[William Schabas is professor of international law at Middlesex University in London]
This article is about the fine points of how we construe a legal text adopted through a complex process of negotiation more than sixty years ago. The post-Second World War codification of genocide is notoriously narrow in scope. The reasons are relatively easy to explain.
At Nuremberg, the four ‘great powers’ had been nervous about their potential liability for crimes against humanity because of the persecution of minorities for which they were themselves responsible within their colonies or inside their own borders. For purely selfish reasons, they insisted that crimes against humanity be linked to aggressive war, failing which they would not be deemed offences at international law. In that way, Nazi atrocities against Jews within Germany could be punished as crimes under international law, while segregation and lynching in the southern United States (and similar acts attributable to Britain, France and the Soviet Union) escaped the net of international criminal liability.
When these same powers concurred in the adoption of the Genocide Convention by the United Nations General Assembly two years later, they agreed to remove the perverse nexus with armed conflict for a category of atrocity crime that they understood to be much more limited in extent than crimes against humanity. This is the definition of genocide that scholars, lawyers and judges have struggled to deconstruct over the ensuing decades.
The text adopted in 1948 provides explicitly that ‘genocide,
whether committed in time of peace or in time of war, is a crime under international law’ (my emphasis). These words were necessary in order to clarify a fundamental distinction between genocide and crimes against humanity, as the concepts were conceived of at the time.
