The UN Genocide convention and the Israeli law

The term genocide was coined by Jewish jurist Raphael Lemkin in 1944 as part of an attempt to define it as a crime under international law.  The United Nations accepted his definition, with slight changes, in its Convention signed in December 1948.  The Convention went into effect in January 1951.  This is essentially the only widely accepted international legal definition. As such its main use is in trials after the fact.  Its legal use in preventing processes leading to genocide is extremely limited, but it does serve as a deterrent for future murderers, maintaining that such crimes are not merely internal political matters, and that the world can and must punish the perpetrators of genocide whoever they may be. However, there are Nations that are NOT party to the Convention.

 

Convention on the Prevention and Punishment of the Crime of Genocide

Adopted by Resolution 260 (III) A of the U.N. General Assembly on 9 December 1948. Entry into force: 12 January 1951.

The Contracting Parties,

Having considered the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world,

Recognizing that at all periods of history genocide has inflicted great losses on humanity, and

Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required,

Hereby agree as hereinafter provided:

Article I: The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

Article II: In the present Convention, 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: The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

Article IV: Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Article V: The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.

Article VI: 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: Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition.

The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.

Article VIII: 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: Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present 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.

Article X: The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948.

Article XI: The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any nonmember State to which an invitation to sign has been addressed by the General Assembly.

The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.

After 1 January 1950, the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid. Instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article XII: Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.

Article XIII: On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a proces-verbal and transmit a copy thereof to each Member of the United Nations and to each of the non-member States contemplated in article XI.

The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession.

Any ratification or accession effected, subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession.

Article XIV: The present Convention shall remain in effect for a period of ten years as from the date of its coming into force.

It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period.

Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations.

Article XV: If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective.

Article XVI: A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General.

The General Assembly shall decide upon the steps, if any, to be taken in respect of such request.

Article XVII: The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following:

(a) Signatures, ratifications and accessions received in accordance with article XI;

(b) Notifications received in accordance with article XII;

(c) The date upon which the present Convention comes into force in accordance with article XIII;

(d) Denunciations received in accordance with article XIV;

(e) The abrogation of the Convention in accordance with article XV;

(f) Notifications received in accordance with article XVI.

Article XVIII: The original of the present Convention shall be deposited in the archives of the United Nations.

A certified copy of the Convention shall be transmitted to each Member of the United Nations and to each of the non-member States contemplated in article XI.

Article XIX: The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.

Text: U.N.T.S. (United Nations Treaty Series), No. 1021, vol. 78 (1951), p. 277.

 

Legislation regarding the Convention for the Prevention and Punishment of the Crime of Genocide in Israel

By virtue of historical circumstances, the State of Israel was among the first to legislate a national law ratifying the UN treaty. After signing the Convention in 1949, Israel passed Law for the Prevention and Punishment of the Crime of Genocide in March 1950.  One of the law’s most important elements is the fifth clause, which allows the State of Israel to bring to trial those responsible for genocide, even if the crimes did not take place within Israel’s jurisdiction. This reflects a moral commitment made by the State of Israel to the entire world.

 

Crime of Genocide (Prevention and Punishment) Law, 5710-1950.

  1. “Genocide” – Interpretation

(A) In this Law, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group (hereinafter referred to as “group”), as such:

(1) killing members of the group;

(2) causing serious bodily or mental harm to members of the group;

(3) inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part;

(4) imposing measures intended to prevent births within the group;

(5) forcibly transferring children of the group to another group.

(B) In subsection (a), “child” means a person under eighteen years of age.

  1. Penalty for Genocide

A person guilty of genocide shall be punishable with death; provided that if he committed the act constituting the offence under circumstances which, but for section 6, would exempt him from criminal responsibility or would be a reason for pardoning the offence, and he tried to the best of his ability to mitigate the consequences of the act, he shall be liable to imprisonment for a term of not less than ten years.

  1. Conspiracy, incitement and attempt to commit, and complicity in, genocide

(A) A person guilty of any of the following acts shall be treated like a person guilty of genocide:

(1) conspiracy to commit genocide;

(2) incitement to commit genocide;

(3) attempt to commit genocide;

(4) complicity in genocide.

(B) The terms “conspiracy”, “incitement” and “attempt” in subsection (b) shall be construed with reference to the provisions of the Criminal Code Ordinance, 1936(1).

(C) For the purpose of subsection (a)(4), a person shall be deemed to have taken part in genocide if he is so deemed under section 23(1) (b), (c) or (d) of the Criminal Code Ordinance, 1936.

  1. Responsibility for genocide.

A person guilty of an offence under this Law shall be punished whether he is a legally responsible ruler, a member of a legislative body, a public official or a private individual.

  1. Place of crime.

A person who has committed outside Israel an act which is an offence under this Law may be prosecuted and punished in Israel as if he had committed the act in Israel.

  1. Judicial function,  constraint,  necessity and justification not to be protection.

The provisions of sections 16, 17, 18 and 19 of the Criminal Code Ordinance, 1936, shall not apply to offences under this Law.

  1. Application of General Penal Code

The Provisions of Part I of the Criminal Code Ordinance, 1936, shall apply to offences under this Law insofar as this Law does not otherwise provide.

  1. Extradition

Notwithstanding anything contained in any other Law, in considering the extradition of a person charged with, or convicted of, genocide or any of the acts enumerated in section 3(a), the plea that the offence with which such person is charged, or of which he has been convicted, is an offence of a political character shall not be entertained.

  1. Implementation

The Minister of Justice is charged with the implementation of this Law.

  1. Operation

This Law, which is consequent upon the Convention on the Prevention and Punishment of the Crime of Genocide(2) – adopted by the United Nations General Assembly on the 7th Kislev, 5709 (9th December, 1948), signed on behalf of and, in accordance with a decision of the Knesset, ratified by the State of Israel – shall come into force on the date of its publication in Reshumot and shall remain in force whether or not the Convention comes into or remains in force.

1 (A) Law Book 5710, 137.

(B) According to clause 9 of the Criminal Procedure Law (Consolidated Version) 5742-1982, there is no statute of limitations on violations of this law.

Comments are closed.