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PETRA BAUMRUK
CYIL 4 ȍ2013Ȏ
With respect to universal jurisdiction, one cannot maintain that there is
a conventional law providing for it with respect to this category of crime. Nevertheless,
crimes against humanity as a
jus cogens
international crime are presumed to carry
the obligation to prosecute or extradite, thus allowing states to rely, for example, on
universal jurisdiction when prosecuting for this heinous offence.
32
2.2.4 Genocide
Genocide has been regarded as a specific international crime since the Second
WorldWar, and the 1948 Genocide Convention (whose substantive rules may largely
be considered as declaratory of customary international law) was an important step
in that process.
33
At present, genocide still remains a great problem, for example with
the ongoing war in Darfur, Sudan, where the number of human casualties ranges up
to several thousand dead.
34
The definition of genocide has been adopted
verbatim
in the statutes of the
ICTY (Article 4), ICTR (Article 2) and ICC (Article 6). Article II of the Genocide
Convention defines genocide as:
… 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.
[Emphasis added]
According to Article III the following acts shall be punishable, namely: (a) genocide;
(b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide;
(d) attempt to commit genocide; (e) complicity in genocide.
35
Article II limits the parameters of the victim groups to only four, namely
belonging to a national, ethnical, racial or religious group.
36
Many have criticized this
narrow focus by claiming that since the negotiation of the Convention, international
law has undergone a major transformation, especially with respect to the development
of the doctrine of human rights. Thus proposals have been made to expand the list
Crimes against humanity have to be committed as part of a widespread or systematic attack, and to be
committed against any civilian population. Shaw, Malcolm N.:
op. cit.,
p. 438.
32
Bassiouni, M. Cherif: Universal Jurisdiction for International Crimes,
op. cit
., p. 119.
33
Cassese, Antonio:
op. cit.,
p. 109.
34
See, for example, news and broadcasting on the homepage of BBC News on the Darfur attacks: www.
bbc.co.uk, accessed 20 June 2013.
35
In addition, see also Article IV of the 1948 Genocide Convention, Article 2 of the Statute of the ICTR,
and Article 6 of the Statute of the ICC.
36
Cryer, Robert
et al
.:
An Introduction to International Criminal Law and Procedure
. 2
nd
ed. Cambridge:
Cambridge University Press, 2010, pp. 208-211; Cassese, Antonio:
op. cit
., pp. 119-123.