WHEN TO REFER TO A

SITUATION AS “GENOCIDE”:
A brief guidance note

United Nations Office on Genocide

Prevention and the Responsibility to Protect

THE UNITED NATIONS OFFICE ON GENOCIDE PREVENTION AND THE RESPONSIBILITY TO PROTECT
Objective

United Nations officials are sometimes asked

to comment on whether specific events, past
or present, can be referred to as “genocide.” It
is extremely important that United Nations
officials adhere to the correct usage of the
term, for several reasons; (i) its frequent
misuse in referring to large scale, grave
crimes committed against particular
populations; (ii) the emotive nature of the
term and political sensitivity surrounding its
use; and (iii) the potential legal implications
associated with a determination of genocide.
This note aims to provide guidance on the
correct usage of the term “genocide,” based
primarily on legal rather than historical or
factual considerations.

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THE UN OFFICE ON GENOCIDE PREVENTION IN COLLABORATION WITH THE UN

OFFICE ON GENOCIDE PREVENTION IN COLLABORATION WITH
 I. Analysis

Origin of the concept: The term was used as a descriptive rather than a legal

“genocide” was first coined by Polish lawyer term. The first time that genocide was

Raphäel Lemkin in 1944 in his book Axis codified as an independent crime under

Rule in Occupied Europe by combining geno, international law was in the 1948

from the Greek word for race or tribe, with - Convention on the Prevention and

cide, derived from the Latin word for killing. Punishment of the Crime of Genocide

Lemkin developed the concept of genocide (hereinafter, the Genocide Convention).ii

partly in response to the Holocaust, but also According to Article I of the Convention,

in response to previous instances in which “The Contracting Parties confirm that

he considered entire nations, and ethnic and genocide, whether committed in time of

religious groups, had been destroyed such peace or in time of war, is a crime under

as “the destruction of Carthage; that of international law which they undertake to

religious groups in the wars of Islam and the prevent and to punish.” The Genocide

Crusades; the massacres of the Albigenses Convention entered into force on 12 January

and the Waldenses; and more recently, the 1951.

massacre of the Armenians.”i Genocide is also defined as an international

Criminalisation of genocide: The crime in the Rome Statute of the

International Criminal Court (ICC) (Article 6),
indictments and the Nuremberg Trials that
the Statute of the International Criminal
followed World War II made reference to
Tribunal for Rwanda (ICTR) (Article 2/2), and
“genocide” in the context of crimes against
the Statute of the International Criminal
humanity, particularly in relation to the crime
Tribunal for the former Yugoslavia (ICTY)
of persecution and murder. However, at that
(Article 4/2). The International Residual
time genocide was not listed as a separate
Mechanism for Criminal Tribunals,
crime in the Charter of the International
continuing the ICTY and ICTR’s jurisdiction
Military Tribunal (Nuremberg Charter) and
and the Law on the Establishment of the

THE UNITED NATIONS OFFICE ON GENOCIDE PREVENTION AND THE RESPONSIBILITY TO PROTECT
Extraordinary Chambers in the Courts of date on which it entered into force for the
Cambodia (Article 4), a UN-assisted tribunal, States in question.
also have jurisdiction over genocide as
The Genocide Convention and
defined in the Convention. Many States have
customary international law: The ICJ
also criminalized genocide in their domestic
has repeatedly stated that the Convention
law; others have yet to do so.
embodies principles that are part of general
Applicability of the Genocide customary international law.iv This means
Convention: Article 28 of the Vienna that whether or not States have ratified the
Convention on the Law of Treaties prohibits Genocide Convention, they are bound as a
the retroactive application of treaties matter of law by the principle that genocide
“unless a different intention appears from is a crime under international law and that
the treaty or is otherwise established”, which they thus have an obligation to prevent and
is not the case in the Genocide Convention. punish it. In a recent judgment, the ICJ also
In addition, in line with the principle of expressly noted “the fact that the
legality, there should be no crime or Convention was intended to confirm
punishment without a law establishing the obligations that already existed in
crime and authorizing the punishment customary international law”.v However,
(nullum crimen sine lege and nulla poena international courts have not yet had
sine lege, respectively). In line with the text occasion to pronounce on when these
of the Genocide Convention and its travaux obligations of customary law crystallised.
préparatoires, the International Court of
“Historical” cases of genocide: The
Justice (ICJ) has confirmed that “the
preamble to the Genocide Convention
substantive provisions of the Convention do
recognizes that “… at all periods of history
not impose upon a State obligations in
genocide has inflicted great losses on
relation to acts said to have occurred before
humanity…” The travaux préparatoires of the
that State became bound by the
Convention also contain numerous
Convention.”iii In conclusion, States are only
references to genocide as an historical fact.
bound by the Genocide Convention from the
Resolution 96(I) (11 December 1946) of the

