NOVEMBER 26 — In its resolution 96(I) of December 11, 1946 the United Nations General Assembly declared that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world.

Two years later on December 9, 1948 the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) was adopted and became the first human rights treaty adopted by the General Assembly.

It signified the international community’s commitment to “never again” after the atrocities committed during the Second World War.

The term “genocide” was said to be coined by one Raphael Lemkin in 1944 (Axis Rule in Occupied Europe, 1944 – “New conceptions require new terms.”) Lemkin was a Polish-Jewish lawyer whose family was decimated by the Nazis. He coined the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust

“Genocide” comes from the Greek word “genos” (race, tribe) and the Latin “cide” (killing). It means the destruction of a national, racial, or religious group.

Lemkin defined genocide as follows:

“Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves.

“The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.”

In 1945, enough was known of “genocidal activities” of the Nazis to recognise that this would be one of the points of focus at the Nuremberg trials – the trials of the major Nazi war criminals.

Genocidal activities indeed were among the crimes the Nazis were charged with. The recognition of genocidal activity as a crime was the first of its kind in an international criminal proceeding. (Robert H. Jackson, Atrocities and War Crimes: Report from Robert H. Jackson to the President, 1945) It was then also recognised that genocidal activities could take place in peacetime as well as wartime.

The Nuremberg trials before the International Military Tribunal (IMT, also known as the Nuremberg Court) were made possible by the London Charter of August 8, 1945.

The Charter is an agreement signed by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the provisional Government of the French Republic, and the Government of the Union of Soviet Socialist Republics for the prosecution and punishment of the major war criminals of the European Axis.

The Charter did not define genocide but Article 6© defined crimes against humanity as “murder, extermination, enslavement, deportation and other inhumane 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”.

The words “persecution on political, racial or religious grounds” were accepted as referencing genocidal activity but only actionable when committed “in the execution of or in connection with any crime within the jurisdiction of the Tribunal”.

This meant that such activity was condemned only when related to crimes against peace or war crimes.

Be that as it may, the recognition of genocide could be seen in the indictment, which stated as follows:

“[The Defendants] conducted deliberately and systematically genocide via the extermination of racial and national groups, against the civilian population of certain occupied territories in order to destroy particular races and classes of people and national, racial or religious groups, particularly Jews, Poles and Gypsies and others.”

The trials began on November 20, 1945, and for almost a year, the IMT and the world heard of the genocidal activities of the Nazis through evidence consisting primarily of documents of the Nazis’ own making.

The evidence produced at Nuremberg gave full support to the charge of genocide. (Henry T. King Jr., Benjamin B. Ferencz, and Whitney R. Harris, “Origins of the Genocide Convention”, 40 Case W. Res. J. Int’l L. 13, 2008)

It was no surprise that the General Assembly quickly affirmed the principle of genocide as a crime, which was followed by a push towards the drafting and adoption of a UN convention on genocide.

Article I of the Genocide Convention confirms that the crime of genocide may take place in the context of an armed conflict, international or non-international, but also in the context of a peaceful situation. The latter is less common but still possible.

The same article establishes the obligation of the contracting parties to prevent and to punish the crime of genocide.

Article II defines genocide to mean any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Genocide is similarly defined under Article 6 of the Rome Statute 1998 which establishes the International Court of Justice (ICJ). The ICJ has repeatedly stated that the Genocide Convention embodies principles that are part of general customary international law.

The above means that whether or not States have ratified the Genocide Convention, they are all bound as a matter of law by the principle that genocide is a crime prohibited under international law.

The ICJ has also stated that the prohibition of genocide is a peremptory norm of international law (or ius cogens) and consequently, no derogation from it is allowed.

So, where are the States when genocide is “the material reality of Palestinians in Gaza: an entrapped, displaced, starved, water-deprived population of 2.3 million facing massive bombardments and a carnage in one of the most densely populated areas in the world”?

Rabea Eghbariah, a human rights lawyer completing his doctoral studies at Harvard Law School and whose article The Ongoing Nakba: Towards a Legal Framework for Palestine was voted “not to publish” by the board of the Harvard Law Review, asks:

“What do you call this?”

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.