The Genocide Convention 1948

On the morning of 9 December 1948 the United Nations General Assembly, meeting at the Palais de Chaillot in Paris, adopted Resolution 260 (III), the Convention on the Prevention and Punishment of the Crime of Genocide. The vote was unanimous. The fifty-six member states present (the full membership of the General Assembly at the time) all voted in favour. The text the General Assembly approved had been negotiated by the Sixth Committee (the Legal Committee) over the previous twelve months in approximately a hundred separate sessions. The Sixth Committee chairman during the relevant period had been Charles Malik of Lebanon, a Christian Arab philosopher and theologian who had also been one of the principal drafters of the Universal Declaration of Human Rights, adopted by the General Assembly the next day. The two instruments together, the Genocide Convention of 9 December 1948 and the Universal Declaration of 10 December 1948, constituted the most substantial single product of the United Nations in its first three years and the legal foundation of the postwar international human rights system.

The Convention had been substantially drafted by Raphael Lemkin (see the separate page) over the preceding four years. It had been negotiated through the Sixth Committee by delegations representing the original fifty-six member states. The principal substantive disagreements during the negotiations had been over four points: the inclusion of cultural genocide, the inclusion of political groups, the question of universal jurisdiction over the crime, and the question of state responsibility for the actions of state officials. The compromises that produced the final text were substantial, and have shaped the operational scope of the Convention in the seventy-eight years since.

What the Convention says

The Convention has nineteen articles. The substantive provisions are in the first nine.

Article I provides that genocide, whether committed in time of peace or in time of war, is a crime under international law that the contracting parties undertake to prevent and to punish.

Article II provides the operational definition. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such:

(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.

Article III provides that the punishable acts include not only genocide itself but also conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide.

Article IV provides that persons committing genocide or any of the acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Article V provides that the contracting parties undertake to enact, in accordance with their respective constitutions, the necessary legislation to give effect to the provisions of the Convention.

Article VI provides that persons charged with genocide or any of the other acts enumerated in Article III shall be tried by a competent tribunal of the state in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction.

Article VII provides that genocide and the other acts enumerated in Article III shall not be considered as political crimes for the purpose of extradition.

Article VIII provides that any contracting party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.

Article IX provides that disputes between contracting parties relating to the interpretation, application or fulfilment of the Convention, including those relating to the responsibility of a state for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.

The cultural genocide question

Lemkin’s original 1944 definition of genocide had included the destruction of cultural and religious institutions of a targeted group as a form of the crime. The Sixth Committee negotiations of 1947 to 1948 produced sustained debate over the inclusion of cultural genocide in the Convention. The principal advocates for inclusion were the Soviet Union and the developing-world delegations, who argued that the destruction of cultural institutions was an integral element of the destruction of a group as such. The principal opponents were the United States, the United Kingdom, and several Western European delegations, who argued that the inclusion of cultural genocide would expand the scope of the Convention beyond what they were prepared to accept and would produce sustained legal complications in respect of national education and immigration policies.

The compromise reached in the final text was the exclusion of cultural genocide as such, with one limited element retained: the prohibition on the forced transfer of children of the group to another group, which appears as Article II(e). The forced transfer provision was preserved because the documented practice of the SS Race and Settlement Main Office (the RuSHA) during the German occupation of Poland and the Soviet Union, which had transferred approximately 200,000 racially suitable children from occupied territories to German foster families and orphanages for Germanisation, was understood as a form of group destruction that the Convention should explicitly prohibit. The wider category of cultural genocide, including the destruction of languages, religious practices, educational systems, and cultural institutions, was not included.

The exclusion of cultural genocide has been substantially criticised by subsequent commentators, particularly in connection with the cases of indigenous peoples in the Americas, in Australia, and in northern Europe. The argument has been that the historical record of the destruction of indigenous cultures by the European-descended states would have been better captured by a Convention that included cultural genocide than by the Convention as it was eventually drafted. The argument has reasonable force on the merits but has had limited operational consequence: subsequent attempts to amend the Convention to include cultural genocide have not succeeded and the operational definition of genocide remains the 1948 definition.

The political groups question

The second principal substantive disagreement was over the inclusion of political groups in the protected categories. Lemkin’s original 1944 definition had included political groups (for example, the systematic destruction of a political party or movement by a state) as a category that could be the target of genocide. The Sixth Committee negotiations produced sustained debate. The principal advocates for inclusion were the Western European and Latin American delegations. The principal opponents were the Soviet Union, the Soviet bloc states, and (more cautiously) the United Kingdom.

The Soviet position was that the inclusion of political groups would extend the Convention to cover the Soviet treatment of its own internal political opposition, which the Soviet delegation was not prepared to accept. The United Kingdom’s position was more pragmatic: the British delegation took the view that the inclusion of political groups would dilute the operational meaning of the Convention by extending it to cover events that were better characterised as ordinary internal political conflicts rather than as genocide in any meaningful sense. The compromise reached was the exclusion of political groups from the protected categories.

