Is the Genocide Convention Built on Ashes of Trauma? - Understanding the Genocide Defintion in International Law from a Trauma and Law Perspective

Abstract: The central argument of the thesis is, by using the example of the genocide definition, to understand the often forgotten impact of the traumas of humankind in International law. Trauma and Law is a theoretical understanding or a hypothesis on international law related to the concept Crisis Law. The theory contains the idea that international law often is formed as a consequence of human tragedies or failures and that this have certain consequences and impacts on the formation of the black letter of the law as the application of the law. The theory understands the role of traumas within the legislative history of International law as both catalytic and distracting. By analysing the legislative history of the Genocide Convention and its construction of actus reus of Genocide, and the doctrines critique of its wordings from a trauma law perspective, the thesis aims to provide a better understanding of the definition itself and discuss how international law is formed. The general historic overview of the legislative process of the Genocide Conventions describes a legal development from the recognition of minorities’ existence, and later rights, via the atrocities of the 18th century, Raphaël Lemkin’s ideas and the creation of the United Nations into the establishment of the Convention. Regarding the actus reus element of the Genocide Convention, the Thesis presents material from the legislative process showing a clear impact of the Holocaust on the formation of the definition. The thesis also provides the reader with an overview of doctrinal as well as non-legal critique if the defined genocidal acts in the convention. The analysis concludes that it is possible to claim that the actus reus element is a “Trauma Law” and that primarily the Holocaust, served as a catalyst for the legislation. Furthermore, it concludes that the Holocaust may have played a distracting role when genocide was defined as physical destruction. Finally is the benefit of a Trauma and Law perspective critically discussed.