Elements of Genocide

Paul Behrens, Ralph Henham, Paul Behrens, Ralph Henham

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136168550
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Elements of Genocide provides an authoritative evaluation of the current perception of the crime, as it appears in the decisions of judicial authorities, the writings of the foremost academic experts in the field, and in the texts of Commission Reports. Genocide constitutes one of the most significant problems in contemporary international law. Within the last fifteen years, the world has witnessed genocidal conduct in Rwanda and Bosnia and Herzegovina, while the debate on the commission of genocide in Darfur and the DR Congo is ongoing. Within the same period, the prosecution of suspected génocidaires has taken place in international tribunals, internationalised tribunals and domestic courts; and the names of Slobodan Milosevic, Radovan Karadzic and Saddam Hussein feature among those against whom charges of genocide were brought. Pursuing an interdisciplinary examination of the existing case law on genocide in international and domestic courts, Elements of Genocide comprehensive and accessible reflection on the crime of genocide, and its inherent complexities.

Part I
The concept and development of the law of genocide

Chapter 1
The social and the legal concept of genocide^*

Stefan Kirsch

The term ‘genocide’ describes a phenomenon which is of interest to sociologists and historians as well as to legal scholars. However, the ‘legal’ concept of genocide which developed since the term was coined in 1943 and more open ‘social’ concepts that tend to identify genocide with all sorts of mass atrocities differ in some important aspects. At the same time, it is hard to deny the impact of different social concepts of genocide on the use of the term by various international criminal tribunals and in legal academic debate. This chapter will set out the differences between a more open social concept and the legal understanding of genocide and provide a critique of the adoption of features of the social concept in legal discourse. While a proper analysis of the intent requirement of the crime of genocide clearly reveals that genocide as a legal concept describes a systemic crime, individual criminal responsibility for genocide cannot be determined by simply referring to the existence of a system of genocide or a genocidal campaign on its own.

1. Genocide as an open concept?

Although genocide has developed to become a legal notion¹ soon after the term had been coined by Raphael Lemkin,² most people do not refer to a legal definition when talking about genocide. As Paul Boghossian has phrased it, ‘[W]hen a large number of people are killed, it’s not unusual for a debate to ensure about whether the event qualifies as genocide.’³ Social scientists, for example, include in the victim groups all human groups as targeted by the perpetrators⁴ or even depart entirely from the group element,⁵ whereas the media, as well as historians, tend to use the term simply to describe the occurrence of mass killings or ethnic cleansing based on discriminatory motives.⁶ Sometimes even jurists prefer a more open concept of genocide.⁷

Nevertheless, the term ‘genocide’ carries an unmatched rhetorical power and politicians and diplomats all over the world are aware of the stigma brought about by allegations that genocide has been committed. One recent example for this powerful impact of genocide charges is the fact that Turkey froze all economic, political and military contacts with France, after the French parliament had passed a law punishing the denial of the Armenian genocide on 23 January 2012. The new French law would have meant that anyone denying the Armenian genocide faced up to a year in jail and a maximum fine of 45,000 euros. Of course it is debatable whether such legislation infringes the freedom of expression,⁸ but what is more important here is the fact that the question as to whether mass atrocities committed nearly a century ago amounted to genocide can lead to a massive stir in diplomatic relations even today. To find similar examples is not difficult, since the stigma brought about by allegations that genocide has been committed will inevitably lead to the use of the label genocide whenever mass atrocities occur.⁹

For that reason, it is troubling that even international criminal tribunals make use of a rather broad ‘social’ concept of genocide instead of strictly limiting themselves to applying the legal definition of genocide relating to individual misconduct. To illustrate this disquieting practice, one might refer to the Trial Chamber’s assessment in Akayesu that ‘genocide was, indeed, committed in Rwanda in 1994 against the Tutsi as a group’.¹⁰ Similarly the Trial Chamber in Kayishema/Ruzindana embarked on a mission to establish ‘whether genocide took place in Rwanda in 1994’.¹¹ As to the relevance of such a finding, the judges set out that this question was ‘so fundamental to the case against the accused that the Trial Chamber feels obliged to make a finding of fact on this issue’.¹² Eventually, the troubling use of a broad ‘social’ concept of genocide culminated in the ‘landmark’¹³ Appeals Chamber decision¹⁴ recognising that genocide occurred in Rwanda as a fact of common knowledge.¹⁵ As the Appeals Chamber set out:

There is no reasonable basis for anyone to dispute that, during 1994, there was a campaign of mass killing intended to destroy, in whole or at least in very large part, Rwanda’s Tutsi population, which (as judicially noticed by the Trial Chamber) was a protected group … During its early history, it was valuable for the purpose of the historical record for Trial Chambers to gather evidence documenting the overall course of the genocide and to enter findings of fact on the basis of that evidence. Trial and Appeal Judgements thereby produced (while varying as to the responsibility of particular accused) have unanimously and decisively confirmed the occurrence of genocide in Rwanda, which has also been documented by countless books, scholarly articles, media reports, U.N. reports and resolutions, national court decisions, and government and NGO reports. At this stage, the Tribunal need not demand further documentation. The fact of the Rwandan genocide is a part of world history, a fact as certain as any other, a classic instance of a ‘fact of common knowledge’.¹⁶

