Research On The Criteria Of The Crime Of Genocide

The Crime of Genocide is an important crime under international criminal law.In contemporary international criminal cases,it is often referred to “The Crime of Crimes” as it is “a violation of the fundamental rights to life of all human groups”.The objects of this crime shall be not limited to a single victim or the specific groups to which the victims belong,but essentially attacks on the diversity of human beings,attempting to eradicate specific groups of human beings in the particular type through various acts of violence.Concerning such gravity of genocide,the author hopes to find the elements of this crime based on the conviction of genocide in ad hoc Trials and authoritative scholars' studies,accompanying with the research results from her experience participating in the International Criminal Court Trial Competition.The author is also willing to actively research on the pending issues of this crime and give her own ideas and suggestions.This dissertation conducts its study on the standards of genocide in four parts.Part One.The author summarized the concept and nature of genocide,through analyzing and summarizing relevant international covenants,combing the development and alteration of such crime,comparing its difference with other international crimes.Genocide is a serious atrocity which intends to destroy protected groups in whole or in part.For the first time,the Convention on the Prevention and Punishment of the Crime of Genocide clearly defined the concept of genocide in theform of a convention,whilst,behaviors beyond the scope of those five specific behaviors occur with social development and the diversification of criminal methods.Whether these acts of violence can be attributed to the definition of genocide and other related issues have caused the general public to think thoroughly.In this dissertation,the author,after analysis,holds the view that,the definition of genocide should be explained narrowly under legal semantics,thus other violent actions which are not defined in the Convention should be excluded.On the one hand,the allegations and trails towards genocide behaviors shall remain cautious since it's an extremely serious international crime which challenges the conscience of all human beings.On the other hand,other criminal acts could still be punished by laws though it may not be arisen as genocide.It is not uncommon for them to be convicted and punished for crimes against humanity.Part Two.The author summed up the methods of defining objects violated by genocide,supported by judgments of International courts against genocide,combined with the specific cases of Akayesu and Bagilishema and other cases,and compared and analyzed the difference between objective judgment method,subjective judgment method,with subjective and objective combination judgment method.The determination of group member is a very complex issue practically.International courts from early stage take the measure of subjective judgment method,which determine whether victims belong to a protected group by subject standards from outside,such as specific identity or language,etc.However,as the society develops,many groups that cannot fit the conditions of subject standards occur and bring objective judgment method and combination judgment method.According to the Al Bahir case from ICC,Judge Usaka proposed the combination judgment method for the first time,under which,there are some objectively existed evidence from the victim groups which show their independence to the persecuted groups,and both parties subjectively believe that they are different from each other.Such method effectively compensates for the defects of objective judgment method and subjective judgment method,thus is adopted by the International Criminal Court.Part Three.The author analyzed actus reus of genocide and discussed the applications of each of those elements in specific trials.For the definition of actus reus,there are only five fundamental behaviors be contained in the Convention on the Prevention and Punishment of the Crime of Genocide while Elements of Crimes of the International Criminal Court increases a contextual element as the scale of crimes,which intends to mitigate the insufficiency of legislation and exclude personal hate crimes from genocide.Part Four.The author discussed the mens rea of genocide by an analysis to the standards of dolus specialis.Dolus specialis means an intention to destroy a protected group in whole or in part intentionally,which,as a mens rea,is hard to be proved by direct evidence in practical trials.At present there are two academic methods for inference,which are knowledge-oriented and purpose-oriented.In this dissertation,the author considers that it is more appropriate to apply the method of knowledge-oriented since it obeys the principle of eis dignum poena.