Genocide, as set out in the UN’s 1948 convention, has a 26-word definition that has caused problems its authors probably never imagined.
The convention sums up the crime thus: “Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.” It then lists those acts, including killing or otherwise harming the group.
But that apparently simple sentence contains a chain of ambiguities. Is Ukraine a genocide? Is Gaza? Or the October 7 attacks in Israel? Reaching back to the past, is it true to describe European or Arab slavers as guilty of genocide (if the convention had existed then)?
The answer depends partly on interpretation. This is in vivid contrast to other war law, where meanings are clear. The International Criminal Court’s statute, for instance, has no problem explaining two of its core crimes: war crimes and Crimes Against Humanity. There are no ambiguities. No disputes. Everyone can understand them. But the third core crime is different. Genocide’s definition radiates uncertainty.
The first issue is that genocide is not concerned with the scale of a crime, no matter how horrific. It is all about intent. This makes it the equivalent of a “hate crime”, where you have to prove not just a crime but the motivation behind it. In the clunky language of the convention, prosecutors must prove atrocities were committed to destroy a group.
And that’s where the problems begin, because only four groups are covered. Crimes against groups not in the definition get a pass. Destroying a group because of its political, cultural, or geographical makeup is not included – you could wipe out an entire city, and it would not qualify as genocide.
It sounds absurd, but that is the reality of a convention famed for its vagueness. This took center stage when the United Nations set up a tribunal in Cambodia to try the Khmer Rouge in 2006. The regime had orchestrated one of the bloodiest mass killings in history, killing and enslaving millions of fellow Khmers. But most victims were from the same national group as their tormentors. They were targeted for political, economic, or social reasons, none of them among the four specified groups. Thus, no genocide.
While there were ultimately convictions for genocide (because the Khmer Rouge also erased two minority ethnic groups), prosecutors had to settle for other charges to cover the main atrocities.
Genocide also fails to make clear what is meant by “destroy”. Obviously, it applies to an annihilation such as the Holocaust, or the slaughter of 800,000 in Rwanda. But what about devastation that wrecks communities? Lawyers are unable to agree.
Nor do they agree about what “part” means. Some lawyers say it means “substantial part”, but that is not what the convention says. The laws of war are supposed to be written in plain language, not legalese, because soldiers go into battle without lawyers by their side. In plain language, “part” can mean just one. Many lawyers resist this, because it would mean genocide is not reserved for massacres, but for any atrocity involving discrimination.
For years, these uncertainties were confined to legal circles. But now, with wars raging around the world, the word is on everyone’s lips. That has spawned a cottage industry of scholars and activists arguing rival interpretations. Each, in their narrow sense, can be right. And also wrong. Because a law with multiple meanings breaks the contract between rulers and the ruled, in which the ruled obey the law and rulers make that law clear.
The reason for this mess is that when the convention was conceived, it wasn’t really needed as a legal instrument. At the time, the newly-formed UN was determined to record its horror at the Holocaust and mass slaughter of World War II. It wanted to mark this outrage by writing a new law. The problem was, laws against mass extermination already existed, and had indeed been used in the Nuremberg and Tokyo war crimes trials.
Making a new law that duplicated existing laws made no sense. Genocide gave them the solution. It would cover the same ground as existing laws, but with an extra demand to prove intent. Yet the vagueness of that intent — to destroy a group — has left lawyers arguing about it ever since.
The convention was crafted by Polish-Jewish lawyer Raphael Lemkin. He had escaped Nazism, but lost dozens of relatives in the Holocaust. For years he campaigned for a law to recognize the abomination of wiping out an entire people. He even invented the word for it, by combining the Greek word for a race or people — genos — with the Latin for killing — cide.
“It is nothing but frustrating as a legal document,” says Dr Anne O’Byrne, Professor of Philosophy at New York’s Stony Brook University, and author of The Genocide Paradox. “But it was seen as an expression of revulsion at something that shocked the conscience of the world.”
Writing the convention was chaotic. Governments were wary of adopting a law that might one day entrap them, and kept raising objections. The Soviet Union, in particular, demanded the four-group limit, because it was sending thousands to the gulag and wanted groups that were political or social to be excluded. In the end, the authors decided a vague convention was better than no convention at all.
Lemkin himself was dismayed by the pared-down result. Near the end of his life, he wrote, “The rain of my work fell on a fallow plain.”
Since then, the world had opportunities to iron out the problems of the convention, but none were taken.
Fixing the problem is simple, but awkward. Rewrite the convention. Make it plain, like every other war law. And apply it to all groups, not just some.
One option would be to use the definition of extermination, now listed as a Crime Against Humanity. To prove extermination, you don’t need to prove the reason behind a massacre, because nobody commits a massacre by accident. Arguing about whether a mass killing has the specific intent to qualify as genocide misses the larger point, which is that annihilation is always a terrible crime.
Chris Stephen is a former war correspondent with The Guardian. He has written on war crimes justice matters for publications including The Hill, International Institute for Strategic Studies, and Counsel, the magazine of the bar association of England and Wales. He is author of The Future of War Crimes Justice, (Melville House, London and New York) and Judgement Day: The Trial of Slobodan Milosevic (Atlantic Books, London and New York).
Europe’s Edge is CEPA’s online journal covering critical topics on the foreign policy docket across Europe and North America. All opinions expressed on Europe’s Edge are those of the author alone and may not represent those of the institutions they represent or the Center for European Policy Analysis. CEPA maintains a strict intellectual independence policy across all its projects and publications.
