Prosecuting International Crimes in Africa - PULP - University of ...

Duty to prosecute international crimes under international law 17
(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; or
(e) Forcibly transferring children of the group to another group. 32
Pursuant to article I, contracting parties ‘confirm that genocide … is a
crime under international law which they undertake to prevent and to
punish’. 33 Article IV provides for an absolute obligation to prosecute
persons responsible for genocide as defined in the Convention. 34
The International Court of Justice (ICJ) has held in an advisory
opinion that the principles underlying the Genocide Convention ‘are
recognised by civilized nations as binding on States, even without any
conventional obligation’. 35 Though the ICJ did not indicate which
provisions reflect customary law, most commentators hold that those
requiring the prosecution and punishment of offenders are included. 36 The
upshot of this view is that all states, whether a contracting party to the
Genocide Convention or not, have a duty to prosecute and punish
perpetrators of genocide. 37
However, the Genocide Convention applies only to people with
specific intent to destroy in whole or in part the population of a target
group; 38 and when the victims constitute one of the groups enumerated
32 Convention on the Crime of Genocide, 9 December 1948.
33 Art I Genocide Convention.
34 Art IV states ‘Persons committing genocide or any of the other acts enumerated in
article 3 shall be punished, whether they are constitutionally responsible rulers, public
officials or private individuals’. Art V requires states to ‘provide effective penalties’ for
persons guilty of genocide. The travaux preparatoires indicate that while delegates to the
drafting committee doubted states willingness to prosecute acts of genocide committed
in their territory, there was no question of contracting parties’ duty to do so. A proposal
to include a provision contemplating reparations for genocide was defeated because
some delegates feared that the draft provision would dilute the Convention’s emphasis
on criminal punishment. For a discussion see L Kuper Genocide: Its political use in the
twentieth century (1982) 38.
35 Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide,
36
37
1951.
The ICJ observed that ‘it was the intention of the United Nations to condemn and
punish genocide as a ‘a crime under international law …’ Reservation to the Convention on
the Prevention and Punishment of the Crime of Genocide (n 35 above); see also Restatement
(Third) of the Foreign Relations Law of the United Nations & 702 (1987) (stating that a
‘state violates customary law if it practices or encourages genocide, fails to make
genocide a crime or to punish persons guilty of it, or otherwise condones genocide’).
See Restatement (Third) (n 36 above).
38 See JS Abrams & SR Ratner Striving for justice: Accountability and the crimes of the Khmer
Rouge (1995) 39 (conclude that ‘most commentators assert that the number of
individuals intended to be destroyed must be substantial, in light of the Convention’s
emphasis on acts against large numbers, rather than individuals).