ÖREBRO UNIVERSITET
Akademin för Juridik, psykologi och socialt arbete
Rättsvetenskap, C-uppsats
VT 2012
Genocide The complexity of genocidal intent
Ruth Ghebrai and Biya Tesfaye
Abstract
Article II of the Convention on the Prevention and Punishment of the Crime of
Genocide stipulates the definition of the crime. A key element of genocide is the
criterion of “intent”; this requisite must be met in order to determine criminal
liability. Even though “intent” is a paramount element of the crime neither definition
nor guidance regarding its interpretation is provided for under Article II, this void of
interpretation is absolute throughout the Genocide Convention. Hence, the purpose of
this thesis is to examine this void in the provision. In order to fulfill the purpose of
this thesis the following research questions has been regarded: How is the requisite
intent defined in relevant preparatory work of Genocide Convention? How is the
requisite intent interpreted in relevant case law and judicial doctrines and are these
interpretations in line with the preparatory work of the Genocide Convention? Is the
definition and interpretation of the requisite intent in the abovementioned legal
sources consistent with the object and purpose of the Genocide Convention?
We found that in the preparatory work of the Genocide Convention, the
requisite intent has not been labeled. However, the Drafters definition of intent is in
accordance with international criminal law’s definition of specific intent.
Also, the case law and judicial doctrines that we have examined all fall within
either the purpose-based or the knowledge-based approach. Both approaches
acknowledge that a perpetrator needs to possess an inner aim or desire to meet the
level of intent required for the Crime. Notwithstanding, the knowledge-based
approach holds that “policy or plan” is part of the Crime whereas the purpose-based
approach rejects it and consequently the application of genocidal intent is
distinctively different.
With regard to preparatory work, the purpose-based approach is in line with the
definition of the Drafters whereas the knowledge-based approach is not in its literal
meaning. However, the Drafters did not explicitly reject the knowledge-based
approach in the preparatory work of the Genocide Convention.
We have concluded that the purpose-based approach is not consistent with the
object and purpose of the Genocide Convention. We hold that the knowledge-based
approach is in line with the object and purpose of the Genocide Convention, and
hence this approach upholds the goal of preventing and punishing genocide.
Moreover, the method for this thesis is in accordance with the method in
international law for interpretations of international treaties; the Vienna Convention
on the law of Treaties. Hence, the selection, systemization and interpretation of legal
sources are in line with the Vienna Convention.
2 Table of Contents 1. INTRODUCTION 4 1.1 PURPOSE AND RESEARCH QUESTION 1.2 SCOPE AND LIMITATION 1.3 METHODOLOGY 5 6 8 2. BACKGROUND 11 2.1 THE HISTORY OF THE CONCEPT OF GENOCIDE 11 3. INTERPRETATION OF TREATIES -­‐ THE VIENNA CONVENTION 15 3.1 INTERPRETATION OF THE GENOCIDE CONVENTION 15 4. THE PREPARATORY WORK OF THE GENOCIDE CONVENTION 16 4.1 THE DEFINITION OF INTENT IN THE PREPARATORY WORK 16 5. UNDERSTANDINGS OF INTENT 19 5.1 THE MENTAL ELEMENT OF THE CRIME 5.2 ICJ CASE LAW 5.3 THE INTERNATIONAL CRIMINAL TRIBUNALS OF RWANDA AND FORMER YUGOSLAVIA 5.3.1 THE BOSNIAN GENOCIDE 5.3.2 THE RWANDAN GENOCIDE 5.3.3. THE JURISPRUDENCE OF THE ICTY AND THE ICTR 5.4 THE INTERNATIONAL CRIMINAL COURT 5.4.1 ARTICLE 6 OF THE ROME STATUTE 5.4.2 DRAFT CODE OF CRIME AGAINST THE PEACE AND SECURITY OF MANKIND 5.4.3 ARTICLE 30 AND ELEMENTS OF CRIMES 5.5 PURPOSED-­‐BASED UNDERSTANDING 5.6 KNOWLEDGE-­‐BASED UNDERSTANDING 19 20 21 22 23 24 26 28 29 30 31 32 6. ANALYSIS 36 6.1 CONCLUSION 6.2 DISCUSSION 45 45 7. BIBLIOGRAPHY 47 3 1. Introduction In 1948, genocide was established as a crime under International Law.1 is often
referred to as “the crime of crimes”2 and “the ultimate crime, the pinnacle of evil”3.
It has been stated that:
“Genocide is the denial of the right of existence of entire human groups,
[…]: such denial of the right of existence shocks the conscience of
mankind, results in great losses to humanity in the form of cultural and
other contributions represented by these human groups, and is contrary
to moral law and to the spirit and aims of the United Nations.”
Thus, the motivation of the establishment for the crime made by the
International Community was to prevent and punish genocide.4
The occurrence of atrocities targeted towards human groups is a recurring
phenomenon throughout history, even after the criminalization of the crime of
Genocide.
On March 16 1988, Iraqi forces dropped gas canisters on the town of Halabja,
inhabited by a majority of Kurdish civilians. Iraq used bombs as well as chemical
weapons in the attack and the repercussions were devastating, resulting in the death
of at least 5,000 civilians as well as the long-term injuring or suffering of
approximately 7,000 people.5 Further on, in 1994 the Rwanda Genocide took place.
Over the course of one hundred days the Hutu majority massacred approximately
1.000.000 Tutsi civilians and moderate Hutu’s; up to as many as 80 percent of the
pre-genocide Tutsi population may have been killed. 6 Simultaneously a similar
occurrence was transpiring in Bosnia-Herzegovina (1992-1995). The Bosnian Serb
1
UN General Assembly Resolution 260 (III) of 9 December 1948.
Prosecutor v. Kambanda, Case No. ICTR-97-23-S, 4 September 1998, Judgment and Sentence, Trial
Chamber, para 16; Prosecutor v. Jelisić, Case No. IT-95-10-A, Appeals Judgment, 5 July 2001, para.
26; Schabas, William A., book title, Genocide in International Law: The Crime of Crimes, 1st and 2nd
ed., New York, Cambridge University Press.2000, 2009,
3
SR Ratner, The Genocide Convention After Fifty Years: Contemporary Strategies for Combating a
Crime Against Humanity, Vol. 92, American Society of International Law 1998, p. 1-7.
4
UN General Assembly Resolution 260 (III)
5
Kelly, Michael J., Ghosts of Halabja: Saddam Hussein and the Kurdish Genocide, Kindle ed.,
Praeger, 2008) p. 33-34.
6
Hinton, Laban Alexander, Annihilating Difference: The Anthropology of Genocide, University of
California Press, 2002, p. 173; Thompson, Alan, Media and the Rwanda Genocide 2nd ed., Allan
Thompson, 2007, p. 1-2; Leitenberg Milton, Deaths in Wars and Conflicts in the 20th Century, 3rd ed.,
Cornell University, 2006, p.78. 2
4 forces committed genocide in the town of Srebrenica by executing approximately
8,000 Bosnian Muslim civilians.7
Since 2003 there is an ongoing conflict in the region of Darfur. It has been
established that the so-called Janjaweed militia, by order of the Sudanese
Government, systematically persecutes the civilian population of Darfur. This has
resulted in the death of approximately 200.000 civilians.8
Since the criminalization of genocide in 1948, these abovementioned
atrocities are only a few of the totality. Nevertheless, only two of these conflicts,
Rwanda and Bosnia, have been labeled as genocide in accordance with International
Law. This raises the question as to whether genocide fulfills its indented purpose.
1.1 Purpose and research question Article II of the Convention on the Prevention and Punishment of the Crime of
Genocide (hereinafter the Genocide Convention) stipulates the definition of the
crime. A key element of genocide is the criterion of “intent”; this requisite must be
met in order to determine criminal liability. Even though “intent” is a paramount
element of the crime, neither definition nor guidance regarding its interpretation is
provided for under Article II, this void of interpretation is absolute throughout the
Genocide Convention. Hence, the purpose of this thesis is to examine this void in the
provision.
In traditional Criminal Law two categories of intent are established; “general
intent” and “specific intent”.9 In Article II of the Genocide Convention it is not
determined as to which of these should be applied. However, “specific intent” has
later been recognized as the applicable standard of “intent” with regard to the crime
of Genocide.10 Since there is no established understanding of “specific intent” in the
Genocide Convention, one has to look to the preparatory work of the Convention and
the interpretation provided by judicial scholars as well as the interpretation and
7
Ching, Jacqueline, Genocide and the Bosnian War, 1st ed. Rosen Publishing Group, 2008,
Introduction, p. 6-10; Quigley, John, Genocide Convention: An International Law Analysis, 1st ed.,
Ashgate Pub Co, August 30, 2006, p. 191.
8
Regeringskansliet:http://www.manskligarattigheter.gov.se/extra/pod/?id=106&module_instance=10&
action=pod_show&navid=1&subnavid=106&subnavinstance=10, 23/3 2012, 18.33
9
Brody, C. David and Acker, R. James, Criminal Law, 1st ed., Aspen Publishers, 2000, p. 78.
10
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, International Court of Justice Reports 1951; International Court of Justice, Case
concerning application of the Convention on the prevention and punishment of the Crime of Genocide,
Bosnia and Herzegovina v. Serbia and Montenegro. 5 application of judicial organs in order to determine such understanding. This
supplementary way of filling the void of interpretation of genocidal intent entails a
risk of derailing from the object and purpose of the Genocide Convention. The
following research questions are constructed to fulfill the purpose of this thesis.
1. How is the requisite intent defined in relevant preparatory work of
Genocide Convention?
2. How is the requisite intent interpreted in relevant case law and judicial
doctrines and are these interpretations in line with the preparatory
work of the Genocide Convention?
3. Is the definition and interpretation of the requisite intent in the
abovementioned legal sources consistent with the object and purpose
of the Genocide Convention?
1.2 Scope and Limitation In context of our research question, though it would be interesting to incorporate
Article III which refers to inter alia Complicity in genocide, this is not possible due to
the scope of this thesis. Hence, we will only analyze Article II of the Genocide
Convention and thereby the principal perpetrators11 of the Crime.12
As stated in Section 1.1 above, the purpose of this thesis is to examine the level of
intent required for the crime of Genocide. Nevertheless, there are several components
for this crime established in Article II of the Genocide Convention. In addition to
“intent to destroy”, genocide contains the elements of “protected groups”, “in whole
or in part”, “as such” and the prohibited acts. As with “intent”, there are problems
with the remainder of the components for the crime.
Regarding the “protected groups”, there is a discussion on whether additional
groups should be included, e.g., gender-based groups, political groups and groups
based on sexual orientation.13
11
Both international law and national laws commonly characterize a person who directly or physically
commits a crime as a principal perpetrator.
12
Article III: The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
13
Lippman, Matthew, The Convention on the Prevention and Punishment of the crime of Genocide:
Fifty years later, Ariz. J. Int'l & Comp. L. 415, 1998, p. 464.
6 In reference to “in whole or in part”, there are discrepancies on the number of victims
required for it to constitute as genocide. There is consensus that no whole group need
be exterminated, however, regarding “in part”, some commentators argue that a
substantial part of the group must be affected14, others maintain that one victim is
enough15 provided that the remainder of criterions for the crime of Genocide are met.
