Prosecuting Genocide

Abstract

The 1948 Genocide Convention recognises that ‘at all periods of history genocide has inflicted great losses on humanity’. But until the second half of the twentieth century, genocide generally went unprosecuted and unpunished. Genocide is a ‘crime of state’, to use the term employed by one of the first to write about the Convention.¹ The fact that State involvement, in the form of some plan or policy, is virtually inseparable from the crime of genocide provides an explanation for this history of impunity.² States were not going to punish themselves, or rather their own high functionaries, for crimes that were in fact official policy in one form or another. There are two main solutions to this problem. The first is to create an international court with jurisdiction over the offence. Here, the paradigm is the Nuremberg Tribunal, which held Nazi leaders accountable for the attempted destruction of the European Jews, although the prosecutions were carried out under the rubric of crimes against humanity, rather than genocide. The second is recognition that States other than the one where the crime actually took place are entitled to prosecute genocide, a concept described as ‘universal jurisdiction’. This was the basis of the first prosecution using the terms of the Genocide Convention, that of Adolf Eichmann before the Israeli courts after he was tracked down and abducted from Argentina, in the early 1960s.