The Crime of Genocide and Freedom of Religion or Belief

Contents

1. Summary
2. Introduction
3. Keywords
4. Essence (philosophical/axiological/theological etc.)
5. Historic context
6. Legal Regulations
7. Practical Aspects
8. Bibliography
9. See Also (related topics)
10. External Links
11. About the Author

Summary

Genocide is an atrocity crime which has a legal definition in Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The crime of genocide is considered part of international customary law and a norm of jus cogens. The Genocide Convention imposes duties on State Parties to prevent and punish the crime. Despite these clear duties, genocide is not a crime of the past and continues to be perpetrated even today.

While not every case of genocide has a clear link to religion or belief, religious groups are one of the four protected groups under the Genocide Convention. As the judgement in the case of Akayesu identifies, a religious group protected in Article II “is one whose members share the same religion, denomination or mode of worship.” ( The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for Rwanda (ICTR), 2 September 1998, 515).

Furthermore, most of contemporary cases of genocide have been perpetrated against religious or ethno-religious groups. From the atrocities against the Yazidis in Iraq to the Rohingyas in Myanmar, from the Uyghurs in Xinjiang, China, to the Hazara in Afghanistan, the communities are targeted with the prohibited acts because of their membership in a religious group.

Introduction

Genocide, often referred to as the crime of crimes, is an atrocity crime defined in Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). Genocide is a crime of specific intent. It requires the mens rea of specific intent to destroy a protected group in whole or in part. The Genocide Convention imposes duties on State Parties to prevent and punish the crime of genocide.

Recent years have seen several cases of genocidal atrocities where the communities are targeted because of their religion or belief. In 2014, Daesh targeted Yazidis, Christians and other religious minorities because of their religious identity. In 2016, the Burmese military targeted the Rohingya Muslims in Rakhine state, Myanmar. In 2018, Uyghur Muslims have been subjected to forced indoctrination that was aimed at stripping them of their religious identity. This was followed by other practices. In 2021, the Hazara Shias were subjected to genocidal atrocities from the hands of IS-K and the Taliban. In all these cases, and years prior to the genocidal atrocities, these communities have been subjected to harassment, discrimination, persecution because of their religion or belief.

Apart from these contemporary cases of genocide where the communities are targeted because of their religion or belief, such targeting of religious and ethno-religious communities has been noticeable throughout decades and centuries. These cases include the genocides against the Armenians by the Ottoman Empire, the Holocaust, the genocide in the former Yugoslavia, among others.

Keywords

Genocide, atrocity crimes, Genocide Convention, Rome Statute

Essence (philosophical/axiological/theological etc.)

Genocide, often referred to as the crime of crimes, is an atrocity crime focused on a group rather than an individual. Its uniqueness is derived from the premise that the crime is to target a protected community for annihilation, whether in whole or in part. It is not to undermine other crimes, including crimes against humanity, but to recognise the unique nature of the crime. As genocide is a crime that targets whole communities for annihilation, it is a crime that cannot happen overnight. It requires preparation and planning. Studying the early warning signs and risk factors can help to prevent the crime from materialising. Gregory H Stanton, President of Genocide Watch, developed the Ten Stages of genocide which aim to portray the progression which ultimately leads to the crime of genocide.

The Ten Stages are:

