Grappling with genocides on this Geneva Conventions Day

This is a question that I often get in my training sessions and classes. As a 90s child, I was too young to understand what the Bosnian and Rwanda genocide meant then. As an adult, I find myself now living once again with many real and potential genocides happening around me.

I do know now that legally, genocide is regulated under the Genocide Convention 1948, separately from IHL, whose core treaties are the Geneva Conventions of 12 August 1949. The Genocide Convention therefore came before the Geneva Conventions, and some of the language in the latter draws upon the former. Genocide could also be committed in peace and without a war, i.e. when IHL would apply. But of course, it is harder to commit a genocide without war, and without breaking IHL rules.

First, there are the acts of genocide, or destroying a national, racial, ethnic and religious group. In addition to killing and injuring the group, the Genocide Convention specifies that making life so difficult to effectively destroy the group, preventing births within the group, or taking away children of the group can also amount to genocide. Under the Geneva Conventions, these acts are also grave breaches and war crimes: wilful killing, causing great suffering or injury, extensive destruction of property, sexual violence, and forcible transfer of population.

Then there’s genocidal intent. If words confuse, or killing, maiming and starving people are not enough to show intent, see intent in what is done to the silent. The demolition of places of worship. The obliteration of schools, libraries, and heritage structures. The theft and damage of cultural objects. The desecration of graveyards. The withholding of the dead from their loved ones for burial. All of which to erase the memory, identity and future of the group. All of which are also protected against under IHL, including the Geneva Conventions. Because such a level of devastation cannot be carried out in a day, nor alone, all states have a legal duty to prevent genocide, not just to refrain from it. Similarly, states are legally required to prevent grave breaches and war crimes, not just to investigate, prosecute and punish after they are committed. All these rules are rooted in customary international law, so they apply to all, not just states who have ratified these treaties. After all, these rules were borne of the ashes of the Second World War, where 75 million people were killed worldwide.

How then does one begin to prevent genocide and war crimes? Start with adopting national laws and policies to implement these treaties at home. Make sure these national laws and policies are up to date and reflect the gravity of these atrocity crimes. Ordinary criminal laws are not enough, because these are not crimes just against one person, but against humanity as a whole. Make sure that everyone knows about these laws too, so that together we can help to hold perpetrators accountable and help victims to recover and access justice. All this work must be grounded in every person’s right of life and to equal protection of the law, as guaranteed by the constitutions.

So, on this 76th anniversary of the Geneva Conventions, ask ourselves (and our leaders): are there domestic laws to implement the Geneva Conventions and the Genocide Convention? If there are, how effective are they? How much do we know about what these laws contain? What have we done to help investigate, prosecute and punish those who commit and are complicit to genocide and war crimes? If we have hindered this process, how can we redeem ourselves? What do we still need to do to prevent genocides and war crimes from being committed in the future, including against us?

Malaysia has no implementing law for the Genocide Convention. The Geneva Conventions Act 1962 is outdated. While it criminalises grave breaches under the Geneva Conventions, no other war crimes are criminalised under this Act or any other Malaysian law. The application of this Act is also not reflected in any of the criminal procedural laws. This means that while war criminals from any other parts of the world can be investigated, prosecuted and punished in Malaysian courts through this Act, Malaysia’s capacity to do so would still be very limited.

With genocides and wars raging around us today, this is our opportunity to confront these realities at home, and urgently. If they seem far, technology is so advanced and tensions are running so high now that tides can easily turn and unimaginable harm can be done even remotely. Compliance with international law has more recently been under threat, but then it has always relied on every state’s support and participation through their national systems. So, if we are ever to remain hopeful, upholding these laws would be our best chance at rising above these challenging times.

Aisya Abdul Rahman is a Senior Lecturer in International Law, University of Malaya. She is a former Legal Adviser at the International Committee of the Red Cross (ICRC), Head of Law Division at the Human Rights Commission of Malaysia (SUHAKAM), and practitioner at the Malaysian Bar. She has advised and technically supported decisionmakers, policymakers and stakeholders at the regional and national levels to understand and apply international and domestic law for over a decade. The views expressed here are entirely her own. ** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.