CYIL 2015

ČESTMÍR ČEPELKA

CYIL 6 ȍ2015Ȏ

2.2.1 Genocide The point of the Genocide Convention (1948) is to deal with the persecution and physical extermination of national, ethnic, racial and religious minorities. Its official title is Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), entry into force on 12 January 1951. 28 This treaty is rather conceived to be internally received as domestic penal law. 29 It approves (among other things) the wording of Article IV, according to which even private individuals shall be punished among those persons committing genocide as a treaty based criminal act. 30 Since its entry into force (1951), the Convention has been widely accepted by the international community and ratified by the overwhelming majority of States. 31 Also the International Court of Justice (ICJ) accepts that the principles underlying the Convention are principles which are recognised by civilised nations binding on States, even without any conventional obligation. 32 In other words, the content of this Convention has stabilized in international customary rule of general validity (general international law). Simultaneously, the internal structure of this general rule has changed. For the said customary rule is asserted in inter-States relations, amongst members of the international community. 33 The breach of such a rule is then to be described as a crime under international law , this denomination expressing in a general way that the given deed will be punished even when the punishability is not determined by authorized domestic law. The criminal offence concerned, however, is accomplished only if a gross, mass or systematic failure occurs by the liable State to fulfil the requirement of the prohibition on committing genocide. This could be perpetrated merely by an official, usually of military or police status (never by a private person!), and so be imputed to the responsible State. That State in question is then obliged to punish the possible perpetrator. In case it neglects to do so, either being unable or unwilling to do so, any State may do it within universal jurisdiction if this person is in its power. 28 Text in U.N.T.S. ( United Nations Treaty Series ), No. 1021, vol. 78 (1951), p. 277; status of Parties: 146 (2015). See also http://en.wikipedia.org/wiki/Genocide_Convention. 29 E.g. Czech Republic, Penal Code, Art. 259. See http://www.preventgenocide.org/law/domestic/. 30 Article IV – “Persons committing genocide or any of the other acts enumerated in Article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals ” (italics added). 31 In comparison with the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), UNTS vol. 1015, p. 243, approved twenty-five (25) years later, the provisions of which look similar to the Genocide convention. Not a single Western State has so far ratified this poor imitation. Nevertheless the Convention reached 109 ratifications (2015). In 1994 apartheid in southern Africa was over. The Rome Statute of the International Criminal Court ( 1998), UNTS, vol. 2187, p 3, puts apartheid among Crimes against humanity in its wording of Article 7. 32 See Reservations to the Convention on Genocide, 1951 I.C.J. Rep., p. 23. 33 Whereas the above treated contractual matter is destined for reception to their domestic legal order.

122