1. “1. CLASSIFICATION: All cultures have categories to distinguish people into “us and them” by ethnicity, race, religion, or nationality: German and Jew, Hutu and Tutsi. Bipolar societies that lack mixed categories, such as Rwanda and Burundi, are the most likely to have genocide.(...)
2. SYMBOLIZATION: We give names or other symbols to the classifications. We name people “Jews” or “Gypsies,” or distinguish them by colors or dress; and apply the symbols to members of groups. Classification and symbolization are universally human and do not necessarily result in genocide unless they lead to dehumanization. When combined with hatred, symbols may be forced upon unwilling members of pariah groups: the yellow star for Jews under Nazi rule, the blue scarf for people from the Eastern Zone in Khmer Rouge Cambodia. (...)
3. DISCRIMINATION: A dominant group uses law, custom, and political power to deny the rights of other groups. The powerless group may not be accorded full civil rights, voting rights, or even citizenship. The dominant group is driven by an exclusionary ideology that would deprive less powerful groups of their rights. The ideology advocates monopolization or expansion of power by the dominant group. It legitimizes the victimization of weaker groups. (...)
4. DEHUMANIZATION: One group denies the humanity of the other group. Members of it are equated with animals, vermin, insects or diseases. Dehumanization overcomes the normal human revulsion against murder. At this stage, hate propaganda in print and on hate radios is used to vilify the victim group. (...)
5. ORGANIZATION: Genocide is always organized, usually by the state, often using militias to provide deniability of state responsibility. (...) States organize secret police to spy on, arrest, torture, and murder people suspected of opposition to political leaders. Special training is given to murderous militias and special army killing units.
6. POLARIZATION: Extremists drive the groups apart. Hate groups broadcast polarizing propaganda. Motivations for targeting a group are indoctrinated through mass media. Laws may forbid intermarriage or social interaction. (...)
7. PREPARATION: Plans are made for genocidal killings. National or perpetrator group leaders plan the “Final Solution” to the Jewish, Armenian, Tutsi or other targeted group “question.” They often use euphemisms to cloak their intentions, such as referring to their goals as “ethnic cleansing,” “purification,” or “counter-terrorism.” They build armies, buy weapons and train their troops and militias. They indoctrinate the populace with fear of the victim group. (...)
8. PERSECUTION: Victims are identified and separated out because of their ethnic or religious identity. Death lists are drawn up. In state sponsored genocide, members of victim groups may be forced to wear identifying symbols. Their property is often expropriated. Sometimes they are even segregated into ghettoes, deported into concentration camps, or confined to a famine-struck region and starved. They are deliberately deprived of resources such as water or food in order to slowly destroy them. Programs are implemented to prevent procreation through forced sterilization or abortions. Children are forcibly taken from their parents. (...)
9. EXTERMINATION begins, and quickly becomes the mass killing legally called “genocide.” It is “extermination” to the killers because they do not believe their victims to be fully human. (...)
10. DENIAL is the final stage that lasts throughout and always follows genocide. It is among the surest indicators of further genocidal massacres. The perpetrators of genocide dig up the mass graves, burn the bodies, try to cover up the evidence and intimidate the witnesses. They deny that they committed any crimes, and often blame what happened on the victims. They block investigations of the crimes, and continue to govern until driven from power by force, when they flee into exile. (...).” (Gregory Stanton, The Ten Stages of Genocide (2016))

Historic context

The term genocide was coined by a Polish-Jewish lawyer, Raphael Lemkin, in 1944, to describe the atrocities perpetrated by the Nazis against the Jews during World War II. At the time, he defined genocide as “the destruction of a nation or of an ethnic group. This new word, coined by the author to denote an old practice in its modern development, is made from the ancient Greek word genos (race, tribe) and the Latin cide (killing), thus corresponding in its formation to such words as tyrannicide, homicide, infanticide, etc. Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.” (Axis Rule in Occupied Europe ix. 79)

In December 1946, the UN General Assembly adopted the Resolution on the Crime of Genocide condemning the crime and defined genocide as, “A denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human being; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups.”

On 9 December 1948, the UN General Assembly adopted the  UN Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) as the first human rights treaty unanimously adopted by the UN body. It entered into force on 12 January 1951. As of December 2022, the Genocide Convention had 152 State Parties. While Lemkin was the driving force behind the work on the crime of genocide and international legal mechanisms, the final wording of the definition of genocide differs from how Lemkin envisioned it.

Despite the fact that the word was coined and the legal definition was codified after World War II, what we now know as the crime of genocide has been perpetrated for decades and centuries before. For example, between 1904 and 1908, the Herero and Nama people have been targeted for annihilation in German-occupied South West Africa (currently the territory of Namibia). Between 1915 and 1923, 1.5 million ethnic Armenians were arrested, deported or murdered by the Ottoman Empire. The Holocaust is yet another example of genocidal atrocities and the very atrocities that brought together worlds leaders to work on and adopt the Genocide Convention. Since the Genocide Convention, there have been several situations which have been recognised or considered to meet all elements of the definition of genocide in Article II of the Genocide Convention, including the atrocities in Cambodia, Bosnia, Rwanda, Darfur, Iraq, Myanmar, China. In 2022, there are questions to be asked whether the war in Ukraine or the atrocities against the Hazara in Afghanistan  amount to  genocide.

In all these cases, little has been done to implement the duties in the Genocide Convention.

Legal regulations

Genocide in defined in Article II of the Genocide Convention as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
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.”

This definition of genocide is further replicated in Article 6 of the Rome Statute of the International Criminal Court (the Rome Statute).

The crime of genocide is considered part of international customary law and a norm of jus cogens, namely, a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted.

Article I of the Genocide Convention imposes, upon State Parties, a duty to prevent and a duty to punish the crime of genocide. The duty to prevent means that State Parties are to “employ all means reasonably available to them, so as to prevent genocide so far as possible.” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, 430). The duty to punish incorporates the need to criminalise the crime and so enable prosecution. For example, genocide is criminalised in Article 118 of the Criminal Code of Poland. Article 118 states:

Ҥ 1. Whoever, acting with an intent to destroy in full or in part, any ethnic, racial, political or religious group, or a group with a different perspective on life, commits homicide or causes a serious detriment to the health of a person belonging to such a group, shall be subject to the penalty of the deprivation of liberty for a minimum term of 12 years, the penalty of deprivation of liberty for 25 years or the penalty of deprivation of liberty for life.