The exclusion has been substantially criticised by subsequent commentators. The most consequential single argument has been that the Cambodian killings of 1975 to 1979 by the Khmer Rouge regime, which targeted political opponents and members of the educated classes (groups defined principally by political and class characteristics rather than by ethnic or religious characteristics), were not technically genocide under the 1948 Convention. The Cambodian Special Tribunal eventually convicted the senior Khmer Rouge leadership of genocide on the alternative basis that the killings of the Cham Muslim and Vietnamese minorities had constituted genocide under the Convention’s ethnic and religious categories, and that the wider killings of the Cambodian population had constituted crimes against humanity rather than genocide as such. The technical exclusion of political groups has not, in the eventual case law, prevented the prosecution of major political-killing campaigns; it has, however, required prosecutors to use the alternative legal frameworks of crimes against humanity to capture the wider killings.

The universal jurisdiction question

The third principal substantive disagreement was over universal jurisdiction. The original Lemkin draft had provided that the contracting states could exercise jurisdiction over genocide regardless of where the crime had been committed. The Sixth Committee negotiations produced opposition to this provision from several delegations on grounds of sovereignty. The compromise reached in Article VI was the more restricted provision that genocide shall be tried either by a competent tribunal of the state in the territory of which the act was committed (territorial jurisdiction) or by an international penal tribunal having jurisdiction with respect to the relevant states (international jurisdiction). The provision did not, on its face, authorise the exercise of universal jurisdiction by states other than the territorial state.

The subsequent development of international criminal law has, however, accepted that universal jurisdiction over genocide is permitted (though not required) by the Convention. The argument was first made systematically in the Israeli Supreme Court’s 1962 judgment in the Eichmann case, which held that genocide constituted a category of international crime over which all states had jurisdiction regardless of the territoriality limitations of Article VI. The Israeli Supreme Court reasoning has been substantially adopted by subsequent national courts in Spain, Belgium, France, Germany, the Netherlands, the United Kingdom, the United States, and elsewhere. The current position in international law is that universal jurisdiction over genocide is generally accepted as a matter of customary international law, supplementing the more restrictive territorial provisions of the 1948 Convention.

The state responsibility question

The fourth substantive disagreement was over state responsibility. The original Lemkin draft had provided that contracting states could be held responsible, under international law, for genocide committed by their officials. The Sixth Committee negotiations produced opposition from several delegations who argued that the Convention should be limited to the criminal responsibility of individuals and should not extend to the civil responsibility of states. The compromise reached in Article IX was the provision that disputes between contracting parties relating to state responsibility for genocide should be submitted to the International Court of Justice. The provision was a working compromise that preserved the possibility of state responsibility while routing it through the International Court rather than the criminal tribunals.

The provision has produced a small but consequential body of state-responsibility case law. The most significant single case has been Bosnia and Herzegovina v. Serbia and Montenegro (the case decided by the International Court of Justice on 26 February 2007), which held that the Serbian state had not been directly responsible for the genocide at Srebrenica in July 1995 but had failed in its duty to prevent the genocide and had failed in its duty to punish the perpetrators. The judgment established that state responsibility for failure-to-prevent and failure-to-punish was a meaningful operational element of the Convention. The judgment also established that direct state responsibility for genocide could be established if the relevant evidentiary thresholds could be met. Subsequent cases including The Gambia v. Myanmar (proceedings ongoing at the International Court of Justice) and South Africa v. Israel (proceedings ongoing at the International Court of Justice) have continued to develop the state-responsibility framework.

The signatures and ratifications

The Convention was opened for signature on 11 December 1948. By the end of 1948, fifteen states had signed. The Convention came into force on 12 January 1951, three months after the deposit of the twentieth ratification instrument (Costa Rica’s ratification of 14 October 1950 was the relevant deposit).

The pattern of ratifications was uneven across the postwar decades. The Western European states generally ratified in the 1950s. The Communist Eastern European states generally ratified in the early 1950s. The Latin American states generally ratified in the 1950s and 1960s. The newly independent states of Africa and Asia generally ratified in the 1960s and 1970s, often as one of their first acts of postcolonial international engagement. The principal exceptions were the United Kingdom, which did not ratify until 1970, and the United States, which did not ratify until 25 October 1988 (after a campaign by Senator William Proxmire that had run from 1967 to 1986 and had included approximately 3,200 floor speeches in support of ratification). As of 2026, 153 states are parties to the Convention.

The major operational uses

The Convention has been applied operationally in five major contexts since its adoption.

The Eichmann trial (Jerusalem, 1961 to 1962). The Israeli Supreme Court’s 1962 judgment in the Eichmann case applied the Convention’s framework, in conjunction with the Israeli Nazis and Nazi Collaborators (Punishment) Law of 1950, to the conviction of Eichmann for the killing of European Jewry. The judgment was the first substantial application of the Convention by a national court.

