by Jennifer Breedon
Most suggestions have missed the point: We already have a legal duty to eradicate ISIS and that duty was solidified on March 17 this year.
Over the past week, many articles have been written regarding the horrific massacre by an Islamic State supporter Omar Mateen at the Orlando, Florida nightclub Pulse that left 49 people and severely injured 53 others.
Omar Mateen had pledged his allegiance to the Islamic State (ISIS/ISIL) on his Facebook page, in a 911 call and to a local television station to ensure his murder spree was properly and publicly attributed to the organization with which he had aligned.
Subsequent commentators and political strategists have weighed in on how to stop the violence with anything from banning guns altogether to reforming gun control policies, chastising the “right wing” for spreading hate against homosexuals, declaring war on “radical Islam,” limiting “hate crimes” and banning all Muslim refugees from entering the U.S.
While some of these suggestions are good options to create a safer America, they all miss one very simple truth: We already have a legal duty to eradicate ISIS and that duty was solidified on March 17 this year.
In 1948, Raphael Lemkin coined the term “genocide” in a book called “Nazi Rule in Occupied Germany.” World War II had just ended, and world leaders were desperate to ensure that violence intending to destroy entire people groups would never happen again.
That same year, the newly-formed United Nations immediately passed an international convention that defined genocide in the “Prevention and Punishment of the Crime of Genocide” (referred as the Genocide Convention).
Article 1 of that convention states that “genocide, whether committed in time of peace or in time of war, is a crime under international law which [countries] undertake to prevent and to punish.”
For those who have ever wondered why world leaders are so hesitant to label violent campaigns as “genocide,” the aforementioned provision is it. That provision mandates that when a “genocide” is officially recognized, nations have a legal duty to prevent the campaign and punish the perpetrators.
The legal definition of genocide is “the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group by means of (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”
Article 2 of the Genocide Convention (written very simplistically, concisely and clearly) further dictates that the following acts are punishable as genocide: “Conspiracy to commit genocide; Direct and public incitement to commit genocide; Attempt to commit genocide; Complicity in genocide” and that all involved may be punished as genocidal actors whether they be “constitutionally responsible rulers, public officials or private individuals.”
In contrast, the crime of “terrorism” has no universal definition like genocide. For example, in Russia, anyone who speaks out against the government can be legally labeled as a “terrorist.”
Even if one pieces together all the similar elements of the various regional definitions of terrorism, the following results: “Terrorism is (1) violence or the threat of violence, (2) stealth conflict, (3) political motivation, (4) intent to frighten and the (5) targeting of civilians.”
Calling ISIS a terrorist group is problematic for many reasons, but mainly because it does not properly describe their goals. Yes, language matters. But rather than spending hours trying to argue over how to punish "terror crimes," we must look at the bigger picture here.
The Orlando massacre was a targeted attack carried out in furtherance of the genocidal campaign of ISIS. Not only do the crimes of ISIS fall squarely under the universal definitions of genocide, but as of today, the European Union, United States, and the United Nations Human Rights Commission have all declared that ISIS is committing genocide.
All nations who have ratified the Genocide Convention have a legal duty to punish the perpetrators and prevent their intended elimination campaign regardless of who the intended target group is.
There is not a single provision in the Genocide Convention that states that nations who have ratified the convention and declared an ongoing genocide is occurring must only prevent that genocide if the targeted group is related to them, nor does it specify any number required to be killed for “genocide” to be applicable.
While the death tolls and physical evidence to show the target of ISIS' genocidal campaign is largely based in Iraq and Syria, the Genocide Convention purposely includes the incitement to genocide and the complicity in genocide to allow nations to take all measures to “prevent” genocide.
Therefore, one must only look at the words of ISIS to identify who their intended targets are as they declare the creation of a caliphate and “cleansing the world” of evil (whom they refer to as “the West,” Christians, apostate Muslims, Jews, Yazidis, and all nations who seek to fight against them).
These words indicate a motive that explicitly displays the intended elimination of several “nationalities, ethnicities, religious groups, and races.”
The Responsibility to Protect
One can’t help but think back to April of 1994 when the United Nations floor was overrun with resolutions regarding the mass murder taking place in Rwanda. Although numerous resolutions passed that condemned the violence, they all purposefully omitted the word “genocide,” because if the term “genocide” had been used, the international community would have been legally obliged to act to “prevent and punish” the perpetrators.
World leaders—that had the means and might to stop the violence—remained purposely inactive as the death toll of innocent civilians rose.
For “genocidal classification” purposes, “destruction” comes in many forms: forcible displacement of people (i.e., the mass exodus of religious minorities from Iraq, Syria and anywhere else where jihadists have taken governing control), rape and sexual abuse (the Yazidi population in Iraq) and mass executions are among a few of the ways a people group can be destroyed “in whole or in part.”
There are two things we must remember a week after the Orlando mass shooting:
(1) ISIS is a genocidal organization with a genocidal campaign. The EU, U.S. and United Nations have all declared that they are committing genocide. Hence, that is what we must call all acts of violence committed by anyone who pledges allegiance to ISIS.
(2) The United Nations’ Responsibility to Protect Mandate following the 2005 World Summit dictates that nations must work collectively to completely eradicate a genocidal threat using “collective security.” (A/RES/60/1 (I)(9))
As the only body capable of creating international law through its resolutions, the Security Council must pass a resolution, since the collective security measures of the EU and U.S. have failed in stopping the genocidal campaign of ISIS, as noted by CIA Director John Brennan who stated “our [current] efforts have not reduced [Islamic State’s] terror reach.”
This is not a “hate crime,” nor is it a “lone wolf” attack where an individual in Miami decided one day to kill people. This is an act based on a genocidal ideology on a mass scale, and there is a legal duty to work together with our allies to prevent further innocent bloodshed.
Redefining the ISIS campaign as genocide will accomplish two critical tasks:
(1) Ideologically: Young Westerners seeking acceptance and purpose will less likely be inclined to seek out becoming a perpetrator in a “genocidal” organization rather than a member of an infamous “terrorism” group (which many states classify simply as a group “speaking out against the government.”)
(2) Legal Duty Adherence: It will remind the member states of the United Nations that they have a legal duty to form collective security measures aimed at preventing and stopping ISIS in full.
Beyond that, no discussion of gun reform or hate crimes or “Islamophobia” is as imminent as is the duty to force ISIS to its knees in submission to the collective authority of this world’s strongest militaries.
We must act in light of our recent declarations of genocide.
 David Luban, Julie R. O’Sullivan & David P. Stewart, International and Transnational Criminal Law 670-71 (Vicki Been et al. eds., Aspen Publishers 2010) noting that the existing treaties relating to terrorism fall short of establishing a universal system to prevent the atrocities occurring at the hands of certain extremist organizations. 100 Days of Slaughter. PBS Documentary.
Jennifer Breedon is Clarion Project's legal analyst.
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