THE UNITED NATIONS OFFICE ON GENOCIDE PREVENTION AND THE RESPONSIBILITY TO PROTECT
United Nations General Assembly, after an investigation meeting appropriate
authorizing the drafting of the Genocide due process standards. According to Article
Convention, which was adopted IX of the Genocide Convention, disputes
unanimously, states that "many instances of related to its interpretation, application and
such crimes of genocide have occurred fulfilment, including State responsibility,
when racial, religious, and other groups have should be addressed to the ICJ. With
been destroyed, entirely, or in part." Thus, it regards to individual criminal responsibility,
can be concluded that the Convention Article VI determines that persons charged
recognises that genocide is not a new with genocide shall be tried by a competent
phenomenon and that events that occurred court of the State in the territory of which
before the Genocide Convention was the act was committed or by a competent
adopted may have fit the definition of international penal tribunal whose
genocide as set out in the Convention. jurisdiction is accepted by the State Parties.

Use of the term “genocide”: The legal To date, only a few events have been

definition of genocide is precise and determined by competent judicial bodies to

includes an element that is often hard to constitute genocide. At the international

prove, the element of “intent”.vi The level, the ICTR determined the killings of

determination as to whether a situation Tutsi in 1994 in Rwanda to be genocide. The

constitutes genocide is thus factually and ICTY has determined that the events in 1995

legally complex and should only be made in Srebrenica (Bosnia & Herzegovina) were

following a careful and detailed examination genocide. The ICJ also qualified the events

of the facts against relevant legislation. This of Srebrenica as genocide. In other

examination has been carried out for the instances, charges of genocide have been

purpose of establishing State responsibility brought against specific individuals, but the

or individual criminal responsibility for the trial or final decision in the cases in question

crime of genocide. This must be done by a are still pending and therefore genocide has

competent international or national court of not yet been established. Such charges have

law with the jurisdiction to try such cases, been brought, for example, by the

THE UNITED NATIONS OFFICE ON GENOCIDE PREVENTION AND THE RESPONSIBILITY TO PROTECT
International Criminal Court in the case of been particularly traumatic and devastating
Darfur (Sudan); and by the Extraordinary for populations and that have involved
Chambers in the Courts of Cambodia. At the serious violations of international human
national level, a few domestic courts have rights and humanitarian law which, in certain
ruled that particular events constituted cases, could constitute genocide. For
genocide. When considering these cases, it instance, the attempted extermination of the
is important to compare the definition of the Jews, Roma and other populations of
crime of genocide in the national legal Europe by the Nazi regime is often referred
framework with the international definition. to as the “Holocaust”. The expression
“Killing fields” is often used in relation to the
National legislative and executive authorities
mass killings by the Khmer Rouge regime in
have sometimes characterised certain
Cambodia in the 1970s.
incidents or periods of violence as genocide,
following processes that include political Other international crimes: Events that
assessments alongside legal do not meet the definition of genocide may
considerations. These characterisations constitute war crimes or crimes against
cannot be treated as authoritative or humanity, which are separate crimes under
determinative, at least beyond the States international law. Although genocide has
concerned. been labelled “the crime of crimes”, it must

Other terminology: Where there has not be stressed that there is no established
“hierarchy of gravity” of international crimes.
been a legal determination of genocide
Crimes against humanity or the most severe
under the Genocide Convention by an
war crimes can assume equally shocking
appropriate court of law, different terms
and heinous proportions.
have been used to refer to events that have

