International Human Rights Law

Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)

I. Introduction🔗

The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) was the first international human rights treaty adopted by the United Nations General Assembly.

Article I establishes genocide as a crime under international law, whether committed in time of peace or in time of war, and not only obliges States to not commit genocide, but also to prevent and punish it. Article II defines the crime of 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’:

  1. Killing members of the group;
  2. Causing serious bodily or mental harm to members of the group;
  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. Imposing measures intended to prevent births within the group; and
  5. Forcibly transferring children of the group to another group.1

Under article III, the following acts are punishable:

  1. Committing genocide;
  2. Conspiracy to commit genocide;
  3. Direct and public incitement to commit genocide;
  4. Attempt to commit genocide;
  5. Complicity in genocide.

The obligations of the Genocide Convention are erga omnes (meaning that they apply to all States, whether or not they are a Party to the Convention),2 erga omnes partes (meaning that a State Party owes them to all other States Parties),3 and peremptory international norms (jus cogens) from which no derogation is permitted.4 The principles underlying the Convention are principles which are recognised by the international community as binding on all States, even without any conventional obligation.5

The International Court of Justice (ICJ) decides disputes between States Parties relating to the interpretation, application or fulfilment of the Genocide Convention.6 The erga omnes partes nature of the Genocide Convention’s obligations allows any State Party to institute proceedings before the ICJ concerning another State Party’s alleged responsibility for a breach of the Convention.7 To do so, the former State is not required to have been ‘specially affected’ by that breach; for example, it does not need to demonstrate that any of the alleged breach’s victims were its nationals.8 All States Parties to the Convention have a common interest to ensure the prevention, suppression and punishment of genocide.9

However, the erga omnes character of its obligations does not affect the rule that States must consent to the ICJ’s jurisdiction before it may decide disputes.10 The fact that rights and obligations erga omnes may be at issue in a dispute does not give the ICJ jurisdiction to consider that dispute.11 Similarly, the fact that a dispute relates to compliance with a jus cogens norm does not of itself provide a basis for the jurisdiction of the ICJ to consider that dispute.12

Further, despite the jus cogens nature of the prohibition of genocide and the erga omnes obligations which result from it, reservations to the Genocide Convention are not prohibited.13 Reservations to article IX, which concerns the jurisdiction of the ICJ, are acceptable as they do not affect substantive obligations and instead exclude a particular method of settling a dispute. Therefore, such reservations are not incompatible with the object and purpose of the Genocide Convention.14

The substantive obligations arising from articles I and III are not limited by territory. States must prevent and not commit acts of genocide wherever they are able to address such acts.15

I.1 Sexual Violence under the Genocide Convention🔗

The ICJ has recognised that sexual violence could constitute genocide if accompanied by a specific intent to destroy the protected group.16

To characterise a crime as genocide, the perpetrator must commit one of the acts listed in article II and have carried out that act with the specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group. These two distinctive elements are referred to as actus reus (i.e., the criminal act itself) and mens rea (i.e., the intent behind the act).

Rape and other acts of sexual violence may constitute the actus reus of genocide when they cause serious bodily or mental harm to members of a protected group,17 and are genocide when committed with the required intent.18

In Bosnia and Herzegovina v Serbia and Montenegro, the ICJ quoted with approval:

  • The Akayesu case from the International Criminal Tribunal for Rwanda, stating that rape and sexual violence constitute infliction of serious bodily and mental harm on the victims/survivors, and are one of the worst ways of inflicting harm on the victim/survivor as they suffer both bodily and mental harm;19 and
  • The jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), recognising that causing serious bodily and mental harm includes ‘acts of torture, inhumane or degrading treatment, sexual violence including rape, interrogations combined with beatings, threats of death, and harm that damages health or causes disfigurement or injury’.20

In the instant case, the protected group had been systematically subjected to massive mistreatment, beatings, rape and torture causing serious bodily and mental harm, during conflict and, in particular, in detention camps: this amounted to an actus reus of genocide, namely ‘[c]ausing serious bodily or mental harm to members of the group’.21 However, the ICJ could not establish, based on the evidence, that those atrocities had been committed with the specific intent to destroy the protected group, in whole or in part, required to constitute genocide.22

In Croatia v Serbia, the ICJ stated that rape and other acts of sexual violence may also constitute:

  • The deliberate infliction on the protected group of conditions of life calculated to bring about its physical destruction, in whole or in part;23 and
  • Measures intended to prevent births within the group.24

The systematic nature of such acts must be considered in determining whether they are capable of constituting the actus reus of genocide. Further, for acts intended to prevent births, the circumstances of those acts’ commission, and their consequences, must affect the group’s capacity to procreate.25

Note to reader
All obligations relating to the prevention and punishment of genocide, listed in this subchapter, apply to CRSV that amounts to the crime of genocide.

II. Legal Framework🔗

Note to reader
For an explanation of the ICJ’s powers and the bindingness of its jurisprudence, refer to the “Ratification and Enforcement of Treaties” chapter, “International Court of Justice” subsection.

III. Obligations🔗


III.1 States must take legislative and other actions to prevent CRSV🔗

III.2 States must not commit CRSV🔗

Justice and Accountability🔗

III.3 States must punish CRSV🔗

III.4 States may extradite perpetrators of CRSV🔗


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