Legal activity in the third quarter-century of the life of the Convention has greatly surpassed that of the first two quarter-centuries. This can be measured in terms of case law and scholarly writing. The interpretation of the Convention’s definition of genocide has remained quite narrow, and is essentially confined to physical genocide, destruction and extermination. There is potential for this to change in such a way as to extend the scope of the Convention to situations where groups are attacked with view to being driven from the territory where they have lived. This would require a degree of judicial activism. Care must be taken because of the danger of uncontrolled expansion of the definition. The phenomenon of politicized allegations of genocide is significant. Although there has been some resistance to the idea of a hierarchy of international crimes, genocide should remain ’the crime of crimes’.

In December 1946 the General Assembly requested that the Economic and Social Council prepare a draft genocide convention with a view to its adoption at the 1947 session of the Assembly. The Secretariat prepared a draft convention with the assistance of three experts in international criminal law, Raphael Lemkin, Henri Donnedieu de Vabres and Vespasian Pella. However, the Economic and Social Council did not complete consultations with Member States in 1947. In early 1948, the Council established an Ad Hoc Committee composed of representatives of several Member States which prepared a revised draft. This draft was then revised and adopted by the Sixth Committee of the General Assembly in December 1948. The Assembly also adopted resolutions calling for consideration of the establishment of an international criminal court and for the extension of the Convention to colonies. The Convention entered into force in January 1951 after the threshold of twenty ratifications or accessions had been achieved.

The title of the Convention and article I both refer to the obligation to prevent genocide. However, the Convention provides no other guidance on the scope of this obligation. In its 2007 judgment in Bosnia v. Serbia the International Court of Justice held that Serbia had had been in breach of its obligation to prevent genocide because it failed to exert pressure on Bosnian Serb forces who were preparing to commit genocide at Srebrenica. The doctrine developed by the Court was quite radical in that it recognized an extraterritoriaoutside their own gterritory unless l dimension of the obligation, one that varied in scope depending upon the influence the State Party was capable of exerting. Prevention of genocide is also contemplated in the General Assembly resolution on the responsibility to protect. Means employed to prevent genocide must be otherwise lawful. States cannot use force to prevent genocide unless authorised pursuant to the Charter of the United Nations.

Several provisions of the Convention deal with technical matters under treaty law, including signature, ratification and accession to the Convention, entry into force, denunciation of the Convention, the role of the Secretary-General as depositary of the treaty, and revision of the treaty. There is no provision for reservations but they have been deemed to be acceptable to the extent that they are not contrary to the object and purpose of the Convention. The official languages of the Convention are Chinese, English, French, Russian and Spanish. The Chinese language version has been changed due to dissatisfaction to the original text, prompting protests from Lemkin and others. The status of the official Chinese text remains somewhat uncertain. The Convention also contains a ’colonial clause’, something that is today an anachronism but one that apparently permits States to avoid the application of the Convention in non-self-governing territories over which they exercise control.

Article VIII of the Genocide Convention contemplates the role of organs of the United Nations in the implementation and enforcement of the Convention. There are many examples of States raising charges of genocide before the General Assembly and the Security Council. However, these bodies have onlyr rarely agreed to characterize acts as genocidal. In 1994, very controversially the Security Council resisted describing the unfolding genocide in Rwanda by its proper name. In 2004 the Secretary General established the position of Special Adviser on the Prevention of Genocide. Genocide, including the scope fo the Convention, has also been considered by the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, the Ad Hoc Group of Experts on apartheid, the Commission on Human Rights and the Human Rights Council.

Genocide is sometimes called the ’crime of crimes’. The word was coined by Raphael Lemkin in 1944, then declared an international crime by the United Nations General Assembly. In 1948, the Genocide Convention was adopted. As the first human rights treaty of modern times, it constituted a significant intrusion into what had previously been a matter exclusively of domestic concern. This explains the narrow definition of the crime of genocide. It requires proof of an intent to destroy a national, ethnic, racial or religious group. Only a half century after its adoption did the Genocide Convention take on real significance with inter-State cases being filed at the International Court of Justice and many prosecutions at the International Criminal Tribunals for the former Yugoslavia and Rwanda. The Convention requires that States Parties punish genocide but they are also required to prevent it, even when it takes place outside their own territory. More than 150 States have ratified the Genocide Convention. Genocide is also prohibited under customary international law. It is generally agreed that the duty to punish genocide is a peremptory norm of international law (jus cogens).