Due to the purpose of this thesis however, we will not examine the
abovementioned elements of the crime, i.e., “protected groups”, “in whole or in part”,
“as such” or the prohibited acts enlisted. As for the criterion “as such”, it has been
given some space in this thesis, though, only in relation to the element of intent.
It is also important –since the objective is to analyze the level of intent– to
emphasize that this thesis does not examine the facts or circumstances of specific
cases. We will only analyze general statements from judgments regarding the level of
intent.
With regard to the selection of jurisprudence, the case law is solely acquired
from the International Ad Hoc Tribunals of Rwanda and Former Yugoslavia.
Although, the ICC is now the only authoritative court for persecuting perpetrators of
genocide16 17, no conviction has yet been carried out, hence, the selected case law.
More so, the Ad Hoc Tribunals are predecessors of the ICC and the first to try and
convict perpetrators for the crime of Genocide.18
Crimes Against Humanity19 found in Article 7 of the Rome Statute is similar
to the crime of Genocide. Genocide partly originates from the definition of Crimes
14
LeBlanc, Lawrence J., The Intent to destroy in the Genocide Convention: The Proposed U.S.
Understanding, The American Journal of International Law, American Society of International Law
Vol. 78, No. 2, 1984, p. 377.
15
Prosecutor v. Emmanual Ndindabahizi, Case No. ICTR-2001-71-I Judgment, 15 July 2004, para.
471.
16
The Ad Hoc Tribunals are still prosecuting offenders in Rwanda and Former Yugoslavia. However,
once they have finalized their task, the ICC will be the only authoritative international criminal court.
17
Article 1 of the Rome Statute with the heading “The Court” states: An International Criminal Court
("the Court") is hereby established. It shall be a permanent institution and shall have the power to
exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to
in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and
functioning of the Court shall be governed by the provisions of this Statute.
18
Prosecutor v. Akayesu, Case No. IT-96-4-T, Judgment, Trial Chamber, 2 September 1998, para.
498.
19
Article 7, paragraph 1., Crimes Against Humanity
1. For the purpose of this Statute, "crime against humanity" means any of the following acts when
committed as part of a widespread or systematic attack directed against any civilian population, with
knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible
transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
7 Against Humanity, hence, their resemblance. Even so, there are differences, e.g., they
are intended to protect different interests (extermination of certain groups vs.
persecution of civilian populations). Furthermore, Crimes Against Humanity covers a
greater number of prohibited acts and lack the specific intent required for the crime of
Genocide.20 The connection between the two crimes is evident and an inclusion of
Crimes Against Humanity would be an appropriate feature in this context, however,
due to the scope of this thesis, an inclusion is not possible.
1.3 Methodology This paper is based on traditional legal practices, also known as legal dogmatic
method. This technique is used for interpretation and systematization of legal norms.
The legal sources that are primarily used in this thesis are legislation, preparatory
work, case law and legal doctrines. The selection, systemization and interpretation of
legal sources are in line with the Vienna Convention on the Law of Treaties, which is
the applicable tool for interpretation of treaties. Article 31 and 32 of the Vienna
convention reads:
Article 31 – General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the
parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection
with the conclusion of the treaty and accepted by the other parties as an
instrument related to the treaty.
3. There shall be taken into account, together with the context:
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized
as impermissible under international law, in connection with any act referred to in this paragraph or
any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of
apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health.
20 Greenawalt, K. A. Alexander, Rethinking Genocidal Intent: The Case for a Knowledge-based
Interpretation, Columbia Law Review, Vol. 99, No. 8 Columbia Law Review Association, Inc.,1999,
p. 2293-2294. 8 (a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations
between the parties.
4. A special meaning shall be given to a term if it is established that the
parties so intended.
Article 32 – Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
With the ordinary meaning it is meant a treaty’s current and regular meaning.
The terms of a treaty cannot be separated from its context, which in itself entails an
examining of the preamble and annexes of the treaty. Additionally, the means of
interpretation provided for in subparagraphs (2) and (3) can also be used for a greater
insight of the context.
The object and purpose of a treaty includes its aim, nature and end. Hence, a
treaty may have many objects and purposes, one that is obvious however, is the
maintenance of the rights and obligation of that it was created for. Traditionally the
object and purpose is found in the preamble of the treaty but to shed further light on it
one can look to the supplementary means of interpretation provided for in Article 32.
The only restriction of Article 32 is that it cannot be applied at the outset of the
interpretation. Notwithstanding, Article 32 will apply in most cases because
subparagraph (a) covers “unclear” meanings resulting from the application of Article
31.
According to Article 32, in order to shed further light on the understandings of a
treaty, one can look to the preparatory work and the circumstances in which the treaty
was concluded. The preparatory work includes all documents relevant in the
forthcoming of a treaty up to its conclusion. The circumstances of a treaty’s
9 conclusion include the social, political and cultural factors – in other words the milieu
– around the time of the conclusion of the treaty. Moreover, regarding the issue of
dual understandings of a treaty, it is stated in the 1966 ILC report that:
“when a treaty is open to two interpretations one of which does and the
other does not enable the treaty to have appropriate effects, good faith
and the object and purpose of the treaty demand that the former
interpretation should be adopted.”
In addition to the legal sources stated in Article 31 and 32 of the Vienna Convention
this thesis also uses legal doctrine as a source of interpretation, which is in line with
the legal dogmatic method. Moreover we have used The Draft Code of the Peace and
Security of Mankind which is not legally binding since it was never adopted,
however, since we consider it to be soft law, the Draft Code have been used for basis
of interpretation.
10 2. Background 2.1 The history of the concept of Genocide The universal revulsion against the atrocities of the holocaust in Nazi Germany
spurred the adoption of the Genocide Convention.21 A statement in the preparatory
work of the Genocide Convention confirms this:
"the convention would never have been drafted if it had not been for
the crimes committed under the Nazi and fascist regimes"22
The phrase Genocide derives from the Greek word genos meaning “race or tribe” and
cide, which is the Latin word for killing. This term was coined by lawyer Raphaël
Lemkin in his book, Axis rule in Occupied Europe, which was written in 1944.23 The
notion of Genocide is relatively new, however, the occurrence of this heinous crime
is recurring throughout human history. The best-known modern genocide is the
Holocaust during World War II.
The Holocaust is the extermination of Jews in Germany and Poland. At the
time there were discriminatory laws and the political system was based on hatred
towards the Jews. Further, Jews were portrayed in a negative light in the media. They
were also forced to wear Star of David so that they could be identified. The
culmination of this was the transportation of Jews to concentration and extermination
camps and eventually approximately 6.000.000 Jews were systematically killed.24
The International Military Tribunal (hereinafter IMT) was responsible for
persecuting perpetrators of World War II in what is known as the Nuremberg Trials.
Although genocide was not per se part of the IMT Charter – along with allegations of
war crimes and crimes against peace – the Nuremberg prosecution charged the
defendants with:
“deliberate and systematic genocide; viz., the extermination of racial and
national groups, against the civilian populations of certain occupied
21 Akhavan, Payam, Enforcement of the Genocide Convention: A Challenge to Civilization, Harv.
Hum. Rts. J. 229,1995, p. 231. 22 ICTJ Legal Analysis on Applicability of UN Convention on Genocides prior to January 12, 1951. 23 Lemkin, R., Axis rule in Occupied Europe, 2nd ed., The Lawbook Exchange Ltd, 2008, p. 79. 24
20th Century History, http://history1900s.about.com/od/holocaust/a/holocaustfacts.htm 10/05 2012
20.23.
11 territories in order to destroy particular races and classes of people, and
national, racial, or religious groups, particularly Jews, Poles, and
Gypsies.”25
Similarly, Lemkin defines genocide as a coordinated plan of diverse acts of
destruction aimed at the extermination of a group. Genocide is the targeting of
persons, not in their individual capacity, but because of their membership to a
protected group.26 Two years later, in 1946, The United Nations General Assembly
(hereinafter UNGA) established genocide as a crime under International Law. They
proclaimed the severity of the crime and the necessity for an establishment in the
prevention and punishment of genocide. With that, the UNGA requested the
Economic and Social Council (ECOSOC) to create a Draft Convention for the
crime.27 The ECOSOC delegated this task to the Secretary-General who with the help
of three legal experts created the first draft of the Genocide Convention accompanied
by a commentary.28
25 Nersessian, David L., The Contours of Genocidal Intent: Troubling Jurisprudence from the
International Criminal Tribunals, Vol. 37 Issue 2, Texas International Law Journal, 2002, p. 249. 26 Lemkin, R., Axis rule in Occupied Europe, “Generally speaking, Genocide does not necessarily
mean the immediate destruction of a nation, except when accomplished by mass killings of all
members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at
the destruction of essential foundations of the life of national groups, with the aim of annihilating the
groups themselves. The objectives of such a plan would be the disintegration of the political and social
institutions, of culture, language, national feelings, religion, and the economic existence of national
groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the
individuals belonging to such groups. Genocide is directed against individuals, not in their individual
capacity, but as members of the protected group.”. 27
UN General Assembly Resolution 96 (I) of 11 December 1946: “Genocide is the denial of the right
of existence of entire human groups, […]: such denial of the right of existence shocks the conscience
of mankind, results in great losses to humanity in the form of cultural and other contributions
represented by these human groups, and is contrary to moral law and to the spirit and aims of the
United Nations. Many instances of such crimes of genocide have occurred when racial, religious,
political, and other groups have been destroyed, entirely or in part. The punishment of the crime of
genocide is a matter of international concern. The General Assembly, therefore, Affirms that genocide
is a crime under international law which the civilized world condemns, and for the commission of
which principals and accomplices - whether private individuals, public officials or statesmen, and
whether the crime is committed on religious, racial, political or any other grounds --are punishable;
Invites the Member States to enact the necessary legislation for the prevention and punishment of this
crime; Recommends that international co-operation be organized between States with a view to
facilitating the speedy prevention and punishment of the crime of genocide, and, to this end, Requests
the Economic and Social Council to undertake the necessary studies, with a view to drawing up a draft
convention on the crime of genocide to be submitted to the next regular session of the General
Assembly.”.
28
UN Treaty, Schabas, William A., Introductory http://untreaty.un.org/cod/avl/ha/cppcg/cppcg.html
25/12 2011, 16.52.
12 On 3 March 1948, an Ad Hoc Committee was established under the authority of the
ECOSOC. The Committee composed of national representatives,
29
had the
assignment to rework the first Genocide Convention Draft and create a second draft
with commentaries.30 This draft, composed by the Ad Hoc Committee was the basis
for negotiations in the Sixth Committee.31 On 9 December 1948, the UNGA adopted
the Convention on the Prevention and Punishment of the Crime of Genocide.32
As a result of the affirmation of genocide as a crime punishable under
International Law and the adoption of the Genocide Convention, subsidiary
obligations such as the duty to prevent genocide, punish the Crime and co-operate in
extradition arose.33 Consequently, the question of the scope of the crime surfaced,
was genocide indented to be universal in scope?
