Article 1 of the 1948 Convention on the Prevention and Punishment of Genocide simply states that “genocide, whether committed in time of peace or time of war, is a crime under international law”. This treaty has been ratified by so many states that it is now considered jus cogens, a rule of modern customary international law binding on all states (whether they have ratified the convention or not) and requiring them to prosecute acts of genocide.
As the International Court of Justice (ICJ) explained in its decision in the Reservations to the Convention of Genocide Case, the origins of the convention show that it was the intention of the UN to condemn and punish genocide as “a crime under international law … involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and the spirit and aims of the UN.
Article II of the Convention lays down that:
“genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:
– Killing members of the group;
– Causing serious bodily mental harm to members of the group;
– Deliberately inflicting on the group conditions of life calculated to bring about its in whole or part;
– Imposing measures intended to prevent births within that group;
– Forcibly transferring children of the group to another group.”
The legal concept of genocide is not fully understood by historians and FCO officials who refuse to apply it to the Armenian massacres. This is because, like other serious crimes, it consists of both a factual element (actus reus) and a mental element (mens rea). The actus reus involves causing harm, whether physical or mental, to members of a group that has been targeted for discrimination based on national, ethnic, or religious grounds. Importantly, this also includes deliberately inflicting conditions on the group that are calculated to bring about its physical destruction, in whole or in part, which may have been precisely what the Ottoman government did to the Armenians. The government ordered their deportation under conditions that were known to expose them to disease, starvation, and lethal attacks by the “Special Organisation” (Teshkilat-i Mahsusa) paramilitaries and marauding Kurds. As noted in the leading legal textbook on genocide:
“ The treatment of the Armenians by the Turkish rulers in 1915 provides the paradigm for the provision dealing with imposition of conditions of life. These crimes have often been described as “deportations”. But they went far beyond mere expulsion or transfer, because the deportation itself involved deprivation of fundamental human needs with the result that large numbers died of disease, malnutrition and exhaustion.”
Despite these mechanisms, acts of genocide continue to occur around the world. The international community must remain vigilant in preventing and responding to acts of genocide. The Responsibility to Protect (R2P) doctrine, which was adopted by the United Nations General Assembly in 2005, recognizes that states have a responsibility to protect their populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. If a state is unable or unwilling to protect its population, the international community has a responsibility to take action to prevent these crimes from occurring.