Thornberry, P. (1991) ‘The Convention on Genocide and the Protection of Minorities’

Thornberry, P. (1991) ‘The Convention on Genocide and the Protection of Minorities’, in P. Thornberry, International Law and the Rights of Minorities, Oxford, OUP, 59-85.

1. CG is first post WWII international document concerned with minorities’ protection.
2. CG remains a product of its time: concern more for individual than collective rights.
3. G is a historical phenomenon going back to earliest times, but the term is modern: Lemkin 1933.
4. G had 2 phases: destruction of national pattern of oppressed group and replacement with that of oppressor.
5. Criminality of G; Established in 1945 by Nuremberg Trials.
6. UNGC: 1948 – in effect in 1951.
7. Establishes G as a crime under international law and ‘a matter of international concern’ whose perpetrators are punishable.
8. GC Art. II protects national, ethnical, racial or religious groups: ‘stable’ characteristics beyond control of its members.
9. Political and economic groups not included.
10. Art. II categories are exhaustive, not illustrative: both physical and biological genocide elements, as well as cultural genocide (II.(e): children).
11. Is Cultural G minority rights protection under a different guise?
12. CG does not cover Cultural G except in II(e): G is sui generis & must be differentiated from human & minority rights.
13. G only applies if dolus specialis – intent to destroy a group in whole or in part – is present.
14. Art. IV: Responsibility: individual responsibility, but no state responsibility.
15. Implementation has both national and international aspects: states must implement CG nationally.
16. Territorial jurisdiction: competent courts those of states where crime took place; universal jurisdiction was retained in theory, but not implemented in practice.