75 Years of the Genocide Convention and the Promise of Never Again

9 December marks the International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of this Crime. In 2023, it is also the 75th anniversary of the UN General Assembly’s adoption of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).

The Genocide Convention defines, in Article II, genocide as ‘any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group’, including:

  • Killing members of the group;
  • Causing serious bodily or mental harm to members of the group;
  • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  • Imposing measures intended to prevent births within the group;
  • Forcibly transferring children of the group to another group.

The Genocide Convention confirms that genocide, whether committed in time of peace or war, is a crime under international law which parties to the convention undertake ‘to prevent and to punish.’

Read more from the co-founder of the Coalition for Genocide Response, Dr Ewelina Ochab, writing for Forbes:

The Genocide Convention And The Failed Promise Of Never Again

The last 75 years have seen too many cases of genocide. In the last decade, there have been several genocides or situations at serious risk of genocide that require attention here – genocides that we all have lived through, even if far from our homes.

In 2014, Daesh attacked Sinjar in Iraq and unleashed genocide against the Yazidi numeric minority community. Daesh perpetrated a litany of atrocities, including murder, enslavement, deportation and forcible transfer of populations, imprisonment, torture, abduction of women and children, exploitation, abuse, rape, and sexual violence. Daesh fighters killed hundreds if not thousands of people. As part of the same campaign, Daesh fighters abducted boys to turn them into child soldiers and women and girls for sex slavery. Subsequently, Daesh attacked Nineveh Plains forcing over 120,000 Christians to flee for their lives. More than 2,700 Yazidi women and children are still missing and their fate is unknown – as such, this genocide is considered as ongoing.

In 2016/2017, Myanmar’s military, the Tatmadaw, unleashed atrocities against the Rohingya, an ethnic and religious minority in Myanmar, including extrajudicial executions or other killings, including by random shooting, enforced disappearance and arbitrary detention, rape, including gang rape, and other forms of sexual violence; physical assault including beatings; torture, cruel, inhuman or degrading treatment or punishment; looting and occupation of property, destruction of property, and ethnic and religious discrimination and persecution. As a result of the atrocities, close to a million Rohingya Muslims were forced to flee to Bangladesh.

In 2018, we started hearing about the targeting of the Uyghurs, an ethno-religious community in China. According to reports, over a million members of the community were placed in so-called “re-education camps” where they would be subjected to forced indoctrination, torture and inhuman and degrading treatment, rape and sexual violence, and much more. Uyghur women were subjected to forced sterilizations and abortions. Uyghur children were removed from their parents and placed with Han families.

The targeting of the Yazidis, the Rohingya, and the Uyghurs has received some international attention and the atrocities have been formally determined to constitute genocide by governments, parliaments, international bodies, and experts, although the level of recognition varies between the cases. The U.S. State Department formally recognized all three.

However, recent years have also seen several situations with exhibit a serious risk of genocide, and situations where some of the elements of the crime are already present, although have not been formally recognized as yet. Among them are the situations of the Tigrayans in Ethiopia, the Hazara in Afghanistan, Ukrainians as targeted by Russia, and Darfurians in Sudan.

In 2020, with the outbreak of the war in Ethiopia, news reported on the targeting of Tigrayans with mass killings and brutal cases of rape and sexual violence. As the ceasefire was being signed in November 2022, the legacy of the war includes an estimated 600,000 – 800,000 people killed (making it the deadliest war in recent years), over 120,000 people subjected to conflict-related sexual violence, over a million people internally displaced within Tigray and over 60,000 fleeing to Sudan, thousands of people dead due to starvation. Despite the ceasefire in November 2022, the situation of the communities is still dire.

In 2021, as the Taliban was taking over, the Hazara, an ethnic but also a religious numeric minority group, became a target yet again. Hazara places of worship, schools and hospitals came under attack with countless causalities. There are continuous and increasing threats against the Hazara that include targeted kidnapping and arrest of Hazara leaders, scholars, and military members and their family members across Afghanistan. The Hazara Inquiry, a U.K. Parliamentary inquiry, found that Hazara in Afghanistan, as a religious and ethnic minority, are at serious risk of genocide at the hands of the Taliban and Islamic State–Khorasan Province (IS-K).

