Genocide

Polish-American Jewish lawyer Raphael Lemkin coined the term genocide in 1944 to describe acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. By 1948, the United Nations (UN) adopted the term to describe the Holocaust, the German Nazi Party's effort to systematically murder European Jews during World War II.

Other historical examples of genocide include:

• The Ottoman Turk mass murder and deportation of Armenians and Kurds in 1915-17
• The slaughter of Mayans by the Guatemalan military government from 1962-96
• The Hutu massacre of the Tutsi in Rwanda in 1994

Although most genocidal attacks took place outside of the United States, perpetrators and victims immigrated to America. Victims have sought justice against those who committed these crimes. Federal law has sought to provide the government with a basis to prosecute the perpetrators of genocide who live in the United States.

The following article gives an overview of the crime of genocide in international human rights law and here in the U.S.

Genocide and International Human Rights Law

After the end of World War II, over 50 allied nations came together to form the United Nations, an international organization of cooperating states. The UN seeks to maintain international peace and security and to protect human rights along with its many other aims. The head of the UN is the secretary-general. It includes a General Assembly of nation representatives and a Security Council. The five permanent members of the Security Council align with the Allies of World War II. They are the United Kingdom, France, Russia, the United States, and China. There are now 10 non-permanent members from around the world.

By 1947, the UN established an international committee to draft a resolution supporting human rights. Chaired by Eleanor Roosevelt of the United States, the committee produced the Universal Declaration of Human Rights (UDHR), which the UN General Assembly adopted by the end of 1948. UDHR built on the foundations of the Hague and Geneva conventions. Those conventions set forth universal standards for the treatment of wounded and ill soldiers and prisoners of war during armed conflict. 

In light of the atrocities of the Axis Powers during World War II, the UN also adopted in 1948 the Convention on the Prevention and Punishment of the Crime of Genocide. The "Genocide Convention" was an international treaty. It sought to make genocide a crime under international law and to bind state parties who signed it to pursue laws against genocide in their own countries. Unlike the Hague and Geneva conventions, the Genocide Convention applies during war and peace. The United States was an early signatory to the convention, although it did not ratify it until 1988. The federal crime of genocide adopts its definition of the crime from the Genocide Convention.

Definition of Genocide Under U.S. Law

Federal law in 18 U.S.C. Section 1091 establishes the criminal offense of genocide. Its definition includes acts perpetuated with the intent to destroy in whole or substantial part a national, ethnic, racial, or religious group. Prohibited conduct includes any of the following acts:

• Killing members of that group
• Causing serious injury to members of that group
• Causing permanent impairment to the mental faculties of members of the group through drugs, torture, or similar techniques
• Subjecting the group to conditions of life intended to cause the physical destruction of the group in whole or in part
• Imposing measures intended to prevent births within the group
• Forcing the transfer of children of the group to another group

There's no statute of limitations on the crime of genocide.

U.S. Jurisdiction Over Genocidal Acts

The United States has jurisdiction if the offense happened within the United States or if the accused offender is:

• A national of the United States
• A lawful permanent resident of the United States
• A stateless person whose habitual residence is in the United States
• A person present in the United States

These acts are criminal whether they occur among armed forces during war or at peacetime. The law also punishes those who incite others to commit genocide or engage in conspiracy to commit genocide. Attempts to commit genocide are likewise prohibited.

Penalties for Genocide

This serious crime carries significant potential penalties. The punishment for the basic offense is:

• In the case of an act where a death resulted, execution or life imprisonment and a fine of up to $1 million
• In other cases, imprisonment of up to 20 years and a fine of up to $1 million

Incitement is punishable by up to five years in prison and a fine of up to $500,000. Both attempt and conspiracy are punishable in the same manner as a person who completed their offense.

Related Developments in Human Rights Law

The UN's efforts to expand human rights after World War II led to other key developments in international criminal law. The Nuremberg Trials of surviving leaders of Nazi Germany pursued convictions for war crimes and crimes against humanity. War crimes include the intentional murder of non-combatants and the abuse of war prisoners during wartime. Crimes against humanity can happen during war or peace. They involve "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population."

By 1946, the UN established the International Court of Justice (ICJ). It succeeded the Permanent Court of International Justice, formed by the League of Nations after World War I. The ICJ is a UN organization that hears disputes between member states. It can give opinions or issue rulings based on international law. The ICJ holds court at the Hague, Netherlands.

Efforts to establish an international criminal justice tribunal to address international crimes did not move forward at the same pace. The advance of the Cold War led to greater mistrust between powerful nations. They advanced arguments related to national sovereignty to avoid granting authority to a criminal court that could indict national leaders. Allegations of war crimes and atrocities in the former Yugoslavia and in Rwanda in the 1990s brought new momentum to the idea.

In 1993, the UN approved forming an ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) to address claims of war crimes and crimes against humanity during the breakup of the republics that had formed Yugoslavia. In 1994, a second UN-sponsored ad hoc International Criminal Tribunal for Rwanda emerged to address claims of genocide and other crimes during the Rwandan Civil War. The indictments and convictions from both ad hoc tribunals catalyzed the formation of a permanent court.

In 1998, the UN organized a conference in Rome, Italy, to complete plans to establish an international criminal court. Some 161 member states sent representatives. The result was an international treaty known as the Rome Statute of the International Criminal Court (ICC). By 2002, 60 nations had approved the treaty, and the ICC came into existence. The court now has 123 member states. It has limited jurisdiction. It only handles cases that arise in member states unless the UN Security Council provides special authority for it to do otherwise. Its focus remains on the prosecution of crimes related to:

• Genocide
• Crimes against humanity
• War crimes
• Crimes of aggression

The court's authority includes the ability to investigate sexual violence as indicative of crimes against humanity or war crimes. It has investigated cases involving Congo, Sudan, Palestine, and Ukraine. The United States became a signatory in 2002 but has since indicated it would not proceed with ratification and become a member state.

More Questions About Genocide and Human Rights?

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Charges of genocide are complex. Violations of human rights have both domestic and international repercussions. Investigations into such allegations are serious and sobering. People associated with such claims should seek professional legal advice. If you have further questions about genocide or other violations of human rights, contact a qualified criminal defense attorney to get answers.