The Nazi Holocaust has become an essential reference point to identify the concept of genocide, marked by intensive and industrial scale murder. Nevertheless, long before the term was coined there were different cases of genocide. The genocide of indigenous peoples in the Americas through processes of conquest, and the genocide resulting from the slave trade between Africa and the Americas are emblematic examples of this reality. In the former, Darcy Ribeiro has estimated that about 70 to 88 million people were living in the Americas before the conquest process, while 150 years later, these populations had been reduced to 3.5 million across both continents.[1] The latter can be seen as persisting into the early 20th century, when a genocide with one of the highest death tolls in recent history took place under the colonial rule of Belgium’s King Leopold II in Congo.[2]

In the context of the Nazi Holocaust, the definition of the crime of genocide in international criminal law appears within the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the Convention). According to Article 2 of the Convention, a national, ethnic, racial or religious group could be a victim of this crime. Formally, in compliance with its qualification, the Convention protects the rights of indigenous peoples to live with dignity; nevertheless, both doctrine and jurisprudence have tended to minimize the legal and semantic scope of the crime of genocide, which have ultimately contributed to the genocide of indigenous peoples. This has occurred to the extent that the perception that equalizes genocide with physical elimination is the prevailing approach. I argue here that this was done for political reasons directly connected with the colonial enterprise.

In 1947, the Secretary General of the United Nations submitted a draft of the Convention that expressly included that the intention and action of bringing about the disappearance of human groups “can be undertaken and committed, separately or concurrently, in many different ways”. The official draft also included scenarios of potential aggression that states in different latitudes continue to apply in the present day. However, Brazil – supported by Great Britain, France and Belgium (all colonial powers at the time) – argued that such a rating would diminish any possibility of creating states since including those minorities would result in breaking the values needed to establish citizenship. Such an interpretation was valid since the effectiveness of the Convention was limited to the territory of the approving states, and only by express request made to the General Secretary by states with colonial possessions would the territories under their “responsibility” be included (Art. 12).[3]

On the other hand, when the Convention entered into force, new practical constraints emerged. The United States delayed its ratification because a civil rights group “immediately submitted to the United Nations the case of the intentional partial destruction of the African-American group in the United States, but received no response whatsoever.”[4] It was symptomatic that this case did not find a response by the United Nations. Additionally, the Convention’s provisions stipulated that only states could submit complaints against other States before the ICJ, (arts. 8 and 9).

In the end, the colonial enterprise clause advocated by the above-mentioned countries remained: the Convention did not protect the indigenous peoples affected, given that its validity was restricted to the territory of the ratifying States, and only by express communication to the Secretary-General of the United Nations would the territories under their “responsibility” be included (art.12). Yet again, colonial history is repeating itself: the indigenous peoples should integrate within the state; nevertheless, they should have different rights of citizenship.[5] From a strictly criminal law point of view, the states – with Brazil topping the list – achieved the exclusion of what was later called cultural genocide, a concept that, according to orthodox criminal lawyers, represented a new category different from genocide. It is important to note, as the United Nations Permanent Forum on Indigenous Issues did in its study:

In any event, the definition of genocide includes not only “killing members of the group” in order to “bring about its physical destruction in whole or in part”, but also non-violent acts committed with the intent to destroy in whole or in part a group which, under the definition contained in Article 2 of the Convention, could well constitute an indigenous people.[6]

In this context, the concept of ethnocide originated in the light of social sciences, to a great extent as a response to the legal ineffectiveness of so-called cultural genocide and the policies that fostered the systematic extermination of these peoples. Thus the concept of ethnocide was intended to overcome the unpunishable character inherent in cultural genocide; nonetheless, it only made matters worse, reducing once again the criminal nature of such atrocity to physical genocide. As the Forum has stated, “[t]his has created a new problem without resolving any of the old ones”.[7] Despite social theorists’ good intentions, the concept of ethnocide does not have binding value to defend the rights of indigenous peoples. The convention itself gives genocide a broader scope than physical genocide; as a consequence, the ethnocide category may have harmful impacts both in terms of legal protection for indigenous peoples’ rights and their very survival as peoples. To avoid the risk of cloaking impunity, it is more convenient to call a spade a spade.

