The Schism between the Legal and the Social Concept of Genocide in Light of the Responsibility to Protect
THE CRIMINAL LAW OF GENOCIDE: INTERNATIONAL, COMPARATIVE AND CONTEXTUAL ASPECTS, pp. 75-95, R. Henham & P. Behrens, eds., Burlington: Ashgate, 2007
13 Pages Posted: 25 Jan 2012
Date Written: January, 22 2012
During the Rwandan genocide, it took the international community several weeks to utter the ‘G-word’, afraid as it was that labelling the Rwandan massacres as genocide would entail an obligation to intervene. In a next situation of gross human rights violations in Africa, namely in the context of Darfur, the US did not want to be seen again as shying away from stating the obvious, and so on 22 July 2004, the US House of Representatives and the US Senate labelled the ongoing atrocities in Darfur “a genocide”. However, this was not followed by a US military intervention for humanitarian purposes. In contrast, some months later, the ‘Cassese Commission’, established by the UN Secretary-General to inquire whether genocide had taken place in Darfur, issued a report stating that no evidence of a genocidal policy had been found. This contradistinction is exemplary for the schism that exists between the broader concept of genocide as employed by social scientists (the ‘social’ concept) and the narrow concept of genocide as it emerges from the 1948 Genocide Convention (the ‘legal’ concept). In addition, the term ‘genocide’ bears a political connotation, as a result of the growing conviction that a determination that genocide is being committed places a special responsibility upon the shoulders of the international community and more specifically the UN Security Council to act and to protect. This chapter analyses and evaluates recent legal developments that appear to narrow the existing dichotomy between the legal and the social concept of genocide. It also investigates what the obligations are for the Security Council and the international community at large when certain atrocities are qualified as genocide either in legal, social or political terms.
Keywords: International Law, International Criminal Law, UN Security Council, genocide, social concept, legal concept, R2P
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