This document provides an overview of genocide as an international crime. It discusses the history and definition of genocide, including the key acts and groups protected. The requirements to constitute genocide are outlined. Questions on aspects like intent, rape, and punishment are addressed. International cases involving genocide that have been heard by the International Court of Justice are summarized. The document concludes by discussing the global acceptance and continued evolution of the genocide regime.

1. GENOCIDE AS AN
INTERNATIONAL
CRIME
GENOCIDE AS AN
INTERNATIONAL
CRIME
Presented By:
ABSAR AFTAB ABSAR
Presented By:
ABSAR AFTAB ABSAR

2. History of the Crime
• The term “genocide” was coined by Raphael Lemkin during World War II to describe
the crimes committed against the Jews by the Nazis.
• The word is formed from the Greek genos, for race, and the Latin caedere, for killing.
• In reaction to the genocide carried out by the Nazis, the U.N. General Assembly adopted
the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide
Convention) in 1948.
• Article II of the Convention marked the first time the crime was formulated in an
international legal instrument.
• The wording of the crime was adopted verbatim into Art. 4 (2) of the ICTY Statute and
Art. 2 (2) of the ICTR Statute. The same applies to Art. 6 of the ICC Statute.Today, the
substance of Art. II of the Genocide Convention is part of customary international law
and jus cogens.

3. Structure of the Crime
Conduct is punishable as genocide if it aims to
destroy in whole or part a national, ethnic,
racial or religious group.

4. Protected Groups
Only groups constituted through “national,”
“ethnic,” “racial,” or “religious”
characteristics are protected under the
definition of the crime.

5. Individual Acts
The targets of attack are always individual
members of the protected group. Even
where the definition requires conduct
against the “group,” this conduct is
conveyed through attacks on one individual
group member.

6. Essential Requirements to Constitute
Genocide
• Killing (Art. 6 [a] of the ICC Statute)
The perpetrator must have caused the death of at least one member of the group.
• Causing serious bodily or mental harm (Art. 6 [b] of the ICC Statute)
The perpetrator must have caused serious bodily or mental harm to at least one
member of the group. This can encompass (psychological) torture, mutilation or
other serious damage. It is not required that the harm is permanent or
irreversible; a merely temporary physical or mental impairment, however, is not
sufficient.

7. Essential Requirements to Constitute
Genocide Contd..
• Inflicting destructive conditions of life (Art. 6 [c] of the ICC Statute)
The perpetrator must have inflicted conditions of life on a group that are
calculated to bring about its physical destruction, in whole or in part. The
provision prohibits so-called slow death measures, that is, conduct that
does not kill immediately but that can (and is intended to) bring about the
death of group members over the long term. Possible conduct includes
forced labor, deportation, imprisonment in concentration camps, and
withholding necessities, such as food, clothing, shelter or medical care.

8. Essential Requirements to Constitute
Genocide Contd..
• Imposing measures to prevent births (Art. 6 [d] of the ICC Statute)
This prohibition encompasses the imposition of measures aimed at preventing
births within the group and thereby targeting its continued biological existence,
such as sterilization, forced birth control, prohibitions on marriage, segregation
of the sexes, and rape if it causes the victim to decide not to reproduce because of
the trauma suffered.
• Forcibly transferring children of the group to another group (Art. 6
[e] of the ICC Statute)
This provision seeks to prevent children from being torn from their group and
Thus estranged from it. It encompasses the permanent transfer of children, that
is, members of the group under 18 years of age, not only by physical but also by
psychological force.

9. Questions on Some Aspects
1. Is the Destruction of the group required?
Even an isolated individual, acting with specific intent can, through his individual
conduct, be guilty of the crime of genocide. It is not required that the group be
partially or wholly destroyed.
2 Can rape be an act of genocide?
In the 1998 landmark Akayesu judgment, a Trial Chamber of the International
Criminal Tribunal for Rwanda held that when rape was used as a method to destroy a
protected group by causing serious bodily or mental harm to the members of the
group, it constituted genocide. In addition, it explained that rape also can be used as a
way to prevent births within a group. For example, in societies where ethnicity is
determined by the identity of the father, raping a victim to make her pregnant can
prevent the victim from giving birth to a baby within her own group.