The intention of the United Nations, when drafting the Genocide Convention was to
condemn and punish the Crime34, this objective is furthermore explicitly defined in
the Preamble of the Genocide Convention. The Untied Nations and the contracting
parties intended the Genocide Convention to be universal in scope.35 A statement in
the ICJ Reservations Case confirms the conclusion of this conception. In this case,
the ICJ proclaimed that the fundamental principles set forth in the Genocide
Convention, which are recognized by civilized nations, are “…binding on States even
without any conventional obligation”.36 Furthermore, the ICJ elaborated on the object
and purpose of the Genocide Convention by stating that:
“The Convention was manifestly adopted for a purely humanitarian and
civilizing purpose. It is indeed difficult to imagine a convention that
might have this dual character to a greater degree, since its object on the
one hand is to safeguard the very existence of certain human groups and
29
United States of America, Soviet Union, Lebanon, China, France, Poland and Venezuela.
Economic and Social Council, Resolution 117 (VI) of 3 March 1948; Second Draft, E/794, 5 April10 May 1948.
31
Meeting, Sixth Committee of the UNGA in 1948.
32
UNGA Resolution 260 (III)
33
UN Treaty, Schabas, William A., Introductory http://untreaty.un.org/cod/avl/ha/cppcg/cppcg.html
26/12 2011, 16.54.
34
UNGA, Resolution 96 (I).
35
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78
UNTS 277 (1951), Preamble; “The Contracting Parties, Having considered the declaration made by
the General Assembly of the United Nations in its Resolution 96 (I) dated 11 December 1946 that
Genocide is a crime under International Law, contrary to the spirit and aims of the United Nations and
condemned by the civilized world, Recognizing that at all periods of history Genocide has inflicted
great losses on humanity, and Being convinced that, in order to liberate mankind from such an odious
scourge, international cooperation is required,”.
36
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, International Court of Justice Reports 1951, pt. 23.
30
13 on the other to confirm and endorse the most elementary principles of
morality. In such a convention the contracting States do not have any
interests of their own; they merely have, one and all, a common interest,
namely, the accomplishment of those high purposes which are the
raison d'etre of the convention.”
Hence, the Crime of Genocide is of universal character, both in relation to the
condemnation of the crime and the co-operation required “in order to liberate
mankind from such an odious scourge”.37 Now the Crime of Genocide is commonly
known as expressing a peremptory norm38 of International Law from which no state
may derogate. 39
At the heart of the Convention lays Article II, here the Crime of Genocide is
defined:
Article II
In the present Convention, Genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national,
ethnical,
racial
or
religious
group,
as
such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.40
Genocide is the destruction of a national, ethnic, racial or religious group, in
whole or in part. Additionally Article II enlists the five punishable acts of Genocide.41
According to this Article, one has to establish the perpetrator’s intent to commit one
of the enlisted acts for it to constitute as genocide.
37
Convention on the Prevention and Punishment of the Crime of Genocide, Preamble.
Jus Cogens (Latin) or "compelling law." This "higher law" must be followed by all countries.
39
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, pt 23. 40
Convention on the Prevention and Punishment of the Crime of Genocide, Article II.
41
UN Treaty, Schabas, William A., Introductory http://untreaty.un.org/cod/avl/ha/cppcg/cppcg.html
27/12 2011, 16.52. 38
14 3. Interpretation of Treaties -­‐ The Vienna Convention 3.1 Interpretation of the Genocide Convention As intent has not been defined in Article II or in the Genocide Convention as a whole,
one has to look to the general rules of interpretation set forth in the Vienna
Convention. It is stated in Article 3142 of the Vienna Convention that a treaty must be
interpreted in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in light of its object and purpose. To extract the ordinary
meaning, the context, and the object and purpose of a term one has to look to the text
of a treaty, including its preamble.
As previously mentioned there is no definition of the requisite intent provided
for in the Genocide Convention, additionally the phrasing of intent does not supply
any understanding on how to interpret the term.43 Even by using the instruments of
interpretation set forth in Article 31 of the Vienna Convention, one cannot establish
an understanding of the phrase intent in relation to the concept of Genocide; hence,
the meaning of the requisite is left ambiguous and obscure and therefore Article 32
(a)44 of the Vienna Convention is applicable.
This Article entails supplementary methods of interpretation when one cannot
establish the meaning of a term by applying the rules of Article 31 of the Vienna
Convention. Thus, one needs to look to the preparatory work of the Genocide
Convention and the circumstances of its conclusion, in order to clarify the term and
thereof its interpretation.
42 Article 31, General rule of interpretation
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text,
including its preamble and annexes:(a) any agreement relating to the treaty which was made between
all the parties in connection with the conclusion of the treaty;(b) any instrument which was made by
one or more parties in connection with the conclusion of the treaty and accepted by the other parties as
an instrument related to the treaty…”.
43
In Article 31 of the Vienna Convention there are additional instruments of interpretation enlisted,
however these are non applicable in relation to the Genocide Convention.
44
Article 32, Supplementary means of interpretation
“Recourse may be had to supplementary means of interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure;..”. 15 4. The Preparatory Work of the Genocide Convention 4.1 The Definition of Intent in the Preparatory Work In Resolution 96(I) the legal principle of mens rea is not mentioned and genocide
solely refers to the destruction of human groups.45 However, this would change as the
Secretariat’s draft was finalized.46
The UN Secretariat was first to establish mens rea as an element of the Crime
of Genocide. The level of intent in the Secretariat’s draft is one of “purpose” and
Article 1(II) with the heading “Definitions” reads:
“II. [Acts qualified as Genocide] In this Convention, the word
'Genocide' means a criminal act directed against any one of the
aforesaid groups47 of human beings, with the purpose of destroying it in
whole or in part or of preventing its preservation or development.”48
In the commentary to this draft, the Secretariat stressed the notion of genocide
being a crime of deliberate destruction targeted against a human group and that any
departure from this definition was dangerous due to the risk of it being expanded
indefinitely.49
The Ad Hoc Committee produced a second draft after considering the
Secretariat’s draft. Article II “Physical and biological Genocide” of this draft reads:
“In this Convention Genocide means any of the following deliberate
acts50 committed with the intent to destroy a national, racial, religious
45
Greenawalt, K. A. Alexander, Rethinking Genocidal Intent: The Case for a Knowledge-based
Interpretation, p. 2273.
46
The Draft went through the following procedural steps: In Resolution 96(I), the UNGA requested
the ECOSOC to lay the ground for a draft convention on the crime of Genocide. In turn, this task was
forwarded to the U.N. Secretariat by request of the ECOSOC that started to prepare the first draft of
the Convention. On the 6 August 1947, the Secretariat submitted a draft that was later subject to
consideration of the newly founded ECOSOC ad hoc Committee on Genocide. Successively the ad hoc
Committee produced a second draft convention that was then submitted and further modified by the
UNGA’s Sixth Committee. This draft became the first version of what we today know as the Genocide
Convention.
47
Article 1(I) of the Secretariat draft reads: I. [Protected groups] The purpose of this Convention is to
prevent destruction of racial, national, linguistic, religious or political groups human beings.
48
UN Secretariat Draft, First Draft of the Genocide Convention, UN Doc. E/447,1947.
49
Greenawalt, K. A. Alexander, Rethinking Genocidal Intent: The Case for a Knowledge-based
Interpretation, p. 2273-2274. 50
1. Killing members of the group; 2. Impairing the physical integrity of members of the group; 3.
Inflicting on members of the group measures or conditions of life aimed at causing their deaths; 4.
Imposing measures intended to prevent births within the group.
16 or political group, on grounds of the national or racial origin, religious
belief, or political opinion of its members:” 51
Hence, the wording regarding the mens rea of the crime in this draft differs
from that of the first draft. The phrasing “with the purpose of destroying” has been
changed to “deliberate acts committed with the intent to destroy”. Moreover, the
criterion “on grounds of” has been added. This criterion may be perceived as
redundant prima facie if it did not in fact represent another possible element of the
crime –the element of motive. Due to this, a debate concerning the distinction
between “intent” and “motive”, concepts that can be perceived as blurry, arose. To
clarify this, one can look to traditional Criminal Law to help distinguish between
these mental elements:
“Intent –even specific intent– generally signifies the basic volition
required to perform a deliberate action or seek a specific result. Motive,
on the other hand, concerns the personal or internal reasons that guide
one's actions, and is frequently seen as irrelevant for establishing
criminal guilt”.
However, during deliberations leading up to the adoption of the Genocide
Convention, consensus on the meaning of “intent” and “motive” was never obtained.
As previously stated genocide is a crime of specific “intent”. “Motive” is not a
constituent element; nevertheless, some delegates implied that “motive” was a
requisite of the crime by arguing that the removal of the phrasing “on grounds of”
would result in genocide evolving into a crime of general intent. In response to this,
The U.S. delegate proposed that the standard of intent should be stated as: “…in this
Convention Genocide means intentional destruction, in whole or in part, a racial,
national or religious groups as such,”. Furthermore, he strengthened his proposed
phrasing “as such” by arguing that the “on grounds of” criterion would enable a
defendant to claim other motives for attacking members of a protected group, for
example, killing Muslims and claiming that the reasons were not religious but
political. Even so, the phrasing “on the grounds of” remained. 52
51
Ad Hoc Committee Draft, Second Draft Genocide Convention, Prepared by the Ad Hoc Committee
of the Economic and Social Council, UN Doc. E/AC.25/SR.1 to 28, meeting between 5April and 10
May 1948.
52
Greenawalt, K. A. Alexander, Rethinking Genocidal Intent: The Case for a Knowledge-based
Interpretation, p. 2274-2276.
17 In the further development of the Genocide Convention, the Sixth Committee of the
UNGA eventually altered the phrasing “on grounds of” to the aforementioned
wording “as such”. This alteration in terminology resulted in the removal of motive
as a potential requisite of the crime of Genocide. However, some delegations still
argued that the removal of motive as a potential requisite would be detrimental to the
crime of Genocide. The debate also revealed a variety of understandings of the new
phrasing “as such”. However, as the matter went to a vote the Belgium delegate with
support of the US delegate as well as the Chairman, stated that: “the Committee had
to vote on the text of a proposal and not on the interpretation of such text....” The
Greek delegate sided with this statement and emphasized that: “interpretation of the
provisions of the Convention must be left to those who would have to apply them”.
After a vote the phrasing was amended from “on grounds of” to “as such”.
Later on, the aforementioned confusion of how to interpret “as such”
reappeared during the Committee’s Seventy-Eighth Meeting. The Uruguay delegation
presented the issue at the meeting and requested a working group to be set for further
examining of the problem. He argued that:
“The vote had given rise to three different interpretations. Some
delegations had intended to vote for an express reference to motives in
the definition of Genocide; others had intended to omit motives while
retaining intent; others again, among them the Uruguayan delegation,
while recognizing that, under the terms of the amendment, Genocide
meant the destruction of a group perpetrated for any motives
whatsoever, had wanted the emphasis to be transferred to the special
intent to destroy a group, without enumerating the motives, as the
concept of such motives was not sufficiently objective.”
This request of clarification of the phrase “as such” and the consequential
providence of a greater understanding of the requisite intent was denied by the SixthCommittee on the grounds that a vote on the subject matter had already taken place.
As a result, the phrase “as such” became part of the final Convention. However, the
question of defining and interpreting genocidal mens rea was left unresolved by the
drafters and consequently the Genocide Convention is silent on the issue.53
53
Greenawalt, K. A. Alexander, Rethinking Genocidal Intent: The Case for a Knowledge-based
Interpretation, p. 2278-2279.
