The Plebiscite of Death: Genocide, as sanctioned by International Law
Arindam Mishra
Law Student, 4th Year, Jindal Global Law School, O.P. Jindal Global University.
ABSTRACT
This paper critically examines the concept of genocide, questioning whether the atrocities committed at Auschwitz were a case of genocide or a crime against humanity. It argues that the term “genocide” may not adequately capture the unique experiences of those persecuted. The focus on Auschwitz in academic literature and international legal regimes may have inadvertently overshadowed other instances of genocide. The paper scrutinizes the UN Convention on the Prevention and Punishment of the Crime of Genocide, particularly its definition of “genocide” under Article II. It points out the ambiguity and limitations of the definition, especially the qualifiers “intent” and “destroy”.
The paper highlights the omission of two crucial provisions from the initial draft of the convention – Physical, Biological and Cultural genocide. The deliberate exclusion of “Ethnic cleansing” and measures forcing members of a group to abandon their homes from the definition is also criticized. The paper contends that the glorification of “Auschwitz, never again” has not only failed to fulfill the objectives of International Human Rights law but has also undermined incidents of similar magnitude without reprimand. It suggests that the current framework is inadequate.
INTRODUCTION
Genocide, a term used to describe the deliberate and systemic destruction of a racial, political or cultural group. But was Auschwitz a question of genocide or was it a crime against humanity or perhaps the crime committed at Auschwitz was so severe to have been risen far ahead of the crime of Genocide. But how do we decipher the law on Genocide, if each incident,[2] can be identified as its own, for If the unique lived experience of those ostracised is ignored and subsumed under a generic term of Genocide, the world would be no better than the perpetrators in each of these cases. The fact remains that a deliberate lack of sincere efforts have been effectuated to limit the literature on other cases of Genocide, leading to an academic lacuna and general use of Auschwitz as the primary case to remind the world of the wrongs committed in a genocide. The International legal regimes, following the academicians have attempted to ensure that Auschwitz is never repeated again, but the incidents in Darfur, Rwanda, Bosnia and Herzegovina, Cambodia, Nanking, Ukraine are either not worth the designation of a genocide or the international legal mechanisms have clearly failed to recognise the same. This paper will struggle to answer this very question, even after the laws, conferences, and photo-ops that have been conducted at the behest of preventing these incidents, other incidents are deliberately subjugated to a lower standard because accepting the failure of International institutions to prevent another Auschwitz is simply not possible. Utilising the different reports of the UN and case laws, this paper will paint black the international legal regime which is not equipped to prevent a genocide. Hence, This paper argues that the glorification of “Auschwitz, never again”, as remarked by Micheline Ishay, has not only failed the object and purpose of International Human Rights law but is also complicit in undermining incidents of similar stature without reprimand.
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