Prohibition of genocide

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Definition[edit | edit source]

Prohibition of genocide
The prohibition of genocide is a norm of customary international law and has the status of a peremptory norm of general international law (jus cogens),[1] which is also applicable in relation to cyber operations.[2] The prohibition of genocide applies to States and individuals.[3]

Article I of the Convention on the Prevention and Punishment of the Crime of Genocide (the ‘Genocide Convention’) specifies that “genocide, whether committed in time of peace or in time of war, is a crime under international law” and that the contracting parties to that Convention undertake to prevent and to punish it.[4] While these obligations are incumbent on all contracting parties, the International Court of Justice (ICJ) noted with regard to the obligation to prevent genocide that it depends on the State’s “capacity to influence effectively the action of persons likely to commit, or already committing genocide” and “varies greatly from one State to another”.[5]

The definition of the crime of genocide contained in Article II of the Genocide Convention is widely considered as authoritative,[6] and reads as follows: “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (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.”

The definition of genocide thus consists of two elements: the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group” stated in the opening clause, and the individual act.[7] The list of the individual acts of genocide is exhaustive.[8] Article III of the Genocide Convention further sets forth the different modes of liability and inchoate offences that shall be punishable, namely: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; and (e) complicity in genocide.

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. See ILC, Report of the International Law Commission at its seventy-first session (29 April–7 June and 8 July–9 August 2019), UN Doc A/74/10, para 56, Annex (b).
  2. Cf. Tallinn Manual 2.0, rule 14 and commentary to rule 14, para 9.
  3. On this “dual regime of responsibility for genocide” see Antonio Cassese and Paola Gaeta, Cassese’s International Criminal Law (3rd rev ed, OUP 2013), 112 (interpreting the ICJ’s findings in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, [2007] ICJ Rep 43, paras 163 and 173).
  4. 78/v78.pdf Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.
  5. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, [2007] ICJ Rep 43, para 430.
  6. See Florian Jeßberger, ‘The Definition and the Elements of the Crime of Genocide’, in Paola Gaeta (ed), The UN Genocide Convention: A Commentary (OUP 2009) 87, 88.
  7. Ibid, at 88. The prohibition of genocide is thus a primary obligation whose violation requires intent in addition to the two elements of the internationally wrongful act prescribed in Article 2 of the ILC Articles on State Responsibility (Commentary in Part I, Chapter 1 on Art 2, para 10).
  8. See Florian Jeßberger, ‘The Definition and the Elements of the Crime of Genocide’, in Paola Gaeta (ed), The UN Genocide Convention: A Commentary (OUP 2009) 87, 94.

Bibliography and further reading[edit | edit source]