Genocide: Legal Precedent Surrounding the Definition of the Crime (CRS Report for Congress)
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| Release Date |
Sept. 14, 2004 |
| Report Number |
RL32605 |
| Report Type |
Report |
| Authors |
Judith Derenzo and Michael John Garcia, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
The current situation in Darfur, Sudan, and the surrounding debate over whether the Sudanese
government's actions constitute genocide or ethnic cleansing provides the impetus for this report.
This report presents a brief historical background on the U.N. Convention on the Prevention and
Punishment of the Crime of Genocide (Genocide Convention), its ratification and implementation
by the United States, and its incorporation into the Rome Statute creating an International Criminal
Court (ICC). Decisions from the International Criminal Tribunals for the former Yugoslavia (ICTY)
and Rwanda (ICTR) are analyzed to help determine when charges of genocide have been found to
be legitimate.
For legal purposes, genocide is a highly specific offense, and to be liable for it an actor must
commit certain acts against a designated group with an intent to destroy the group, in
whole or in
part. Accordingly, a number of serious human rights atrocities, such as the mass extermination of
a civilian population, might not constitute genocidal acts in certain circumstances, though they may
nevertheless constitute war crimes or crimes against humanity.
The mental and physical elements of the crime of genocide each present their own analytical
requirements. This is primarily due to the crime's highly sensitive subject matter and the lack of
cases prosecuting acts of genocide from the 1950s until the 1990s. Over the past decade,
international tribunal decisions have created an influential understanding as to what constitutes
genocide under international law. They have also provided a real world context to an otherwise
academic debate regarding the applicability of the Genocide Convention. However, the legal
definition of the crime of genocide remains in a formative state. Both tribunals still have many more
cases to hear and judgments to render. Moreover, these decisions are not binding precedent on the
ICC or national courts, including those of the United States. International legal developments
concerning the crime of genocide will likely be largely based on these courts' approaches. This also
applies to crimes against humanity, such as ethnic cleansing, as the debate concerning the substantive
difference between genocide and ethnic cleansing continues to unfold.
