Incidenta notiunii conventionale de genocid [Incidence conventional notion of genocide]

After more than forty years of near dormancy, the 1948 Genocide Convention has suddenly become a vital legal tool in the international campaign against impunity. The fact of genocide is as old as humanity, wrote Jean-Paul Sartre. The law, however, is considerably younger. The explanation is that, historically, genocide has gone unpunished. The General Assembly on 09.12.1948 adopted The Convention on the prevention and punishment of the crime of genocide mentioning that genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations. According to the Convention, genocide means one of the following acts committed with the intention to destroy in whole or in part a national, ethnic, racial or religious group as such: (a) killing the members of the group; (b) causing serious bodily or mental harm to the 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. In his remarkable study “Axis Rules in Occupied Europe” Rafael Lemkin described a broad range of acts that might be carried out in the course of commission of genocide. The Convention’s drafters were more conservative, deliberately excluding what is known as cultural genocide, as well as forced expulsion from the group homeland, an act more known as “ethnic cleansing”. Though, it can’t be affirmed that cultural genocide is totally absent in the provisions of the Convention, “forcibly transferring children of the group to another group” is a part of broad Lemkin’s opinion concerning cultural genocide. Also, it is incorrect to assert that ethnic cleansing is a form of genocide. Both, of course, may share the same goal, which is to eliminate the persecuted group from a given area, but they have two different specific intents. One is intended to displace a population, the other to destroy it. Ethnic cleansing is a warning sign of genocide to come. Genocide is the last resort of the frustrated ethnic cleanser. Ecocide, that is adverse alteration, often irreparable to the environment – for example through nuclear explosions, chemical weapons, serious pollution or destruction of the rain forest – which threaten the existence of entire populations. The conclusion is that ecocide be focused elsewhere than on Genocide Convention, due to the absence of the specific intent. Apartheid is a crime against humanity, defined as inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them. To exclude some exceptions, the crime of apartheid responds to conditions of a crime against humanity, rather than genocide. This study, also, examines the possibility of considering weather the threat to use or use of nuclear weapons (biocide) could be qualified as genocide. Although, at first sight, the answer is positive, such kind of weapons are “non-discriminative”, they don’t select the victims, but in the case of genocide the point is that the victims are exterminated namely because their nationality, ethnicity, race or religion. So, biocide remains punishable as a war crime or a crime against humanity.