Although it is true that the ICC Statute, article 6 literally reproduces article 2 of the Convention, it is no less true that the Statute brings new elements for the international protection of the rights of the indigenous peoples. First of all, from the procedural point of view, the crime of genocide can no longer be an affair between states. The age of the International Criminal Court (ICC) overcomes the paradigm that restricted the competence to file formal complaints and assume criminal responsibilities to States authorities. Half a century later, the Convention has acquired operational capacity – precisely for the creation of the ICC – with respect to the possibility of judging individuals – from public officials to private individuals, although the exclusive jurisdiction to charge such responsibility falls on States.[8]

Finally, according to Article 15.1 and 2 of the ICC Statute, the ICC is able to act on its own motion. Undoubtedly, it is qualitative and quantitative progress with respect to the procedural limits of the ICJ. The dead-end in which the prosecution of crimes under international law has found itself, with genocide topping the list, may be corrected if the ICC and the Office of the Prosecutor start to take seriously the ICC Statute’s legal framework. The Office of the Prosecutor of the International Criminal Court has already set a first precedent to overcome the “selective interpretations” regarding the demanding wording of Article 6 of the Statute.

On 14 July 2008, the Office of the Prosecutor of the ICC filed an indictment against Omar Hassan al-Bashir, president of the Republic of Sudan, for genocide, crimes against humanity and war crimes in Darfur. On 4 March 2009, the Pre-Trial Chamber I of the ICC requested the issuance of a warrant for the arrest of Al Bashir for crimes against humanity and war crimes, without mentioning the crime of genocide.[9] For two of three Chamber’s judges, it was important to demonstrate the specific intent or dolus specialis with respect to the willingness and determination to kill on a massive scale. However, for the Office of the Prosecutor and Judge Anita Usacka, a jurist who presented a dissenting opinion, it is clear that the crime may have been committed through means other than mass murder according to the ICC Statute.

For its part, the most recent jurisprudence of the ICJ (Croatia v. Serbia) issued on 3 February 2015,[10] reinforces the historical tendency to turn the Convention into dead letter. Despite the fact that strong evidence of murders and forced displacement was found, the ICJ found that such acts did not amount to genocide because they lacked the requisite intent (dolus specialis). According to the ICJ, “genocide presupposes the intent to destroy a group as such, and not to inflict damage upon it or to remove it from a territory, irrespective of how such actions might be characterized in law.” Moreover, the ICJ has held that all the policies harmful to an ethnic group do not constitute genocide unless proven that these policies are aimed at the physical or biological destruction of a group.

As Bartolomé Clavero points out, the Court’s interpretation presupposes that the ‘partial massacre’ should be an intentional step toward a mass murder in order to constitute genocide.[11] In this regard, the crime of genocide has become an offense impossible to prove. All this is not a doctrinal invention made by the ICJ, but rather the confirmation of a long-standing doctrine driven by the United States from the moment the Truman Administration decided not to endorse the Convention. Subsequently, after its ratification in 1988, the American Government supported the interpretation in which the term ‘intent’ means ‘specific intent’, i.e., an intent marked by the explicit decision to commit the crime, without taking into account policies that would seem to indicate the risk of genocide.

Although in the era of international human rights law, responsibility for genocide is imprescriptible, a passage on victorious enemy by philosopher Walter Benjamin is far from losing its validity: “Even the dead will not be safe from the enemy if he wins. And this enemy has not ceased to be victorious.”[12]

The author is a PhD Candidate and Teaching Assistant at Kent Law School. Email: P.Bacca-Benavides@kent.ac.uk.

[1] Darcy Ribeiro, Las Américas y la Civilización: Proceso de Formación y Causas de Desarrollo Desigual de los Pueblos Américanos (Caracas: Biblioteca Ayacucho, 1992).

[2] See, Kevin Grant, A Civilized Savagery: Britain and the New Slaveries in Africa, 1884-1926 (New York: Routledge, 2005).

[3] See, Bartolomé Clavero, Genocide or Ethnocide, 1933-2007. How to Make, Unmake, and Remake Law with Words (Milano: Giuffrè Editore, 2008).

[4] UNPFII, ‘Report on the eight session’, E/C.19/2009/14 (New York 18-29 May, 2009), para. 7.

[5] See, Mark Mazower, No Enchanted Palace. The End of Empire and the Ideological Origins of the United Nations (New Jersey: Princeton University Press, 2009)

[6] UNPFII, supra n 4, at para.6.

[7] Ibid, at para.10.

[8] Ibid, at para.15.

[9] See, ICC, Pre-Trial Chamber I, Situation in Dafur – Sudan in the case of the prosecutor v. Omar Hassan Ahmad Al Bashir (The Hague, The Netherlands 4 March 2009 – 9 March 2009 – 12 July 2010).

[10] See ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Croatia v. Serbia (3 February 2015 Judgement), http://www.icj-cij.org/docket/files/118/18422.pdf.

[11] Bartolomé Clavero, ‘El Difícil Delito de Genocidio’, eldiario.es, 8 April 2015, http://www.eldiario.es/contrapoder/estrecho_delito_genocidio_6_375222492.html.

[12] Walter Benjamin, ‘On the Concept of History’ (1940), https://www.marxists.org/reference/archive/benjamin/1940/history.htm.