18 5. Understandings of Intent 5.1 The Mental Element of the Crime Criminal Law analysis defines and separates two elements of a crime; the material or
physical element, actus reus, and the mental element, mens rea. 54 In Article II of the
Genocide Convention, mens rea is addressed in the chapeau, which reads: “…intent
to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”
whereas the actus reus is provided for in the five subparagraphs and refers to the
prohibited acts in the Genocide Convention. Committing any of the acts in the
subparagraphs accompanied by the intent to destroy, constitute the crime of
Genocide.55
Mens rea is the Latin phrase for guilty mind, a common Latin expression best
explains it as: “Actus non facit reum nisi mens sit rea” which means “The act does
not make a person guilty unless the mind is also guilty”.56 Mens rea or guilty mind
refers to the term intent stated in the Genocide Convention’s second Article.
International Criminal Law recognizes two mental elements of the crime of
Genocide: general intent and specific intent (dolus specialis). 57 In International
Criminal Law the only thing required in a general intent offence is the actual
performance of a criminal act, i.e. that the person consciously chooses to commit the
prohibited act; no ulterior intent or purpose need to be proven nor is it necessary to
prove that the accused intended the exact result that occurred.
What is required for a specific intent offence is that the accused preformed a
prohibited act accompanied by an intent or purpose that goes beyond the actus reus of
the crime i.e. that the intention was to bring about that particular consequence. In
other words, a specific intent crime requires proof of two intentions; first, intent to
commit a prohibited act, and second, intent to produce the actual outcome of that
act.58
A traditional example of a crime that manifests these distinctive types of
intent is homicide, the killing of a human being. Murder is the unlawful premeditated
54
Schabas, William A., Genocide in International Law: the crimes of crimes, p. 151.
Convention on the Prevention and Punishment of the Crime of Genocide, Article II.
56
Encyclopedia of Crime and Justice, Mens rea.
57
Schabas, William A., Genocide in International Law: the crimes of crimes, p. 220. 58
Doria, José, Et al., The Legal Regime of the International Criminal Court, 1st ed., Brill, 2009. p. 146. 55
19 killing of one human being by another (specific intent crime) and manslaughter is the
crime of killing a human being without malice aforethought, or otherwise in
circumstances not amounting to murder (general intent crime).59
5.2 ICJ Case Law The International Court of Justice (hereinafter ICJ) do not try individual perpetrators,
however, Case Law from the ICJ is most authoritative in reference to the
interpretation of the Genocide Convention. The Court is empowered under
International Law as the only judicial organ that can interpret treaty obligations
between states and are therefore able to authoritatively interpret the Genocide
Convention itself. 60 Even though the ICJ’s decisions are only binding for the
concerning parties 61 , the Court’s jurisprudence on the Convention have been
generally accepted by several judicial sources such as the Ad Hoc Tribunals62 and the
ILC Draft Code63. The ICJ does not only offer opinions in times of dispute, this was
shown in the 1951 ICJ Reservations Case and was later reinforced when The Court
opined on Article II of the Genocide Convention in the Advisory Opinion on Nuclear
Weapons64. In the latter case, the Court stated in reference to intent that the threat or
use of force as such does not constitute as Genocide, this could only be the case if the
element of intent was present in the crime and such a conclusion could only be
established after looking to the evidence and the specific circumstances on a case-tocase basis.65
In the Case concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), the ICJ more explicitly established their understanding of the requisite
59
Legal Dictionary, Murder: http://dictionary.law.com/Default.aspx?selected=1303, Manslaughter:
http://dictionary.law.com/Default.aspx?selected=1209, 23/3 2012.
60
Nersessian, David L., The Contours of Genocidal Intent: Troubling Jurisprudence from the
International Criminal Tribunals, p. 241.
61
Article 59 ICJ Statute
The decision of the Court has no binding force except between the parties and in respect of that
particular case.
62
See, e.g. Prosecutor v. Akayesu, Trial Chamber.
63
Draft Code of Crimes Against the Peace and Security of Mankind (1996), United Nations, 2005,
Article 17.
64
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of July 1996, International
Court of Justice.
65
Nersessian, David L., The Contours of Genocidal Intent: Troubling Jurisprudence from the
International Criminal Tribunals, p. 241-242.; Legality of the Threat or Use of Nuclear Weapons, para.
26. 20 intent. In the Court’s judgment they stated that the “acts” (actus reus) as defined in
Article II of the Genocide Convention also have inherent mental elements.66 The ICJ
furthermore referred to the ILC Draft Code, which states that the acts are by their
very nature conscious, intentional or volitional acts.67 Moreover, the Court argued
that, for the Crime of Genocide, a further mental element is required. A general intent
to deliberately commit one of the enlisted acts is not enough; an additional intent
must also be established. This kind of intent is often referred to as special or specific
intent (dolus specialis).68
In the ICJ Legality of Use of Force (Yugoslavia v. Italy) case, the Court
established their understanding of the requisite intent. They argued that the mental
element required for the crime of genocide entails a further specific intent that
differentiates the crime from other seemingly comparable crimes. They used
examples like acts of persecution or injury and individual or multiple killings. These
acts may fall within the scope of other crimes punishable under International Law,
like the use of unlawful armed force. However, though similar to the crime of
Genocide, the use of unlawful armed force is directed at the State and not at the group
itself. Hence, the specific intent required for the crime of Genocide is absent.69
Looking at the above stated, the ICJ consistently declares that Genocide is a
crime of specific intent.
5.3 The International Criminal Tribunals of Rwanda and Former Yugoslavia The severity of the Rwanda and former Yugoslavia conflicts resulted in the UN
Security Council establishing ad hoc tribunals to deal with the war crimes that took
place. The International Criminal Tribunal for the former Yugoslavia (ICTY) was
established in May 1993 and the International Criminal Tribunal for Rwanda (ICTR)
was established in November 1994.70
66
Case concerning the Application of the Convention on the Prevention and Punishment of the Crime
of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, para. 186.
67
Draft code of crimes against the peace and security of mankind (1996): Commentary on Article 17
of the 1996 Draft Code of Crimes against the Peace and Security of Mankind (1996), ILC Report
1996, Yearbook of the International Law Commission, Vol. II, Part Two, 1996, p. 44, para. 5.
68
Schabas, William A., Genocide in International Law: the crimes of crimes, p. 220.
69
Case Concerning Legality of Use of Force (Yugoslavia v. Italy), International Court of Justice, p.
16.
70
Ratner, Steven R., Accountability for human rights atrocities in international law p. 223. 21 The ICTY was created in response to reports describing horrific crimes of civilian
slaughter and wounding, torture and sexual abuse in detention camps as well as mass
expulsions in the Bosnian region. The objective of the ICTY is to try the responsible
individuals, bringing an end to impunity, repressing future crimes and bringing forth
justice for the victims.71
The purpose of the establishment of the ICTR is to prosecute the persons
responsible for the Genocide in Rwanda as well as to contribute to the process of
national reconciliation and the maintenance of peace in the country.72
Both the ICTY and the ICTR are subsidiary organs of the Security Council,
acting under the authority of the UN Charter. In connection with the establishment of
the ICTY, the Secretary-General created the ICTY Statute that was adopted in its
whole by the Security Council.73 In contrast to the creation of the ICTY, the Security
Council did not create the ICTR as an entirely separate entity. Instead they appended
it to the ICTY and based its Statute closely on the latter.74
5.3.1 The Bosnian Genocide The term ‘The Bosnian war’ refers to the conflict that took place in Bosnia and
Herzegovina (hereinafter Bosnia) in the years between 1992 and 1995. The intense
hostilities were centered to the three main ethnic groups in the region: the Serbs, the
Bosnian Muslims and the Croats.
In the beginning of the war the Bosnian Serb army started plundering and
burning Bosnian Muslim homes. After a while the army began rounding up Muslim
civilians, who were abused, killed or imprisoned in camps. In 1995, when the war
came to an end, approximately 100.000 persons had been massacred and in the town
of Srebrenica, during a few days, more than 8.000 Muslim men and boys were
systematically killed and the women systematically raped.75
Before the Bosnian war began there was a thriving diversity of ethnic groups
in the country. In 1991 the population in Bosnia stood at 4.5 million and consisted of
71
ICTY website, http://www.icty.org/sections/AbouttheICTY 21/12/11 19.45.
ICTR website, http://www.unictr.org/AboutICTR/GeneralInformation/tabid/101/Default.aspx
26/12/11 19.25.
73
Project on international courts and tribunals, http://www.pict-pcti.org/courts/ICTR.html, 17/02/12
13.30; Chapter VII, Article 28 of the UN Charter.
74
Ratner, Steven R., Accountability for human rights atrocities in International Law p 57, p. 224.
75
ICTY website, http://www.icty.org/sid/322 07/02/12 15.40
72
22 44 percent Muslims76, 31 percent Serbs and 17 percent Croats. There were also
smaller communities of Roma (or Gypsies), Jews and Albanians. Towns in Bosnia
were at the time usually mixed communities, the Muslims, Serbs and Croats lived
peacefully together and intermarriage was not uncommon. The government of Bosnia
was headed by a seven-member presidency that included Muslims, Serbs and Croats
to ensure proper representation for all groups and religion was not a dividing factor
amongst the Bosnians. 77
5.3.2 The Rwandan Genocide
“The Rwandan Genocide” refers to the atrocities that took place in the small country
of Rwanda located in central Africa. From April 9 1994 until July of that same year,
in a span of one hundred days, an estimate of around 1.000.000 Tutsi Civilians were
massacred. 78 The atrocities in the Rwandan Genocide were committed by the
majority Hutu population and were directed at the minority Tutsi population.
The conflict started brewing in 1993 when a power-sharing agreement was
established between the Hutus and the Tutsis. The Hutu extremists who opposed the
agreement started the notion of Hutu Power and began spreading extreme anti-Tutsi
propaganda through their own private radio station as well as other media vessels.
On 6 April 1994, the Rwandan President Juvénal Habyarimana was killed in a
plane crash caused by unknown assailants. The Hutu extremists, through their media,
used this incident and started spreading that the Tutsis were to blame for the
assassination on the President. Almost directly following the assassination of
President Habyarimana, the massacre targeting Tutsis and moderate Hutus began in
the Rwandan capital of Kigali. This extermination-campaign eventually fanned out
across the country. During these three months hundreds of thousands of Rwandans
were slaughtered in streets, schools and churches, villages were burned, leading to
mass expulsions to refugee camps.79
The majority of the Muslims were ethnic Bosnians; however, there were also Serbian Muslims. Ching, Jacqueline, Genocide and the Bosnian War, Introduction, p. 6-10; Quigley, John, Genocide
Convention: An International Law Analysis, p. 191.
78 Leitenberg Milton, Deaths in Wars and Conflicts in the 20th Century, p.78.
79
Thompson, Alan, Media and the Rwanda Genocide p. 1-2.
76
77
23 5.3.3. The Jurisprudence of the ICTY and the ICTR The International Tribunals have as their task to try the most severe criminals for the
most severe crimes of International Law. In trials of the ICTY and the ICTR the
Tribunals have made general statements in their judgments about the interpretation of
genocidal intent. These interpretations as well as their judgments must be based on
the legal sources stated in Article 3880 of the ICJ Statute. The decisions must be in
accordance with International Law, applied through international conventions,
customs and the General Principles of Law.
