19 Spring 2023 ntroduction The international community accepted the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention” or “Convention”) in 1948.1 This unprecedented Convention was the international community’s response to the horrors of World War II in general and the Shoah in particular. The discussions in the Ad Hoc Committee established by the UN2 and the writings of legal scholars, especially the Polish Jewish lawyer Raphaël Lemkin, served as the basis for the Convention. The Convention’s text had numerous ground-breaking achievements, including defining genocide as an international crime to which both individual criminal responsibility and state responsibility are attached, determining the acts constituting the crime and the special intent required for its commission – an intent to destroy the national, ethnic, religious or racial group in whole or in part – and imposing an international legal obligation upon states to prosecute or extradite suspects of committing the crime. The Convention also gained the following practical achievements in international law and in particular, in international criminal law: it set the infrastructure for lawsuits brought to the International Court of Justice (ICJ),3 and submitted against states suspected of the commission of genocide; it established a definition of genocide that was later accepted by the ad hoc international criminal tribunals4 and the International Criminal Court (ICC), and thus provided the basis for criminal prosecution of state leaders and army commanders for the commission of crimes.5 Nevertheless, the Convention was criticized for its narrow definition of genocide, which excluded both destruction of culture of the groups protected by the Genocide Convention and the physical destruction of political groups (cultural genocide and political genocide) from its purview. The acts constituting the crime of genocide which are enumerated by the convention are physical acts including: killing, causing physical and mental harm, inflicting damage on a group by conditions of life intended to bring about its physical destruction Genocide in International Law: Revisiting the Definition of Genocide in the Convention on the Prevention and Punishment of the Crime of Genocide (1948)* I Hilly Moodrick-Even Khen * This article is based on a lecture given at AUCRSG Inauguration Conference: “The Holocaust and Genocide in the 21st Century: A Grievous Yet Never Ending Story,” held at Ariel University, November 15-17, 2022. 1. Convention on the Prevention and Punishment of the Crime of Genocide Convention, 12 January 1951, 78 U.N.T.S. 277 (1951) (hereinafter: “Genocide Convention”). 2. United Nations Economic and Social Council, Draft Convention on the Prevention and Punishment of the Crime of Genocide, UN Doc. E/AC.25/12. (1948) (hereinafter: “Genocide Draft”). 3. Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), International Court of Justice, Judgment, ICJ Reports 43 (2007) ; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, ICJ Reports 3 (2015) ; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) - Provisional measures, 23 January 2020, §§ 79-80, available at https:// www.icj-cij.org/en/case/178/provisional-measures 4. International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR). 5. The ICC has not yet dealt with genocide cases, but there is a pending arrest warrant against Omar al-Bashir, Sudan's former president, for the commission of three counts of genocide: killing, causing serious bodily or mental harm, and deliberately inflicting on each target group conditions of life calculated to bring about the group's physical
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