UN Whitaker Report on Genocide, 1985, paragraphs 29-42, pages 16 to 28 [ Table of Contents , Previous Section , Next Section ]

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PART II B (B) Analysis of the Convention

1. The extent of destruction of a group:

29. Genocide need not involve the destruction of a whole group. Argument has occurred as to whether an attack affecting half of a small group more closely approximates to genocide than a massacre which affects only one tenth of a larger group of several million people. The relative proportionate scale of the actual or attempted destruction of a group, by any of the means listed in Articles II and III of,the Convention, is certainly strong evidence to prove the necessary intent to destroy a group, in whole or in part. "In part" would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership. On the other hand, it has been urged that, given the mens rea of such intent, the Convention should be interpreted as applying to cases of "individual genocide", where a single person was a victim of any of such acts, (20) though strictly even such a minimalist interpretation requires evidence of more than one victim, since the plural is used consistently throughout Article IT (a) to (e). In order that the gravity of the concept of genocide should not be devalued or diluted by the inflation of cases as a result of too broad an interpretation, the present Special Rapporteur suggests that considerations of both of proportionate scale and of total numbers are relevant. Other attacks and killings do, of course, remain heinous crimes, even if they fall outside the definition of genocide.

2 . The groups protected:

30. The lack of clarity about which groups are, and are not, protected has made the Convention less effective and popularly understood,than should be the case. The 1948 Convention enumerates groups protected as "a national, ethnical, racial or religious group", without defining such terms. (21) Differing views have been expressed as to what extent the terms "national" or "ethnical"groups include minorities. The Nazi policy was also to exterminate the sexual minority group of homosexuals. It is recommended that the definition should be extended to include a sexual group such as women, men, or homosexuals. A victim group might in fact constitute either a numerical minority or a majority in a country, as the Hutu in Burundi. Some assistance may be forthcoming from the Sub-Commission, which has been mandated by the Commission on Human Rights to consider and propose a definition of minority.

31. It is noteworthy that the definition does not exclude cases where the victims are part of the violator's own group. The United Nations Rapporteur on the mass-killings in Kampuchea designated this slaughter as "auto-genocide", a term implying an internal mass destruction of a significant part of the members of one's own group (E/CN.4/sR.1510).
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3. Cultural genocide, ethnocide and ecocide

32. At least one expert has argued that the future preservation and existence of minorities is insufficiently protected by the Convention because its final text did not include any reference to "cultural genocide". (22) The Ad Hoc Committee preparing the Convention had in fact proposed including such a provision in the draft of Article III, specifying the following acts as -examples constituting cultural genocide:

"Any deliberate act committed with intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin or religious belief such as: 1. Prohibiting the use of the language of the group in daily intercourse or in schools, or the printing and circulation of publications in the language of the group; 2. Destroying or preventing-the use of libraries, museums, schools, historical monuments, places of worship." (23)

The supporters of such a concept argued that a group could be suppressed by extinguishing their specific traits, as well as by physical destruction. In the course of the debates in the Sixth' Committee, it was however decided not to include any provision concerning cultural genocide in the final text of the Convention, on the ground that such a provision was inescapably vague and would invite the risk of political interference in the domestic affairs of States, and that the protection of minorities' culture should be the responsibility of other international bodies.

33. Some members of the Sub-Commission have however proposed that the definition of genocide should be broadened to include cultural genocide or "ethnocide", and also "ecocide": adverse alterations, often irreparable, to the environment - for example through nuclear explosions, chemical weapons, serious pollution and acid rain, or destruction of the rain forest - which threaten the existence of entire populations, whether deliberately or with criminal negligence. (24) Indigenous groups are too often the silent victims of such actions. The Study on Indigenous Populations (E/CN.4/Sub.2/1983) emphasized the need for special and urgent attention to "cases of physical destruction of indigenous communities (genocide) or destruction of indigenous cultures (ethnocide)". The case for the proposed additions has subsequently been reinforced by the increasing attention given by the United Nations bodies to the rights of indigenous peoples, including the establishment of the Working Group at the Sub-Commission. Other opinions have argued that cultural ethnicity and ecocide are crimes against humanity, rather than genocide. Further consideration should be given to this question, including if there is no consensus, the possibility of formulating an optional protocol.
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34. A considerable number of commentators on the Convention have also criticized its omission to protect political, economic, sexual or social groups, despite the inclusion in the examples of genocide cited in resolution 96/1 of the destruction of "racial, religious, political and other groups". (25)

35. After considerable debate, the Sixth Committee decided not to include political groups among those protected by the Convention. (26) Opposition to the proposal was forcefully led by the Soviet Union's representative. The arguments advanced against the inclusion of political groups were, in essence, that:

(a) a political group had no stable, permanent and clear-cut characteristics in that it did not constitute an inevitable and homogeneous grouping, being based on the will of its members and not on factors independent of that will;

(b) the inclusion of political groups would preclude the acceptance of the Convention by the greatest possible number of States and the acceptance of an international criminal jurisdiction, because it would involve the United Nations in the internal political struggles of each country;

(c) such inclusion would create difficulties for legally established Governments in their preventive actions against subversive elements;

(d) the protection of political groups would raise the question of protection under the Convention for economic (27) and professional groups; and

(e) the protection of political and other groups should be ensured outside the Convention, under national legislation and the Universal Declaration of Human Rights.