§ 2. Whoever, with the intent specified under § 1, creates, for persons belonging to such a group, living conditions threatening its biological destruction, applies means aimed at preventing births within this group, or forcibly removes children from the persons constituting it, shall be subject to the penalty of the deprivation of liberty for a minimum term of 5 years or the penalty of deprivation of liberty for 25 years.”

Article 118 of the Criminal Code replicates Article II of the Genocide Convention with a few differences. First, the Criminal Code mentions a political group among the four protected groups, instead of a national one. Second, Article 118 contains elements of Article III of the Genocide Convention in that it also refers to preparatory acts. However, Article III of the Genocide Convention incorporates also (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.

Establishing the Elements of the Crime

Genocide is a crime perpetrated against a group, targeting group identity, and not against an individual. The Genocide Convention articulates four types of groups that Genocide Convention exclusively applies to: national, ethnic, racial, and religious groups.

The mental element of the crimes requires showing the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” Establishing this mental element may be challenging as there may not be any clear expression of the specific intent to destroy. However, the specific intent to destroy could be inferred from the act. As confirmed by the International Criminal Tribunal for Rwanda, in the case of Akayesu, in the absence of any clear expression of any such specific intent, the specific intent can be inferred from the patterns of the mass atrocities and their impact on the targeted group: “his intent can be inferred from a certain number of presumptions of fact. The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.” (Akayesu, (Trial Chamber), 2 September 1998, para. 523-524.)

This specific intent may also be inferred from: “the general political doctrine which gave rise to the acts possibly covered by the definition in Article 4, or the repetition of destructive and discriminatory acts. The intent may also be inferred from the perpetration of acts which violate, or which the perpetrators themselves consider to violate the very foundation of the group- acts which are not in themselves covered by the list in Article 4(2) but which are committed as part the same pattern of conduct.” (ibid.)

The actus reus element includes five prohibited acts: “a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group.

Practical Aspects

Among the practical aspects, there are a few important questions that need to be considered: 1) Who is to determine genocide? 2) Whether a specific case meets the legal definition of genocide? 3) When are the duties under the Genocide Convention engaged?

Who is to determine genocide?

Currently, only a few States engage with the issue of genocide determination or determination of the serious risk of genocide. Among others, the US State Department engages in the analysis of situations and makes determination of genocide (and crimes against humanity). The US State Department has made such determinations in the case of the Daesh atrocities against the Yazidis and Christians, the atrocities against the Uyghurs in China, the atrocities against the Rohingyas in Myanmar, and the historic case of the Ottoman atrocities against the Armenians. The Canadian and the Dutch governments recognised the Daesh atrocities as genocide. Furthermore, several parliaments have recognised the Daesh atrocities and the atrocities against the Uyghurs as genocide. However, other States, including the UK, continue to rely on the argument that it is not for politicians but for courts to make this determination. As such, the UK government will not recognise atrocities as genocide until a competent court makes such a determination. As a result, the UK government does not recognise any genocides post the genocide in Bosnia.

The determination and recognition of mass atrocities for what they are is not a matter of good practice only; it derives from States’ international law duties, and is conductive of the duties to prevent and punish the crime of genocide. Gregory H. Stanton, former Research Professor in Genocide Studies and Prevention at George Mason University, conducted a study on the perception and effects of using the words ‘ethnic cleansing’ or ‘genocide’. His research convincingly concludes that recognising mass atrocities that meet the legal definition of genocide as genocide has resulted in a more comprehensive response, including to stop the atrocities. Referring to such crimes as ‘ethnic cleansing’ did not have the same effect. As such, empirical reality suggests that there is a difference in the way different international crimes are being addressed by states.

Genocide determination is the first step towards effective and comprehensive response, including to prevent the risk of genocide from materialising or to prevent further atrocities. Genocide determination also plays an important role in addressing the issue of genocide denialism, namely, the act of denying the occurrence of genocide that is aimed at denying justice to the victims and belittling their suffering.

Whether a specific case meets the legal definition of genocide?

