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This chapter details the rapid development of genocide from an academic concept to a substantive international crime. It provides a brief overview of the etymology of the term ‘genocide’ following its first usage by Professor Raphael Lemkin in 1944 to describe Nazi atrocities during World War II. It details the early usages of the concept in subsequent criminal trials of Nazi offenders, as well as the definition of genocide in the 1948 Genocide Convention. It also discusses the critical (and controversial) decision of the Convention's drafters to exclude political groups, thereby limiting the Convention to national, ethnic, racial, and religious collectives. Acts intended physically or biologically to destroy these four groups thus are condemned as ‘genocide’, whereas the identical criminal conduct—directed instead at other human collectives—is not.

This chapter addresses the question of whether, as some suggest, political genocide is prohibited already by virtue of post-Convention developments in customary international law. It discusses the evidentiary requirements necessary to establish the formation of customary international law. It then provides an empirical examination of state practice and opinio juris on genocide and political genocide. The analysis covers domestic legislation on genocide from some eighty-four states, together with nearly every domestic and international case that has applied the concept, as well as the historical records from all three drafting conferences for the Genocide Convention. It demonstrates conclusively that, although some states criminalize political genocide as a matter of domestic province, there is no basis to conclude that the crime otherwise exists as a free-standing offense under international law.

This chapter explores the relationship between genocide and other offences under international law, focusing on crimes against humanity (e.g., extermination, torture, and other forms of group violence, as well as unlawful persecution on discriminatory grounds). In some circumstances, crimes against humanity cover similar ground to genocide because they outlaw large-scale violence and prohibit serious discrimination based upon membership in certain human groups. The availability of such offences has been offered as a sufficient justification not to include political groups within the concept of genocide. The chapter compares genocide to these other aspects of international criminal law and demonstrates that these other crimes are neither a workable nor a sufficient proxy for a separate international crime prohibiting political genocide.

This chapter proposes an optional protocol to the 1948 Genocide Convention paired and an amendment to the ICC Statute to address political genocide. It considers several potential objections to creating the new offense, including its potential impact on legitimate military and law enforcement interests (e.g., terrorism prevention). It also considers whether the inclusion of political groups would interfere with the Convention itself or otherwise dilute the concept of genocide as a unique offense. It demonstrates that none of these considerations justify continued non-recognition of political genocide. The chapter then discusses the divergence between law ‘on the books’ and actual enforcement, using the situation in Darfur as an example of difficulties of exercising political will on the international plane. It concludes that the direct prohibition of political genocide through law is an essential first step to preventing and punishing atrocities aimed at destroying political groups ‘as such’.

Both genocide and war crimes are regarded as serious violations of international humanitarian law. Just as with genocide, war crimes may, in principle, be committed by and against civilians and military alike. The law of genocide and the laws of war have very different origins, however, and both categories of crime cover essentially different protected interests. War crimes and genocide contain a number of elements which are not required by the other, the most obvious being that while war crimes, of their nature, may only be committed in times of war, genocide may be committed during war or peace. Under the prevailing test of cumulative convictions developed by a majority of the appeals chamber, an individual who has been charged with both war crimes and genocide for the same criminal conduct could be convicted for both categories of crimes.

On February 22, 1993, the United Nations (UN) Security Council set up an international criminal tribunal pursuant to Chapter VII of the UN Charter. This tribunal was given the authority to prosecute and judge serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991, including war crimes, genocide, and crimes against humanity. On November 8, 1994, the Security Council created another international tribunal for the purpose of prosecuting persons responsible for genocide and other serious violations of humanitarian law in Rwanda in 1994. Ratione personae, the jurisdiction of both ad hoc tribunals, is limited to natural persons and excludes any official privileges or state immunities that such persons might otherwise have enjoyed before domestic courts.

This chapter addresses the personal fault elements comprising the mens rea of genocide. It discusses the crime's unique specific intent requirements and analyses the discriminatory targeting of protected groups for destruction. It addresses the complexities of ascertaining a perpetrator's specific intent to destroy a human group ‘as such’ and discusses how such intent can be established at trial. It also considers the merits of analysing the perpetrator's mental state in terms of numerical considerations (targeting either a percentage of the targeted group or a certain threshold number of victims) versus other types of criteria (such as the effects of targeting group leaders or other important segments of the group on the group's overall ability to survive ‘as such’).

