Genocide can be defined as a ‘denial of the right of existence of entire human groups, as homicide is the denial of the right to life of individual human beings’ (described by the General Assembly Resolution 96). Thus, it is a crime simultaneously directed against individual victims, the group to which they belong, and human diversity. Such definition is followed by the Genocide Convention, which had came into force on 12 January 1951. Their prohibitions constitute customary international law, as the ICJ early recognized in 1951. Thus, according to Cassese, genocide is the intentional destruction, through one of five well-specified categories of conduct, of one of some groups as such (national, ethnical, racial or religious) or of members of one of these groups as such. The Genocide Convention pursued two goals (i) to oblige Contracting Parties to criminalize genocide and punish their authors within the legal system of each Party, and accordingly (ii) to provide for the judicial cooperation of those contracting states of the suppression of the crime. Likewise, genocide can impose individual but also State responsibility, and the ICJ held that Genocide Convention imposes obligation not only to criminalize, punish and provide judicial cooperation but also to prevent it. In addition, in accordance with the Bosnian Genocide case (ICJ), Article VI Genocide Convention any contracting party or not have the obligation to prevent and punish genocide. States under rules of Article III may be responsible of genocide. The test of responsibility followed in this case is the effective control test not the overall control test, which Tadic case followed. The ICJ held that the overall control test is unsuitable, because it stretches too far, almost to breaking point. Such test analyses the degree and nature of a State’s involvement in an armed conflict on another State’s territory, which is required for the conflict to be characterized as international.
By contrast, the effective control test studied the degree and nature of involvement required to give rise State’s responsibility for a specific act committed in the course of the conflict. Due to the fact that a state is responsible only for its own conduct, on its behalf (official organs or its persons or entities), as well as perpetrators of the wrongful act when they exercised effective control over the action during which the wrong was committed.
Nevertheless, it was not until the establishment of the ad hoc tribunals when genocide was the legal basis on individuals prosecution, imposing on them criminal liability.
Although Article VI refers to the possibility of an international court being available to try cases of genocide, it was not until the establishment of the ad hoc Tribunals in 1993 and 1994 that this became a reality. The two first conviction for genocide by an international court, the ICTR, was Akayesu, a Rwandan mayor, and Kambanda, the former Prime Minister of Rwanda was sentenced to life imprisonment after pleading guilty to genocide, conspiracy, incitement and complicity in genocide, as well as CAH(Akayesu and Kambanda cases). In Nuremberg trials while the acts (Holocaust or the Final Solutions of Jews) were very much constitutive of genocide, they could not be defined as such because the crime of genocide was not defined until later (Kambanda, ICTR), regardless that all of the crimes prosecuted by the Nuremberg Tribunal and its immediate successors were defined as having a connection with war.
Therefore, individuals will be prosecuted in basis of genocide whether they commit one of the criminal offences quoted within Article 6 ICC Statute. That are: (a) (Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group .