The crime of Genocide

Translated by Giulia Maffeis 

We often hear people talk about genocide, but what is the origin of this term? What is it about?

 Lemkin, a Polish lawyer and jurist, created the term genocide in 1944 for what Churchill had called a nameless crime, the Holocaust, perpetrated by the Nazis against the Jewish people to destroy them. The term literally means killing of the race.

The following year, the Nuremberg Court accused some of the Nazi leaders of "crimes against humanity," while the term genocide was included in the charge but with no legal value.

In 1948, thanks to the United Nations General Assembly, genocide was regulated with the ruling of the Convention on the Prevention and Punishment of the Crime of Genocide, which came into force in 1951 and was ratified by Italy with Law No. 153 of 1952.

Genocide, whether committed in times of war or peace, is an international crime, as stipulated in Article 1. The interdiction of committing genocide is not only a rule of positive law. Still, it is also qualified as a customary international law norm, mandatory in all states, regardless of whether they have ratified the Convention.

Article 2 provides us with a definition:

In the present Convention, genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

The essential component of the crime of genocide is represented by the material and mental elements; it is necessary to prove both for an act to be qualified as genocide.

The material element is represented by an act that has to coincide with one or more of the points listed in Art. 2.

The mental element is more difficult to prove, that is, the intent to destroy, in whole or in part, a "protected" group (national, ethnical, racial, religious, not political, social, or economic group). It's exactly this element that sets apart genocide from other international crimes and also makes it difficult to prove its occurrence.

The intent to destroy can be proven by the words of the accused, the scale of atrocities committed, the use of derogatory language towards members of the group that has been targeted, the weapon used, the extent of physical injuries, the method of planning, the systematic way of killing...  It's not necessary for there to be a genocidal plan, but the latter can be evidence to demonstrate the intent.

The International Court of Justice (ICJ) and the International Criminal Court (ICC) have jurisdiction over the crime of genocide, as do the national courts of the states.

THE ISRAELI-PALESTINIAN SITUATION

On March 26, 2024, Francesca Albanese, Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, presented her Report Anatomy of a Genocide before the United Nations Human Rights Council.

The report analyzes models of violence and Israeli policies in its assault on Gaza, clearly stating that reasonable grounds are present to believe that the mark indicating the commission of genocide by Israel against the Palestinian people has been reached: killing of members of the group, causing serious bodily or mental harm to members of the group, intentionally inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part. The genocidal acts are also followed by statements from senior military and government officials proving genocidal intent. Francesca Albanese also states that "Israel's genocide of the Palestinians in Gaza is an escalation phase of a long-standing process of colonial erasure. For over seven decades, this process has suffocated the Palestinian people as a group, demographically, culturally, economically, and politically, seeking to displace and dispossess and control their land and resources."

In light of the evidence surfacing from the report, the UN Spokeswoman calls on all member states to act and support South Africa, which filed a charge against Israel in December 2023 before the International Court of Justice, for violation of the Genocide Convention in the Gaza Strip.

INTERNATIONAL COMMUNITY'S POSITION

On June 6, 2024, Spain, after recognizing the State of Palestine together with Norway and Ireland, declared its intention to join South Africa in the genocide case brought against Israel.

Spain is the first European country to take this position: in recent months, Mexico, Colombia, Nicaragua, Libya, and the Palestinian Authority have made the same request.

It is to be hoped that the international community will reaffirm its commitment to the fight against genocide, following the example of the Spanish state.