The Critical Legal Thinking blog has published an article by Kent PhD student Paulo Ilich Bacca which examines the legal ambiguity surrounding the crime of genocide.
In the article Indigenous Peoples and the Legacies of Colonialism in International Criminal Law: The Challenging Crime of Genocide , Paulo traces the contemporary conceptualisation of the law of genocide, from its encapsulation in the post-WWII Convention on the Prevention and Punishment of the Crime of Genocide (1948) (the Convention), to the creation of the International Criminal Court (ICC) and article 6 of the ICC statute. In doing so, he draws attention to the historical and socio-political influences which have shaped and continue to shape the extent to which legal constructs expressly and intentionally exclude their application to indigenous peoples.
Paulo writes how the wording of the Convention was influenced by colonial nations so as to limit the legal application of its provisions – a so called colonial enterprise clause, to the detriment of indigenous peoples and in the interest of their integration within the borders of the national states in order to deny their right of self-determination. This led to physical and cultural genocide in certain countries, with little or no legal protection to preserve the way of life for indigenous peoples subject to the imposition of social and cultural hegemony.
Whilst recognising the advancement made through the creation of the ICC, the article is critical of the requirement to prove intent to destroy a particular group, which has made prosecution for genocide under contemporary international criminal law virtually impossible. Referring to the rejection of the UN International Court of Justice of claims of genocide in the case of Croatia v Serbia, Bacca writes:
‘For its part, the most recent jurisprudence of the ICJ (Croatia v. Serbia) issued on 3 February 2015, reinforces the historical tendency to turn the Convention into dead letter. Despite the fact that strong evidence of murders and forced displacement was found, the ICJ found that such acts did not amount to genocide because they lacked the requisite intent (dolus specialis).’
A PhD candidate at Kent Law School at the University of Kent, Paulo Ilich Bacca has extensive experience of working on indigenous affairs and with indigenous peoples. Before his PhD at Kent, he worked as a consultant and adviser of indigenous and environmental organizations in Latin America, where he was involved with important contemporary areas of international law, such as mining’s impact on indigenous communities, the ongoing genocide of indigenous peoples, and the relationship between human rights, internal conflict, land destitution and environmental issues in Colombia, Peru, and Bolivia.
Paulo was awarded the Fulbright Commission Hubert H. Humphrey Fellowship in 2013, and upon joining Kent he was awarded with the prestigious University of Kent 50th Anniversary Research Scholarship. Paulo is a Graduate Research Student Member of the Centre for Critical International Law (CeCIL) and his doctoral research is being supervised by Kent Law School staff members Dr Luis Eslava and Connal Parsley.
Image credit: Valter Campanato, Brasília, 4 April 2006
