policy directed at groups and not individuals, is almost entirely absent from the looser concept of crimes against humanity as formulated in international law. The persecution of groups is only mentioned in h , which curiously reproduces the wider concept of genocide as contained in the Secretariat Draft and the Ad Hoc Committee Draft of the Genocide Convention, and in j.
This is the most important legal difference between the concept of crimes against humanity which refers to indiscriminate actions against members of a civilian population and the concept of genocide which refers to the deliberate targeting of specific population groups for complete or partial destruction.
We recognize the victims as citizens, but we exclude the surviving members of the group from being treated as co-victims. New directions for criminal law in the 21st century This debate about genocide and crimes against humanity is not merely an academic one, nor is it relevant only to past events.
Its main mission was to investigate and prosecute cases of genocide, war crimes and crimes against humanity as defined by the new international criminal law. However, the way in which the Court has operated since it was set up — and even the way it has intervened in conflicts — raises serious concerns about its ability to prevent state violations of human rights, which is purpose for which international criminal law was created in the first place.
As a result, all the proceedings of the ICC have to date focused on Africa, with three of them directed against non-state organizations in the Democratic Republic of Congo, Uganda and the Central African Republic. The most worrying thing about this — apart from the seriousness of the crimes reported — is that it is not clear why non-state organizations should require action by the Court. Such action would seem to violate a fundamental principle of international criminal law: the Court exists to try human rights violations committed by the state apparatus and not by forces opposing the state, which can be tried in domestic courts.
In others, like Colombia, the situation is more serious. The 21st century has also witnessed a widespread attempt to equate genocide and crimes against humanity committed by the State with crimes of terrorism committed by individuals.
The speed with which some countries have passed these laws contrasts surprisingly with their slowness to pass anti-genocide legislation. These anti-terrorism laws are becoming increasingly vague and open-ended, criminalizing political protest and differences of opinion. In other words, once the U. And yet, paradoxically, if the same events took place in the U.
This explanation makes the Convention applicable to a potentially large number of politically motivated annihilations, including nearly all modern genocides. This is true even when a group appears at first sight to have been targeted for religious or ethnic reasons. We have also seen that the concept of genocide is restricted to attempts to destroy a particular group, even when this also involves the mass annihilation of civilian populations, as in crimes against humanity.
It is therefore important to emphasize the distinctiveness of the concept of genocide, which requires intent to destroy a group in whole or in part. Clear legislation is needed to protect individuals from arbitrary state persecution and to guarantee fundamental rights, which have taken centuries to evolve.
It should stop putting the actions of insurgent movements in the Congo, Uganda or Colombia on the same level as mass murder committed by the state.
Instead, it should insist that small-scale non-state crimes be tried in national courts under national laws, respecting the fundamental rights of the perpetrators, however abhorrent these monsters and their crimes may be. Failure to confront these issues will not only affect the work of individual judges and lawyers.
It may eventually destroy the criminal justice system that we have known throughout most of the twentieth century, with the return of unfettered discretion and arbitrary exercise of power marking the end of citizenship rights. Leo Kuper, Genocide. In search of a common denominator between legal and non legal definitions in Daniel Feierstein ed. A Blueprint for U.
Institute of Peace, U. It is paradoxical that one of the editors of the report is the Holocaust Museum in Washington. For a discussion of this issue, see 4.
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Seis Estudios Sobre Genocidio: Are you an author? General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9,international law has faced a paradox. Daniel Feierstein From this perspective, a key issue in managing public policy would be how to establish a system of controls to prevent the United States from acting in ways that increase the possibility of genocidal events. Help Center Find new research papers in: These anti-terrorism laws are becoming increasingly vague and xaniel, criminalizing political protest and differences of opinion. Available for download now. However, the way in which the Court has operated since it was set up — and even the way it has intervened in conflicts — raises serious concerns about its ability to prevent state violations of human rights, which is purpose for which international criminal law was created in the first place.
Daniel Feierstein. 18.12.2019. El Desconcierto