International laws against genocide exist: so why don't they work?

Ideas53:58International laws against genocide exist: so why don’t they work?

Genocide has a long, horrific history. 

Ever since there's been war, genocidal acts have been committed.

Genocide is defined in international law as "the deliberate attempt to erase a national, ethnic, religious or racial group." The most famous example is the Nazi Holocaust against the Jews and the Roma during the Second World War.

In response, the UN Genocide Convention founded International laws criminalizing genocide. It was signed in 1948 and yet applying these laws has been a struggle. Other genocidal acts have followed since then — easy to label, not so easy to prove in law.

Today, as the Israel-Hamas war continues, some voices are crying out that what we are witnessing in Gaza is another genocide. Others vehemently disagree.

Canadian scholar William Schabas wrote one of the most important books on the legal aspects of genocide, Genocide in International Law: the Crime of Crimes.  

He spoke to IDEAS host Nahlah Ayed about the history of the UN Genocide Convention and what needs to change.

Here is an excerpt from their conversation.

Human rights in general and genocide in particular, are front of mind of all of us as we watch the situation in Gaza. ...In your opinion, do the events taking place in Gaza meet the criteria for genocide? 

There have been several genocide cases now at the International Court of Justice. I think the case that South Africa is setting out is easily the strongest case of genocide. The differences between, for example, the situation in the Balkans where the borders were largely open and porous and where people could flee, we don't have that in Gaza. The statements made by politicians in Israel, the notorious statements about how the Gazans are inhumane or 'human animals' was one of the terms, statements like, we're going to deny you electricity, water, medical care. The destruction of the institutions, all of these things add up and make for a very strong case...

I can't entirely predict what the judges are going to do. And you certainly could exaggerate the importance of these provisional measures orders and suggest that they represent some kind of a determination of the issue, that is yet to come.

In another important pending case, which is the one by [The] Gambia against Myanmar, several governments — Canada among them — made an intervention where they argued for a more flexible, generous interpretation of the notion of genocide, one that would put an emphasis on things like population displacement within a territory and on victimization of children…But that's a very powerful tool for the South Africans in the case against Israel.  

[On the] idea that about preventing and punishing genocide, what does it say of the other nations that have failed to act on this and other cases of mass killings, this responsibility that was enshrined in the title even from the very beginning? Where does that leave other nations that have not really weighed in on this matter? 

The issue of prevention of genocide, I would say it's a blank cheque in a way, in the Genocide Convention, and one that had not really received a lot of attention until the International Court of Justice in 2007 found that Serbia had violated its obligation under the Genocide Convention to prevent genocide in Srebrenica. This was a remarkable decision because it was basically cut from whole cloth.

It wasn't clear at all in the convention. But what the court said was that... it was a unilateral obligation. They didn't say to Serbia: 'you should have gone to the Security Council. You should have gone to the General Assembly.' They said: 'you should have taken lawful action. You should have acted on your own to prevent genocide.' So what this means is that the obligation obviously applies not just to poor Serbia, but it applies to the United States, to Germany, to Canada, an obligation to prevent genocide.

And that obligation, again, according to the court, kicks in when there's a serious risk of genocide. So you don't have to be satisfied that genocide has been committed. You have to be satisfied that there's a serious risk of genocide, and that's an easier case to make then.

If we were contemplating writing an update to the existing Genocide Convention today, what would you change? 

I would readjust the article with the definition so that it's more clearly talking about the policy of a state rather than the intent. We have a much more modern definition of crimes against humanity and the Rome Statute, and it talks about a state or organizational policy as being a requirement for crimes against humanity. So I would put something like that into the Genocide Convention. I think that would be the most helpful thing.

There are other small changes we could make, like make it a full-blown extradition treaty. We have modern treaties like the Torture Convention and the Enforced Disappearance Convention that are very much like the Genocide Convention in terms of what they try to do, and they have more modern terminology. So there are many little improvements that could be made because we've learned a lot in 75 years about how to write these things.

But the big thing would be to clarify that when a state is charged with genocide, that it's about its policy, that this is important. When individuals are prosecuted, you would have to show that as well. What we say in the Rome Statute for crimes against humanity is that it has to be a state or organizational policy. So it leaves open the door to what we call non-state actors, various groups, armed groups and so on, could also be held responsible. 

As you know, more than anyone in many quarters, you have the reputation as the go-to person on issues of genocide. You literally wrote the book on the subject. What does that weight feel like to you, this responsibility to get it right? 

Well, there are many people. I don't like being called the guru. I'm still fascinated [by] the subject, and I write about it. And I have a new edition of my book that's currently with the publishers because so much has happened in the last 25 years. But I wasn't prepared for this to happen, to be quite honest.

I thought that the Genocide Convention was kind of stagnant and that it was old and nothing was going to happen to it. And now we have this absolutely phenomenal interest in it from so many, many states. 

We need to reform the United Nations. We need to get nuclear disarmament, and we need to have a Palestinian state. That's my formula for world peace.- William Schabas

What does that mean? What does that say about our society and our global community that it is the case? 

Well, what it says is that we're increasingly devoted to the idea that the law, legal rules should apply. And that means, of course, they apply to everyone and to all states. It's one step further away from a global system, if you want to call it that, that is dominated and controlled by a handful of powerful economic and military states and the little states, smaller states, smaller powers, get towed along. 

This has historically been a big part of Canada's policy, our safety is protected by legal rules and institutions to enforce them. So it's a step in that direction, and it's a very positive one. 

You know, when we look at the attempts to reduce the human capacity for mass killing, what should be the next steps for holding nations accountable for their actions? 

Well, it's a complicated thing to hold nations accountable further because this has to be done through legal mechanisms. And the central part of that remains the United Nations Security Council, where five countries essentially hold the keys and control it. This is something that has to develop and evolve, I'm sure of that.

If you want my list, I'll start with Gaza and with the Middle East because it's clear to me that the solution is very straightforward.

There are 78 million Palestinians who were promised a state. They were promised a state by the League of Nations. But at the very beginning, when the mandate system was established, they were promised it. [They were promised it in] the Oslo agreements in 1992, and they're still waiting for it. And that's the solution. We have to have that state. We have to have nuclear disarmament. This is something Lloyd Axworthy once [said]. I was at a meeting with him and he boasted that Canada was the first country to give up nuclear weapons. And he reminded some Americans and others that really the idea of the Nonproliferation Treaty was that the nuclear states, in exchange for nonproliferation, were supposed to disarm.

So we need to reform the United Nations. We need to get nuclear disarmament, and we need to have a Palestinian state. That's my formula for world peace. 
 

Listen to the full conversation by downloading the IDEAS podcast from your favourite app.

*Q&A was edited for clarity and length. This episode was produced by Philip Coulter with Pauline Holdsworth.