Uluslararası Hukukta soykırım suçu ve soykırım kastı sorunu

As Jean-Paul Sartre says, "The fact of genocide is as old as humanity". It is an atrocity crime that ravaged humanity thousands years ago and does not get 'old'. It continues in modern-day conflicts and wars to cause irreparable damages for the victims, their societies and the universal human consciousness. This thesis will, in the first part, consider the genocide's historical background, explore the Genocide Convention, its rather narrow definition of genocide, and the special intent required to amount the acts to genocide. It will also briefly review the developments that paved the way until the setting up of the ad hoc international criminal tribunals, the cases held before the United Nations' International Court of Justice and the setting up of the first international permanent criminal court. In the second part, I will analyze the structure of the crime of genocide under international law and elaborate on its objective and subjective structure, and special appearing forms. In the third part, I will focus on how genocidal intent operates and it has dealt with under international law in light of the jurisprudence by the ad hoc tribunals and International Court of Justice. In the last part, this work will conclude that in the conflicts in our era, it may be a very difficult or even impossible task to be satisfied for the Prosecutors of the international criminal courts and the claimant states before the International Court of Justice. Moreover it will argue that the method of knowledge-based intent, which requires knowledge and existence of other indirect circumstances, could be the only approach to obtain future genocide convictions. Genocide is a particular category of crime and it differs from other grave crimes inflicting serious human losses. It is different from war crimes, for example, which were initially stipulated in the Hague Convention of 1898 and then 'matured' through the Nuremberg Trials and the Geneva Convention of 1949. In contrast to war crimes, genocide can also take place in peacetime. It is called "crime of crimes" and "ultimate human rights problem" as its prohibition is directly aimed at ensuring "the right to life", one of the essential human rights defined in universal declarations and conventions such as United Nations' Universal Declaration of Human Rights or Council of Europe's European Convention on Human Rights. Genocide is not a term that is used only legal scholars or law practitioners. It is a term that is also widely used by historians without applying any legal standards. However genocide as a legal term may differ significantly due to the requirements sought so as to qualify a certain criminal act as genocide. These requirement stem mainly from the Genocide Convention, which was adopted by the United Nations in 1948. It is seen that most states implemented in their own jurisdictions a similar definition to that of the Genocide Convention, if not its exact definition. This definition was also incorporated in the statutes of the ad hoc criminal tribunals and that of the International Criminal Court. The history tells us that the Genocide Convention was a necessary reaction of the international community to the atrocities of the Nazi regime in the early 1940's with a view to punish and prevent future genocides. When one looks at the Travaux Préparatoires of the Genocide Convention, it can be easily noted that this was an outcome of a long negotiation process. It followed that the definition of the Convention was not clear-cut in many aspects with a view to accommodate the different opinions of numerous states, and hence many elements of the crime were left open to interpretation. One of the main points of discussion regarding the adoption of the genocide definition was its special intent requirement. It is seen that there have appeared many different views in the academics, and in particular the interpretation and practice by the ad hoc criminal tribunals and International Court of Justice have differed at several aspects. The aim of this thesis is to offer a thorough understanding of the crime of genocide, particularly its special intent component, different interpretations by the international tribunals and courts, and how this might jeopardize the punishment and prevention of genocide, which are the ultimate goals of the Genocide Convention. The methodology used in this thesis is a research on how genocidal intent was interpreted by the International Criminal Tribunal for Former Yugoslavia, International Criminal Tribunal for Rwanda and International Court of Justice, by analyzing the landmark judgements rendered before them. Before dealing with the questions rose by the special intent as defined in the Genocide Convention, I also dedicated a whole section to the historical background of genocide since I believe it is important to understand that it is not a new phenomenon but an old practice, which continues affecting humans at a large scale.