Legal Definition Of Genocide

Introduction:

Before genocide was coined, Winston Churchill expressed the actions of the Nazis in Europe as ‘the crime without a name’. Raphael Lemkin then coined the term genocide in 1944, forming it from the Greek word genos (race/tribe) and the Latin word caedere (killing).

Following the introduction of the legal definition of genocide, the cases dealt with by the ad hoc Tribunals have somewhat assisted with explanations regarding what is required for a crime of genocide to arise. However, the main complexity in the legal category of genocide is the mental element, i.e the strict intent, but the specific intent required for genocide is what distinguishes it from other crimes, thus giving it its particular gravity.

Historical development

As ‘genocide’ was not considered a crime within the jurisdiction of the Nuremberg Tribunal, and the fact that there was no mention of the term ‘genocide’ in the judgment, the crimes were defined as being associated with war. Therefore, this was one reason for recognising the crime of genocide as an international crime. Following this, the General Assembly Resolution 96(1) of 11 December 1946 was the first step in establishing genocide as a crime, and shortly after the Genocide Convention was introduced. Although permission to hear cases of genocide was contained in Article VI in the Convention, no convictions occurred until the ad hoc Tribunals were established in the 20th century.

The definition of genocide can be found in Article II of the Genocide Convention, which is adopted verbatim in the Statutes of the ad hoc Tribunals and of the International Criminal Court (ICC) . Genocide is: “Any of the following acts committed with the 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

The case of Kayishema established that genocide may be a form of crimes against humanity. The main differentiation between the two crimes is the mental element of genocide, which requires for the acts to have been committed with ‘intent to destroy the whole or part of a group.’ This mens rea is also one of the causes for criticizing genocide as being unclear as it is quite narrow compared to crimes against humanity. For instance, the International Criminal Tribunal of Yugoslavia(ICTY) in Krstić emphasized “those who devised and implement genocide seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions prove,’ whereas the wider crime against humanity, persecution ‘against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender … or other grounds that are universally recognized as impermissible under international law, protects groups from discrimination rather elimination. Thus, ‘when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to