A/HRC/42/CRP.5 Moreover, punishment without an investigation, prosecution and conviction would contravene basic procedural guarantees and the right to a fair trial. 49. The obligation to conduct an investigation typically requires that the investigation be carried out whenever there is “reason to believe” or a “reasonable ground” to believe that an offence has been committed.42 The obligation is one of conduct, not of result. In meeting that obligation, it is generally recognized that an investigation must always be independent, impartial, prompt, thorough, effective, credible and transparent. 43 (c) Obligation to enact legislation 50. Article V of the Genocide Convention requires States Parties to enact the necessary legislation to give effect to the Convention and, in particular, to provide effective penalties for persons guilty of genocide and persons who incite genocide, attempt to commit genocide or are complicit in genocide.44 Although there is limited guidance on how courts would interpret a State’s obligation under the Convention to enact effective legislation, the legislation that Article V requires States to enact has been understood as a statutory law that results from formal domestic enactment procedures.45 For the legislation to “give effect” to the Convention the State’s domestic criminal law must include the specific acts in Article II and the list of offenses in Article III.46 Legislation that simply criminalizes individual acts without referring to genocide, for example homicide, is insufficient. 47 The Convention also places requirements on how States penalize the crimes of genocide. The penalties must be “effective” and the penalties and the form of the penalties must be sufficiently defined. 48 The duration of a penalty of imprisonment must meet a minimum threshold of severity, given the grave nature of the crime, taking into account a State’s national scale of penalties, including domestic penalties for the ordinary crime of murder. 49 The Convention requires that legislation that criminalizes and penalizes acts of genocide does not permit a person convicted of genocide to receive a pardon or to be free from punishment.50 (d) Obligation to prevent genocide 51. The obligation to prevent genocide, which includes a corresponding duty to act, arises when a State “learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed”.51 The Mission does not consider that a 42 43 44 45 46 47 48 49 50 51 International Law Commission, Second report on crimes against humanity, 21 January 2016, A/CN.4/690, para. 126. HRC, General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, para. 28. For a detailed discussion, see A/HRC/39/CRP.2, para. 1568. Genocide Convention, art. V. Christian J. Tams, et. al, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (2014), pp. 221–22, paras.13–15. See Christian J. Tams, et. al, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (2014), p. 228, para. 34; see also Ben Saul, The Implementation of the Genocide Convention at the National Level, in The UN Genocide Convention (Paola Gaeta, ed.) (Oct. 15, 2009), 62 (calling only for the complete implementation of Article II in domestic legislation). Christian J. Tams, et. al, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (2014), p. 223, paras. 18–19; see also Ben Saul, The Implementation of the Genocide Convention at the National Level in The UN Genocide Convention (Paola Gaeta, ed.) (Oct. 15, 2009), 66 (citing William Schabas, Genocide in International Law: The Crime of Crimes, 353). See Christian J. Tams, et. al, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (2014), p. 229, para. 39. See Christian J. Tams, et. al, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (2014), pp. 229–30, paras. 40– 42. See Christian J. Tams, et. Al, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (2014), pp. 229–30, paras. 40–42. See Christian J. Tams, et. al, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (2014), p. 229, para. 38. ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of Genocide, Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro), Judgment, 27 February 2007, para. 431. 15