Article 2 of the ICTR Statute and Article 4 of the ICTY Statute are identical
in both form and substance. The provisions establish the crime of Genocide and the
definition is verbatim to Article 2 of the Genocide Convention.81
The Ad Hoc Tribunals are responsible for prosecuting perpetrators of the
Genocides committed in Bosnia and Rwanda. In the trial judgments of the ICTY and
the ICTR, the Courts declare their interpretation of the requisite intent.
In the first judgment on Genocide by the Ad Hoc Tribunals, the ICTR Trial
Chamber in Prosecutor v. Akayesu stated:
“Genocide is distinct from other crimes inasmuch as it embodies a
special intent or dolus specialis. Special intent of a crime is the specific
intention, required as a constitutive element of the crime, which
demands that the perpetrator clearly seeks to produce the act charged.
Thus, the special intent in the crime of genocide lays in ´the intent to
destroy, in whole or in part, a national, ethnical, racial or religious
group, as such´”.82
80
Article 38, ICJ statute:
1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by
the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.
81
Nersessian, David L., The Contours of Genocidal Intent: Troubling Jurisprudence from the
International Criminal Tribunals, p. 242; See Article 2 and 4 of the ICTR respectively the ICTY.
82
Prosecutor v. Akayesu para. 498.; Prosecutor v. Rutaganda, Case No: ICTR-96-3-T, Judgment, Trial
Chamber, 6 December 1999, para. 47.
24 In the same vein, in Prosecutor v. Stacić, the Trial Chamber stated that Genocide is a
crime where emphasis is placed on the specific intent, and that it is in fact
characterized and distinguished by that particular intent.83
Similarly, in Prosecutor v. Krstić, the ICTY Appeals Chamber held that the
gravity of the crime of Genocide is intrinsically reflected in the requirement of
specific intent per se, and consequently that the question of Genocide can be
determined only when that particular intent has been unequivocally established.84 The
ICTY Trial Chamber in Prosecutor v. Jelisić reinforced this by concluding that it had
not been proven beyond all reasonable doubt that Goran Jelisić was motivated by the
dolus specials of the Crime of Genocide, and hence he was found not guilty on the
count of Genocide.85
In Prosecutor v. Kayishema and Ruzindana, the Trial Chamber also stressed
that it is the specific intent that characterizes the crime of Genocide, but goes further
in explaining this particular intent when adding that:
“For the crime of Genocide to occur, the mens rea must be formed prior
to the commission of the genocidal acts. The individual acts themselves,
however, do not require premeditation; the only consideration is that the
act should be done in furtherance of the genocidal intent.”86
In Sikirica et al., the ICTY Prosecution initiated a debate by presenting three
alternative theories of intent, arguing that all three forms satisfies the level of intent
required for the crime of Genocide:
“(a) the accused consciously desired the acts to result in the destruction,
in whole or in part, of the group, as such; or,
(b) the accused knew his acts were destroying, in whole or in part, the
group, as such; or,
(c) the accused knew that the likely consequence of his acts would be to
destroy, in whole or in part, the group, as such”.87
83
Prosecutor v. Stakic, Case No. IT-97-24-T, Judgment, Trial Chamber, 31 July 2003 para, 520.;
Prosecutor v. Gacumbtsi, Case No. ICTR-2001-64-T, Judgment, Trial Chamber III, 17 June 2004,
para. 250.; Prosecutor v. Kambanda, Trial Chamber, para 16.
84
Prosecutor v. Krstić, Case No. IT-98-33-A, Judgment, Appeals Chamber, 19 April 2004.
85
Prosecutor v. Jelisić, Case No. IT-95-10T, Judgment, Trial Chamber,14 December 1999, para.108.
86 Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgment, Trial Chamber, 21
May 1999, para. 91. 87
Sikirica et al., Judgment on Defense Motions to Acquit, Case No. IT-95-8-T, 3 September 2001.
para. 27.
25 In line with the presented alternatives, The Prosecution of Sikirica et al. further
opposed the finding of the Jelisić Trial Chamber88 when concluding that, it must be
proven beyond all reasonable doubt that the perpetrator “was motivated by the dolus
specials of the Crime of Genocide”. Furthermore, they argued that such a definition
of the mens rea of Genocide would “reduce the scope of application in a way that
undermines the object and purpose of the Statute”89, and that Article 30 of the Rome
Statute supports their view on the level of intent required for the crime of Genocide.90
Moreover, the Prosecution held that the literal meaning of Article 4 of the ICTY
Statute does not exclude options (b) and (c) above.91
However, the Sikirica et al. Trial Chamber was of the view that the
Prosecution had complicated matters in an unnecessary way when introducing a
debate on theories of intent. The Trial Chamber emphasized, in reference to Article
31(1) of the Vienna Convention, that the first rule of interpretation is to give words
their ordinary meaning where the text is clear. The Trial Chamber therefore argued
that the text of the Article does in fact explain the required intent, which is “the intent
to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.
Consequently, the Trial Chamber did not find it “necessary to indulge in the exercise
of choosing one of the three standards identified by the Prosecution”.92
As can be seen above, although there have been discussions in the matter as in
e.g. Sikirica et al., the Ad Hoc Tribunals are clear on the level of intent required, that
is, dolus specialis or specific intent.
5.4 The International Criminal Court The idea of an International Criminal Court emerged due to the gravity of the Second
World War. However, what really spurred the work on such a court were the
atrocities of the Rwandan and former Yugoslavian conflicts in the 1990’s.
As stated earlier, the ICTY and ICTR were established in 1993 and 1994
respectively. Nevertheless, because these tribunals were established for crimes
relating to specific conflicts and timeframes there was a general agreement that an
88
Prosecutor v. Jelisić, Case No. IT-95-10T, Judgment, Trial Chamber, 14 December 1999, para.108.
Article 4 of the ICTY Statute.
90
Sikirica et al., Judgment on Defense Motions to Acquit, para. 27.
91
Ib., para 28.
92
Ib., para. 60.
89
26 independent permanent criminal court was needed.93 And so, in 1994 – over fifty
years after the first draft – the International Law Commission (hereinafter the ILC)
completed their work on a draft statute for an International Criminal Court on an
earlier request by the UNGA.94 The ILC Draft went through several procedural steps
leading up to the UNGA’s initiation of a conference in Rome, on June 15 1998, with
the objective of finalizing and adopting a convention on the establishment of an
International Criminal Court.
More than 160 governments participated in the Rome conference, and after
weeks of deliberations, on 17 July 1998, the International Criminal Court (hereinafter
the ICC) was established through the adoption of the Rome Statute by 120 states.95
However, the Statute did not come into force until 1 July 2002 following the
ratification of 60 states96, and consequently the Court has jurisdiction only with
respect to crimes committed after it entering into force.97
The ICC is the first autonomous permanent international criminal court, and
not part of the United Nation system.98 The Rome Statute governs the Court and its
purpose is to make sure that the most severe international crimes such as Genocide,
Crimes Against Humanity, War Crimes and Crimes of Aggression do not go
unpunished. However, it is a last resort court and hence it will only act where national
judicial systems are lacking.99
93
International Criminal Court website, http://www.icc-cpi.int/Menus/ICC/About+the+Court/,
18/12/11 18.53. 94
Driscoll, William et al., International Criminal Court: Global Politics and the Quest for Justice, 1st
ed, The International Debate Education Association, 2004, p. 24.
95
Ib., p. 25.
96
Article 126 (1) of the Rome statute under “Entry into force” declares: 1. This Statute shall enter into
force on the first day of the month after the 60th day following the date of the deposit of the 60th
instrument of ratification, acceptance, approval or accession with the Secretary-General of the United
Nations.
97
Article 11(1) of the Rome Statute.
98
International Criminal Court website, http://www.icc-cpi.int/Menus/ICC/About+the+Court/,
18/12/11 19.22.
99
Article 1 of the Rome Statute with the heading “The Court” states: An International Criminal Court
("the Court") is hereby established. It shall be a permanent institution and shall have the power to
exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to
in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and
functioning of the Court shall be governed by the provisions of this Statute.
27 5.4.1 Article 6 of the Rome Statute As stated above the ILC completed a draft statute for the ICC in 1994. In Article
20(a)100 of that draft the ILC includes Genocide as a crime within the jurisdiction of
the Court, nevertheless without defining it. The reason the ILC did not define the
Crime of Genocide in their draft is because they acknowledged the authority of the
definition stated in Article II of the Genocide Convention.101
In the 1995 Report of the Ad Hoc Committee some delegates suggested
incorporating a broader definition of the Crime.102 However, this was contested by
other delegations stating that the current definition had developed into customary
international law103 and had been incorporated in national legislation.104 Moreover,
the amendment of existing conventions was viewed as extending beyond the scope of
the drafting process. An additional argument for retaining the standing definition of
the Crime was to avoid different applications from the ICJ respectively the ICC with
regards to the same situation.105 Due to the above stated, Article 6 of the Rome
Statute defines the crime of Genocide and is simply a replication of Article II of the
Genocide Convention. 106 Consequently, during the adoption of the Rome Statute the
preparatory work of the Genocide Convention was the primary source for
interpretation of the definition.107
Moreover, during the Rome Conference, the mental element of the Crime was
considered and the Preparatory Committee’s Working Group on the Definitions of
Crimes concluded that genocide is a crime of specific intent. It was stated that “The
100
Article 20 ”Crimes within the jurisdiction of the Court”, The Court has jurisdiction in accordance
with this Statute with respect to the following crimes: (a) the crime of genocide;…
101
Triffterer, Otto, Commentary on the Rome Statute of the International Criminal Court: Observers'
Notes, Article by Article, 2nd ed., Beck/Hart; 2008, p. 144 para 2.; Lee, Roy S. The International
Criminal Court; The Making of the Rome Statute: Issues, Negotiations and Results, 1st ed., Springer,
1999, p.89-90.
102
Ibid.
103
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide which
was later reinforced in Case concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro.
104
Lee, Roy S. The International Criminal Court; The Making of the Rome Statute, p.89.
105
Report of the Ad Hoc Committee on the Establishment of an International Criminal Court General
Assembly Official Records, Fiftieth Session Supplement No. 22 (A/50/22), para. 61.
106
For the purpose of this Statute, "genocide" means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to
members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births
within the group; 106(e) Forcibly transferring children of the group to another group.
107
Ib.
28 reference to "intent to destroy, in whole or in part ... a group, as such" was understood
to refer to the specific intention to destroy more than a small number of individuals
who are members of a group”.108
5.4.2 Draft Code of Crime Against the Peace and Security of Mankind The Draft Code of Crimes Against the Peace and Security of Mankind (hereinafter
Draft Code) had the purpose of formulating “the principles of international law
recognized in the Charter of the Nuremberg Tribunal and in the judgment of the
Tribunal”, however, this Draft Code was never adopted in its finalized version. The
main reason for this was that these sets of principles would be ineffective without an
accompanying criminal jurisdiction.
Although the ILC Draft Code was never adopted, there are reasons for
including their interpretations regarding specific intent in this thesis. Today the ICC
is the international judicial organ with this criminal jurisdiction109 and the Rome
Statute, which governs it, contains the principles recognized by International Law.