In 2022, Russia attacked Ukraine and unleashed a litany of crimes including atrocities aiming at the destruction of the Ukrainian identity. Among such crimes are the abductions of children, and forced transfer to Russia to subject them to illegal adoptions by Russian families. According to the testimonies of rescued children, once removed from their families or guardians, they were prohibited from speaking Ukrainian, and forced to learn and speak Russian. In 2023, the practice of removing Ukrainian children received some focus from the International Criminal Court (ICC). Indeed, in March 2023, the Pre-Trial Chamber II of the ICC issued warrants of arrest for two individuals in the context of the situation in Ukraine: Mr Vladimir Vladimirovich Putin and Ms Maria Alekseyevna Lvova-Belova and this for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). However, as for now, the ICC does not consider the crime as part of the genocide against Ukrainians.

In 2023, Darfur was issued a warning of the risk of imminent genocidal mass killing as the Rapid Support Forces (RSF), the paramilitary group in conflict with the Sudanese Armed Forces (SAF), was on the verge of taking over the entire Darfur region after capturing four of its five states. The warning issued by over 70 international law experts stated that the evidence of persecution and killings based on ethnicity is well-established. As they indicated, “In recent weeks, the RSF has become increasingly brazen in its attacks and brutality against civilians, particularly targeting the Masalit ethnic group directly. Earlier this month, in just six days, RSF forces terrorized an IDP camp in Ardamata, a site thought to be a place of refuge from prior attacks, massacring hundreds and enslaving members of the Masalit. This follows the RSF unleashing the same horrors on El Geneina earlier this year, leaving hastily dug mass graves for members of the Masalit community. According to survivors of these massacres, the RSF and its militiamen singled out Masalit for execution and further hunted down prominent leaders of the community.”

These are the cases from the last ten years where the elements of the crime of genocide are established or, at minimum, there is a serious risk of genocide. These findings should engage the responsibility of all States to protect the targeted communities and prevent genocide, under the Genocide Convention and customary international law. Unfortunately, the responses to these situations have been neglectful, and unworthy of the promise of “Never Again” repeated by leaders again and again.

The UK Parliament Must Recognise The Atrocities Against the Uyghurs For What They Are – Genocide

On 22 April 2021, the UK House of Commons will have the opportunity to set the record straight and recognise the China’s atrocities against the Uyghurs and other ethnic and religious minorities as genocide. The backbench debate is only the second time the UK House of Commons is asked to recognise ongoing atrocities as genocide, with the first being in the case of Daesh atrocities against Yazidis, Christians and others, in response to an Early Day Motion tabled by Fiona Bruce MP in April 2016. 

Parliamentarians can and must recognise atrocities for what they are – call them by their name – and so put pressure on the UK Government to act accordingly. 

Do China’s atrocities against the Uyghurs amount to genocide? In February, we wrote to The Economist to challenge its piece suggesting that “Genocide” is the wrong word for the horrors of Xinjiang, making several erroneous claims. As these continue to be repeated, and some of them used by the Chinese Government, it is crucial to challenge these misconceptions. Indeed, at least two detailed legal analyses by independent experts have made a clear case for the recognition of genocide.

A common refrain is that genocide is not a word that should be used lightly. We agree.  However, this does not mean that it should not be used. Indeed, where the elements of the legal definition are met (as per Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide – the Genocide Convention), the crimes should be labelled exactly for what they are. 

‘Genocide’ as defined by the Genocide Convention and customary international law does not require the immediate destruction of the group by ‘mass slaughter.’ Destruction of the group (in whole or in part) must be the intended result, but this may be achieved in a number of ways. In the case of the Uyghurs, in terms of the legal test, substantiated allegations include killing members of the group, causing serious bodily or mental harm to members of the group (including physical abuse, rape and sexual violence), deliberately inflicting on the group conditions of life calculated to destroy the group (by way of concentration camps, forced labour and other atrocities as a whole), imposing measures intended to prevent births within the group (by way of various practices including forced sterilisations, forced abortions, and also rape), and forcibly transferring Uyghur children to another group. 

