Economic Genocide Under International Law
| Author | P Sean Morris |
| DOI | 10.1177/0022018317749698 |
| Published date | 01 February 2018 |
| Date | 01 February 2018 |
| Subject Matter | Comment |
The Journal of Criminal Law
2018, Vol. 82(1) 18–34
Economic Genocide Under
ª The Author(s) 2018
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DOI: 10.1177/0022018317749698
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P Sean Morris
University of Helsinki, Finland
Abstract
The status of genocide in international law is well developed and forms part of customary
international law and also treaty law. International tribunals such as the International Criminal
Court and specialised chambers such as the International Criminal Tribunal for the former
Yugoslavia and the International Criminal Tribunal for Rwanda have addressed and made a
number of convictions regarding genocide. This relative success in the international criminal
justice system regarding genocide has given the appearance that perpetrators responsible for
genocide will be brought to justice. Yet, there is a fundamental crack in international criminal
law with regard to genocide as a crime and how to bring perpetrators to justice. That crack, is
essentially, the narrow scope and definition of genocide, and also how to demonstrate that
perpetrators had the intention of committing genocide. I contend in this article that the scope
of genocide should be extended to include economic genocide and argue that spillover intent
of aiders and abettors of genocide requires more clear and coherent rules to include economic
genocide as part of how the crime of genocide is assessed in international law. The article first
presents and discusses the notion of genocide, taking into consideration the Genocide Con-
vention (1948) and then discusses the status of Article 2(c) of the Convention to define
economic genocide. The article then posits the calculated economic measures that affect the
conditions of life of peoples involve intent and that intention has a spillover effect.
Keywords
Economic Genocide, Article 2(c) Genocide Convention, Conditions of Life, International
Criminal Law, Spillover Intent
Introduction
The notion of economic genocide is not generally associated with how contemporary international law is
being interpreted or applied. Yet, apart from the various questions that plagues international law, such as
ethnic cleansing, mass murder, apartheid, holocaust, human trafficking, reparations for slavery, a debate
from the other side of the coin is missing for these narratives. A few works have made some inroads in
Corresponding author:
P Sean Morris, Faculty of Law, University of Helsinki, Helsinki, Finland.
E-mail: sean.morris@helsinki.fi
Morris
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developing the narrative on the economic aspects of genocide.1 This debate is welcome, but it is a debate
that is largely missing from the legal literature, and, therefore, a contextual analysis of economic
genocide in light of the Genocide Convention is required.2
Although the Genocide Convention remains an important step in recognising genocide as a crime in
international law—the Convention does not contain, stricto sensu, any reference to economic genocide.
The main provision of the Convention that defines genocide is Article 2. According to this provision,
genocide encompasses killing, serious bodily or mental harm, conditions of life that may bring about
destruction, measures to prevent birth and forcibly transfer of children within a group in a society.3 The
part of Article 2 that can best be interpreted as closely connected to economic genocide is the third clause
that defines genocide to include deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part. It is this provision that has the closest bearings to
define and infer economic genocide as crime in international law because it is very broad and can
potentially be interpreted as covering a wide range of issues.
An argument can be made that Article 2(c) of the Genocide Convention represents the various com-
promises during the preparatory stages. This is so because the documentary evidence of the various
preparatory meetings of the Convention reveals that Latin American countries and Saudi Arabia lobbied
for economic genocide to be included in the Convention,4 but their proposals never made it into the
Convention (discussed below). Thus, apart from meeting a cold death during the negotiations of the
Genocide Convention, subsequent developments reveal that economic genocide that occurred on numer-
ous occasions either in conflict zones or in economic policies were precursors to conflicts where genocide
occurred.5 So, why has economic genocide been sidelined or excluded from the narrative in contemporary
international law? Is a debate on the concept of economic genocide counterproductive to what is set in
stone in the Genocide Convention, or, given that since the end of the Second World War, the narrative in
international law has been mostly conducted by Western academics who failed to see how economic
policies and the question of Western investments in resource-rich countries are linked to genocide?
The contemporary international legal order has fundamentally changed in the last seven decades, and
even more so, in the last two decades, where the emphasis of international relations is primarily on the
economic legal relations of states. This new emphasis is also a challenge to the old system of interna-
tional law where various aspects of economic relations define how nation states interact. The end of the
Cold War has given rise to a new stream of academic scholarship in international law that focuses on
human rights, trade, globalisation and more recently security law. But that stream of literature is also tied
to the interests of Western states and channel through their academic institutions.
The silent voices in international law from the South (and where genocide is likely to occur) became
increasingly active in the post-Cold War scholarship of international law. But it was at a cost. The
forgotten voices from the South in international law became part of the contemporary direction and
scholarship in international law, provided that they endorse (a) the traditional interests such as trade and
human rights of the West and (b) their states are party to the International Criminal Court (ICC). In this
regard, the guardians of the old international legal order must now compete within the crowded field of
international law that lends new voices and scholarship to the living element of international law. And, it
1. See Charles Anderton and Jurgen Brauer (eds), Economic Aspects of Genocides, Other Mass Atrocities, and their Prevention
(OUP: Oxford, 2016); Donald Bloxham and Dirk Moses, The Oxford Handbook of Genocide Studies (OUP: Oxford, 2010);
Garry Leech, Capitalism: A Structural Genocide (London and New York: Zed Books, 2012); Nafeez Ahmed, ‘Structural
Violence as a Form of Genocide—The Impact of the International Economic Order’ (2007) 5 Entelequia: Revista Inter-
disciplinar 3–41.
2. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277.
3. Ibid., Article 2(a)–(e).
4. A/C.6/149, 29 September 1947, Sixth Committee, Draft Convention on Genocide: Draft Resolution proposed by the Delegation
of Venezuela, further discussed on 6 October 1947.
5. For example, Marie Besancon, ‘Relative Resources: Inequality in Ethnic Wars, Revolutions, and Genocides’ (2005) 42 Journal
of Genocide Research 393–415.
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The Journal of Criminal Law 82(1)
is because of the rise of the living element of international law, that it is possible to ‘revisit’ the notion of
economic genocide and its place in the international legal order.
One drawback of the new international legal order that emerged in the last few decades because of
globalisation and the economic legal relations of states, is that, given that the rules have been drawn up
by the old guardians of international law whether as negotiators, academics, through advocacy or state
actions, the new rules also favour the economic interests of the traditional powerful states in interna-
tional relations. As a result of this, economic actors in powerful states such as multinational corporations,
defence industries, trading associations engage their governments to shape international economic
relations and investments to their advantage. For instance, most bilateral investment treaties contain
clauses for private arbitration—often at the detriment of the host states. But the broader implication of
the rules favouring powerful economic interests is that those same rules, tacitly or inadvertently, lead to
economic disadvantages in states that are full of natural resources but lacks sufficient technological
methods for the exploitation of those resources.
As such, the great economic disparity among states, the reliance on international investments and
global markets, and the system of weak international law that plays to the advantage of the more
economic superior states creates a pattern that promotes economic genocide in states where there are
huge inequalities among the various classes of peoples and are dependent on the global markets includ-
ing the disparities in the international economic system.
Genocide as a Crime in Contemporary International Law
After the events of the Second World War and the subsequent war trials for various crimes against
humanity, one of the new legal remedies to prevent similar atrocities in the future was the 1948 Genocide
Convention—creating a new form of crime—genocide. The main purpose of the Genocide Convention
is to punish genocide as...
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