Law Quadrangle (formerly Law Quad Notes)

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Genocide - Then and Now


The following essay is based on a talk delivered at the UN during the American Bar Associations Conference Commemorating the Fiftieth Anniversary of the United Nations Universal Declaration of Human Rights and the Genocide Convention, March 12-13, 1998. The panel on which Professor Alvarez participated, charged with examining the legacy and future of the Genocide Convention also included John E Murphy, professor at Villanova University Law School, Ambassadors William J. vanden Heuvel and Robert E Van Lierop, and Nobel Laureate Elie Wiesel.

An assessment of the Genocide Convention requires comparing the goals of its drafters to its achievements. The goals of the Genocide Convention, as adopted in 1948, were, first, symbolic: to stigmatize actions specifically intended to destroy people because of stable and largely immutable characteristics, integral to their human identity. Branding at the international level certain acts of violence directed at groups defined by nationality, ethnicity, religion or race served notice that these constitute unique affronts to humanity because they target the right of existence of entire communities, along with the cultural and other contributions of human collectives.

Second, they hoped to give fair warning - so that future perpetrators could not claim, as revisionist critics of Nuremberg maintained, that the international community was imposing "ex post facto" criminal liability.

Third drafters hoped that by legalizing the duty to prevent and to punish genocidal acts they were helping to ensure that such acts would "never again ' occur. They were hoping to promote the many lofty goals pursued at Nuremberg: namely, to deter future perpetrators; to tell the truth of what occurred, thereby preserving an accurate collective memory; to vindicate victims and their families; to channel the thirst for revenge into the more peaceful channels of a courtroom; to make atonement possible for perpetrators; to affirm that national and international "rule of law;" and to help restore the lost civility of tom societies and thereby achieve "national reconciliation."

Fifty years and numerous mass atrocities later, we must acknowledge that they failed . The Convention has failed to stigmatize as "genocide" many mass atrocities of our time that target people based on political beliefs or other characteristics. While acts by the Khmer Rouge directed at Vietnamese, Chinese and Thai minorities, or against religious groups, such as the Buddhist monkshood, appear to be acts encompassed by the Convention, atrocities against the general Cambodian population are more difficult to encompass if victims were targeted solely as members of political, professional, or economic groups. Similar difficulties arise with respect to the treatment of Kurds by Iraqis, Mengistus actions in Ethiopia before 1991, or the treatment of political opponents throughout Latin America.