Persuading the World of Genocide : Locating and Protecting the Foundational Rhetoric of the United Nations Genocide Convention

Raphael Lemkin’s neologism, genocide, coined in 1944 to describe the ‘crime of crimes’, was introduced to the world in the United Nations Convention on the Prevention and Punishment of the Crime of Genocide in 1948. While the crime is thought to be almost as old as humanity itself, the events of the 20th century have provided too many examples from which the international community cannot turn away. The Convention’s definition of genocide and the elements which constitute the crime are contained within its foundational rhetoric, which—as the adjective suggests—is the layer that supports the entire edifice. The Convention is a source of law in the matter of genocide and its drafters urged that it be adopted into the domestic law of the contracting parties. The definition of genocide has not escaped criticism from numerous quarters, however, and the calls for its radical amendment (or even complete replacement) are always energetic and sometimes strident. To date the definition has remained unamended, despite the calls for change. In part, the Convention’s relative success at international law is attributable to the capacity of courts and tribunals to interpret the foundational rhetoric in such a way as to align fact matrices with the definition and elements and to achieve a just outcome. Not everything decried as ‘genocide’ rises to meet the definition: on occasion, the serious categories of war crimes and crimes against humanity provide the means by which a charge is prosecuted and defended at law. This thesis argues that the Convention possesses a ‘stable instability’ in its foundational rhetoric, especially at Article II. The many calls for amendment—some of which are considered in this study—have thus far failed to persuade the United Nations to amend its own document. Some domestic iterations of the Convention have made their own, sometimes idiosyncratic, amendments, and these have passed into law with curious results. ‘Genocide’ has passed into vernacular usage, a result of which is often-confused application divorced from its source; it becomes a blunt instrument of contempt and abuse. The Convention and its faithful reproductions provide a forensic instrument to be employed with precision and restraint, not a popular label controlled only by outrage. This thesis proposes that the Convention’s foundational rhetoric is robust and resilient, productive of just outcomes in the hands of those who wield it with due care and caution.