With respect to the crimes in the finalized Draft Code, all of them are now within the
jurisdiction of the ICC, and hence, stipulated in the Rome Statute.110
In the Draft Code, the ILC establishes their interpretation of the crime of
Genocide as set in Article 17111. In this Draft Code, they reinforce that Genocide is a
crime of specific intent and that the genocidal acts enlisted in the definition of the
crime “are by their very nature conscious, intentional or volitional…”.
112
Furthermore, the ILC states that it is improbable that an individual could commit the
108
Decisions taken by the preparatory committee at its session held from 11 to 21 February 1997:
A/AC.249/1997/L.5; Report of the Preparatory Committee on the establishment of an International
Criminal Court April 1998: A/CONF.183/2/Add.1. 109 The ICC is the only international permanent court; there are also Ad Hoc Tribunals and mixed
courts. 110
UN Treaty: http://untreaty.un.org/ilc/summaries/7_4.htm, 17/05/12, 07.23
111
Draft Code of Crimes Against the Peace and Security of Mankind (1996), Article 17 Crime of
Genocide,
A crime of genocide means any of the following acts committed with intent to destroy, in whole or in
part, a national, ethnic, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction
in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
112
Ib., para 5.
29 prohibited acts unknowing of its consequences, however, even with knowledge of the
probable consequences, it would still not constitute as Genocide. Even combined with
a general intent to commit the prohibited acts, it does still not suffice with regards to
the mental element required for the Crime. The ILC proclaims a higher level of the
mens rea that entails a particular state of mind or a specific intention as indicated in
the wording “intent to destroy”.113
5.4.3 Article 30 and Elements of Crimes Article 30114 of the Rome Statute was created to avoid repetitive definitions of the
mental element for every crime enlisted in the Statute; hence, the Article provides a
general definition of the mental element “unless otherwise provided”.
Further, Article 9115 of the Statute headed “Elements of Crimes” assists the
Court in the interpretation and application of Articles 6, 7 and 8116, it refers to an
appendix with the same heading and provides a thorough description for the
subjective and objective element required for each crime listed in the Rome Statue.
Where there is no reference made to a mental element for any particular conduct,
consequence or circumstance listed in the Elements of Crimes, Article 30 of the Rome
Statute applies.117
113
Draft Code of Crimes against the Peace and Security of Mankind (1996) with commentaries, 1996,
p. 29 para. 5.
114
“Mental element” 1. Unless otherwise provided, a person shall be criminally responsible and liable
for punishment for a crime within the jurisdiction of the Court only if the material elements are
committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will
occur in the ordinary course of events.
3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a
consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed
accordingly.
115
Article 9(1): Elements of Crimes shall assist the Court in the interpretation and application of
articles 6, 7, 8 and 8 bis. They shall be adopted by a two-thirds majority of the members of the
Assembly of States Parties.
116
Article 6: Genocide, Article 7; Crimes Against Humanity, Article 8: War Crimes.
117
Elements of Crimes, General Introduction paragraph 2:
As stated in Article 30, unless otherwise provided, a person shall be criminally responsible and liable
for punishment for a crime within the jurisdiction of the Court only if the material elements are
committed with intent and knowledge. Where no reference is made in the Elements of Crimes to a
mental element for any particular conduct, consequence or circumstance listed, it is understood that the
relevant mental element, i.e., intent, knowledge or both, set out in Article 30 applies. Exceptions to the
Article 30 standard, based on the Statute, including applicable law under its relevant provisions, are
indicated below.
30 In paragraph 1 of Article 30, the general intent of the crimes under the jurisdiction of
the Court is established. In contrast to general intent, specific intent is not linked to
any material element that must be proven nor does it require that the intended goal be
actually achieved. Because the crime of Genocide is a crime of specific intent, it
requires that this higher level of mental element must be proven in addition to any
intent imposed by Article 30.118
5.5 Purposed-­‐based understanding As previously stated, the issue of the meaning of intent is a matter of controversy.
However, a majority of commentators and the Ad Hoc Tribunals prefer and apply the
so-called purpose-based approach. According to the jurisprudence stipulated by the
Ad Hoc Tribunals and the ICC, genocidal intent requires that the perpetrator must act
“with the aim, purpose or desire to destroy a group”.119
The ambiguity of the provision ‘intent to destroy’ in the Genocide Convention
presents a space, allowing for both a purpose- and a knowledge-based approach.
However, advocates of the purpose-based approach argue that their understanding of
intent is the one of the drafters120.121 Genocide is not Genocide without the objective
or desire to destroy a human group in whole or in part. No previous plan or a policy is
required and the mere knowledge on part of the perpetrator that his acts contribute to
the destruction of the protected group is not adequate.122 If the perpetrator does not
possess an inner personal aim ‘to destroy…a protected group’, he cannot be held
liable for the crime of Genocide, at least not as a principal perpetrator.123
118
Triffterer, Otto Commentary on the Rome Statute of the International Criminal Court, p. 857-858
para 15.
119
Jessberger, Florian, The UN Genocide Convention: A Commentary, ’ The definition and the
Elements of the Crime of Genocide’, p. 105; Prosecutor v. Krstic, Appeals Chamber, para. 134;
Prosecutor v. Jelisic, Case. No. IT-95-10-A, Appeals Chamber Judgment, 5 July 2001, para. 46, 50;
Prosecutor v. Rutaganda, Appeals Chamber, para. 524; Prosecutor v. Akayesu, Trial Chamber, para.
520.
120
The Economic and Social Council, First draft of the Genocide Convention, Article I: “In
this Convention, the word “Genocide” means a criminal act directed against any one of the
aforesaid groups of human beings, with the purpose of destroying it in whole or in part, or of
preventing its preservation or development.”
121
Jessberger, Florian, The UN Genocide Convention: A Commentary’ The definition and the
Elements of the Crime of Genocide’, p. 106-107
122
Ib., p. 107
123
Ib., p. 108
31 5.6 Knowledge-­‐based understanding As stated above, the prevailing interpretation of intent in the context of Genocide is
one of specific or special intent, in other words, the prevailing understanding is in
accordance with the purpose-based approach. The knowledge-based understanding
takes a different approach than the purpose-based by shifting the emphasis from the
mind of the offender to the consequences of his or her actions.
The knowledge-based approach proposes an alternative interpretation of
genocidal intent that differs from that of the purpose-based approach. As before
stated, the purpose-based approach require that the perpetrator possess a specific
desire or purpose to destroy a group in whole or in part. However, according to
Professor Alexander K.A Greenawalt – given that the perpetrator committed one of
the prohibited acts – genocidal intent is satisfied:
“if the perpetrator acted in furtherance of a campaign targeting members
of a protected group and knew that the goal or manifest effect of the
campaign was the destruction of the group in whole or in part”.124
In his work Genocide in International Law, William A. Schabas argues in the
same vein that the scope of the crime Genocide in its essence cannot be committed by
an individual acting on his own. Schabas states that:
“for genocide to take place there must be a plan, even though there is
nothing in the Convention that explicitly requires this”125, “essentially all
prosecutions have involved offenders acting on behalf of a State and in
accordance with a State policy, or those acting on behalf of an
organization that was State-like…”.126
Because of this inherent setting in which the Crime is committed, Schabas
suggest that, the inclusion of “state policy or plan” as a legal ingredient of the crime
together with knowledge of this as the mens rea standard of the crime, should be
considered.127
124 Greenawalt, K. A. Alexander, Rethinking Genocidal Intent: The Case for a Knowledge-based
Interpretation, p. 2288.
125 Schabas, William A., Genocide in International Law: the crimes of crimes p. 207 126 Schabas, William A., State policy as an element of international crimes, Vol. 98, No. 3,
Northwestern University, School of Law, 2008, p. 954.
127 Ibid. p. 982. 32 According to Greenawalt, Genocidal intent should be interpreted in the light of two
elements: “selection of group members on the basis of their group identity and
knowledge regarding the destructive consequences of one’s action for the survival of
the group”. The first element (“selection of group members…”) is not to be
understood to be on the basis of an inner desire, like that of the purpose-based
approach; rather it is referring to the general context in which the victims are targeted
e.g. killing members of the group. Put differently, the selection of group members can
be deduced from the prohibited acts, since they imply group targeting. The second
element (“knowledge regarding the destructive consequences of one’s actions…”) is
in accordance with traditional Criminal Law doctrine. In particular it is in accordance
with Article 30 of the Rome Statute.128
Professor in Criminal Law, Hans Vest, argues that, although not explicitly
expressed in the provision of Genocide, genocidal intent implies a systematic
structure. Regarding the actus reus of the crime – the part of the crime, which he calls
the “individual act” – the accused must act with general intent. As to the mens rea of
the Crime he argues that the wording “…to destroy a protected group in whole or in
part” is an extended subjective element containing a contextual element. In other
words, the destruction of a protected group in whole or in part is difficult if not
impossible to carry out by an individual alone, the single participant’s criminal
conduct only accounts for a very small part of the overall context of which it fits into,
and consequently, “the perpetrators’ intention must necessarily refer to a collective
action consisting of a (eventually huge) group of other perpetrators”129.
Similarly, in the Darfur Report and Genocidal Intent, Claus Kress states that
the genocidal acts (i.e. the actus reus of the crime) only has the potential to destroy a
group in whole or in part if they occur multiple times, hence, “the intent of a
perpetrator must refer to an overall genocidal activity”. That is, an individual
perpetrator could not realistically desire the destruction of a group in whole or in part
resulting from the sole effort of that individual. Accordingly, the desire of the
128
Greenawalt, K. A. Alexander, Rethinking Genocidal Intent: The Case for a Knowledge-based
Interpretation, p. 2289.
129
Vest, Hans, A Structure-Based Concept of Genocidal Intent, Journal of International Criminal
Justice, 2007, p. 785.
33 perpetrator must be related to the result rendering from the collective activity of
which he or she contributes.130
Professor John R.W.D Jones also opposes the generally accepted view of
specific intent as the mens rea level required for the crime of Genocide. In Whose
intent is it anyway? Jones suggests that intent should be considered an attribute of the
genocidal plan and hence, for the conviction of Genocide it should be enough that the
perpetrator knowingly participated in the genocidal plan.131
The knowledge-based approach argues that: “...genocidal intent already exists
if the perpetrator knew of the organized attempt to exterminate the group. The
argument runs as follows:
“in systematic crimes, the goals, preconditions and effects cannot be
distinguished. In this constellation, therefore the perpetrator’s certain
knowledge of the destructive intent of the main or organizational
perpetrators should be sufficient to find the requisite mental
element”.132
As can be seen from the above stated, there are many scholars that promote
the knowledge-based approach. However, the current interpretation of the mens rea
standard for the Crime of Genocide is in line with the purpose-based approach, as
was stated in Prosecutor v. Krstić;
“a general intent to commit one of the enumerated acts combined with a
general awareness of the probable consequences of such an act with
respect to the immediate victim or victims is not sufficient for the crime
of genocide. The definition of this crime requires a particular state of
mind or a specific intent with respect to the overall consequence of the
prohibited act”.133
This was reinforce by the Trial Chamber in Prosecutor v. Jelisić where they
held that the defendant:
"could not be found guilty of genocide if he himself did not share the
goal of destroying in part or in whole a group even if he knew that he
was contributing to or thought his acts might be contributing to the
130
Kress, Claus, Darfur Report and Genocidal Intent, Journal of International Criminal Justice, 2005,
p. 565-566.
