74 MIOARA-KETTY GUIU, AMALIA NIŢU
C. The third issue is to know whether and how the provision related to genocide as
separate from other crimes against humanity is justified.
The answer to this question depends on the answer to another prior question,
namely to know what are the similarities and differences between the crime of
genocide and the other crimes against humanity.
But this preliminary issue is difficult to clarify because of a lack of rigour of the
It would be logically that genocide and the other crimes against humanity
have in common the fact they are all crimes of violence, of great seriousness,
committed by a group against another group and, for this reason, they always
cause a large number of victims. Since we assume that genocide is the most serious
crime against humanity, it would be logic that the name "genocide" make reference
to, as the very etymology of the word indicates, crimes against life, which are the
most serious crimes of violence.
In fact, however, it appears that the five acts described in article 6 from ICC
Statute ("The Crime of Genocide") are found, explicitly or implicitly, in Article 7
from ICC Statute ("Crimes against humanity") – which leads, from the very
beginning, the idea that genocide is confused with the crimes against humanity.
However, this idea could be challenged, showing that the distinction between
genocide and the crimes against humanity remains possible, if we consider the
essential requirements and, more specifically, that in the case of genocide, the text
(article 6 ICC Statute) stipulates that the act be committed in order to destroy a
particular national, ethnic, etc. group, while in the case of crimes against humanity,
the text (article 7 ICC Statute) stipulates that the acts be committed as part of a
widespread or systematic attack directed against any civilian population.
We have already pointed out, against this idea, that the purpose cannot be a
criterion for distinguishing between a crime and another. But to fully answer, we
must note that acts of genocide are also committed "as part of a widespread or
systematic attack". The definite proof, in this regard, is the fact that the purpose to
destroy a group, which would be specific to genocide, is deducted, as shown in the
Elements of Crimes, either from the fact that the act is part of a analogue of objective
analogous events, or from the fact that the act is, in itself, the ability to cause large
numbers of victims. Or, if we consider that acts of genocide are, essentially, acts of
violence, we can easily understand that committing such acts in series or against a
large number of people equals a widespread or systematic attack.
However, to justify the distinction between genocide and other crimes against
humanity, some authors12 tried to base this distinction on grounds of the passive
12 Crişu-Ciocînt, A., Crimes against Humanity (Comments), in „New Criminal Code.
Comments on articles” by T. Toader et all, Hamangiu Publishing House, Bucharest, 2014,
p. 655; Gorunescu, M., Crimes against Humanity (Comments), in “New Criminal Code,
commented” by V. Dobrinoiu et all, vol. II, Special Part, Universul Juridic Publishing House,
Bucharest, 2012. p. 1210.