Winston Churchill called genocide ‘the crime without a name’. A few years later, the term ‘genocide’ was coined by Raphael Lemkin in his 1944 work, Axis Rule in Occupied Europe. Rarely has a neologism had such rapid success. Within little more than a year of its introduction to the English language, it was being used in the indictment of the International Military Tribunal, and within two, it was the subject of a United Nations General Assembly resolution. But the resolution spoke in the past tense, describing genocide as crimes which ‘have occurred’.

By the time the General Assembly completed its standard setting, with the 1948 adoption of the Convention on the Prevention and Punishment of the Crime of Genocide, ‘genocide’ had a detailed and quite technical definition as a crime against the law of nations. Yet the preamble to that instrument recognizes ‘that at all periods of history genocide has inflicted great losses on humanity’. This study is principally concerned with genocide as a legal norm.

The origins of criminal prosecution of genocide begin with the recognition that persecution of ethnic, national and religious minorities was not only morally outrageous, it might also incur legal liability. As a general rule, genocide involves violent crimes against the person, including murder. Because these crimes have been deemed anti-social since time immemorial, in a sense there is nothing new in the prosecution of genocide to the extent that it overlaps with the crimes of homicide and assault.