131
Jones, John R.W.D, Whose intent is it anyway? - Genocide and the Intent to Destroy a Group,
Kluwer Law International, 2003, p. 467.
132
Jessberger, Florian, The UN Genocide Convention: A Commentary’ The definition and the
Elements of the Crime of Genocide’, p. 106.
133
Prosecutor v. Krstić, Case No. IT-98-33-T, Trial Judgment, 2 August 2001, para. 571.
34 partial or total destruction of a group.”134
Moreover, regarding whether to include a genocidal plan or state policy as
part of the crime of Genocide, the International Tribunals for Rwanda and Former
Yugoslavia explicitly rejects it. For example in Prosecutor v. Jelisić, the Appeals
Chamber held that the existence of a plan or policy was not a legal element of the
Crime but nevertheless that it could become an important factor in proving intent in
most cases, this reasoning was reaffirmed in Prosecutor v. Krstić.135
In Prosecutor v. Jelisić and Prosecutor v. Kayishema and Ruzindana the Trial
Chambers confirms that policy or plan is not a legal element of the Crime, as a result
of that, they hold that it is possible for an individual perpetrator to commit genocide
on his own (lone genocidaire). Notwithstanding, they argue that it would be virtually
impossible for an individual perpetrator to commit Genocide without the support of a
plan or policy.
134
Prosecutor v. Jelisić, Trial Chamber, para.86
Prosecutor v. Jelisić, Appeals Judgment, para. 48; Prosecutor v. Krstić Appeals Judgment, para.
225.
135
35 6. Analysis 1.
How is the requisite intent defined in relevant preparatory work of the
Genocide Convention?
As can be seen in chapter three, during the drafting process of the Convention there
has been a development in the definition of Genocide. In the UN Secretariat Draft the
requisite intent is defined: “with the purpose of destroying” one of the protected
groups. This definition is consistent with the Commentary to this draft where the
Secretariat emphasizes that Genocide is a crime of deliberate destruction. Hence, it is
clear that the Secretariats definition of the requisite intent is one of purpose.
Further, in the subsequent Ad Hoc Committee Draft the wording “with the
purpose of destroying” has been removed and the phrase “deliberate acts committed
with the intent to destroy” has been added. As one can see, the phrase “deliberate acts
committed with the intent to destroy” consists of two mens rea components, one
regarding the actus reus (“deliberate acts”) and the other regarding the outcome
(“committed with intent to destroy”). The definition established by the Ad Hoc
Committee is consistent with the Secretariats definition; in other words, it is still one
of purpose. However, the altered phrasing is more explicit in regard to the level of
mens rea required and additionally clarifies that the perpetrator needs to commit the
prohibited acts deliberately. This is not to say that the deliberate conduct was not part
of the crime in the first place, on the contrary, the acts have an inherent mental
element.
Moreover, the wording “on grounds of” has been added, however, during
deliberations throughout the drafting process there was discussions on whether to
keep this phrasing. The advocates for “on grounds of” argued that a removal of this
phrase would result in Genocide evolving into a crime of general intent. One can
imagine, that the fact that they opposed this evolution confirms that the drafters
intended Genocide to be a crime of specific intent.
In the Sixth Committee’s Draft, the wording of “on grounds of” was replaced
by “as such”. This alteration revealed a variety of understandings on how to interpret
the new phrasing resulting in a vote in the matter. It was established that the vote had
to exclusively regard the text of the proposal and that the interpretation of a provision
had to be left to those who would have to apply it. Despite subsequent requests on
36 clarification of the phrasing “as such” and with that a greater understanding of the
requisite intent the question was left unresolved.
In the finalized Genocide Convention the requisite intent is defined “with
intent to destroy”. This definition is in line with the definitions from the preceding
drafts, that is, the requisite intent is defined as one of purpose.
As stated in chapter 2.3, The mental element of the crime, International
Criminal Law defines a specific intent crime as consisting of two components, one
being the intent to commit a prohibited act and the other the intent to produce the
actual outcome of that act.
As one can see all the above mentioned definitions of intent entails a further
element of mens rea, a mental element that goes beyond the actus reus of the crime,
that is, that the perpetrator purposely seeks the outcome. Furthermore, this particular
mental element corresponds to International Criminal Law’s definition of specific
intent, hence, it is clear that the drafters intended level of the requisite intent for the
Crime of Genocide was one of specific intent.
However, although it is clear in the preparatory work of the Convention that
the mental element required for the Crime is one of purpose an explanation of what it
means was never provided for. This is not surprising since the drafters explicitly
stated that interpretation of a text should be left to those who would have to apply it.
This is reflected in that some delegations wanted to establish a greater understanding
of the Crime, however, this request was denied.
2. How is the requisite intent interpreted in relevant case law and judicial
doctrines and are these interpretations in line with the preparatory work of the
Genocide Convention?
Mind that all interpretations examined in this thesis fall within either the purposebased approach or the knowledge-based approach, hence, we will refer to them
accordingly. In regard to the question analyzed here, we will firstly compare the
interpretations within each approach; secondly, we will compare the approaches with
the preparatory work and thirdly, a comparison between the approaches will be made.
We will firstly examine the purpose-based approach.
As for the Prosecutor v. Akayesu Trial Chamber’s interpretation of specific
intent -that a perpetrator needs to clearly seek to produce the act charged- it is
37 ambiguous as to what they mean. Looking to International Criminal Law the only
thing required in a general intent crime is the actual performance of a criminal act. As
previously mentioned, for a specific intent crime, what is required is the performance
of a prohibited act accompanied by an intent or purpose that goes beyond the actus
reus of the crime i.e. that the intention is to bring about that particular consequence.
As stated, the Trial Chamber has established that Genocide is a crime of specific
intention, however, their wording (clearly seek to produce the act charged), needs to
be “clearly seek to produce the outcome” for it to meet the definition of specific
intent.
In regard to the Prosecutor v. Kayishema and Ruzindana Trial Chamber’s
definition of mens rea, since specific intent means that the perpetrator clearly seeks to
produce the outcome, the fundamental condition for this must be that that the
perpetrator already formed his or her ambition i.e. “to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such” prior to the commission of the
actual act. This view is reinforced in the Commentary to the Rome Statute, where it is
stated that specific intent is not linked to any material element that must be proven
nor does it require that the intended goal be actually achieved.
Comparing the interpretation of the Kayishema and Ruzindana Trial
Chamber, the Commentary of the Rome Statute and International Criminal Law’s
definition of specific intent with the interpretation of the Trial Chamber in Prosecutor
v. Akayesu, one can see that they are inconsistent. The latter relates the mindset
required for the Crime of Genocide to the actual act whereas the others declare that
no relation between genocidal intent and the genocidal act is necessary.
The ILC and the Trial Chamber of Sikirica et al. declares a higher level of
mens rea that entails a particular state of mind or a specific intention. This is in line
with the Drafters definition of the requisite intent. As stated in question one of the
analysis, specific intent entails a further element of mens rea, a mental element that
goes beyond the actus reus of the crime. As one can see, this definition is consistent
with alternative (a) provided by the Sikirica et al. Prosecution.
Looking to the above-mentioned case law, the ILC and the ICC combined
with the case law of Prosecutor v. Stacić, Prosecutor v. Gacumbtsi, Prosecutor v.
Kambanda, Prosecutor v. Krstić and Prosecutor v. Jelisić, one can see uniformity
within the purpose-based approach in regard to specific intent being the required level
of mens rea for the crime of Genocide. Although, as previously established,
38 Prosecutor v. Akayesu Trial Chamber’s interpretation of specific intent is inconsistent
with International Criminal Law and the Drafters definition; the Trial Chamber too
declares specific intent as the correct mens rea standard for the Crime. Further, this
cohesive view of specific intent within the purpose-based approach is in line with the
preparatory work of the Genocide Convention. Can this coherent view be found
within the knowledge-based approach?
Although the knowledge-based approach is cohesive in its core – in the existence of a
collective genocidal plan or policy; knowledge of this; participation in collective
genocidal conduct and knowledge of the destructive consequences of one’s action –
the advocates within this approach have different grounds for justification.
Greenawalt’s and Schabas’s interpretations are based on the premise that
Genocide is by its very nature a collective crime and this conception is rationalized
through the setting in which Genocide have occurred through history. Schabas
verbalizes this by stating:
“essentially all prosecutions have involved offenders acting on behalf of
a State and in accordance with a State policy, or those acting on behalf
of an organization that was State-like…”.
While holding the same core conception, Hans Vest and Klaus Kress
rationalize this by analyzing the text of Article II instead of drawing upon history. To
be concrete, Vest means that the collectivity in the Crime can be inferred from the
“intent to destroy” which he means is an extended contextual element. Kress focuses
on the actus reus of the Crime and proclaims that it is improbable that a perpetrator
could achieve the genocidal goal by sole effort, since this demands the actus reus to
occur multiple times.
The grounds for justification may differ but the views of specific intent within
the knowledge-based approach do not exclude each other. Greenawalt and Schabas
propose an inclusion in the definition of the crime whereas Vest and Kress stresses
the need for reinterpretation of the text of Article II. With respect to the preparatory
work of the Genocide Convention – regarding the justification for this approach –
Hans Vest and Claus Kress may be more appealing and convincing in that they draw
upon the text of Article II.
As one can see, the purpose- based approach is based on the preparatory work
of the Convention, and hence their view of intent and of the definition of the Crime is
39 consistent with each other; therefore, hereinafter, when we refer to the purpose-based
approach, the preparatory work of the Convention is included.
When comparing the knowledge-based approach and the purpose-based
approach, one can see that they both establish specific intent as the mens rea level
required and that their definitions of this -clearly seek to produce the outcome- is also
in line.
Notwithstanding, the implication of having different core definitions of the crime will
lead to different applications of the intent criterion. Does this mean that the
approaches are incompatible?
As stated, the knowledge-based approach recognizes specific intent as the
mens rea level required, however, according to them, due to the systematic nature of
the Crime, an individual perpetrator’s inner desire or goal is difficult to distinguish.
Hence, the individual perpetrator’s intent can be deduced through the knowledge of
the destructive plan of other perpetrators combined with participation in furtherance
of this plan. Advocates of the purpose-based approach dispute this view; they
proclaim that no previous plan or a policy is required and that the mere knowledge on
part of the perpetrator that his acts contribute to the destruction of the protected group
is not adequate. If the perpetrator does not possess an inner personal aim ‘to
destroy…a protected group’ he cannot be held liable for the crime of Genocide.
What is important to point out regarding the purpose-based rebuttal is that
their reference that “mere knowledge” is not enough is misleading. The knowledgebased approach means that this knowledge does in-fact display an individual
perpetrator’s inner desire not that knowledge would replace specific intent as the
mens rea level required.
We have concluded that the knowledge-based approach is just a way of
deducing if someone has the specific intent required. The current mens rea
requirement is specific intent which has been labeled as “difficult or even impossible
to prove”, we hold that the knowledge-based approach is the appropriate method in
reaching the requirement set by the drafters, that is, that a perpetrator clearly seek to
produce the outcome.