The Cambodia tribunal (Phnom Penh, 2007 to 2022). The Extraordinary Chambers in the Courts of Cambodia, established under a 2003 agreement between the United Nations and the Cambodian government, applied the Convention’s framework to the prosecution of the senior Khmer Rouge leadership for the killings of 1975 to 1979. The tribunal produced convictions of Kaing Guek Eav (Duch), Nuon Chea, Khieu Samphan, and others. The tribunal closed its operations in 2022.

The Yugoslav tribunal (The Hague, 1993 to 2017). The International Criminal Tribunal for the former Yugoslavia, established by Security Council Resolution 827 in May 1993, applied the Convention’s framework to the prosecution of the senior figures of the Yugoslav wars of 1991 to 1999. The tribunal produced approximately 90 convictions across 161 indicted individuals. The most significant single judgment was the 1 August 2001 conviction of Radislav Krstic for genocide at Srebrenica, the first conviction for genocide by an international criminal tribunal in Europe.

The Rwanda tribunal (Arusha, 1995 to 2015). The International Criminal Tribunal for Rwanda, established by Security Council Resolution 955 in November 1994, applied the Convention’s framework to the prosecution of the principal figures of the Rwandan genocide of 1994. The tribunal produced approximately 60 convictions. The most significant single judgment was the 2 September 1998 conviction of Jean-Paul Akayesu, the first conviction for genocide by any international tribunal.

The International Criminal Court (The Hague, 2002 to present). The International Criminal Court, established by the Rome Statute of 17 July 1998 and operational from 1 July 2002, has jurisdiction over genocide as defined in the Rome Statute (which adopts the 1948 Convention’s definition without modification). The Court has produced two genocide indictments to date: the 4 March 2009 indictment of Omar al-Bashir, then President of Sudan, for the genocide in Darfur (al-Bashir has not been arrested, and the proceedings remain pending); and the 23 May 2014 indictment of Jean-Pierre Bemba Gombo (subsequently acquitted on appeal in June 2018).

The cases pending

The current operational use of the Convention is principally through three sets of pending proceedings: the proceedings before the International Court of Justice in The Gambia v. Myanmar (relating to the treatment of the Rohingya minority) and South Africa v. Israel (relating to the conduct of military operations in Gaza); the proceedings before national courts under universal jurisdiction frameworks (particularly in Germany, where Article 6 of the Federal Code of Crimes against International Law provides for universal jurisdiction over genocide, and where the 2021 conviction of Taha al-Jumailly for the genocide of the Yazidi was the first national-court conviction for genocide in seventy-five years); and the proceedings under the Rome Statute at the International Criminal Court.

The proceedings under universal jurisdiction frameworks in particular have produced a substantial recent case law. The German conviction of al-Jumailly in 2021, the Dutch convictions of various Syrian officials in 2022 and 2023, and the French convictions in connection with the Rwandan genocide (the most significant being the 2019 conviction of Pascal Simbikangwa) have established that national courts in Western European states are increasingly willing to exercise universal jurisdiction over the crime. The trend is likely to continue.

What the Convention has produced

The Convention has not, in the seventy-eight years since its adoption, prevented genocide. The killings in Cambodia, Bosnia, Rwanda, Darfur, and elsewhere have all occurred in the period since the Convention came into force. The Convention’s preventive function has been substantially weaker than its drafters had hoped. The principle of state responsibility for failure-to-prevent has been established in the Bosnia v. Serbia case but has not, in the operational practice of the international community, produced the levels of preventive intervention that the principle would, on its face, require.

The Convention has, however, produced a substantial framework for the legal accounting after the fact. The convictions of senior figures in the Cambodian, Yugoslav, and Rwandan tribunals would not have been possible without the Convention. The current pending proceedings would not have the legal basis they have without the Convention. The principle that the killing of a people is a crime regardless of where it is committed and regardless of who commits it is, in international law, the principle the Convention established. The principle has not prevented the killings. It has shaped the eventual reckoning with them.

The wider lesson is the lesson of legal frameworks against the persistence of state-organised mass killing. The Convention had been intended to prevent. It has, in operation, principally prosecuted. The gap between prevention and prosecution is the gap that the operational practice of the international community has not been able to close. The Convention’s drafters had hoped for more. The Convention’s operation has produced what it could.

See also

Sources

  • United Nations General Assembly, Resolution 260 (III), Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948
  • William A. Schabas, Genocide in International Law: The Crime of Crimes, Cambridge University Press, 2nd edn, 2009
  • Hirad Abtahi and Philippa Webb, eds, The Genocide Convention: The Travaux PrĂ©paratoires, 2 vols, Brill Nijhoff, 2008
  • Samantha Power, A Problem from Hell: America and the Age of Genocide, Basic Books, 2002
  • Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity, Weidenfeld and Nicolson, 2016
  • International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), judgment, 26 February 2007
  • International Criminal Tribunal for Rwanda, Prosecutor v. Jean-Paul Akayesu, judgment, 2 September 1998
  • International Criminal Tribunal for the former Yugoslavia, Prosecutor v. Radislav Krstic, judgment, 1 August 2001