By Anita Jelodari, Blog writer
Genocide is an old crime, but a new concept. The explanation of genocide for those who are unaffected by it may seem hard to feel and understand.
Genocide was condemned and considered as a crime in the International Convention on the Prevention and Punishment of the Crime Genocide by the UN General Assembly on December 9, 1968.
The three specific elements (with exception) that define a general crime structure are:
(1) the consideration of the act as a crime by the criminal code
(2) the mental intention of the crime (mental element)
(3) a physical behavior that shows the crime has actually occurred
Although it’s been more than 55 years since the enactment of the UN Convention on the genocide crime, there is still controversy over the elements of this crime.
The Genocide crime
In the UN Convention on Genocide – Article 2, genocide means “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 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, forcibly transferring children of the group to another group.”
The general acceptance by the countries of the world has made this convention a mandatory set of norms that most countries follow. According to the International Court of Justice, this convention is considered as universal human rights obligations, and are not merely internal affairs of states.
The mental element
To give an explanation on the “intent to destroy” in the aforementioned article, we can say that the victim of this crime is a distinct human group. It is, therefore, necessary for the convict to have the will to commit these acts in relation to certain groups which are mentioned in the convention. So it can be concluded that if the convict commits the aforementioned acts against those groups but does not pay attention, the mental element will be incomplete. One example is the bombing of human communities in wars without paying particular attention to those human communities. It should be noted that this particular intention must be proven and cannot be assumed.
For instance, in a killing act, those involved may be tried in the court for murder or conspiracy to commit murder, but they will never be tried on charges of genocide unless they have the requisite intention of paying attention to the groups mentioned above.
Some writers have taken a critical view of the term “intent to destroy” and have suggested that it disables the implication of the convention. They believe that “the governments will never accept the intention of destroying a group in this way, and they will say, those who acted against them were traitors and so on.”
Without merely responding to this criticism, there arises a discussion that relates to the proof of the intention to destroy as the mental element, involving two views. The first, is that the perpetrator himself, sometimes expresses his or her intention explicitly or not; and the second, if the intention cannot be attained in this way, it can be perceived by the result of the crime through consideration of facts, such as the means used by the perpetrator, or the specificity of the victims (for example specific acts against Muslims or other certain groups of people)
The physical element
Professor Donnedieu de Vabres, believes that this crime can be done in three ways. First, by harming the life and health, which is referred to as “physical genocide”; second, by eliminating the manifestations of life, such as sterilization to prevent childbirth or “biological genocide; and finally, the “cultural genocide” which includes acts such as the prohibition of speaking the national language, eradicating of the cultural and historical artifacts. However, only cases of physical and biological damage were addressed by the lawmakers.
At the UN General Assembly’s drafting of the convention, a number of countries’ representatives stated that one of the drawbacks of the draft was the lack of categorization to include cultural genocide.
Accordingly, representatives of the Soviet Union and Venezuela made amended proposals. The Pakistani envoy also made a proposal to restrict cultural genocide to two specific offenses of “forced religion” and “Destruction of religious sites.” So the UN assembly, added the “destroying or preventing the use of libraries, museums, schools, historical monuments, places of worship or other cultural institutions and objects of the group” to the convention.
One of the other suggestions that was raised to amend the convention, was a reminder of the Chinese representative at a meeting of the Sixth General Assembly Commission, that the acts of genocide could also be committed through drugs and narcotics, which were approved by the assembly and lead to further changes on the convention.
As final words, all of the aforementioned elements, leads us to know the crime deeply and recognize its objective examples in our society and country. Although the crime groups will always try to escape from conviction in international courts by denying of intention to destroy, having a deep and comprehensive interpretation of laws and subsequent revision and commentaries given by law makers will be crucial.
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