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I believe that my first visit to Armenia was when I took part in a meeting of the WCC Executive Committee, hosted by the Mother See of Holy Etchmiadzin, in June 2015, during the centenary year of the Armenian genocide. Last year, on 19 September 2023, I was at the entrance of the Lachin Corridor, as the final attack on Artsakh/Nagorno-Karabakh began. I am honoured to back here participating in this Fifth Global Forum Against the Crime of Genocide, and I thank the Government of the Republic of Armenia and all the participants for this very important discussion.
There have been many occasions over the years on which the WCC has called for recognition of the Armenian genocide by the United Nations and by member states, dating back at least to 1979. We believe that there is a duty on the international community to acknowledge and remember the victims of genocide, in order to heal historical wounds and to guard against similar atrocities in the future. Denial, impunity and the failure to remember such events encourage their repetition.
But here we are, in December 2024, in the midst of proliferating conflicts, record levels of hate speech and incitement to violence, declining respect for the principles of international humanitarian and human rights law, an evidently increasing incidence of serious international crimes, and with genocide back on the news of the day.
While political will to prevent such crimes seems to be failing, the international legal tribunals of adjudication of such crimes (the International Court of Justice and the International Criminal Court) seem to be taking on greater salience, stepping into the political vacuum and staging a kind of stately judicial fightback.
This panel is supposed to focus on gaps in the international legal and policy framework and challenges for the prevention of the most serious international crimes, so let me speak to that.
First, the limitations inherent in the framing of the Genocide Convention. The process of establishing the 1948 Convention required significant compromises from UN Member States to be realized. Such compromises included limiting the protected groups and leaving out acts of cultural genocide, or the destruction of sacred places such as houses of worship, grave sites and heritage sites as a means of destroying a group.
Second, in many cases of violent conflict, it is nearly impossible to prove dolus specialis, or specific intent to destroy, which is requisite for an act of violence to be considered an act of genocide as defined by international law, both under the Genocide Convention and the Rome Statute. For 50 years following the 1948 Convention, there was literally no practice at all in relation to the crime of genocide before national or international courts. Of course that changed in the 1990s, with the collapse of the former Yugoslavia, and the crimes perpetrated in Rwanda.
In the absence of documents or other direct evidence of such specific intent to destroy a group, courts have been left to infer intent from a pattern of behaviour. The International Court of Justice, in a judgement of 2015, described the way in which you infer intent as follows: “in order to infer the existence of the dolus specialis from a pattern of conduct, it is necessary and sufficient that this is the only inference that could reasonably be drawn from the acts in question”. This is a very high threshold. It means that if someone has a double intent to defend themselves and to destroy a group, it could be said that the necessary inference could not be drawn.
Victims of atrocity crimes often feel the need to compare their experiences to legally established genocides such as the Holocaust, the 1994 genocide in Rwanda and the 1995 genocide in Srebrenica, to establish legitimacy and seek an adequate response. We have spoken here of genocide as the “crime of crimes”. But from a legal point of view, there is in fact no hierarchy between war crimes, crimes against humanity and genocide. There is therefore an argument for shifting the narrative from genocide being considered as worse than other crimes, to considering these crime categories as different, yet of equal importance and impact to victims and survivors, and to the broader international community.
On the other hand, the Genocide Convention provides access to the International Court of Justice to address allegations of genocide, while there's no equivalent route to the ICJ for crimes against humanity and war crimes. And it is obvious that in political and general public discourse, and in the media, the term genocide carries great weight and impact.
Still, as Samantha Lakin has proposed, an important and less-regarded way of using these legal definitions and crime categories is as a type of diagnostic tool. The categories of war crimes, crimes against humanity and genocide can help us understand the patterns of violence and the political, economic and social factors that lead to such crimes, and to contextualize and understand risk factors, in order to strengthen prevention strategies.
Another challenge – and a very provocative perspective – highlighted in a recent article by Philippe Sands, is that the concept of genocide has reinforced matters of group identity, which did not exist in international law in the same way prior to the invention of the term. According to Professor Sands, the requirement of proving intent to destroy a group in whole or in part has “in my experience doing cases over the last 25 years in the field of genocide and crimes against humanity, reinforced intergroup hatreds…. the invention of the concept of genocide, no doubt very well-intentioned, may have given rise to the very thing it was intended to prevent: the invention of the concept of genocide could actually give rise to more genocides.” A very provocative perspective…
In any event, it is clear that consistent and non-discriminatory accountability for the most egregious crimes is an absolute necessity for prevention of future such crimes.
This brings me to the challenge of enforcement, a general challenge in the field of international law. A couple of months ago Professor Hilary Charlesworth, a member of the ICJ bench, spoke at the Geneva Graduate Institute on the topic “Hopes and Fears for International Law”. She gave a wise and elegant response to a question about the utility of international law, and specifically of ICJ rulings, in a context in which most such judgements are ignored and unenforced. She acknowledged the challenge of enforcement, but described the role of the ICJ as providing a ‘legal thread’ – itself thin and weak – that can be woven together with other threads – political, social, cultural, and even religious and spiritual threads – into a ‘web of effective enforcement’. I loved her for that. But she thereby presents a challenge to all of us, not to throw up our hands in despair at the weakness of international law, but to take that thread and weave it together with the other threads we have in our hands to create that web of effective enforcement.
Here’s a religious thread: The Plan of Action for Religious Leaders and Actors to Prevent Incitement to Violence that Could Lead to Atrocity Crimes, on the development of which we worked with the UN Office on Genocide Prevention and the Responsibility to Protect, and the guidelines on addressing hate speech and cooperation between the Office and religious leaders and actors in implementing those guidelines. I see this as a key contribution by our sector helping to fill the gaps and addressing the particular challenge of hate speech, which lacks international legal codification, but which is a growing threat in for example Ethiopia, but also in many other contexts.
