After a long wait, a UN team led by a British attorney, Karim Khan acknowledged that‘Genocide’ was committed against the people of the Yazidi Community in 2014 by the armed terrorists of ISIL (Daesh). The pieces of evidence of the genocide were ‘clear and convincing’ to uphold the liability of the 1414 identified perpetrator

In 2014, the militants of ISIS captured the whole ‘Yazidi’ village in northern Iraq to show their distaste and superiority over the ‘Yazidi’ community. Later on, over 600 men were killed by the militants, and all the women (including the 2018 Nobel Peace laureate Nadia Murad) were converted into sex slaves. All the children were brainwashed by the group to be brutal terrorists. The modus operandi of ISIS was very organized; There was a huge network that supports the group in the commission of every crime. 

The Crime of Genocide

The term ‘Genocide’ was coined by him in 1944, by combining the Greek prefix geno (meaning race or tribe) with the Latin word cide (meaning to kill). United Nations General Assembly first recognized genocide as a crime under international law in 1946. Subsequently, the Convention on Prevention and Punishment of the Crime of Genocide, 1948 (the Genocide Convention) codified it as an independent crime in 1948. Article 2 of the Genocide Convention defines genocide. It should also be noted that ‘killing’ is not necessary for the crime of genocide and acts of non-killing, such as forcibly transferring children or preventing births, intended to eliminate the group is also covered under the ambit of genocide. 

Genocide Convention: The Unloaded Gun

The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Conventions) an instrument of international law that codified for the first time the crime of genocide. The Genocide Convention was the first human rights treaty adopted by the General Assembly of the United Nations on 9 December 1948. This signify the international community’s commitment to ‘never again’ after the atrocities committed during the Second World War. Its adoption marked a crucial step towards the development of international human rights and international criminal law as we know it today.

Later on, the ICJ has established that the Genocide laws fall under the category of International customary laws as they have a great impact on the face of human existence. Therefore they behold a status of ‘Jus Cogens’ which means there is no need for ratification by any state; this law will be automatically applied to the states. It must be considered a higher source of law so that the perpetrators of genocides could be held accountable and human rights could be preserved effectively. 

Due to the seriousness of the ‘act of genocide’, international criminal law has set higher standards for this crime than the crime against humanity and war crime. Despite such gravity of the crime, the legislation is not that concrete. It is this unique character of crime of genocide that proved to be beneficial for the perpetrators.

Intent to Destroy

Article II defines the term ‘Genocide’ where it is stated that there should be intent to destroy the community. In the case of Prosecutor v. Semanza, 2003 it was stated that the ‘mens rea of the crime can be inferred by the actions of the preparator’. Several examples cause the intent not to be proven in the absence of material pieces of evidence. In the case of Prosecutor v. Akayesu, 1998 it was accepted that it is so tough to derive the element of intention in a crime. In the case of the Yazidi Genocide, it was apparent that ISIS was sponsored by few other states to conduct the Genocide, which also falls under the category of Genocide as per Article III of the convention. But the misfortune is proven by the unavailability of material pieces of evidence to prosecute the states which held the bigger share of this sin. So, it is the call of the hour that the scope of this definition should be enlarged to behold the real wrongdoer. Here, the mens rea should also be derived from the actus reus of the preparator. 

Intent to Destroy – In whole or in Part

The article also states that there should be an intent to destroy a community in whole or part. In the case of Kayishema and Ruzindana, 1999 it was stated that the phrase ‘in part’ infers that there should be an intention to destroy a community in a considerable amount, mere destruction of people from a group does not constitute the crime of Genocide. In the case of Prosecutor v. Bagilishema, 2001 it was held that “the intention must be to destroy the group as such, meaning as a separate and distinct entity, and not merely some individuals because of their membership in a particular group.” The Genocide of Rwanda can abstain in an earlier stage where the killings of people of the ‘Tutsi’ tribe were not inferred as the considerable amount. The narrow definition did not allow the UN peacekeeping forces led by Lt. Gen. Romeo Dellaire to terminate the threat at its earlier stage.  

Here, the phrase ‘In part’ provides the leverage to the preparators; It is very tough to establish the intention of the preparator to destroy a community in a considerable amount. So, the interpretation of the phrase needs to be revised. The phrase ‘Considerable amount’ in the Kayishema case needs to be revisited and defined in an elaborated manner to tighten the loophole of this interpretation. 

Cultural Genocide: An Unjust Exclusion

In human societies, culture plays an important role in the individual as well as collective well-being and therefore, any threat or damage to the culture will eventually lead to the disintegration or destruction of a group. The term cultural genocide was adopted by the ad hoc Genocide Committee in the initial draft under Article III but the term was subsequently dropped because of the dissent of many member states due to their own national and geopolitical interests. One of the recent instances was the genocide of Uighur Muslims in China where mass detention camps called the ‘re-education camps’ had been set up to change their political thinking and religious beliefs.

To redress such acts, it is important to have proper and wide legislation but the scope and applicability of the genocide convention have been confined to a great extent because of the omission of cultural genocide from its legal framework. Though some other statutes have covered this term, the judgment of the ICTY in The Prosecutor v. Radislav Kristic is crucially important in which it was said that “attack on religious property or symbols of the targeted group may be considered as an evidence of intent to destroy them physically.” Also, in the case of The Prosecutor v. Vidoje Blagojevic and Dragon Jokic, it was held that acts other than mass killings can also lead to the destruction of a group.

Therefore, we can say that ICTY rulings provide some sort of framework on which the laws of cultural genocide can be formed. In the view of rapidly increasing concerns about the rights of minorities throughout the world, it is the need of the hour that the international community comes forward to adopt ‘Cultural Genocide’ in the UN Convention so that the human rights of such people could be protected. 

Ways Ahead

Undermining the quality of human life is like defying the will of God; We as humans ought to move forward to refrain from the exploitation of a community or a group. The present convention has so many loopholes which give an easy escape to the perpetrators. In addition to all this, the present system does not provide any rehabilitation opportunity to the escaped members of the victim community. There are several incidences where the surviving members do not get a dignified life, for example, the Rohingya community of Myanmar is not getting the basic requirements of a human being. On the other hand, there are examples where the escaped members have committed some grave offences like the Beheading of Samual Paty in France by a Chechen refugee.

So, a better solution to these problems is providing better counselling and rehabilitation to the victims. This should be the “collective responsibility” of the states. The UN should adopt a resolution to tackle the problems of better rehabilitation where the victims should also be equipped with expert counselling, it will reduce the risk of an increased number of crimes by the preparators, and on the contrary, it will provide more resources to the state and the world. Article XVI of the Convention gives the leverage to the state to modify the convention as per their requirement. This provision makes the convention a mere namesake convention. So, the issue needs to be addressed immediately to make a step towards attaining utopia.

Amisha Singla & Avinash Kumar
Rajiv Gandhi National University Of Law, Patiala, Punjab

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