10. Questions on Some Aspects Contd..
3. Are those who encourage others to commit genocide guilty of the crime?
Under Article 25 (3) (b) of the Statute, anyone who orders, solicits or induces someone
to commit genocide (who carries it out or attempts to do) so is guilty of genocide. It is
also a crime under the Article 23 (3) (e) if a person ''directly and publicly incites
others to commit genocide''.
4. What about those who assist others in committing genocide or attempts to
commit genocide?
Article 25 (3) (c) states that anyone who aids, abets or otherwise assists someone to
commit genocide or attempt to commit it is guilty of genocide. Article 25 (3) (f)
provides that a person who attempts to commit genocide is guilty of the crime.
Although, in contrast to Article III of the Genocide Convention, conspiracy to commit
genocide is not expressly defined as a crime under the Statute, Article 23 (3) (d)
provides that much the same conduct is a crime.

11. Questions on Some Aspects Contd..
5. Who can be tried for genocide?
Anyone can be tried for genocide, no matter what the person's position. This means that
not only a head of state or government minister who planned or ordered the act, but
those who committed the act, whether ordinary foot soldiers or next door neighbours can
be guilty of the crime. Article 33 (2) expressly provides that following a superior's orders
is not a legitimate defence to genocide.
6. What is necessary to prove genocide?
As the intention to destroy all or part of a group, as such, is an essential element of the
crime, it is crucial, and at the same time often very difficult, to find clear evidence of the
motives and intentions that lie behind acts.

12. Utility of Genocide Convention
• The extent to which the Genocide Convention has contributed to both the
prevention and punishment of acts of genocide, at least until the 1990s, is not
impressive.
• The effectiveness of the Convention, undoubtedly, was weakened by divergent
state interests and objectives at the time of its drafting, which led to a
compromise accord that fell short of what proponents had envisioned.
• Effectiveness could be seen by the establishment of the two ad hoc tribunals
and the International Criminal Court. But such an effectiveness is too narrow
to contribute to the utility of the entire Convention as a whole

13. Prevention of Genocide
• While prevention shares an equal status with punishment in the Convention’s title, there
are no direct prevention provisions in the treaty’s articles.
• The sources of genocide are argued to include, inter alia, human nature (see Lorenz,1966;
Koestler, 1978), fears of death and non-aliveness (Charny, 1982), material deprivation,
ethnic diversity (Falk, 1979), economic system (Falk, 1979), and the presence of war
(Markusen, 1996), which serves as a cover for the suppression and elimination of
individuals based upon their common group characteristics.
• As such, the prevention of genocide relies upon deterrence, principally in the form of the
threat of punishment of those contemplating acts of genocide. For prevention through the
threat of punishment to be credible, a consistent record of bringing perpetrators of
genocide to justice must be established.

14. Punishment of Genocide
• The punishment of the crime of genocide is provided for in the Genocide
Convention at two judicial levels—municipal and international—as stated in
Articles V and VI.
• According to Article V, Parties to the Convention are required to enact the
necessary legislation to give effect to the provisions of the Convention.
• Article VI calls for persons charged with genocide to be tried by a competent
tribunal of the state of whose territory the act was committed.

15. Punishment of Genocide Contd..
• In instances where acts of genocide occur in the victim state’s territory, international
genocide, that state enjoys full rights of prosecution, as long it is in possession of the
offender.
• The second scenario involves what Kuper (1985, pp 102–104) terms domestic genocide,
genocidal acts committed within a state by citizens of that state. The chief obstacle to
state prosecution of its own citizens for acts of genocide is the common complicity of
states in the act.
• As such, international prosecution depends upon either the creation of ad hoc tribunals
for specific instances of genocide, as was the case with the former Yugoslavia and
Rwanda, or the establishment of a permanent international criminal court.

