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With all of the passion surrounding the debate on genocide these days, it is easy to lose sight of the important question of what is genocide and whether there is an obligation internationally to classify historical events as genocide many years after the fact.

_ fy historical events as genocide many years after the fact. In reality, until near the end of the Second World War, the concept of genocide was unknown in international law and international relations. War crimes were outlawed by various treaties early in the 20th Century. However, the term genocide was not invented until 1943 and was unknown before that date as a legal concept separate from war crimes or crimes against humanity. With the horrible events of the Holocaust in Europe, action was begun to define the crime of genocide, which led to the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide. However, at both the Nuremburg and Tokyo war crimes tribunals conducted from 1946-48, none of the German and Japanese officials was charged with genocide because the crime did not exist at that time under international law. For example, the massacres committed by Japanese troops were prosecuted as crimes against humanity and war crimes, not as genocide. The same was the case for crimes committed by German officials in Europe.

The legal background

  The 1948 UN Genocide Convention not only defined genocide but made it an international crime for the first time. The key elements of genocide defined in the Convention require two actions: 1) killing or causing harm to a national, ethnical, racial or religious group, and 2) committing such acts with the intent to destroy in whole or part such group as a group. What does this mean in ordinary language? Genocide requires a finding of massive killings or harm to an ethnic, national, religious or racial group and also an intent to destroy that group because it exists as a group. Thus, atrocities committed in war against soldiers, prisoners of war or civilians may be war crimes or crimes against humanity, but they are not genocide unless the massive killings were intended to destroy an ethnic, national, religious or racial group by targeting that group for destruction. Under genocide, killings must thus be connected to an intentional plan to destroy a group because it is an ethnic, national, religious or racial group.The UN Genocide Convention came into effect in 1951 and has been signed by a majority of the countries of the world. Turkey was one of the very first countries to sign and ratify the Convention, which it did with no reservations to the treaty. The United States signed it in 1948 but took forty years to ratify it. When it did ratify it in 1988, it made major reservations about the Convention that it would not agree to submit genocide claims against it to the International Court of Justice and other tribunals unless it specifically agreed. The United States also declared that killings and other acts in war do not constitute genocide unless there is specific intent to destroy a ethnic, national, religious or racial group. These reservations effectively mean that U.S. officials and soldiers cannot be prosecuted for genocide unless agreed by the U.S. government and the U.S. Congress defines genocide even more strictly than the Genocide Convention.

Retroactive application is not permitted

  Under international law, retroactive application of criminal laws is not permitted as a general principle. Thus the Genocide Convention applies from when it came into force and not for past acts. Accordingly the Convention cannot be used to bring cases which occurred during World War II, let alone earlier. Further, as the first major case involving  a claim that a state committed genocide shows – the case brought by Bosnia against Serbia in the International Court of Justice and decided in February 2007, the burden of proof that there were both killings and intent to destroy a group as a group, is very high. Even with enormous amounts of evidence and testimony in the Bosnia case, the International Court of Justice did not find that the government of Serbia was responsible for genocide in planning or carrying out killings in Bosnia in the 1990's, although the court found it should have done more to stop the killings taking place.The international legal situation is thus clear – genocide as a crime exists from 1948 onwards, both intent to destroy a group and actual killings must be proven and that proof is hard to establish when a state is accused.Switching from the legal to the moral issue, is there a case to be made that genocide can be applied to historical acts even if it cannot be legally applied retroactively? In my view, the answer to this is no, not unless the historical situation is so clear and so close to when genocide became a crime that there is no mistaking the acts as qualifying as genocide from a moral view. The Holocaust against the Jews in World War II, which gave rise to the concept of genocide, meets these criteria. But once we start going further back in history, where does it end? This is where double standards become very obvious.

  Countries which are willing to classify historical acts in other countries as genocide yet are not willing to recognize acts within their own borders as even crimes - let alone genocide - from a moral and not legal view, are using double standards which undercut their own credibility. Once we start going backwards from the Holocaust, shall we include the atrocities at Nanking by the Japanese against the Chinese as genocide? Shall we declare that the killings and starvation of Africans in the Belgian Congo under King Leopold were genocide? Shall the United States declare that slavery of blacks and treatment of Native Americans in the United States in the 1800's were genocide? And who should make such determinations? Unlike today where there are impartial courts to hear charges of genocide by individuals – such as in the tribunals on Yugoslavia and Rwanda or in the International Criminal Court, or by states in the International Court of Justice, who looks at the evidence to decide cases from the past? Surely political bodies cannot be expected to be impartial and decide, nor can they sit as judges of evidence, let alone history.

  Should Parliaments of other countries decide what happened in another country? If the French Parliament passed a resolution declaring that the treatment of Native Americans in the United States was genocide, would such a resolution be acceptable to the U.S. Congress and American people? Absolutely not – the reaction would be outrage and rightfully so.So when we look back at what happened in 1915, we should not make a judgment because one side lobbies hard in favor of a label and the other lobbies against it or because a declaration would be inconvenient due to current events. Instead we should decide whether it makes sense to use such a politically explosive term as genocide at all for events in history before genocide came into existence. We cannot do it legally and we should not do it morally.

  * Andrew Vorkink is professor of international law at the Bo?aziçi University. He can be reached at andrew.vorkink@boun.edu.tr