Concepts and Ideas

1. Nuremberg Trials
2. Rwanda/Yugoslavia
3. Four Freedoms (1)
4. Four Freedoms (2)

The Nuremberg Trials and the Genocide Convention – Dealing with the Past

The massive scale on which atrocities were committed in a systematic way within Nazi Germany and in the countries under its military occupation was, and remains, incomprehensible. While the United Nations and the Universal Declaration were created to prevent any such thing from happening again in the future, something had to be done about the past as well. Meeting in London in August 1945, representatives of the United States, the United Kingdom, France and the Soviet Union concluded an agreement providing for the establishment of an International Military Tribunal (“IMT”) in Nuremberg to try the leading Nazi war criminals. Article 6 of the Charter of the IMT listed the acts which constituted crimes for which individual responsibility (as opposed to the traditional international law basis of state responsibility) could be incurred: crimes against peace, war crimes and crimes against humanity. Crimes against humanity, the first assertion of an international law of human rights, was defined in the following way:

Murder, extermination, enslavement, deportation and other inhuman acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

What was new was that the way a country treated its own civilians (and not just civilians in other states) became a matter of international concern and state sovereignty could no longer be raised as an impenetrable defense. Further, there was a clear shift in international law away from pure state responsibility towards individual responsibility, at least in relation to this limited category of offences.

The Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) was subsequently approved on 9 December 1948 - before the UDHR was approved – in a unanimous vote by fifty-six states. It entered into force on 12 January 1951. It was the first post-war human rights convention and its drafting and lobbying was substantially the work of one private citizen, Raphael Lemkin. Lemkin, who is said to have coined the term “genocide”, was a Jewish lawyer, born in Poland, who had escaped the horrors of the war and, after a spell in Sweden, finally emigrated to the United States. He taught at Yale and Duke and studied the German occupation from the standpoint of jurisprudence, the first scholar to do so. His central insight was that the occupation, not just in Poland but all across Europe, had inverted the equality provisions of all the European legal traditions. From its unremitting racial bias, he was able to understand, earlier than most, that the wholesale extermination of groups was not an accidental or incidental cruelty, nor an act of revenge. It was the very essence of occupation. Lemkin published his findings in 1944 in Axis Rule in Occupied Europe with the help of the Carnegie Endowment for International Peace.¹

The Genocide Convention makes genocide a matter of universal criminal jurisdiction. The definition of genocide requires the intent to destroy, in whole or in part, a national, ethnical, racial or religious group and lists acts such as killing members of a group, imposing measures to prevent births within the group and transferring children of the group to another group.

Genocide is one of the crimes within the jurisdiction of the tribunals established by the UN Security Council for the former Yugoslavia and Rwanda. It is also one of the crimes within the jurisdiction of the proposed permanent International Criminal Court which was launched in Rome in 1998.

The Issue of “Cultural Genocide” and the Protection of Minorities

One interesting aspect of the drafting of the Genocide Convention, often forgotten today, is that the first draft of the convention contained a prohibition on acts of “cultural genocide.” This article, however, was later deleted by a vote in the Sixth Committee (the legal committee) of the General Assembly. The original Article III in the Genocide Convention read as follows:

In this Convention genocide also means any deliberate act committed with intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or belief such as
1.Prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group;
2.Destroying, or preventing the use of, libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the groups.

This article clearly overlaps with what is known today in human rights law as “minority rights.” Morsink notes that at exactly the same time as this article was being debated during the drafting of the Genocide Convention, the issue of minority rights was being debated during the drafting of the Universal Declaration.² In both sets of discussions, the United States opposed the inclusion of the relevant provisions. In the case of Article III, the US argued that the international crime of genocide is of such gravity that it should be confined to those “barbarous acts directed against individuals,” the acts in Article III being more appropriately dealt with in connection with the protection of minorities. At the same time, in the Third Session of the Human Rights Commission, Eleanor Roosevelt argued that “provisions relating to rights of minorities had no place in a declaration of human rights,” largely on the basis that “minority questions did not exist on the American continent.”

Given the developments that have occurred in international human rights law since 1948 that seek to protect the rights of minority and indigenous peoples, Morsink raises the question of whether today an additional article should be added to the Declaration along the lines of Article 27 of the International Covenant on Civil and Political Rights. This would, in his view, correct the “greatest defect of this pivotal document,” that is, the blindness it shares with the UN Charter about the connection that exists between the prevention of discrimination and the protection of minorities.

Endnotes

1. Ignatieff, Michael, ‘The Danger of a World Without Enemies. Lemkin’s Word’, The New Republic, February 26, 2001.
2. Johannes Morsink, “Cultural Genocide, the Universal Declaration, and Minority Rights” (1999) 21 Human Rights Quarterly 1009.

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