The Road to Finding a Definition for the Crime of Genocide – the Importance of the Genocide Convention

Abstract

Today, genocide is known as “the crime of crimes”, for its fundamental implications for human morality. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) defines genocide as a crime perpetrated against “a national, ethnical, racial or religious group”. The same definition was also adopted verbatim by the statutes of the international criminal tribunals and courts. Although this was a successful step towards the establishment of an international regime of criminal responsibility for one of the most heinous violations of international law (as well as towards the ultimate eradication of the crime of genocide), the definition of genocide, as set out in the Genocide Convention, has often been subjected to criticism due to its limited scope. The definition in Article II of the Genocide Convention was the outcome of a complex process of negotiations and consensus, reflecting the prevailing views on genocide during the drafting of the Genocide Convention. However, in order to understand the reasoning behind the limited scope of the definition, it is necessary to examine the historical context in which the crime of genocide was conceptualized and subsequently criminalized. The aim of this article is to explore the historical background of the concept of genocide, with specific attention to the drafting processes of the most important legal instruments, including the Genocide Convention and the statutes of the international criminal courts and tribunals, to illustrate the foundations of the concept and explain the reasoning behind the current definition of genocide. In particular, this article will focus on examining the legacy of Raphael Lemkin as the father of the term ‘genocide’, as well as the influence of the Nuremberg Trials. In addition, this article will focus on the historical context in which the 1948 Genocide Convention was drafted and subsequently adopted by the United Nations General Assembly as well as explore the developments that emerged in the post-1948 period, with specific attention paid not only to the drafting of the statutes of the international criminal tribunals and the International Criminal Court, but also to their jurisprudence.

ICJ: Ukraine v. Russian Federation

“…"(Schabas, 2022). 18 For explanation of the crime of genocide and protected groups see e.g.,Ozoráková (2022).19 There are three pillars of responsibility to protect -responsibility to prevent, responsibility to react and responsibility to rebuild. The responsibility to react arises "If preventive measures fail to resolve the situation and the State is unable or unwilling to deal with the situation, the measures of intervention by other states of the international community may be necessary.…”