16. International Court of Justice Cases
1. Bosnia v. Yugoslavia case
In 1993 the ICJ heard its first case regarding genocide, brought by Bosnia and Herzegovenia
against Yugoslavia. In its application, Bosnia claimed that the Serb effort to create a
“Greater Serbia” resulted in the systematic bombing of Bosnian cities and the intentional
targeting of its Muslim citizens. Bosnia claimed that Serbs cruelties matched those of Nazis.
In its 1994 ruling the Court did not issue a finding on whether genocide was
being committed in Bosnia. It ask ed the government of Yugoslavia to ensure that no acts of
genocide are committed genocide, of direct and public incitement against the Muslim
population of Bosnia and Herzegovenia or against any other national, ethnical, racial or
religious group.”
1. Bosnia v. Yugoslavia case
In 1993 the ICJ heard its first case regarding genocide, brought by Bosnia and Herzegovena
against Yugoslavia. In its application, Bosnia claimed that the Serb effort to create a
“Greater Serbia” resulted in the systematic bombing of Bosnian cities and the intentional
targeting of its Muslim citizens. Bosnia claimed that Serbs cruelties matched those of Nazis.
In its 1994 ruling the Court did not issue a finding on whether genocide was
being committed in Bosnia. It ask ed the government of Yugoslavia to ensure that no acts of
genocide are committed genocide, of direct and public incitement against the Muslim
population of Bosnia and Herzegovenia or against any other religious community.

17. Cases Contd..
2. Yugoslavia v. NATO cases
On April 29, 1999 the Federal Republic of Yugoslavia instituted proceedings before the
Court in 10 separate cases against Belgium, Canada, France, Germany, Italy, Netherlands,
Portugal, Spain, United Kingdom, and United States, accusing each of bombing Yugoslav
territory in violation of their international Obligations. The reference to the “physical
destruction of a national group” caused by the NATO bombing campaign constituted a
charge by Yugoslavia of the commission of the crime of genocide. By a vote of 11 to four, the
Court ruled in an initial decision that the Threat or use of force against a State cannot in
itself constitute an act of genocide within the meaning of Article II of the Genocide
Convention. The Court further ruled that it does not appear that bombings “indeed entail
the element of intent, towards a group” as required by the Convention’s provisions.

18. Cases Contd..
3. Croatia v. Yugoslavia case
On July 2, 1999 the Republic of Croatia instituted proceedings before the Court
against the Federal Republic of Yugoslavia for alleged violations of the Genocide
Convention between 1991 and 1995.
While the International Court of Justice did not rule in any of the cases that
acts of genocide had been committed, its application of the provisions in the
1948 Genocide Convention further strengthen the Convention’s standing in
international law. At no time did the Court question the jurisdictional powers
provided to it by Article IX of the Convention, nor did the Court stray from the
legal definition of genocide provided in Article II.

19. Cases Contd..
OTHER EXAMPLES
4. Yugoslavia Tribunal
5. Rwanda Tribunal
SOME OTHER EXAPLES OF UNSOLVED CASES
6. Gujarat 2002
7. Iraq
8. Syria

20. Conclusions
The fact that 133 states have ratified the Genocide Convention signifies its global acceptance
at least in principle, and the adjudication of genocide cases by the two ad hoc tribunals and
the International Court of Justice signifies the regime’s continued utility.
Legal analysis of the specific components of the genocide regime, such as, 1946 General
Assembly resolution, 1948 Genocide Convention, ad hoc tribunals, ICJ rulings, statute of the
International Criminal Court must be assessed as a whole to make these more relevant and
Meaningful.
Criticizing the 1948 Convention for its limited definition of genocide or its failure to
establish an international penal tribunal fails to appreciate the path-breaking contribution
of the treaty.
The International Criminal Court should not be viewed as a negative reaction to the
Shortcomings of the Genocide Convention, but rather as an extension of the ideals and
provisions codified in it.
The codification and adjudication of the genocide regime during the twentieth century will,
accordingly, continue to influence the regime’s evolution during the twenty-first century.