A Study On The Constitutive Elements Of Genocide

When we talk about genocide, words like “The Armenian Genocide”,“theHolocaust”, and “Rwandan Genocide” will spring to our mind. Genocide is one of themost heinous international crimes in the world. It threatens human’s rights of life andthe peace and stability of this world.After World War II, the question of genocide had been a focus of attention of theinternational community. In1948, the first treaty about genocide, which isConvention on the Prevention and Punishment of the Crime of Genocide, was issuedby the General Assembly. The treaty gives a definition on genocide and stipulates fivekinds of criminal acts of genocide. The five criminal acts almost cover all kinds ofgenocide acts, so when the treaties issued after Convention on the Prevention andPunishment of the Crime of Genocide also use the same definition and five patternsof behaviors. After that, in order to handle the Srebrenica Massacre and RwandanGenocide, statutes for ICTY and ICTR were issued. In1998, Rome Statute wasissued which means that the stipulation about genocide moved into a new era. InRome Statute, genocide is regarded as important as crimes against humanity and warcrimes.After years of exploring, the theory of genocide tends to be completed. But fromthe development view, we need to pay more attention to genocide since it happensfrequently still nowadays. To deal with genocide which may happen in the future, weshould have a forward-looking on this. This paper tries to discuss the constitutiveelements of a crime of genocide, which are criminal acts and criminal intents byanalyzing correlation laws of genocide. A doer can constitute genocide in two ways,which are feasance and nonfeasance. Feasance means, when a doer participates to thegenocide positively, he maybe regard as a criminal. Nonfeasance means, in agenocide, when a doer has the responsibility to stop a happening genocide, but hedoesn’t use the power to do what he need to do, he may be regard as a criminal. Acriminal intents means, a doer needs to have a kind of psychological states which isintention and knowledge, when he implements a crime.A new constitutive element, which is background element, was required byRome Statute in the annex. A background element is that, when a doer implements agenocide act, we must consider if there is a genocide policy is carried out in thiscountry or something like that. Different from the general stipulation on constitutiveelements of a crime in domestic law, when we explore the constitutive elements ofgenocide, we should put background elements into our consideration. And that is animportant part which we need to talk about in this paper. As an international crime, the subject of genocide is complicate. Both Convention on the Prevention andPunishment of the Crime of Genocide and Rome Statute stipulate that only individualcan be the subject of crime of genocide. The author gives a new opinion. He believesall the three subjects, which is government, individual and organization, can be thesubject of crime of genocide when they implement genocide acts by analyze theircharacteristic.As a developing country, China is perfecting its legal system building. Thatmeans we need to make our criminal law system to be identical to internationalstandards. China joined Convention on the Prevention and Punishment of the Crimeof Genocide in1983, but we didn’t stipulate a clear punishment about genocide. For amulti-ethnic state like China, it is a kind of responsibility to pay a little more attentionto preventing genocide from happening in our country.