The Convention on the Prevention and Punishment of the Crime of Genocide came into force in early 1951. However, it failed to develop any penal effect in the subsequent years as an international penal jurisdiction that could have dealt with possible crimes of genocide did not exist. Unsurprisingly, the States displayed no interest in pursuing allegations of the perpetration of genocide on their own territories or within their sphere of influence. This does not mean, however, that the Convention was without social or political effect. It provided a point of reference for the documentation of the gravity of State crimes against minorities.
In terms of penal law, the Convention began to gain in significance in the first half of the 1990s. In May 1993, the UN Security Council set up the International Criminal Tribunal for the Former Yugoslavia, and this was followed by the establishment of the International Criminal Tribunal for Rwanda in November 1994, also on the basis of a Security Council resolution. Genocide is defined in the statutes of both of these courts as a penal offence, the forms and characteristics of which are adopted word for word from Articles II and III of the Convention on the Prevention and Punishment of the Crime of Genocide.
The first conviction for a crime of genocide was handed down in September 1998. The judgment against Jean-Paul Akayesu, the former mayor of a small town in Rwanda, simultaneously constituted a major contribution to the development of genocide law. Contrary to the traditional minimizing of crimes of violence against women, in this judgment, the International Criminal Tribunal for Rwanda stated that rape and other sexual atrocities can be genocidal acts because, even if they are not accompanied by the murder of the victim, they cause serious physical and psychological harm to the victim and are committed with the aim of preventing births.
The first genocide judgment of the International Criminal Tribunal for the Former Yugoslavia was passed in 2001. It concerned the Srebrenica Massacre of July 1995 and commented on the important point as to what should be understood by the important formulation “destruction in part” in relation to a protected group. Based on this, it may be concluded that an intention to commit genocide exists if a “significant part” of a group, to be determined qualitatively, is to be destroyed and this is related to the treatment intended for the rest of the group. According to the Tribunal: “The Bosnian Serb forces knew, by the time they decided to kill all of the military aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.” (Prosecutor v. Krstic, Judgment, August 2, 2001, para. 595)
The crime of genocide is also included in the Rome Statute of the International Criminal Court that began its work on July 1, 2002. The wording of Article 6 of this Statute largely corresponds to that of Article II of the Convention on Genocide.
Although 140 States have ratified or joined the Convention on Genocide (status: July 2007) and the prohibition on the acts listed in Article 2 is recognized under customary international law and is, moreover, a peremptory norm (ius cogens), the clarification of all the provisions of the Convention did not remain uncontested. The fact most widely accepted by case law and scholarship is that not only individuals but also States can be responsible for crimes of genocide, as established by the International Criminal Court in February 2007 in the case involving the “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)”. This arises necessarily from the obligation to prevent genocide laid down in the Convention and aimed at States and from the classification of genocide as “a crime under international law” in Article I of the Convention.
Irrespective of this, it is nevertheless the case in international law practice that the punishment of crimes of genocide is based not on the responsibility of the States, but on individual responsibility as established by international penal law. It is even claimed on occasion that an individual acting alone could commit genocide (Prosecutor v. Jelisic, Judgment, December 14, 1999, para. 100; confirmed by appeal judgment, July 5, 2001, para. 48). However the view that the perpetration of a crime of genocide necessitates a State plan or corresponding policy has meanwhile become established. Accordingly, it is stated in the Elements of Crimes of the Rome Statute that genocidal acts “took place in the context of a manifest pattern of similar conduct directed against that group or was conducted that could itself effect such destruction” (Elements of Crimes, ICC-ASP/1/3, p. 108).
The narrowness of the groups protected by the law of genocide remains a topic that generates controversy and debate. The exclusion of political groups is disputed in particular, especially in view of the fact that these are included in part as protected objects under national penal laws that incorporate a genocidal offence. The attempt to increase the number of protected groups in general based on the criterion of “stable and permanent groups” (Prosecutor v. Akayesu, Judgment, 2 September 1998, pares. 428-429) has, however, proven unsuccessful. The list of the four protected groups adopted by the various statutes from Article II of the Genocide Convention continues to be adhered to although subjective social attributions on the part of the perpetrators or third parties are taken into account in addition to the objective determination of the group characteristics. The intention “to destroy, in whole or part” in relation to one of the groups remains decisive as a central characteristic of genocide, therefore genocide cannot be equated with ethnic cleansing (Application of the Convention on the Prevention and Punishment of the Crime of Genocide [Bosnia and Herzegovina v. Serbia and Montenegro], February 26, 2007, para. 190).
Despite this clarification, the tendency persists to relax the boundaries between this crime and crime against humanity in both jurisprudence and case law, and even to unite both categories of crime under the general heading of crimes against humanity. Non-legal sociological definitions of genocide go even further in that they define genocide as “a form of violent social conflict, or war, between armed power organizations that aim to destroy civilian social groups and those groups and other actors who resist their destruction” (Shaw, 154). The often lamented “hierarchization of victims” as a result of the understanding of genocide as the “crime of all crimes” in conjunction with the narrow concept of genocide may counteract this, however it is doubted (Schabas in Hankel, 226) whether this and other definitions are legally manageable and do justice to the specific demerits of the crime of genocide.