The crime of political genocide: repairing the Genocide Convention's blind spot.

• Author: Van Schaack, Beth

At long last, the international community is moving toward the fulfillment of certain promises made at the close of the Nuremberg trials.(1) Since that time, human rights abusers have escaped accountability for their international crimes, in large part due to the lack of enforcement mechanisms at the international level.(2) Three contemporary initiatives, however, suggest that the Nuremberg legacy of holding individuals accountable for human rights violations is not mere history. First, the establishment of the International Tribunals for Yugoslavia(3) and Rwanda,(4) both under the auspices of the United Nations, represents a genuine first attempt by the international community to enforce international criminal law. Second, in 1994, the United States Congress passed the Cambodian Genocide Justice Act, an unprecedented domestic statute which announces that, "[c]onsistent with international law, it is the policy of the United States to support efforts to bring to justice members of the Khmer Rouge for their crimes against humanity committed in Cambodia between April 17, 1975, and January 7, 1979."(5) Third, the United Nations recently convened a preparatory committee to draft a final statute for a permanent International Criminal Court.(6) Although the first two endeavors, the two ad hoc tribunals and the U.S. legislation, envision prosecutions for the international crime of genocide, neither the tribunals' constitutive statutes nor the legislative text critically considers the definition of genocide provided by the controlling international treaty: the Convention on the Prevention and Punishment of the Crime of Genocide.(7) With regard to the establishment of the International Criminal Court, however, some delegates to the preparatory meeting have specifically noted that they "want a sharper definition of the crimes of genocide, although the [Genocide Convention] defines it."(8)

The Genocide Convention, drafted by the United Nations soon after the Nuremberg trials, represented a significant step toward the establishment of a regime of individual accountability for violations of international law. The Convention compels its signatories to prevent and punish certain enumerated acts committed with the intent to destroy, in who; or in part, a national, ethnic, religious, or racial group.(9) Given that the 1948 Convention to be applied formally for the first time since its drafting almost fifty years ago, an examination of how it governs modern episodes of genocidal killing deserves critical attention.

Much of the killing in Bosnia and Rwanda constitutes genocide pursuant to the terms of the Genocide Convention; however, this is not the case with respect to the killing in Cambodia during the Khmer Rouge era (1975-78), in which almost a fifth of the population was executed or killed by being worked or starved to death. Even though the Cambodia massacre is widely considered a paradigmatic case of genocide,(10) a close reading of the Genocide Convention leads to a surprising and worrisome conclusion. The Genocide Convention, unlike other international legal instruments,(11) limits the protected classes to national, ethnic, racial, and religious groups.(12) As such, it does not cover a significant portion of the deaths in Cambodia.(13) This example illustrates the critical shortfall of the Genocide Convention.

After protracted debate, the drafters of the Genocide Convention expressly excluded "political groups" from Article II. An examination of the travaux preparatoires of the Convention reveals the compromises -- born of politics and the desire to insulate political leaders from scrutiny and liability -- that can occur when political bodies attempt to reduce customary law principles to positivistic expression. The exclusion of political groups from the Genocide Convention represents one such compromise. No legal principle can justify this blind spot.

In this Note, I argue that the Genocide Convention is not the sole authority on the crime of genocide. Rather, a higher law exists: The prohibition of genocide represents the paradigmatic just cogens norm, a customary and peremptory none of international law from which no derogation is permitted.(14) The just cogens prohibition of genocide, as expressed in a variety of sources, is broader than the Convention's prohibition(15) as has been demonstrated with respect to the jurisdictional principle applied to acts of genocide.(16) Notwithstanding that the framers of the Genocide Convention attempted to limit the prohibition of genocide by deliberately excluding political groups from Article 11, this provision is without legal force to the extent that it is inconsistent with the jus cogens prohibition of genocide. Therefore, when faced with mass killings evidencing the intent to eradicate political groups in whole or in part, domestic and international adjudicatory bodies should apply the jus cogens prohibition of genocide and invoke the Genocide Convention vis-a-vis signatories only insofar as it provides practical procedures for enforcement and ratification.(17)

In Part I of this Note, I detail and critique the political compromises that occurred during the drafting of the Genocide Convention. In Part II, I describe the atrocities perpetrated by the Khmer Rouge in Cambodia to demonstrate the shortfalls of the definition of genocide in the Genocide Convention. In Part III, I describe the scope of the jus cogens prohibition of genocide, and I argue that treaty provisions such as Article II carry no legal weight when they conflict with a jus cogens norm as a higher form of law.

1. The Origins of The Genocide Convention And Its Blind Spot

   "`Genocide is a modern word for an old crime.'"(18) When the Allies unveiled the Nazi concentration camps, revealing the horrific full scope of the Nazi Final Solution, the world community was faced with the challenge of how to understand and explain the enormity of the Holocaust. As an initial response, and in reply to Winston Churchill's portrayal of the Nazi extermination program as a "`crime without a name,"(19) the Polish scholar and jurist Raphael Lemkin coined the term "genocide"(20) to describe what happened to the Jews and other so-called undesirable groups at the hands of the Nazis. Lemkin's well-accepted definition of genocide encompassed efforts to eradicate human collectivities defined along many dimensions. For Lemkin, the critical element of genocide was that while singular acts are aimed at individuals, the broader aim of genocide is to destroy entire human collectivities.(21) The indictment of October 8, 1945 against the major Nazi war criminals was the first international document to employ this neologism. It accused the defendants of conducting "deliberate and systemic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial or religious groups."(22)

   Lemkin was the first to advocate the promulgation of a comprehensive convention attesting to the international community's universal condemnation of the crime of genocide.(23) On November 9, 1946, in its first session, the General Assembly referred a draft resolution condemning the crime of genocide to the Sixth (Legal) Committee. The Committee returned the following resolution, which was unanimously adopted by the General Assembly at its 55th session:(24)

   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 consciences

   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 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.

   The punishment of the crime of genocide is a matter of

   international concern.

   The General Assembly, therefore,

   Affirms that genocide is a crime under international law which the

   civilized world condemns ... whether the crime is committed on

   religious, racial, political or any other grounds ....(25)

   From this start, an Ad Hoc Committee(26) of the Economic and Social Council drafted a Convention on Genocide which was forwarded to the Sixth Committee of the General Assembly. The draft convention announced that its express purpose was "to prevent the destruction of racial, national, linguistic, religious, or political groups of human beings," because genocide "inflicts irreparable loss on humanity by depriving it of the cultural and other contributions of the group so destroyed."(27) The Sixth Committee, although it was handed responsibility for writing the final Convention, reneged on its original mandate. After protracted debate, the Committee fell sway to political compromises, and political groups dropped out of the equation. As such, the definition of genocide embodied within the final version of the Genocide Convention differs significantly from that of the preceding General Assembly resolution, the draft convention, and from the original Lemkinian conception.

   The content of Article II was one of the most highly debated provisions of the original document.(28) Delegates who opposed the inclusion of political groups in the Convention based their arguments on the perceived essence or character of the groups to be included. In other words, political groups were to be excluded "since they lacked the necessary homogeneity and stability."(29) The Polish delegate to the drafting committee noted: "While it was true that definitions [have] ... a certain elasticity, there were certain essential features which formed part of an entity to which a label was attached. Genocide was basically a crime committed against a...