An Introduction To The International Criminal Court - Institute for ...

crimes prosecuted by the court 37
1948. 39 The Convention entered into force two years later after obtaining
twenty ratifications. The Convention itself has been described as the
quintessential human rights treaty. 40
The distinction between genocide and crimes against humanity is less significant
today, because the recognised definition of crimes against humanity
has evolved and now unquestionably refers to atrocities committed in peacetime
as well as in wartime. Today, genocide constitutes the most aggravated
form of crime against humanity. 41 The International Criminal Tribunal for
Rwanda has labelled it ‘the crime of crimes’. 42 Not surprisingly, then, it is
the first crime set out in the Rome Statute and the only one to be adopted
by the drafters with virtually no controversy.
Genocide is defined in Article 6 of the Rome Statute. 43 The provision is
essentially a copy of Article II of the Genocide Convention. The definition
set out in Article II, although often criticised for being overly restrictive and
difficult to apply to many cases of mass killing and atrocity, has stood the
test of time. The decision of the Rome Conference to maintain a fifty-yearold
text is convincing evidence that Article 6 of the Statute constitutes a
codification of a customary international norm.
Article 6 of the Rome Statute, and Article II of the Genocide Convention,
define genocide as five specific acts committed with the intent to destroy a
national, ethnical, racial or religious group as such. The five acts are: killing
members of the group; causing serious bodily or mental harm to members
39 Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78 UNTS 277.
40 ‘Report of the International Law Commission on the Work of its Forty-Ninth Session, 12 May–
18 July 1997’, UN Doc. A/52/10, para. 76. See also Prosecutor v. Kayishema and Ruzindana (Case
No. ICTR-95-1-T), Judgment, 21 May 1999, para. 88.
41 On the crime of genocide, see Nehemiah Robinson, The Genocide Convention: A Commentary,
New York: Institute of Jewish Affairs, 1960; Pieter Nicolaas Drost, Genocide: United Nations
Legislation on International Criminal Law, Leyden: A. W. Sithoff, 1959; and William A. Schabas,
Genocide in International Law: The Crime of Crimes, Cambridge: Cambridge University Press,
2000.
42 Prosecutor v. Kambanda (Case No. ICTR-97-23-S), Judgment and Sentence, 4 September 1998,
para. 16; Prosecutor v. Serashugo (Case No. ICTR-98-39-S), Sentence, 2 February 1999, para.
15; Prosecutor v. Jelisic (Case No. IT-95-10-A), Partial Dissenting Opinion of Judge Wald, 5 July
2001, para. 1; Prosecutor v. Stakic (Case No. IT-97-29-T), Decision on Rule 98 bis Motion for
Judgment of Acquittal, 31 October 2002, para. 22.
43 Sunga, ‘Crimes Within the Jurisdiction’, at pp. 66–8; von Hebel and Robinson, ‘Crimes Within
the Jurisdiction’, at pp. 89–90; William A. Schabas, ‘Article 6’, in Otto Triffterer, ed., Commentary
on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Baden-
Baden: Nomos Verlagsgesellschaft, 1999, pp. 107–16; Emanuela Fronza, ‘Genocide in the Rome
Statute’, in Flavia Lattanzi and William A. Schabas, eds., Essays on the Rome Statute of the ICC,
Rome: Editrice il Sirente, 2000, pp. 105–38.