Dimitrios A. Kourtis
The legal conundrum of genocide before 1948: Defining the core crime under customary international law
Genocide constitutes a core crime of international law, recognized as such on 9 December 1948 under the UN Convention on the Prevention & Punishment of the Crime of Genocide (CPPCG). Nevertheless, it has been submitted that a legal concept tantamount to the crime of genocide existed even prior to the adoption of the CPPCG, with its process of crystallization commencing during the early decades of the 20th century.
The present contribution aims at documenting, analysing, and assessing the various early 20th century legal sources in order to identify the actual existence of such an international crime and construe its proper definition. By placing under scrutiny legal and policy instruments, such as the 1899/1907 Martens clause, the 1915 Tripartite Declaration on Ottoman atrocities, the majority Report of the 1919 Paris Peace Conference Commission, the travaux préparatoires of the Versailles, Sèvres and Lausanne (1919-1923) treaties, and the interwar/early post-war jurisprudence, the present contribution will try to ascertain both the customary international law status and the specific elements of the crime in question.
Finally, the contribution will discuss the legal implications of the existence of such a crime against humanity vis-à-vis the genocidal atrocities perpetrated against the Christian populations of the Ottoman Empire at the dawn of the previous century and its possible consequences in the present. Additionally, several counter-arguments, especially those grounded on the principle of legality, will be addressed. Given the fact that such an inductive approach based on positive law doctrines –leaving aside natural law or policy arguments– has not been fully effectuated, the present contribution promotes the scholarly debate by addressing whether such atrocities constituted genocide as per international law and what are the contemporary legal effects of such a construction.