MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

PUBLIC INTERNATIONAL LAW

CRITICAL ANALYSIS OF THE GENOCIDE CONVENTION

Deeksha
2016-059

INTRODUCTION

International law recognizes many crimes but probably genocide is the severest of them as
considered by international fraternity. Genocide is not a new phenomenon and there have
been various instances of mass killings before the Holocaust.1 “Holocaust was neither the
first nor the last genocide.”2 The Convention on Prevention and Punishment for the Crime of
Genocide defines Genocide 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:

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."3
“Genocide has been called the “crime of crimes” and the gravest violation of human rights it
is possible to commit.”4 The term "genocide" was not coined until 1944 when finally in 1944,
the extermination of the European Jews gave rise to international law defining and
prohibiting the crime of genocide5. The term genocide was first coined by Raphael Lemkin, a
Polish Lawyer in his work Axis Rule in Occupied Europe (1944) to provide a legal concept
for this unimaginable atrocity which has later also been adopted in the Convention on the
Prevention and Punishment of the Crime of Genocide.6 It was in 1946 when Genocide was
first recognized as a crime under International Law by the United Nations General Assembly

1
Martin Mennecke, Genocide Prevention and International Law, 4 GENOCIDE STUDIES AND
PREVENTION 167–175, 167-175 (2009).
2
Id.
3
Article I of the Genocide Convention.
4
http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0035.xml
last accessed on 5 September 2018.
5
Supra Note 1.
6
William A. Schabas, The Crimes of crimes, GENOCIDE IN INTERNATIONAL LAW (2000).

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and was codified as an independent crime in the 1948 Convention on the Prevention and
Punishment of the Crimes of Genocide.7 So far the Convention has been ratified by 149
states.8 The present paper critically analyzes the Convention on Genocide and tries to find an
answer to the question that whether the Convention on the Prevention and Punishment of the
Crime of Genocide is sufficient or whether something more needs to be made part of the
Convention.

RESEARCH QUESTION

Whether the Convention on the Prevention and Punishment of the Crime of Genocide is
sufficient to address the issue of Genocide?

METHODOLOGY

The researcher will use secondary data to proceed with the research. The Convention on the
Prevention and Punishment of the Crime of Genocide will mainly be relied on by the
researcher. She will also go through various international journals, books, web sources and
reports to collect useful data for the draft. She will analyze news articles, editorials and
various law journals to get a thorough understanding on the terms related to the topic and
form an opinion on the subject.

CHAPTERS

1. FLAWS IN THE CONVENTION

On 2nd March 2016, when the Minister of Home Affairs was asked about the plans of the
Government in enacting some law at least, in conformity with the UN Convention on
Genocide and Racial Discrimination, stating either details of the laws or reasons of not
enacting thereof9, he came up with the following answer:

“By acceding to the Convention on the Prevention and Punishment of the Crime of
Genocide in 1959, India has recognized genocide as an international crime. The
principles embodied in the Convention are part of general International law and
therefore already part of common law of India. The provisions of Indian Penal Code

7
http://www.un.org/en/genocideprevention/genocide.html last accessed on 8 September 2018.
8
Id.
9
https://counterview.org/2017/03/18/india-has-not-defined-genocide-by-law-though-it-ratified-un-convention-
five-decades-ago/ last accessed on 11 September 2018.

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 including the procedural law (Criminal Procedure Code) provide effective penalties
for persons guilty of crime of genocide and take cognizance of the acts which may be
otherwise taken to be in the nature of genocide”10

The above view has certainly raised serious concerns not only for India but also in the
International forefront questioning the responsibilities and the obligations of the states in
curbing one of the most serious crimes that has had a long and infamous history, where the so
called developing country is according it the same status of an ordinary offence dealt under
the existing penal provision. India ratified the convention on Genocide in 1959 and still does
not have a national legislation effectively criminalizing genocide which is required to be done
under Article V of the Convention. Such an attitude has also put a question mark on the
adequacy and sufficiency of the Convention on Genocide when Genocide is inherently a
special category of crime and certainly requires a specific enactment on the matter for
effective deterrence and punitive measures. The non-self-executing treaties are to be made
part of the domestic law by enacting laws by the national legislatures to meet the treaty
obligation which India has failed to meet in respect of the Genocide Convention.11

The Convention has not been subject to scepticism and described as making ‘no real
advance’, ‘unrealistic and impracticable’, ‘insult to intelligence’ and a ‘dangerous
instrument’12 for no reasons. There are some inherent flaws in the Genocide Convention.
Article 2 of the Convention makes not only the act of Genocide punishable but also the
conspiracy, direct and public incitement, attempt to commit genocide and even the complicity
in genocide as punishable. The Convention in Article I though defines as to what is a
genocide, it does not provide as to what conspiracy, direct and public incitement, attempt and
the complicity in genocide would mean under the Convention. Article V of the Convention
provides that the contracting states are to give effect to provisions of the Convention by
enacting necessary legislation in accordance with the respective Constitution of the states.
However, the Article does not mention any time frame within which the state shall enact such
a legislation after ratification. The Convention would not serve any purpose and it would be
futile if it takes years for a country to enact a legislation that gives effect to the provisions of
the Convention and provides for penalties for the persons guilty of genocide or any other

10
Supra Note 9.
11
Ankita Guru, Need for law on Genocide in India: In the light of India’s Obligation to the Genocide
Convention,1948.
http://www.rslr.in/uploads/3/2/0/5/32050109/5._need_for_law_on_genocide_in_india__a_.pdf
12
PAOLA GAETA, THE UN GENOCIDE CONVENTION: A COMMENTARY (Oxford Univ. Press, 2009).

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crime enumerated in the Convention. Moreover, whether it is a mandate on the part of the
states to enact such a legislation is a question mark for the language and the phrases used in
the article do not seem to cast an obligation on the states. The Article seems to be loosly
drafted as compared to the other Articles of the Convention (all the other articles uses the
word either ‘shall’ or ‘may be’ making it clear that whether it’s an obligation on the
Contracting Parties or is left at their discretion). The Article starts with “The Contracting
Parties undertake to enact…” missing on whether “The Contracting Parties shall undertake to
enact…” or “The Contracting Parties may undertake to enact…”. Again the convention does
not address satisfactorily the state’s responsibility for genocide and excessively relies on
territorial state on whose territory the genocide has taken place for prosecuting the guilty. 13
Further, the convention does not specify when the states should be held directly liable for
genocide and what the penalties should be in case of any violation. The convention under
Article V stipulates that ‘effective penalties’ shall be imposed by the contracting parties.
However, the term ‘effective penalty’ has not been elaborated in the Convention. Also, the
penalties for persons guilty of genocide are not laid down in the convention. Thus it is largely
left upon the Contracting parties to decide as to what penalties shall be imposed and whether
the penalties so imposed are effective or not. The legislation should be such that all
perpetrators of genocide, be they individuals, groups or the constitutional rulers, can without
exception be readily punished.14 Crimes against international law are committed by men, not
by abstract entities, and only by punishing individuals who commit such crimes can the
provisions of international law be enforced.15

13
Article VI of the Genocide Convention.
14
Prof. VS Mani, NEEDED, A LAW ON GENOCIDETHE HINDU : NEEDED, A LAW ON GENOCIDE,
https://www.thehindu.com/2002/04/10/stories/2002041000251000.htm
15
CIARA DAMGAARD, Individual criminal responsibility for core international crimes: selected pertinent issues
(Springer Science & Business Media, 2008).

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