Prosecution and Punishment of the Crime of Genocide

71 Pages Posted: 7 Oct 2011 Last revised: 6 Mar 2014

Date Written: December 7, 1999

Abstract

This article outlines the general elements of the crime of genocide, including the criminal liability of individuals and the responsibility of States for acts of genocide, the different manifestations of genocide, and the precise meaning of the victims of genocide (national, ethnical, racial and religious groups). A dictum in Prosecutor v. Akayesu suggesting that the protected groups can be extended to include ones not mentioned by name in the Genocide Convention, provided only that they share the same characteristics of those that are mentioned, is discussed and rejected. Special attention is given to the element of fault, since the meaning of mens rea as defined in Article 30 of the Statute of the International Criminal Court differs radically from the typical Anglo-American perception of this subjective element of criminal conduct. Complicity in genocide, and the measure of precision required for the circumscription of crimes under the rules of international law, received special attention. A substantial part of the article deals with universal jurisdiction for the prosecution of acts of genocide, with references to the exercise of universal jurisdiction in municipal courts of Italy, Israel, the United States, Canada, and England, and the endorsement of universal jurisdiction by international tribunals. There is a brief overview of the rules that will govern the prosecution of genocide in the International Criminal Court, and a critical analysis of the Genocide Convention Implementation Act (the Proxmire Act) of the United States, which did not authorize universal jurisdiction of federal courts to prosecute genocide. It should be note, though, that subsequent to the publication of this article, Congress did enact the Genocide Accountability Act of 2007, which now authorizes the exercise universal jurisdiction by federal courts for the prosecution of acts of genocide.

Suggested Citation

Van der Vyver, Johan, Prosecution and Punishment of the Crime of Genocide (December 7, 1999). Fordham International Law Jouranl, Vol. 23, pp. 286, 1999-2000 , Emory Public Law Research Paper , Available at SSRN: https://ssrn.com/abstract=1940438

Johan Van der Vyver (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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