In order for atrocities to be classified as genocide, all elements of the definition of genocide in Article II of the Genocide Convention are established. While the most authoritative finding of genocide would come from a judicial body, other bodies can make such a determination after considering all available evidence. For example, the US State Department conducts its own analysis and determination of genocide. In 2016, the US State Department made such determinations in the case of the Daesh atrocities; in 2021, in the case of the atrocities against the Uyghurs in Xinjiang, China; and in 2022, in the case of the atrocities against the Rohingyas in Myanmar. Similarly, the Dutch government recognised the atrocities against the Yazidis as genocide, after it obtained a legal analysis from experts. The Canadian government recognised the atrocities based on a report of the UN Commission of Inquiry on the Syrian Arab Republic, which made the finding of genocide. Similarly, a few parliaments have made the determination of genocide, however, such determinations do not carry the same weight.

A determination of genocide, while may assist with triggering the duties, is not a pre-requisite for the implementation of the duties under the Genocide Convention.

When are the duties under the Genocide Convention engaged?

The Duty to Prevent

The Genocide Convention does not prescribe what the duty to prevent means. However, the International Court of Justice, in its 2007 judgment (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43) clarified that the duty to prevent, “and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.” (Ibid., 431)

Unfortunately, governments do not conduct the analysis of the serious risk of genocide to inform their responses. Indeed, not many governments have relevant bodies to perform the crucial monitoring and analysis of risk factors and early warnings signs that would enable them to identify the serious risk of genocide.

The Duty to Punish

The Genocide Convention is clear that the duty to punish refers to the prosecution and punishment of the perpetrators for their role in genocide. Article III of the Genocide Convention states that the following should be punishable:

1. Genocide
2. Conspiracy to commit genocide
3. Direct and public incitement to commit genocide
4. Attempt to commit genocide
5. Complicity in genocide

Despite this duty, there have not been many prosecutions for genocide. For example, in the case of the Daesh atrocities, there have been only a few prosecution of the atrocities as genocide, by domestic courts in Germany, based on the principle of universal jurisdiction.

Bibliography

Kai Ambos, ‘What Does ‘Intent to Destroy’ in Genocide Mean?’ 91 (2009) International Review of the Red Cross 834

Paul Behrens and Ralph Henham (eds.), The Criminal Law of Genocide. International, Comparative and Contextual Aspects (Routledge, 2016)

Raphael Lemkin (ed. Donna Lee Frieze), Totally Unofficial (Yale University Press, 2013)

Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation. Analysis, Proposals for Redress (Carnegie Endowment for International Peace: Washington DC, 1944)

Raphael Lemkin, ‘Genocide as a Crime under International Law’ (1947) 41 American Journal of International Law 145

Marco Odello and Piotr Łubiński (eds.), The Concept of Genocide in International Criminal Law Developments after Lemkin (Routledge, 2021)

Philippe Sands, East West Street (W&N, 2017)

William A. Schabas, Genocide in International Law. The Crime of Crimes (Cambridge University Press, Cambridge 2009)

Greg Stanton, Testimony by Dr. Gregory Stanton to the Subcommittee on Africa, Global Health, and International Organizations of the House Committee on Foreign Affairs (2015)

Anton Weiss-Wendt, The Soviet Union and the Gutting of the UN Genocide Convention (The University of Wisconsin Press, 2017)

See Also (related topics)

Atrocity crimes

Crimes against humanity

War crimes

External Links

UN Office on Genocide Prevention and the Responsibility to protect:  https://www.un.org/en/genocideprevention/genocide.shtml

US Holocaust Memorial Museum: https://www.ushmm.org/genocide-prevention/learn-about-genocide-and-other-mass-atrocities/what-is-genocide

The Genocide Convention: https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-prevention-and-punishment-crime-genocide

Legal Information Institute, Cornell Law School: https://www.law.cornell.edu/wex/genocide

The Auschwitz Institute on the Prevention of Genocide and Mass Atrocities: https://www.auschwitzinstitute.org/

About the author

Dr. Ewelina U. Ochab is a lawyer, human rights advocate and author. She is a programme lawyer with the International Bar Association's Human Rights Institute, and deputy director of Refcemi, working closely with Archbishop Angaelos. In 2019, she co-founded the Coalition for Genocide Response. Ochab works on the topic of genocide, with specific focus on the persecution of ethnic and religious minorities around the world, with main projects including the Daesh genocide in Syria and Iraq, Boko Haram atrocities in West Africa, the situation of the Rohingya Muslims in Myanmar, the Uyghurs in China and the Hazara in Afghanistan. Ochab has written over 30 reports for the UN (including Universal Periodic Review reports) and has made oral and written submissions at the Human Rights Council, the UN Forum on Minority Issues, PACE and other international and regional fora. Ochab authored the initiative and proposal to establish the UN International Day Commemorating Victims and Survivors of Religious Persecution. The initiative has led to the establishment of the UN International Day Commemorating the Victims of Acts of Violence Based on Religion or Belief on August 22.