The approaches are conflicting in another crucial aspect: the question of the
lone genocidaire. The knowledge-based approach implies that an individual cannot
execute Genocide alone whereas the purpose-base approach contest that this is a
possibility. If a situation occurred where an individual destroyed one of the protected
40 groups in whole or in part with the intent to destroy, the knowledge-base approach
would claim that this is not Genocide based on the lack of collective genocidal
activity; which would mean that the perpetrator would go unpunished for the Crime.
As one can see, it all comes down to how you define the crime of Genocide; is
it meant to be a crime of collective effort or is it the destruction in itself that defines
the crime?
3. Is the definition and interpretation of the requisite intent in the
abovementioned legal sources consistent with the object and purpose of the
Genocide Convention?
The creators of the establishment for Genocide are the United Nations. What is
relevant to mention regarding the object and purpose of the crime is Resolution 96(I)
and the preamble of the Genocide Convention. These texts display the object and
purpose of the Genocide Convention. In Resolution 96(I), the General Assembly
emphasizes the severity of the crime and to that end, establishes the necessity for
legislation in the prevention and punishment of the crime. Hence, the object and
purpose of the criminalization of Genocide is to prevent and punish and the means to
obtain this goal is international co-operation through international legislation in the
shape of a Genocide Convention. This is further reinforced in the Preamble of the
Genocide Convention where it is stated that international co-operation is needed for
the purpose of liberating mankind from such atrocities that Genocide entails.
Furthermore, in the Reservations case, the ICJ elaborates on the object and
purpose of the Genocide Convention. The Court states that the object and purpose of
the Convention is to preserve the existence of human groups and also to confirm and
endorse fundamental moral principles. Hence, the ICJ argues that the Genocide
Convention contain two objectives. The first objective is to “safeguard the very
existence of certain human groups” and the ladder can be deduced from both
Resolution 96(I) and the Preamble of the Genocide Convention. For example, in
Resolution 96(I) it is affirmed that Genocide is contrary to moral law and in the
Preamble it is stated that Genocide is contrary to the spirit and aims of the United
Nations and condemned by the civilized world. These two objectives are actually
means to sustain the object and purpose of “preventing”.
As one can see, the first and foremost object and purpose is to maintain the
rights and duties of the Convention, that is, to prevent and punish the Crime.
41 To further shed light and clarify the understanding and the object and purpose of a
treaty – according to Article 31 and 32 of the Vienna Convention – one can look to
the preparatory work of the Convention and the circumstances of the its conclusion.
In the preparatory work of the Convention, the Drafters do not explicitly
declare specific intent as the mens rea standard required, notwithstanding this, their
definition of the mental element accords with International Criminal Law’s definition
of specific intent. Additionally, the Drafters never explained how the intent
requirement was to be understood and expressed that those who would have to apply
it would be the ones to interpret it.
The current application in regard to genocide, which is the purpose-based
approach, establishes specific intent as the mens rea standard required. In the Ad Hoc
Tribunals’ interpretation of intent, “policy or plan” is explicitly rejected as a legal
element of the crime and the mere knowledge of a plan is proclaimed inadequate, this
was shown inter alia in Prosecutor v. Jelisić:
“could not be found guilty of genocide if he himself did not share the
goal of destroying in part or in whole a group even if he knew that he
was contributing to or thought his acts might be contributing to the
partial or total destruction of a group.”
As established, looking to the preparatory work, it is evident that the meaning
of intent is the intentional and willful destruction of a protected group through e.g.
killing group-members because of their group-identity. This definition of the Crime
does not exclude “policy or plan” or knowledge as a method of interpretation. What
is also important to point out is that the Drafters did not explicitly reject “policy or
plan” nor did they express that knowledge (as in the knowledge-based approach) is an
inappropriate way to interpret the intent required for the Crime.
Let us now look to the circumstances of the conclusion of the Genocide
Convention to shed more light on the object and purpose.
Raphael Lemkin, who coined the Crime, did so because of the milieu in the
time of the Second World War, in particular the Holocaust that is the extermination
of Jews in Germany and Poland. The mode in which Jews were exterminated at the
time was highly organized and deeply rooted in society of Germany.
There were discriminatory laws and the political system was based on hatred
towards the Jews. Further, Jews were portrayed in a negative light in the media. They
were also forced to wear the Star of David so that they could be identified. The
42 culmination of this was the transportation of Jews to concentration and extermination
camps and eventually approximately 6.000.000 Jews were systematically
killed. Hence, one can conclude that at the time, there existed an extermination
campaign. This is why Lemkin defined Genocide as a coordinated plan of diverse
acts of destruction aimed at the extermination of a group.
The coining of the Crime and the drafting of the Genocide Convention was
highly a reaction against the atrocities that took place during the Holocaust. During
the Drafting process one delegate made a statement explicitly relating the creation of
genocide to the atrocities of the Holocaust.
Taking into account, the preparatory work of the Convention and the text of
Article II, one can actually see that there is room for both a purpose-based and a
knowledge-based approach. However, when comparing the main object and purpose,
prevent and punish, to the jurisprudence of the Ad Hoc Tribunals it is almost bizarre
that they declare that knowledge of a plan, participation in furtherance of that plan
and knowledge of the destructive consequences of such conduct would not show a
perpetrator’s inner aim or desire. When applying the purpose-based approach, this
perpetrator goes unpunished for the crime of Genocide. Hence, in this case the
knowledge-based approach fulfills the object and purpose whereas the purpose-based
approach fails.
Also, when taking into account the circumstances of the Convention’s
conclusion, it is most likely since genocide was a reaction to the atrocities in Nazi
Germany that it was meant to be a crime of collective effort. A crime in which there
is always a plan or policy to exterminate a group.
When looking to the Genocide committed in Srebrenica, one can also see that
there was plan and policy. The Serbian armed forces systematically killed Muslim
men and boys and raped Muslim women to prevent procreation in the Muslim
community. Regarding the Rwandan Genocide, it is also apparent that the setting in
which it transpired was one of plan and policy. This can be concluded by looking to
the way in which the Tutsi population was targeted, for example the media spread
extreme anti-Tutsi propaganda and incited people to exterminate them. This was the
policy created by the Hutu-power organization.
Which brings us back to Professor Schabas’s statement:
“for genocide to take place there must be a plan, even though there is
43 nothing in the Convention that explicitly requires this”, “essentially all
prosecutions have involved offenders acting on behalf of a State and in
accordance with a State policy, or those acting on behalf of an
organization
that
was
State-like…”.
As Schabas puts it, Genocide has always occurred in this organizational
setting, hence this must be reflected in the definition of the Crime.
Our decision of the appropriate interpretation of intent i.e. which approach to
apply, is greatly based on a statement in section 1.3 Methodology which reads:
“when a treaty is open to two interpretations one of which does and the
other does not enable the treaty to have appropriate effects, good faith
and the object and purpose of the treaty demand that the former
interpretation should be adopted”.
When
considering
the
purpose-based
approach’s
interpretation
and
application of intent, we conclude that this approach does not reflect nor does it
uphold the object and purpose of the Genocide Convention. We hold that the
knowledge-based approach is in-fact the appropriate method when interpreting
genocidal intent and thereby, is the required approach for upholding the object and
purpose i.e. to prevent and punish the Crime.
Regarding the question of the lone genocidaire, since we hold that genocide is
a crime of collective effort there cannot exist a lone genocidaire.
Regarding prevention of the Crime, at least in theory, the knowledge-based
approach could be more effective in preventing the Crime – if one knew that the
possibility to be convicted of Genocide was not unlikely when committing genocidal
acts – this could have an deterring effect.
As previously stated, the knowledge-based approach is essentially cohesive
and although we agree with Schabas and Greenawalt in that the Crime has always
been of collective effort we realize that including policy and plan in the text of
Article II would be difficult due to the wide acceptance and the fact that the current
definition is already included in international as well as national legislation.
Due to this, we too, in accordance with Hans Vest and Claus Kress, hold that
a reinterpretation of the current text is needed.
44 6.1 Conclusion In the preparatory work of the Genocide Convention, the requisite intent has not been
labeled. However, the Drafters definition of intent is in accordance with international
criminal law’s definition of specific intent.
The case law and judicial doctrines that we have examined all fall within
either the purpose-based or the knowledge-based approach. Both approaches
acknowledge that a perpetrator needs to posses an inner aim or desire to meet the
level of intent required for the Crime. Notwithstanding, the knowledge-based
approach holds that “policy or plan” is part of the Crime whereas the purpose-based
approach rejects it and consequently the application of genocidal intent is
distinctively different.
With regard to preparatory work, the purpose-based approach is in line with
the definition of the Drafters whereas the knowledge-based approach is not in its
literal meaning. However, the Drafters did not explicitly reject the knowledge-based
approach in the preparatory work of the Genocide Convention.
We have concluded that the purpose-based approach is not consistent with the object
and purpose of the Genocide Convention. We hold that the knowledge-based
approach is in line with the object and purpose of the Genocide Convention, and
hence this approach upholds the goal of preventing and punishing genocide. 6.2 Discussion Regarding the requisite intent, during the drafting process of the Rome Statute, there
was a suggestion to broaden the definition of the Crime. However, this suggestion
was never discussed further due to practical problems such as the scope of the
drafting process and the status of customary international law as well as the current
definition already being adopted into national legislation. The unwillingness to debate
the issue is nothing new. For example, in the drafting process of the Genocide
Convention there was a suggestion to clarify the definition of the Crime and thereby
the requisite intent, this however was dismissed.
This neglecting attitude reappeared in Prosecutor v. Sikirica et al when the
Trial Chamber rejected the suggestion given by the Prosecution by arguing that the
text of Article II of the Convention was clear without any further explanation.
As seen, what is consistently displayed by these above mentioned legal
45 practitioners is an unwillingness to address the issue of intent. One can ask
themselves why they do not explain in what way the knowledge-based approach does
not meet the requirement of intent?
On a different topic, the power of political will should never be
underestimated. The UN is a humanitarian organization; nevertheless you cannot get
around the fact that it is dependent on funding from the contracting parties. It would
therefore be difficult for the UN to change the definition of Genocide if there was not
consensus on the issue.
Also, one could imagine that if the knowledge-based approach would apply
the obligation for States to prevent genocide would increase. If ”policy or plan”
would to be included in the definition, it would mean that greater obligation be put on
a State to impose preventative measures, such as, identification of organized
genocidal activity and diversion this.
With respect to current and future application, all legal practitioners in the
subject matter – the ILC, the ICJ and the Ad Hoc Tribunals – are adherents of the
purpose-based approach. Hence, the most likely outcome is that the purpose-based
approach will remain. If it does so, we would continue to have a crime with a
requirement that is extremely difficult prove, and hence, punishment for the Crime
would still be an issue.
Genocide is and will be a crime reserved for perpetrators that explicitly
share their inner desire or goal with others. Because - according to the purpose-based
approach - intent cannot be inferred so the outcome would be that those who
“choose” not to reveal their intent would go unpunished for the Crime.
Lastly, if the application of the purpose-based approach stands, due to the established
inefficiencies, we hold that it would serve a greater purpose to abolish the crime of
Genocide since these perpetrators would most likely be convinced for Crimes Against
Humanity anyways.
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