Genocide is a crime that can take place both in time of war as well as in time
of peace. The definition contained in Article II of the Convention describes
genocide as a crime committed with the intent to destroy a national, ethnic,
racial or religious group, in whole or in part. It does not include political groups
or so called “cultural Genocide”. This definition was the result of a negotiating
process and reflects the compromise reached among United Nations Member
States while drafting the Convention in 1948.
Convention establishes a duty on State Parties to take measures to prevent
and to punish the crime of genocide, including by enacting relevant legislation
and punishin perpetrators, “whether they are constitutionally responsible
rulers, public officials or private individuals” (Article IV).
Why is the Genocide Convention important?
e obligation to prevent genocide contained in Article I of the Genocide
Convention has an extraterritorial scope. As such, States that have the
capacity to influence others have a duty to employ all means reasonably
available to them to prevent genocide, including in relation to acts committed
outside their own borders.
The Genocide Convention has been ratified or acceded to by 150 States. The
Special Advisor on the Prevention of Genocide calls upon all Member States
that are not yet party to the Genocide Convention, to ratify or accede to it as a
matter of priority, so that the Genocide Convention becomes an instrument of
universal membership.
THE SPECIFIC “INTENT” REQUIREMENT OF THE CRIME OF GENOCIDE:
The definition of Genocide is made up of two elements, the physical element
— the acts committed; and the mental element — the intent. Intent is the most
difficult element to determine. To constitute genocide, there must be a proven
intent on the part of perpetrators to physically destroy a national, ethnical,
racial or religious group. Cultural destruction does not suffice, nor does an
intention to simply disperse a group, though this may constitute a
crimeagainst humanity as set out in the Rome Statute. It is this special intent,
or dolus specialis, that makes the crime of genocide so unique. To constitute
genocide, it also needs to be established that the victims are deliberately tar-
geted — not randomly — because of their real or perceived membership of
one of the four groups protected under the Convention. This means that the
target of destruction must be the group, as such, or even a part of it, but not
its members as individuals.
STATES’ OBLIGATIONS UNDER THE GENOCIDE CONVENTION
• Obligation not to commit genocide (Article I as interpreted by the ICJ)4;
• Obligation to prevent genocide (Article I) which, according to the ICJ, has an
extraterritorial scope5;
• Obligation to punish genocide (Article I);
• Obligation to enact the necessary legislation to give effect to the provisions
of the Convention (Article V);
• Obligation to ensure that effective penalties are provided for persons found
guilty of criminal conduct according to the Convention (Article V);
• Obligation to try persons charged with genocide in a competent tribunal of
the State in the territory of which the act was committed, or by an international
penal tribunal with accepted jurisdiction (Article VI);
• Obligation to grant extradition when genocide charges are involved, in
accordance with laws and treaties in force (Article VII), particularly related to
protection granted by international human rights law prohibiting refoulment
where there is a real risk of flagrant human rights violations in the receiving
State.
A hybrid court is a criminal tribunal that is part national and part
international. They can be identified by:
Establishment: How they were established, such as through an agreement
between the UN and the host state
Subject matter: Whether they deal with both international and national crimes
Staff: Whether they have both local and international judges and
prosecutors
Some examples of hybrid courts include:
The Special Panels and Serious Crimes Unit in East-Timor
The Regulation 64 Panels in the Courts of Kosovo
The Special Court for Sierra Leone
The Extraordinary Chambers in the Courts of Cambodia
The Special Tribunal for Lebanon
The Extraordinary African Chambers
