THE PREVENTION AND PUNISHMENT OF GENOCIDE AS AN INTERNATIONAL CRIME

Asunción, Paraguay

March 18, 2014

World War II left unforgettable consequences for humanity. The gravest violations of human rights were committed during this war, threatening the existence of groups of people, and the life and integrity of the human family in general. The atrocities committed throughout this period in human history serve as evidence of the need to treat genocide as an autonomous crime under international law. In fact, most historians and scholars of international criminal law agree that the Holocaust, or Shoah, is the paradigm of genocide.

In 1948, this gave rise to a treaty of international law called the Convention on the Prevention and Punishment of the Crime of Genocide.

The obligation of States to prevent genocide is extremely important, and it entails the responsibility to respond diligently in the face of potential catalysts that may trigger this international crime.

In the context of the Prevention of the Crime of Genocide, it is necessary for States to be able to identify when they are facing the conditions that occur prior to this crime, in other words, the warning signs that indicate the possibility of a genocide, which must be identified and counteracted in a timely and effective manner.

And while defining genocide is a basic obligation of States, this alone is not enough. It is necessary and crucial to promote respect for the right of human beings to exist as members of a particular group, through an education that allows people to reflect, become aware, and have the opportunity to participate, for example, in forums such as the International Judicial Forums, which seek to prevent racism and discrimination and provide opportunities to discuss the scope and possible modification of instruments pertaining to the international protection of human rights.

In addition to educating about the political, economic and social circumstances that led to the Holocaust being the paradigm of genocide, we must also fight against racism and all forms of discrimination to prevent their repetition.

States indicative of a multiethnic and intercultural population, characterized by an anthropocentric way of thought, being upholders of human dignity, must establish and implement affirmative actions against discrimination as an essential requirement to ensure the right to equality, and thus prevent acts that are degrading to the human condition, which can lead to the perpetration of genocide and other grave crimes that are a threat to human rights.

In the development of this genocide prevention policy, it is necessary to establish permanent observatories to monitor segregation and racial, political, religious, cultural, gender-based, or any other kind of discrimination in countries where these observatories have not yet been implemented.

For this reason, the Global Embassy of Activists for Peace insists on the need to create permanent observatories to monitor segregation and discrimination of any kind in countries where these observatories have not yet been implemented.

Article I of the Convention on the Prevention and Punishment of the Crime of Genocide demands the punishment of acts of genocide. And Article V states: “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties...” 

The Genocide Convention conveys the obligation of States to carry out significant efforts to strengthen or make changes to their state or court officials and judicial police agencies, in order to investigate, prosecute, try and punish this crime through competent national and international tribunals.

According to Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, a genocide is defined by the perpetration of any of the following acts:

1.    Killing members of the group;

2.    Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

3.    Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,

4.    Imposing measures intended to prevent births within the group;

5.    Forcibly transferring children of the group to another group.

In order to identify whether a genocide has been committed, it is necessary to identify the victim group. Indeed, the criminalization of genocide seeks to protect ethnic, racial, religious, or national groups of people, which has resulted in discussions that are still deliberated today. At the time, the Genocide Convention was a necessary response to the genocidal violence, but times and societies have changed. Because of these changes in time, the Genocide Convention now has a narrow definition of genocide, restricting from its scope of protection the victims of genocides perpetrated by political and economic groups. It only considers genocide to be physical violence, thus marginalizing cultural genocide and ethnocide, among others, from the scope of the Genocide Convention. Furthermore, it only considers the forcible transfer of children to be genocide, excluding from this crime the forcible transfer of adults from one group to another.

We must fill the gaps in the Genocide Convention of 1948 and the Rome Statute of 1998 because they provide opportunities that may well be exploited by those with genocidal instincts.

When the Rome Statute was approved in 1998, the international crime of genocide was defined by the exact same terms. By this, I mean that the international community lost a great opportunity to modify the legislature when it issued the Rome Statute, creating the International Criminal Court, because they limited themselves to using the same terms in 1998 as it did in 1948, 50 years earlier, in the Convention for the Prevention and Punishment of the Crime of Genocide. Unfortunately, nothing new was said about the crime of genocide in the Rome Statute of 1998 regarding what it had established 50 years ago.

My proposal as global ambassador for peace is to amend the Genocide Convention on the Prevention and Punishment of the Crime of Genocide and the Rome Statute. I believe that given the rise of a globalized society in constant change and dynamism, these instruments of international law currently have a limited scope.

Due to the overflowing evidence of discrimination, intolerance and violence against certain groups encountered in this century, it is necessary to promote the modification of the Genocide Convention and the Rome Statute to include political and economic groups as passive actors of genocide, and define cultural genocide, ethnocide and the forcible transfer of adults as crimes, given that all of these acts are perpetrated with intent to destroy, in whole or in part, groups of individuals.

The campaign of the Global Embassy of Activists for Peace for the amendment of the Genocide Convention states that when it comes to measures taken by the UN for the prevention, counteraction or punishment of genocide, none of the five powers may exercise the right of veto. If the decision is made against the suspension of the right to veto as a countermeasure of genocide, it must at least be required that a veto also be adopted by the majority of the five members of the Security Council of the United Nations Organization.

 

Democratic principles, humanitarian reasoning, and respect for human dignity and the right for people, as members of a group, to exist, prevent any single country from vetoing decisions made by the majority of the United Nations representatives, as a measure of genocide prevention or counteraction. This project also promotes the inclusion of at least one country in Latin American and the Caribbean as a permanent member of the Security Council of the United Nations.

Honorable justices of the Supreme Court, judges, prosecutors, attorneys, scholars and treatise writers: the Global Embassy of Activists for Peace needs your support to move forward with this proposal.

As law professionals, you decide the doctrinal and jurisprudential criteria that set the standards for the understanding, impact and application of rules. And as interpreters of the law, it is you who identify the gaps in regulations.

I am aware that a project of this magnitude, which seeks to amend the Convention on the Prevention and Punishment of the Crime of Genocide and bring up to date the Rome Statute, can only be accomplished with the support of all the sectors responsible for interpreting and applying the law at a national and international level.

It is necessary for the international judicial power to have the appropriate legal instruments to establish justice in all cases where an international crime, such as a genocide, has been committed. Respect for human rights, in the interest of common good, is a constitutional responsibility within the rule of law. Truth is a prerequisite of justice, justice brings peace, and peace is our right as a human family.

 

Thank you very much.

William Soto Santiago, Ph. D.