This week saw a contested battle in Canada’s Parliament over whether or not ISIS is engaging in genocide in the areas under its control. Given the seriousness of the charges and the heinousness of ISIS’ crimes, one would assume this would be an important debate that political parties would want to get right.
Sadly, the opposite occurred.
Genocide is a term that most people are familiar with, but it carries a very specific definition and legal obligation. Coined in the 1940s by Raphael Lemkin, a lawyer of Polish-Jewish decent, to describe what the Nazis were doing in Europe, “genocide” combines the term for family, tribe or race (genos) with the word to kill (-cide). In the aftermath of World War II, the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948.
The Convention defines genocide as: “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” such as:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting 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.
Importantly, Article I of the Convention, states that parties undertake to “prevent and punish” genocide. This means that genocide, once recognized, obligates states to act in order to prevent genocide from taking place and to legally punish those who perpetrate it. However, there is very little guidance suggesting exactly what this means. For Canada, preventing genocide could mean participating in military action, but this is not required. It could also mean taking in refugees and providing humanitarian aid. Punishing could mean support for a domestic or international tribunal where alleged perpetrators would be tried for their actions.
This lengthy description is intended to show that genocide is not a descriptive term, but one that carries legal weight. Unfortunately, that seems to be lost in much of the rhetoric from Parliament this week.
The Liberals have maintained a muddled position throughout the debate, arguing that politicians should stay out of it, that the UN should hold an independent investigation and that the UN Security Council should decide. However, while the Convention does speak to states being able to call upon the UN to act in article VIII, it is not clear what the role of the UN actually is. The resort to force, absent a Security Council resolution or self-defence justification, would be illegal. At the same time, in Bosnia Herzegovina v Serbia (also known as the Bosnian Genocide Case), the International Court of Justice found that Serbia failed in its duty to prevent genocide as required by the Convention. It did not speak to requiring UN investigation or approval in order to do so, only that the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible.
Of course this does not mean that the Court was insisting on states breaking the law in order to uphold it. And the situation of Canada and Serbia in these cases is different. But this leaves the Liberals in an odd position – it seems they are suggesting they require permission from the UN Security Council to use force against a group they are already fighting. It’s also not clear how they envision the role of the UN and why politicians should not be talking about genocide when it seems that is exactly what the Convention expects states to do. In other words, they have failed to effectively communicate what their position making it look like they are washing their hands. (Update as of June 16: Agreeing with a newly released UN report, the government now says ISIS is conducting genocide against Yazidis.)
On the other hand, the Conservative position is vague at best and irresponsible at worst. Let’s leave aside the idea that they are using this debate as a political wiffle bat in which to attack the Liberals and assume – despite failure to do so under the Harper government – they genuinely wish to declare that there is a state of genocide in ISIS territories, namely Syria and Iraq.
The Conservative motion did not specify what they meant by “genocide” or
if they are specifically invoking the 1948 Convention. This may seem like bad
case of academic semantics, but as noted above, it is a big deal. Are the
Conservatives arguing that Canada should “prevent and punish” genocide as
required by the convention like the UK did in their motion in January?
If they are not invoking the Genocide Convention, what, exactly are the Conservatives doing? There is a real risk that invoking the term without considering the legalities involved transforms the declaration of genocide into a meaningless gesture of solidarity rather than a legal principle upon which states are required to act. As Robert Murray and Aidan Hehir argued on this site only three months ago:
If ‘genocide’ is employed by states exclusively in an instrumental fashion without an acceptance that this designation carries legal weight that demands the initiation of particular juridical processes and action, then ‘genocide’ is reduced to a politically-load pejorative term.
And this would be a real tragedy.
Given
Canada’s sad history in Rwanda as the international community failed to prevent
genocide, it is a shame that Parliament did such a poor job discussing this
issue in front of Canadians. And yet,
there are options that all concerned parties could take in order to make
something out of the debate this week. First, if
the Conservatives truly want to recognize ISIS’ crimes, they could easily do so
by declaring them to be war crimes and crimes against humanity. These are terms
which are recognized by international law, but do not carry the same legal
weight (and baggage).
Second, ideally, the Conservatives and Liberals could sit down and
actually agree to recognize genocide as defined under the 1948 Convention and
the legal obligations that follow. This would require a detailed motion that
invokes the 1948 Convention along with the evidence (much of which the UN has
already collected). And it could offer a commitment to ISIS’ victims prosecute
those who engaged in these crimes after the conflict is over. The willingness
of parties to take this step will speak to their actual commitment to this
cause.
We rightly reserve the term genocide for humanity’s worst crimes. But it is a complex term that requires protection and careful debate. Parliament must act accordingly.