To be sure, it will not be denied that mass killings and other horrendous crimes based on discriminatory motives did occur in Rwanda in 1994. Nevertheless, the benefit of such a finding in a verdict dealing with the criminal responsibility of one or more individuals might be outweighed by the potential prejudice caused by it. However, before turning to analyse the Appeals Chamber decision in more detail, we will first turn to explore the ‘legal’ concept of genocide more thoroughly.

2. The ‘legal’ concept of genocide

In contrast to broader social concepts of genocide, the legal concept of genocide¹⁷ is based on individual misconduct that satisfies certain requirements set out by criminal law.¹⁸ Although these requirements slightly differ in national law, it might be fair to state that genocide is by far the most standardised criminal offence worldwide, because most of the provisions included in national law refer to or simply reproduce the wording of the Convention on the Prevention and Punishment of the Crime of Genocide. In addition, both Article 4(2) of the Statute of the International Criminal Tribunal for the former Yugoslavia and Article 2(2) of the Statute of the International Criminal Tribunal for Rwanda use a verbatim reproduction of Article 2 of the Genocide Convention¹⁹ in order to define the offence of ‘genocide’, and the same is true for Article 6 of the Rome Statute of the International Criminal Court.

Based on this wording, genocide requires neither successful destruction of a whole race or ethnicity nor even that crimes have occurred on a mass scale. From its language it rather appears that fulfilling the actus reus requirement simply calls for a serious attack on a member of a national, ethnical, racial or religious group.²⁰ For that reason, much of the dispute with regard to the legal concept of genocide concerns the mens rea requirement, i.e. that the perpetrators act with a certain intent, namely to destroy, in whole or in part,²¹ a national, ethnical, racial or religious group, as such.

It is often said that what distinguishes genocide from all other crimes under international law is its dolus specialis or ‘special intent’ as an aggravated criminal intention, required in addition to the criminal intent accompanying the underlying offence.²² Similarly, the International Criminal Tribunal for Rwanda, as well as the International Criminal Tribunal for the former Yugoslavia, have on various occasions expressed their view that a perpetrator of the crime of genocide must act with the aim, goal, purpose or desire to destroy a part of the protected group.²³

However, this interpretation, which may be called the purpose-based approach, has been challenged by the so-called knowledge-based approach.²⁴ According to the latter, the requirement of genocidal intent should be satisfied ‘if the perpetrator acted in furtherance of a campaign targeting members of the protected group and knew that the goal or manifest effect of the campaign was the destruction of the group in whole or in part’.²⁵ In this vein, it has been argued that principal culpability should extend to those who may lack a specific genocidal purpose, but who commit genocidal acts while understanding the destructive consequences of their actions for the survival of the relevant victim group.

This chapter does not aim to discuss the dispute between these two approaches regarding the mens rea requirement of genocide.²⁶ Nevertheless, it is difficult to accept that a subordinate, who – although clearly understanding that his acts contribute to the destruction of a protected group – carries out the tasks assigned to him simply to avoid discussion with his superiors and clearly without sharing their beliefs, might be seen as acting with the necessary ‘intent’ to destroy, in whole or in part, a protected group, as such. Of course, this concern might become troubling when it comes to determining the criminal responsibility of the superior,²⁷ but it is more than doubtful whether such a difficulty warrants equating mere indifference with intent, thereby diluting the concept of genocide as the most serious crime against humanity.

3. The ‘systemic’ nature of genocide

Despite these concerns, the knowledge-based approach is a useful means to demonstrate that the crime of genocide not only requires an attack on a member of a protected group – as the plain reading might suggest – but also the existence of an endeavour or plan that is capable of destroying the group at least in part.

Such an unwritten element of the crime of genocide has already been touched upon in Jelisić, when the International Criminal Tribunal for the former Yugoslavia was tasked to decide on what the Appeals Chamber later described as a ‘one-man genocide’²⁸ mission.

Goran Jelisić was charged with genocide, multiple violations of the laws or customs of war and crimes against humanity. He was prosecuted for murdering thirteen persons, for inflicting bodily harm on four persons and for stealing money from the detainees in Luka camp. In addition, the indictment set out that in May 1992 he systematically killed Muslim detainees at the Laser Bus Company, the Brcko police station and Luka camp.²⁹

The accused, Jelisic, pleaded guilty to war crimes and crimes against humanity but not to gen...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Notes on contributors
• Introduction
• PART I The concept and development of the law of genocide
• PART II The legal elements of genocide
• PART III The domestic prosecution and sentencing of genocide
• PART IV Concluding thoughts
• Index