Subsequent to adoption of the Convention, the International Law Commission studied legal issues relating to its interpretation and implementation in the context of its work on the Code of Crimes against the Peace and Security of Mankind. This included issues such as the nature of participation and the available defences. The Genocide Convention and the crime of genocide are addressed in several international treaties, in particular the International Covenant on Civil and Political Rights, the Convention on the non-applicability of Statutory Limitation, and the Convention on the Suppression and Punishment of Apartheid. The Genocide Convention was also studied in detail by the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities and the Ad Hoc Working Group of Experts on Apartheid. In the 1990s, the crime of genocide as defined in the Convention was incorporated in the statutes of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda and the International Criminal Court. These courts have all provided judicial interpretation of the definition of genocide taken from the Convention. The Elements of Crimes, adopted pursuant to the Rome Statute of the International Criminal Court, further develop the definition of genocide.

States incur responsibility for violations of the Convention that may include failure to prosecute or to comply with other obligations under the Convention. The International Court of Justice has made it clear that States may also be found responsibility for actually committing genocide. Because the repression of genocide is erga omnes, even a State that is not injured by the violation may take proceedings against another State alleging that it has committed genocide. The general principles are set out in the Articles on State Responsibility adopted by the International Law Commission. There have been seventeen interstate applications to the Court based upon the Genocide Convention although it has yet to conclude that a State Party has committed the crime of genocide. The two main cases to date are Bosnia v. Serbia and Croatia v. Serbia. Three cases are currently pending, Gambia v. Myanmar, Ukraine v. Russia and South Africa v. Israel. The Court has made important provisional measures orders in some of these cases.

International criminal law recognizes certain defences, excuses and justifications that may be raised against a charge of genocide. These include mistake of fact, duress and necessity and self-defence. The defences are codified in detailed provisions of the Rome Statute but they are also derived from case law. The Rome Statute declares that an order to commit genocide is ’manifestly unlawful’ and therefore unavaible to an accused person. A defence of ’official capacity’ is explicitly excluded by article IV of the Convention whereby offenders must be punished ’whether they are constitutionally responsible rulers, public officials or private individuals’.

The five punishable acts of genocide are listed in the paragraphs of article II: killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group. The list is an exhaustive one rather than an indicative one. The Secretariat draft of the Convention divided the acts into three categories, physical genocide, biological genocide and cultural genocide. Cultural genocide was rejected but one act from the category was retained, that of forcibly transferring children. A proposal to add a crime of driving people out of their ancestral homeland was rejected by the General Assembly. Sexual and gender-based violence is encompassed by the act of causing serious bodily or mental harm.

Several provisions of the Convention deal with obligations to punish or suppress genocide using criminal law mechanisms. States Parties to the Convention are required to prosecute the crime of genocide and to provide for appropriate penalties. The Convention provides explicitly for territorial jurisdiction, and makes no mention of other forms, such as active and passive personality jurisdiction. The drafters of the Convention rejected reference to universal jurisdiction although it is now recognized under customary international law. States are also required to cooperate in extradition of suspects to stand trial for genocide.

The paragraphs of article III of the Convention set out four ’other acts’ governed by the Convention: conspiracy: conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide. The first three of these are ’inchoate’ offences in that the crime of genocide is not actually committed. If a conspiracy succeeds, the relevant offence is genocide, or complicity in genocide. A conspiracy that does not succeed is punishable under article III. The same holds for attempt and for direct and public incitement. Incitement that results in genocide is punishable as genocide, or complicity in genocide. Complicity in international criminal law is developed in the statutes of the various tribunals and by case law, although there is no unanimity as to its form. The ad hoc tribunals developed a doctrine known as ’joint criminal enterprise’ whereas at the International Criminal Court complicity may be addressed as ’co-perpetration’ or ’indirect co-perpetration’. It is also possible to prosecute genocide under the superior or command responsibility doctrine.

The definition of genocide in the 1948 Convention requires that at least one of the punishable acts listed in the paragraphs of article II be committed with the specific intent or dolus specialis to destroy the protected group. This high threshold is often difficutl to prove, notably when the evidence of intent is essentially circumstantial and based upon infererences drawn from a pattern of conduct. International courts and tribunals have taken the view that this intent must be to destroy the group physically, rejecting an approach whereby it is sufficient to deprive the group of its culture, its language or its ancestral territory. The definition accepts that the intended destruction be ’in whole or in part’, to which case law has added the requirement that this be a ’substantial part’. The words ’as such’ conclude the definitiion; they have been considered to point to a requirement of racist or discriminatory motive.

The Genocide Convention states that persons charged with the crime may be prosecuted ’by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’. At the time no such institution existed. The International Court of Justice held that the ad hoc tribunals established by the Security Council could be deemed to be such an international penal tribunal. They undertook a large number of genocide prosecutions. The International Criminal Court, established in 2002, constitutes such an international tribunal. It has only issued a single arrest warrant for genocide, against the former president of Sudan.