The UN Genocide Convention at 60

On 9 December 1948 the United Nations General Assembly adopted the ‘Convention for the Prevention and Punishment of the Crime of Genocide’. This was a response to the hitherto unprecedented scale of targeted mass extinction of defined groups of people by the German Nazi regime, which Winston Churchill had termed in a broadcast speech of 1941 ‘a crime without a name’. Only in 1944 did the lawyer Raphael Lemkin, a Jewish Polish refugee – after a long odyssey ending up in the United States – coin the term ‘genocide’ in his book ‘Axis Rule in Occupied Europe’. He had worked relentlessly to find an international legal response to the emerging Nazi doctrine and its terror. Due to this one individual’s lasting commitment, the concept of genocide and its condemnation by means of a normative framework entered the UN system.

It was on the initiative of Lemkin that on 11 December 1946 the UN General Assembly unanimously adopted Resolution 96(1). It states categorically that ‘genocide is a crime under international law which the civilised world condemns – and for the commission of which principals and accomplices, whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political or any other grounds – are punishable’. It took more lobbying and several compromises before essentials of this Resolution were finally adopted two years later as the Genocide Convention. It went into force three years later. The Convention defined genocide as ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’, and it made genocide a punishable crime under international law. Since then, as Robert Orr, the assistant secretary- general for policy planning in the Executive Office of the UN secretary-general summarised in 2006, ‘governments could take action under the United Nations Charter to prevent genocide. The United Nations second Secretary-General Dag Hammarskjöld said the United Nations’ spare job was not to take us to Heaven but to keep us from Hell. Genocide is the ultimate Hell.’

Unfortunately, little followed the adoption of the Convention in 1948 that showed that the hell called genocide was prevented by actions on the part of the UN system. Half a century later the renowned scholar William Schabas undertook a sobering stock taking overview of ‘The Genocide Convention at Fifty’. As he concluded: ‘The Genocide Convention was the first modern human rights treaty. It was adopted only one day earlier than the Universal Declaration of Human Rights, which set the common standard of achievement for human civilisation. Some must have believed, in 1948, that the unthinkable crime of genocide would never recur. Perhaps the gaps in the convention are only the oversights of optimistic negotiators, mistaken in the belief that they were erecting a monument to the past rather than a weapon to police the future. Their naiveté may be forgiven. A failure to learn the lessons of the fifty years since its adoption cannot.’

Indeed, the sobering if not sad lesson since then is that ‘never again’ had been wishful thinking instead of a sustainable reality resulting from the trauma of the Holocaust. Neither have forms of organised mass violence ceased, nor the intention to annihilate groups of people on the basis of common characteristics ascribed to them. The Convention of 1948 had declared the intention to establish a genuine and universal international criminal court to act in the spirit of the Convention. It took another 50 years until this was created in June/July 1998 at the Rome Diplomatic Conference – and only with further compromises and deviating views refusing full recognition of the Court and its jurisdiction.

Since then, several steps have taken the international system closer to the possibility both of pursuing and preventing crimes committed in violation of the Genocide Convention in a more coherent and consequent way – provided that the political will among member states permits it to do so: A special advisor on the prevention of genocide was for the first time appointed by the UN secretary-general in 2004; the Human Rights Council replaced the former Commission on Human Rights, with the intention to reinforce its mandate; the International Criminal Court as well as separate tribunals (for Rwanda and Yugoslavia) and hybrid national/international courts (in Sierra Leone and Cambodia) have taken action on genocide and brought perpetrators to trial; the Responsibility to Protect (R2P) was adopted as another normative parameter, which allows for preventative action.

The 2004 report of the United Nations High Level Panel on Threats, Challenges and Change recommended acceptance of R2P as an ‘emerging norm’. The 2005 Report of the UN Secretary-General submitted to the World Summit session of the UN General Assembly recommended endorsement of the R2P principle as put forward by the UN High Level Panel. The Summit subsequently endorsed the R2P concept, albeit dropping the references to failure to protect citizens from avoidable catastrophes such as deliberate starvation and exposure to disease. In April 2006, R2P acquired the status of international law when the UN Security Council reaffirmed the references in the 2005 World Summit Outcome document (resolution 1674). In August 2006, the Security Council applied R2P for the first time in calling for the deployment of UN peacekeepers to Darfur (resolution 1706).

As Robert Orr stated: ‘In order to prevent genocide, war crimes and crimes against humanity, we still face tremendous challenges. But nothing is inevitable. Genocide is indeed preventable. Sixty years ago, we didn’t even have a name for this evil. Now, we not only can name it, we have legal mechanisms obligating all to act to stop it, and increasing experience at trying to stop it. We now have the knowledge, we have the United Nations institution to help organise our response, and the political, economic, and military tools to prevent it. The question is, “Will we use them?”’ – And if so, when do we use them for whose interest and to protect whom?

* Henning Melber is the Executive Director of the Dag Hammarskjöld Foundation in Uppsala/Sweden. This is an excerpt from his Introduction to the volume “Revisiting the heart of darkness – Explorations into genocide and other forms of mass violence”, published by the Foundation as “Development Dialogue” no. 50. The book is accessible on the Foundation’s website.

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