All these acts are supported by evidence of the specific intent to destroy this ethno-religious group – a group protected by the Genocide Convention. This is in addition that to the fact that the specific intent can be inferred from the pattern and systemic nature of the atrocities. 

Currently publicly available evidence comes from survivors and witnesses, researchers, NGOs, investigative journalists and others. While there have been no independent investigations of the situation of the Uyghurs on-the-ground in Xinjiang, this is because the Chinese Government prevents unfettered access to the region – conduct surely prejudicial to China. A UN investigation could be conducted effectively without access to the region as has been done in the cases of Syria and Myanmar. The UN could establish a mechanism to investigate the atrocities, draw conclusions and collect and preserve evidence for future prosecutions. 

At this time China simply denies all allegations and rejects suggestions for an independent investigation. On 31 March 2021, Chinese Foreign Ministry spokesperson Hua Chunying rejected the allegations of genocide, arguing, among others, that ‘no State, organisation, or individual is qualified and entitled to arbitrarily determine that another country has committed genocide. In international relations, no country should use this accusation as a political label for rumour-mongering and malicious manipulation.’ This is highly erroneous. 

In a perfect world, the allegations of genocide against the Uyghurs would be considered by an international court or tribunal or a specially established UN investigative mechanism, but this has not been done and it is unlikely to happen, given China’s powerful position at the UN and reservations to, or non-membership of, relevant treaties. This, however, does not preclude States making their own determination and acting accordingly. In fact, States, as the duty holder under the Genocide Convention, must make such determinations to inform their responses. 

Specifically, the Genocide Convention imposes duties upon States parties to prevent and punish genocide in addition not to commit or be complicit with genocide. The duty to prevent genocide is extensive and critical. As the International Court of Justice (ICJ) in the case of Bosnia and Herzegovina v Serbia and Montenegro clarified, the duty to prevent: ‘Arise[s] at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.’ 

If this is the case, States must conduct their monitoring, analysis and determination of at least the serious risk of genocide very early on – in order to engage their duties. This means that States need to consider the legal elements of genocide and/or risk factors, as set out, for example, in the UN Framework of Analysis for Atrocity Crimes and the Jacob Blaustein Institute’s Compilation of Risk Factors and Legal Norms for the Prevention of Genocide. Where, after the analysis of all relevant evidence, states conclude that the evidence indicates commission of genocide or a serious risk of genocide, their failure to act incurs their own responsibility.  The obligation to prevent exists distinct from other obligations and does not simply disappear for failure to draw a conclusion in the face of available evidence.   

It accomplishes nothing to reject such an analysis of the evidence and using euphemisms out of fear of upsetting the state perpetrating genocide. There are practical effects of a determination. Indeed, and again as per the ICJ, once the state learns or should have learned about the serious risk of genocide, ‘from that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.’ 

The atrocities against the Uyghurs must be recognised for what they are and acted upon. Refusal to face the facts and draw conclusions resolves nothing and absolves no one. Indeed, it has too often been the case that the world watches genocides take place in violation of our own legal and moral duties.

In a world where genocide still occurs, despite the promises of Never Again, wilful blindness and inaction is not an option. We need to ensure that we are equipped to prevent genocide as the cost of allowing it is too great: it is the cost of lives and it is also the cost of our humanity.

Dr Ewelina U. Ochab, Co-founder of the Coalition for Genocide Response 

Baroness Helena Kennedy QC, Director of the International Bar Association’s Human Rights Institute

Professor John Packer, Director of the Human Rights Research and Education Centre, University of Ottawa

Kyle Matthews, Executive Director of the Montreal Institute for Genocide and Human Rights Studies at Concordia University

Professor Zachary D. Kaufman, University of Houston Law Centre

Michael Polak, Barrister, Lawyers for Uyghur Rights, Committee World Uyghur Congress London Office 

Mark Hill QC, Vice-President, International Consortium for Law and Religion Studies

Nury Turkel, Attorney and Board of the Uyghur Human Rights Project