THE UNITED NATIONS OFFICE ON GENOCIDE PREVENTION AND THE RESPONSIBILITY TO PROTECT
 II.Conclusion

bodies, as well as through the Organization’s

As established, responsibility for a breach of own fact-finding mechanisms, to make an

the Genocide Convention can only be assessment of whether there is risk of

applied to events that have occurred after genocide in a particular situation, or whether

the entry into force of the Convention for the genocide may be on-going or may have

States in question. Consequently, under the taken place.viii Based on that assessment,

Convention, a State cannot bring a the United Nations can advocate for action

complaint for events that took place before to prevent, halt and/or punish such “alleged”

its entry into force for that State. This does or “possible” crimes.” Nevertheless, it is up

not prevent the application of customary to a mandated judicial body to make a legal

international law or general principles of determination as to whether genocide did

international law to a situation that predates indeed occur, and who was responsible. In

the Convention, nor prevents the term conclusion, United Nations officials should

“genocide” from being used as an historical rely on the determinations of lawfully

reference in relation to events that occurred constituted courts. Where there has been a

prior to that date. The political organs of the final legal determination of genocide in

United Nations play an important role in relation to specific events, use of the term

supporting the implementation of the may become less politically contested,

Convention,vii but not in making a legal though not necessarily free of controversy.

determination as to whether a situation Where such a determination has not been

constitutes genocide under the Genocide made, use of the term is likely to be

Convention or under international criminal vigorously contested by affected

law. Appropriately-mandated United Nations communities and can result in political

offices and officials can use information tensions. Notwithstanding, United Nations

collected, including through Commissions of officials should not avoid engaging in

Inquiry mandated by inter-governmental discussion about the nature of events that

THE UNITED NATIONS OFFICE ON GENOCIDE PREVENTION AND THE RESPONSIBILITY TO PROTECT
may constitute genocide and other atrocity
crimes, past or present. This means
acknowledging serious violations of
international human rights and humanitarian
Genocide (Bosnia and Herzegovina v Serbia
law that may have been committed in the and Montenegro), Judgment, I.C.J. Reports
past or may be ongoing, including where 2007 (I), pp. 110-111, para. 161.

there has not yet been a legal determination v Application of the Convention on the
Prevention and Punishment of the Crime of
of the type of international crime that may Genocide (Croatia v. Serbia), Judgment, I.C.J.
have been committed. United Nations Reports 2015, p. 45, para. 95.

officials have a responsibility to contribute vi Article II of the Genocide Convention defines

genocide as “any of the following acts committed
to international dialogue on the causes of with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as
genocide and other atrocity crimes and to such: (a) Killing members of the group; (b)
advance collective efforts to prevent future Causing serious bodily or mental harm to
members of the group; (c) Deliberately inflicting
crimes.1 on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent
births within the group; (e) Forcibly transferring
children of the group to another group.” For
guidance on this definition and overall the
content of the crime of genocide, please consult
iRaphäel Lemkin, Genocide, «American Guidance note 2 “What is genocide”.
Scholar», vol. 15, no. 2, April 1946, pp. 227-230.
vii Article VIII of the Genocide Convention
ii Raphäel Lemkin led the campaign to have provides that any State Party may call upon the
genocide recognised and codified as an competent organs of the United Nations to take
international crime. However, the original such action under the Charter as those organs
definition proposed by Raphäel Lemkin and the may consider appropriate for the prevention and
notion finally agreed to by the international suppression of acts of genocide and related
community in the Genocide Convention are not acts.
identical, though similar, particularly in relation to
the types of groups targeted. viii The UN Office on Genocide Prevention and
the Responsibility to Protect has developed a
iii Application of the Convention on the Framework of Analysis for Atrocity Crimes to
Prevention and Punishment of the Crime of support the assessment of the risk of genocide,
Genocide (Croatia v. Serbia), Judgment, I.C.J. crimes against humanity and war crimes:
Reports 2015, p. 46, para. 100. https://www.un.org/en/genocideprevention/docu
ments/publications-and-
iv Application of the Convention on the resources/Genocide_Framework%20of%20Anal
Prevention and Punishment of the Crime of ysis-English.pdf

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THE UNITED NATIONS OFFICE ON GENOCIDE PREVENTION AND THE RESPONSIBILITY TO PROTECT