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The United Nations Convention on Genocide

  • Josef L. Kunz


On December 9, 1948, the General Assembly of the United Nations adopted at its Paris session a resolution approving the annexed Convention on the Prevention and Punishment of the Crime of Genocide and proposing it for signature and ratification.

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1 U. N. Doc. A/P.V. 179. The English text of the Convention has been often reprinted : Department of State Bulletin, Vol XIX, No. 494 (Dec. 19, 1948), pp. 756-757; Department of State Publication No. 3416 (International Organization and Conference Series III, 25) Feb., 1949, pp. 47-52; The New York Times, Dec. 2, 1948, p. 12; American Bar Association Journal, January, 1949, pp. 57-58; Current History, January, 1949, pp. 42-44; International Organization, Vol. III, No. 1 (Feb., 1949), pp. 206-208.

2 See his proposals of 1933 to create two new delicta juris gentium, named “barbarity” and “vandalism” (Actes de la Ve Conférence Internationale pour l’Unification au Droit Pénal (Paris, 1935), pp. 48-56). Idem: Akte der Barbarei und des Vandalismus als delieta juris gentium (Internationales Anwaltsblatt, Vienna, November, 1933).

3 Lemkin, , Axis Rule in Occupied Europe (Washington, 1944), Ch. IX: Genocide, pp. 79-95 and passim.

4 See his articles on Genocide in The American Scholar, Vol. XV, No. 2 (April, 1946), and in this Journal, Vol. 41 (January, 1947), pp. 145-151.

5 Ibid., pp. 233, 234, 243-247.

6 Resolution 47 (IV) of March 26, 1947 (U. N. Press Release, Economic and Social Council, March 29, 1947).

7 The draft convention on genocide, drawn up by the Secretariat, came before the final session of this Commission on June 17, 1947, but the Commission had no time to express an opinion.

8 U. N. Docs. A/510, A/512, A/514; A/P.V. 123.

9 See first its Resolution, U. N. Doc. Dr. E/513, and Prevention and Punishment in the draft convention prepared by the Secretariat, Lake Success, N. Y., Doc. E/623, January 30, 1948.

10 China, France, Lebanon, Poland, U. S. A., U.S.S.E. and Venezuela.

11 U. N. Doc. E/734.

12 U. N. Doc. E/AC.25/9.

13 U. N. Doc. E/794, May 24, 1948. The Ad Hoc Committee studied also the relations between a convention on genocide and the formulation of the Nuremberg principles (U. N. Doc. E/AC.25/3/Rev., April 1, 1948).

14 U. N. Docs. E/SR. 180, E/SR. 201, E/SR. 202, E/SR. 218, E/SR. 219.

15 Report of the Sixth Committee (Rapporteur, J. Spiropoulos, Greece) : U. N. Doc. A/760, Dec. 3, 1948.

16 U. N. Doc. A/C.6/SR. 133.

17 U. N. Doc. A./P.V. 179.

18 Australia, Bolivia, Brazil, Chile, Dominican Republic, Ecuador, Egypt, Ethiopia, France, Haiti, Liberia, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, United States, Uruguay, Yugoslavia.

19 See the speeches by Ernest A. Gross, then Legal Adviser, Department of State, in the Sixth Committee (Department of State Publication No. 3416 (February, 1949), pp. 36-43, 44-46).

20 See the preliminary statement by William L. Ransom (American Bar Association Journal, January, 1949, pp. 56-57); resolution adopted unanimously by the House of Delegates at Chicago on Feb. 1, 1949 (ibid., March, 1949, p. 197) ; and resolution adopted at St. Louis, Sept. 7, 1949. See also President Holman’s statement (ibid., p. 202) and Report of the Committee on International Law of the Bar of the City of New York.

21 Proceedings of the American Society of International Law, 1949, pp. 46 ff.

22 This article was added by the Sixth Committee upon the proposal of the United Kingdom (U. N. Doc. A/C.6/236).

23 Adopted upon the proposal of Iran.

24 Oppenheim-Lauterpacht, , International Law, Vol. I (7th ed., London, 1948), p. 583 . Cf., also, “Nei propri territori la libertà di ciascun, Stato è illimitata verso i propri cittadini secondo il diritto internazionale generale,” in Pallieri, G. Bailadora, Diritto Internazionale Pubblic> (5th ed., Milan, 1948), p. 382 .

25 Oppenheim-Lauterpacht, op. cit., p. 279.

26 Dr. Evatt in his speech in Paris also spoke of “occasional endeavors of humanitarian intervention in past centuries,” and added that this was “diplomatic action and governments that undertook such interventions were frequently accused of pursuing other than humanitarian aims.”

27 “The excluded groups are the only ones that are presently in process or common danger of extermination. Compromise on a matter of principle is tantamount to abandoning the principle” (Ibid., pp. 5, 6).

28 See the recent five to four decision of the TJ. 8. Supreme Court in the Terminiello case, 337 U. S. 1 (New York Times, May 17, 1949, pp. 1, 16).

29 The French text said correctly: “des gouvernements.” The English text originally read: “Heads of States,” but was changed because of the constitutional immunity of rulers in constitutional monarchies. A Syrian proposal (U. N. Doc. A./C.6/246) to include de facto heads of states was rejected, because it was felt that such persons are already included.

30 U. N. Doc. A/C.6/215/Rev. 1.

31 American Bar Association Journal, March, 1949, pp. 195, 197.

32 See Chief Justice Marshall in Foster and Elam v. Nelson, 2 Pet. 253, 313, 7 L. Ed. 415; Robertson v. General Electric Co., U. S. C. C. A., 1929, 32 F. (2d) 495.

33 This domestic legislation may involve constitutional problems. Whereas generally legislation in the field of criminal law is in the jurisdiction of State legislatures, Congress may be empowered to enact this criminal legislation in fulfillment of a treaty obligation (Missouri v. Holland, U. S. Supreme Court, 1920, 252 U. S. 416, 40 S. Ct. 382). Note also that conspiracy at common law is different from conspiracy as defined in the U. S. Criminal Code, See. 3.

34 See, e.g., the Belgian clause of 1856, the exclusion of anarchistic or terroristic acts from political crimes.

35 The Sixth Committee first deleted the reference to an international tribunal, but later reconsidered the article and adopted the text as it now stands, primarily to satisfy the French. A later Soviet amendment to delete this reference was rejected.

36 This resolution holds that the Convention “has raised the question of the desirability and possibility of having persons charged with genocide tried by a competent international tribunal”; invites the International Law Commission to study this problem; and requests it to pay attention to the possibility of establishing a criminal chamber of the International Court of Justice. But “the time is hardly ripe for the extension of international law to include judicial process for condemning and punishing acts either of states or of individuals” ( Hudson, Manley O., International Tribunals, Past and Future (Washington, 1944), p. 186 ).

37 S. Res. 196, 79th Cong., 2d Sess. In signing the Pact of Bogotá, the United States made a reservation upholding all the earlier reservations.

The United Nations Convention on Genocide

  • Josef L. Kunz


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