The Research On The Protected Groups In The Elements Of Genocide

Genocide is a crime that is accompanied by human civilization.It has been called "crime of crime" because of its long history and poor nature.Inconsistent with its level of harm,it was not until 1948 that the first international legal document regulating genocide was adopted-the “Convention on the Prevention and Punishment of the Crime of Genocide”.This Convention states that genocide is a crime that is contrary to the spirit and purpose of the United Nations and is not tolerated by the civilized world.Meanwhile,the Convention defines genocide as the total or partial elimination of ethnic,racial,ethnic or religious groups.Although this definition was later widely used in other international documents and domestic legislation,this does not mean that this definition has been generally recognized and supported by the international community.On the contrary,some of the legal issues concerning genocide are still subject to intense discussion in the academic field.This article will focus on the “protected group” problem which is one of the most controversial issues,starting from its historical background,combining the history of UN's resolution 96(I)and the “Convention on the Prevention and Punishment of the Crime of Genocide”with the general academic points.At the end of the article,author will further explore the development direction of the protected group.In addition to the abstract and introduction,the main body of this article includes the following four chapters:The first chapter mainly introduces the history of genocide and the issue of protected groups.First,in the section on developing history,it will be divided intotwo parts.The first part is the history of the crime of genocide.It will focus on the time from the early 19 th century to 1948 when he leading scholars have made a series of efforts to promote the genocide legislative process,as well as related historical events that have led them to adhere to this mission,such as the Armenian massacre and World War II.At the same time,it will also focus on the historical process from the emergence of the term “genocide” to the first use in formal legal instruments and the final adoption of the Convention.The second part is the formation process of the protected groups issue.This part will focus on the impact of several important historical events on the protected groups issue,including the convening of the Fifth International Conference on Unified Criminal Law,UN Resolution 96th(I)and the adoption of the “Convention on the Prevention and Punishment of the Crime of Genocide”.At the same time,the different opinions put forward by scholars in this process and the controversy arising from the drafting committee will be elaborated in detail,in order to make the best efforts to interpret the original prospects of the drafters on the issue of protected groups.The second chapter will elaborate on the current mainstream provisions and the specific provisions of the protected groups from the two levels--international law level and domestic law level.At the level of international law,since the current international conventions basically directly reproduce the provisions of the“Convention on the Prevention and Punishment of the Crime of Genocide” in the issue of protected groups.Therefore,this paper selects several conventions with large international influences to discuss,including the “Convention on the Prevention and Punishment of the Crime of Genocide”,the “Draft Code of Crimes against the Peace and Security of Mankind”,the “Statute of the International Criminal Tribunal for Rwanda”,the “Statute of the International Criminal Tribunal for the Former Yugoslavia”,and the “Rome Statute”.This part will focus on the discussions,disputes,modifications,and the reasons that fail to make modifications during the drafting of the four conventions.In the second section of this chapter,we will focus on the norms of domestic law that have different provisions from the “Convention on the Prevention and Punishment of the Crime of Genocide”.In this paper,two types of different regulations are selected.One is attempting to make a total different provision,that is,the extension of protected groups should be unenclosed and should include all groups with the same traits.This provision is prominently reflected in the French Penal Code,the Estonian Criminal Law Amendment,and the Canadian Crimesagainst Humanity and War Crimes Act.The other is that the provisions of the“Convention on the Prevention and Punishment of the Crime of Genocide” have been generally adopted,except that individual groups,such as "social groups",have been added or deleted from their domestic criminal laws.This kind of situations is reflected in the criminal laws of Peru,Paraguay and Lithuania.In addition to the introduction of the basic provisions,the second section will also briefly explain the reasons why the selected countries make provisions that are different from the mainstream provision in international law.The third chapter will summarize the views of different courts on the problem of protected groups,and analyze the issues of protected groups from the perspective of cases.This chapter selects the three most representative courts,namely the Rwanda Tribunal,the ICTY and the International Criminal Court,based on the current establishment of international courts with jurisdiction over genocide.For the cases accepted by each court,the author selected the most discussed cases,namely the Akayesue case,and the Bashir case.In the analysis of the case,this chapter will first introduce the background,then explain the interpretation and identification of the focus of the court in detail,and conduct an in-depth analysis of the findings of the court.The fourth chapter will analyze the details of the protected groups.In the first section-the extension of protected groups,the meaning of the word "group" and the reasons for the selection of the word will be analyzed and explained first,in order to better understand the protected groups issue;Subsequently,we will focus on the extension of the protected groups with combination of the aforesaid parts.It will be analyzed in two academic viewpoints,including the theory of limited expansion and the theory of open extension.The second section of this chapter will separately elaborate on the connotations of the four categories of protected groups generally defined in the “ Convention on the Prevention and Punishment of the Crime of Genocide”.In addition to the connotational interpretation of the four groups,this section will introduce a special genocide object,the “self-group”.This exception does not create a new type of protected group because this massacre belongs to the its own groups and the groups will ultimately be classified in one of the four groups.However,the existence of this special case will help to better understand the protected groups issue and genocide.The final section of this chapter will detail the criteria foridentifying four groups of groups in practice.As this issue is not an established topic in the development of legal provisions,and drafting documents therefore does not provide constructive advice on this issue,so this part will be discussed in combination with the methods adopted by various international criminal courts in determining the nature of the groups in the trial process.It is divided into objective identification standards,subjective certification standards and mixed identification standards.The fifth chapter will be divided into three sections to elaborate on the recommendations for improving the theory of protected groups and measures to control genocide.In the first section,we will analyze the main defects of the current protected groups theory and the possible negative effects.Therefore,in the second section,the corresponding solutions will be proposed for the main problems mentioned above.In the last section,we will once again reaffirm the positive role of the research and improvement of the theory of protected groups in the fight against genocide,and simply propose some suggestions for punishing genocide.This part will be discussed from the two levels,one is the state obligations that countries around the world could afford,as well as international measures that international organizations could bear.