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ČESTMÍR ČEPELKA CYIL 6 ȍ2015Ȏ
2.2.1 Genocide
The point of the Genocide Convention (1948) is to deal with the persecution
and physical extermination of national, ethnic, racial and religious minorities. Its
official title is Convention on the Prevention and Punishment of the Crime of Genocide
(CPPCG), entry into force on 12 January 1951.28 This treaty is rather conceived to
be internally received as domestic penal law.29 It approves (among other things) the
wording of Article IV, according to which even private individuals shall be punished
among those persons committing genocide as a treaty based criminal act.30
Since its entry into force (1951), the Convention has been widely accepted by
the international community and ratified by the overwhelming majority of States.31
Also the International Court of Justice (ICJ) accepts that the principles underlying
the Convention are principles which are recognised by civilised nations binding on
States, even without any conventional obligation.32 In other words, the content of
this Convention has stabilized in international customary rule of general validity
(general international law).
Simultaneously, the internal structure of this general rule has changed. For the
said customary rule is asserted in inter-States relations, amongst members of the
international community.33 The breach of such a rule is then to be described as
a crime under international law, this denomination expressing in a general way that
the given deed will be punished even when the punishability is not determined by
authorized domestic law.
The criminal offence concerned, however, is accomplished only if a gross, mass
or systematic failure occurs by the liable State to fulfil the requirement of the
prohibition on committing genocide. This could be perpetrated merely by an official,
usually of military or police status (never by a private person!), and so be imputed to
the responsible State. That State in question is then obliged to punish the possible
perpetrator. In case it neglects to do so, either being unable or unwilling to do so, any
State may do it within universal jurisdiction if this person is in its power.
28 Text in U.N.T.S. (United Nations Treaty Series), No. 1021, vol. 78 (1951), p. 277; status of Parties: 146
(2015). See also
29 E.g. Czech Republic, Penal Code, Art. 259. See
30 Article IV – “Persons committing genocide or any of the other acts enumerated in Article III shall be
punished, whether they are constitutionally responsible rulers, public officials or private individuals”
(italics added).
31 In comparison with the International Convention on the Suppression and Punishment of the Crime of
Apartheid (1973), UNTS vol. 1015, p. 243, approved twenty-five (25) years later, the provisions of
which look similar to the Genocide convention. Not a single Western State has so far ratified this
poor imitation. Nevertheless the Convention reached 109 ratifications (2015). In 1994 apartheid in
southern Africa was over. The Rome Statute of the International Criminal Court (1998), UNTS, vol.
2187, p 3, puts apartheid among Crimes against humanity in its wording of Article 7.
32 See Reservations to the Convention on Genocide, 1951 I.C.J. Rep., p. 23.
33 Whereas the above treated contractual matter is destined for reception to their domestic legal order.