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human rights violations

The chief indication that the targeting is based on enemy status as opposed to racial, ethnic, or religious identity is primarily the behaviour of the group’s opponent once the conflict has ended. If the attacks against the targeted group cease, then the (probable) commission of war crimes is the issue at stake. If the attacks persist, however, the commission of genocide can legitimately be alleged. The importance attributed to post-conflict conduct reflects the realization that genocide can and does take place during wartime, usually under cover of war-related activities. The distinction between war crimes and genocide is of the utmost importance in any discussion of preventive action. In cases of war crimes, the termination of conflict would suffice, and no additional measures of protection would be necessary. In cases of genocide, the termination of conflict would necessitate the adoption of protective measures to ensure the group’s survival.

Although many of the criticisms of the genocide convention are well-founded, they should not obscure its strengths. The genocide convention was the first legal instrument to disentangle the most heinous of crimes against humanity from the “war-nexus” requirement, which had limited the jurisdiction of the Nürnberg tribunal to cases in which a crime against humanity was committed in conjunction with a crime against interstate peace. Instead, the convention declared that genocide is an international crime “whether committed in time of peace or in time of war.” Moreover, the convention was the first UN legal instrument to stipulate that individuals can incur international criminal responsibility whether or not they act on behalf of a state. The convention can also serve, in accordance with Article 8, as the legal basis of enforcement measures ordered by the Security Council (the only UN organ that can authorize the use of force).