The legal definition of genocide (Including Discussion and Key terms)
The international legal definition of the crime of genocide is found in Articles II and III of the 1948 Convention on the Prevention and Punishment of Genocide.
Article II describes two elements of the crime of genocide:
1) the mental element, meaning the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such", and
2) the physical element which includes five acts described in sections a, b, c, d and e. A crime must include both elements to be called "genocide."
Article III described five punishable forms of the crime of genocide: genocide; conspiracy, incitement, attempt and complicity.
Excerpt from the Convention on the Prevention and Punishment of Genocide (For full text click here)
"Article II: In the present Convention, 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.
Article III: The following acts shall be punishable:
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide. "
It is a crime to plan or incite genocide, even before killing starts, and to aid or abet genocide: Criminal acts include conspiracy, direct and public incitement, attempts to commit genocide, and complicity in genocide.
Punishable Acts The following are genocidal acts when committed as part of a policy to destroy a groups existence:
Killing members of the group includes direct killing and actions causing death.
Causing serious bodily or mental harm includes inflicting trauma on members of the group through widespread torture, rape, sexual violence, forced or coerced use of drugs, and mutilation.
Deliberately inflicting conditions of life calculated to destroy a group includes the deliberate deprivation of resources needed for the groups physical survival, such as clean water, food, clothing, shelter or medical services. Deprivation of the means to sustain life can be imposed through confiscation of harvests, blockade of foodstuffs, detention in camps, forcible relocation or expulsion into deserts.
Prevention of births includes involuntary sterilization, forced abortion, prohibition of marriage, and long-term separation of men and women intended to prevent procreation.
Forcible transfer of children may be imposed by direct force or by fear of violence, duress, detention, psychological oppression or other methods of coercion. The Convention on the Rights of the Child defines children as persons under the age of 18 years.
Genocidal acts need not kill or cause the death of members of a group. Causing serious bodily or mental harm, prevention of births and transfer of children are acts of genocide when committed as part of a policy to destroy a groups existence.
The law protects four groups - national, ethnical, racial or religious groups.
A national group means a set of individuals whose identity is defined by a common country of nationality or national origin.
An ethnical group is a set of individuals whose identity is defined by common cultural traditions, language or heritage.
A racial group means a set of individuals whose identity is defined by physical characteristics.
A religious group is a set of individuals whose identity is defined by common religious creeds, beliefs, doctrines, practices, or rituals.
Usually people are born into these four groups. These four groups share the common characteristic that individuals are most often born into the group. While some individuals may change nationality or religion - or even adopt a new cultural, ethnic or racial identity - usually people do not choose their group identity. In genocide people are targeted for destruction not because anything they have done, but because of who they are.
Group idenity is often imposed by the perpetrators. Perpetrators of genocide frequently make group categories more rigid or create new definintions which impose group identity on individuals, eithout regard to peoples individual choices.
The crime of genocide has two elements: intent and action. Intentional means purposeful. Intent can be proven directly from statements or orders. But more often, it must be inferred from a systematic pattern of coordinated acts.
Intent is different from motive. Whatever may be the motive for the crime (land expropriation, national security, territorrial integrity, etc.), if the perpetrators commit acts intended to destroy a group, even part of a group, it is genocide.
The phrase "in whole or in part" is important. Perpetrators need not intend to destroy the entire group. Destruction of only part of a group (such as its educated members, or members living in one region) is also genocide. Most authorities require intent to destroy a substantial number of group members mass murder. But an individual criminal may be guilty of genocide even if he kills only one person, so long as he knew he was participating in a larger plan to destroy the group.
Kofi Annan's Stockholm Genocide Prevention Proposals, January 26, 2004 In Stockholm, Sweden on January 26, 2004 UN Secretary-General Kofi Annan calls for parties to the Genocide Convention to establish a Genocide Prevention Committee and a UN Special Rapporteur on Genocide Prevention.
Ratification Status: 135 Nations are parties to the Genocide Convention, but 52 Nations are NOT, including Indonesia, Japan and Nigeria.
Article II was included without change in the Rome Statute of the International Criminal Court as Article 6 and also in the the Statutes of the International Criminal Tribunals for Rwanda and former Yugoslavia. For a more detailed description of the crimes described in Article II (Rome Statute Article 6) see the Elements of the Crime of Genocide agreed upon by the International Criminal Court Preparatory Commission in June 2000.
Over 80 nations have made provisions for the punishment of genocide in domestic criminal law, sometimes modifying the legal definition. Prosecution of genocide in domestic courts is becoming more frequent.
The legal definition of genocide can be compared to five alternative definitions of genocide proposed by researchers and scholars Frank Chalk & Kurt Jonassohn, Israel Charny, Helen Fein, Barbara Harff & Ted Gurr and Steven Katz.
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