36. In support of the inclusion of political groups it was and is argued that it is logical and right for them to be treated like religious groups, a distinguishing mark of both types of group being the common beliefs which unite their members. Specific examples culled from the recent-history of Nazism prove that political groups are perfectly identifiable and, given the persecution to which they were subjected in an age of ideological conflict, protection is essential. During the debate the French representative presciently argued that "whereas in the past crimes of genocide had been committed on racial or religious grounds, it was clear that in the future they would be committed mainly on political grounds", and this view received strong support from other representatives. In an era of ideology, people are killed for ideological reasons. (28) Many observers find difficulty in understanding why the principles Underlying the Convention would not be equally applicable in the case of mass killings intended to exterminate, for instance, communists or kulaks. In addition, in some cases of horrendous massacre it is not easy to determine which of overlapping political, economic, national, racial, ethnical or religious actors was the determinant one. Is, to take but two examples, the crime of Apartheid primarily racial, political or economic? Or was the selective genocide [Page 19] in Burundi intrinsically political or ethnic in its intent? Most genocide has at least some political tinge, and a considerable number of the Nazis' mass-killings were political. It has been argued that leaving political and other groups beyond the purported protection of the Convention offers a wide and dangerous loophole which permits any designated group to be exterminated, ostensibly under the excuse .that this is for political reasons. (29)

37. One possible solution to the problem of killings of political and other groups which would be considered in the absence of consensus, would be to include this provision in an additional optional protocol.

5. Intent

38. If it is the element of intent to destroy a designated group wholly or partially which raises crimes of mass murder and against humanity to qualify as the special crime of genocide. An essential condition is provided by the words "as such" in Article II, which stipulates that , in order to be characterized as genocide, crimes against a number of individuals must be directed at the collectivity or at them in their collective character or capacity. Motive, one the other hand, is not mentioned as being relevant.

39. Evidence of this element of subjective intent is far harder to adduce than an objective test. Not all genocidal regimes are likely to be as thoroughly documented as the Nazi one was. It is suggested that a court should be able to infer necessary intent from sufficient evidence, and that in certain cases this would include actions or omissions of such a degree of criminal negligence or recklessness that the defendant must reasonably be assumed to have been aware of the consequences of is conduct. The plea of superior orders is dealt with later infra, in paragraph 51 onwards.
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6. Acts punishable

40. The conduct listed in Articles II and III of the Convention as being punishable as genocide consists elusively of the commission of certain actions. Similar results, to Article II (b) and (c) for example, however may be achieved by conscious acts advertent omission. In certain cases, calculated neglect or negligence may be sufficient to destroy a designated group wholly or partially through, for instance, famine or disease.

41. The Special Rapporteur therefore proposes that there should be added at the end of Article II of the convention words such as: "in any of the above conduct, a conscious act or acts of advertert omission may be as culpable as an act of commission." Provision for revision of the Convention is set out in Article XVI of the Convention.

42. In the consideration of whether to widen and revise the Convention in other respects, it has rightly been argued that it is necessary not to weaken the over-all governmental support for its central principle. On the one hand, "genocide" in popular modern usage covers many more cases of mass killings than those covered in the Convention. On the other hand, it has also been noted that Article II (b) "Causing serious bodily or mental harm to members of the group" is one wider interpretation than that either in popular usage or in the dictionary. (30) However, in certain cases such an apartheid, the degree of mental and other suffering inflicted may be felt to constitute such a comparable crime; (31) and apartheid generally is considered in more detail next.
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20. See E/CN.4/Sub.2/416, paras. 50-53.

21. For discussion of the definition of such terms, see E/CN.4/Sub.2/416, paras. 59-78.

22. E.A. Daes, op. cit., in footnote 19 to this study.

23. E/794, pp. 21, 27 and 28. See E/CN.4/Sub.2/416, paragraphs 441-461.

24. E/CN.4/1101, E/CN-4/Sub.2/332; Provisional SR/EICN.4/Sub.2/SR.2/SR.658. See E/CN.4/sub.2/416, paragraphs 462-478.

25. See paragraph 26, supra. The critics include for example Stefan Glaser, Droit international pénal conventionnel (Brussels, Bruylant, 1970), and Laplaza, El delito de genocidio (Buenos Aires, Ediciones Arayu, 1953).

26. Official Records of the General Assembly, Third Session, Part 1, Sixth Committee, 69th, 74th, 75th and 128th meetings.

27. The proposal (A/C.6/214) to include economic groups at the 69th meeting was withdrawn at the 75th meeting.

28. United Nations Economic and Social Council, p. 723; and United Nations Legal Committee, 14 October 1948: Bolivia, Haiti, Cuba.

29. "By leaving political and other groups beyond the purported protection the authors of the Convention also left a wide and dangerous loop-hole for any Government to escape the human duties under the Convention by putting genocide into practice under the cover of executive measures against political or other groups for reasons of security, public order or any other reason of state. If perhaps political reasons cannot be adduced as proper, excuse for the genocidal measures against a group protected under Article II, then very likely such governmental policy will be defended on economic, social or cultural grounds. The national, ethnical, racial or religious character of the group in such case does not constitute the object of the alleged acts of destruction but the measures are said to be taken against the same persons as members of an economic, social or cultural, i.e. unprotected, group.   . . . the crime of genocide in its most serious form is the deliberate destruction of physical life of individual human beings by reason of their membership of any human collectivity as such." Pieter Drost, The Crime of State, II: Genocide (Leyden, A.W. Sythoff, 1959).

30. e.g. "Extermination of a race" in the Concise Oxford Dictionary.

31. See E/CN-4/1985/14, paragraphs 22-26.

UN Whitaker Report on Genocide, 1985, paragraphs 29-42, pages 16 to 28 [ Table of Contents , Previous Section , Next Section