SAME GENUS, DIFFERENT INTENT: DISTINGUISHING PERSECUTION AS A CRIME AGAINST HUMANITY FROM GENOCIDE

Abstract

The crime against humanity of persecution and the crime of genocide share common roots which go way back to Nuremberg, although both have developed differently. The concept of genocide has remained untouched since the adoption of the Genocide Convention in 1948. The same does not hold true for persecution, whose definition and scope under the Rome Statute is reflective of the historical difficulty in identifying this offence as a stand-alone crime. The early stages of both offences represent two circles that intersect, but the specific intent to destroy a victimised group is what makes genocide to fall into an exclusive and convoluted category of crimes. This article aims at evaluating persecution and genocide from a substantive and technical perspective, with a view to examining the conditions under which the two crimes operate. The assessment may help clarify some critical points concerning the applicability of both offences in the context of crimes committed in a systematic and targeted fashion.