This chapter analyses whether political groups merit equal treatment to the four groups enumerated in the Genocide Convention. It first discusses what human ‘groups’ really are and the inherent difficulties of defining them for legal and social purposes. It details the linkages and interactions between international law and broader understandings of human groups as social collectives. It then proposes a new theoretical understanding of genocide as a rights-based offence. This theory links the legal protection of groups to certain individual rights of a collective nature that give rise to the group's existence in this context. This sets the stage for the subsequent analysis demonstrating that political collectives have many similar characteristics to the existing four groups, such that they likewise deserve specific protection from physical and biological destruction ‘as such’ through a separate crime of political genocide.

This chapter discusses why political genocide should be proscribed as a separate international crime. It evaluates political genocide in light of the underlying theoretical justifications for international criminal regulation as well as the overall goals of the international criminal justice system. In particular, it discusses the characteristics of international crimes as events that both threaten international peace and security and shock the collective conscience of humanity. It also details the underlying justifications for international criminal regulation (deterrence, retribution, expression, and restoration) and demonstrates that criminal prosecution is an essential remedy for the human rights violations arising out of political genocide. Ultimately, it concludes that the international community should create a separate offence of political genocide to squarely address this conduct.

This chapter argues that the greatest change in international law is the creation of a new universe of international criminal and hybrid tribunals and courts in various manifestations. The UN ad hoc tribunals, in particular, have established that fair international prosecutions of war crimes, genocide, and crimes against humanity are feasible, striking a blow to the practice of impunity, leading to the establishment of the International Criminal Court and additional tribunals, and paving the way to more effective deterrence. The tribunals' most significant contributions are outlined.

This chapter presents Theodor Meron's speech at Potočari Memorial Cemetery. He shares his special wish to visit the cemetery because he had the privilege of sitting as the Presiding Judge in the appeal which, for the first time, judicially recognized the crimes committed against the Bosnian Muslims in Srebrenica in 1995 as genocide. In that case, named Prosecutor versus Radislav Krstič, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia convicted one of the leaders of the Bosnian Serb assault on Srebrenica, General Radislav Krstič, for aiding and abetting genocide. In honor of the memory of the many victims of this crime lying in this cemetery, Meron reads a brief passage from the judgment in Krstič.

This chapter focuses upon the actus reus of genocide, outlining both the conduct elements of the offence and the complexities of identifying the contours of protected groups. It first discusses the various modes of perpetration for international crimes generally, including the doctrines of command responsibility and joint criminal enterprise. It then focuses on the actus reus of genocide and details the acts prohibited under Genocide Convention that constitute physical genocide (killing group members, causing them serious bodily or mental harm, and imposing destructive conditions of life upon them) and biological genocide (preventing births within the group and removing the children of group members). It also discusses distinctions and commonalities among the racial, ethnic, national, and religious groups protected under the Genocide Convention. It further details the complexities of determining the applicable criteria for group membership and assesses the benefits and drawbacks of ascertaining membership using subjective versus objective characteristics.

This chapter focuses on the influence of ‘judicial activism’ on the evolution of the crime of genocide. In stark contrast to the development of the definitional boundaries of crimes against humanity, the definition of genocide has not altered significantly since its formulation in the Genocide Convention of 1948. There have however, been a number of notable attempts at definitional expansion, starting with the findings of the District Court of Jerusalem (later supported by the Supreme Court of Israel) in the Eichmann case to the effect that the application of the doctrine of universal jurisdiction to genocide was implied under Article VI of the Convention. The chapter goes on to consider two more contemporary, if ultimately unsuccessful attempts in the Akayesu and Krstić cases. This examination highlights the dangers inherent in reliance on travaux préparatoires as a supplementary means of interpretation.

This chapter examines the attempts by the judges of the Yugoslavia and Rwanda Tribunals to identify and develop a coherent and workable definition of rape as an international crime. It traces the evolution of this process from the groundbreaking conceptual definition created in the Akayesu judgment, through the introduction of more mechanical elements of penetration and lack of consent in the Furundžija and Kunarac cases, up to the most recent authoritative statement of the Appeals Chamber in Gacumbitsi upholding the inclusion of non-consent as an element of the crime of rape. The chapter analyses the appropriateness of consent as an element of the crime of rape when committed as an act of genocide, a crime against humanity or a war crime, as well as the judicial and interpretational factors which gave rise to its inclusion.

This chapter looks at those universal human rights conventions explicitly requiring prosecution for specific human rights violations, such as genocide, torture, slavery, traffic in persons, prostitution, apartheid, racial hatred, and enforced disappearances. It explains the scope of criminal obligations under the respective conventions. Special attention is given to the standards for criminalization, investigation, and sentences, the concept of aut dedere aut judicare and the role of victims. A comparison of the conventions reveals that there is no uniform concept for the treatment of serious human rights violations. The nature of crimes, the necessary degree of public involvement, the modes of commission, and the particular steps to be taken by States including the required penalties differ.