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The Interpretation of Genocidal Intent under the Genocide Convention and the Jurisprudence of International Courts
Abstract
Many scholars studying substantive criminal law examine the crime in an analytical way to determine the elements of crime, determining these elements as the material or objective element (actus reus) and the mental or subjective element (mens rea). In accordance with this, a crime consists of a physical act or omission (material element) and the psychological bond that links the act to the perpetrator (mental element). The elements of the crime of genocide are derived from the definition of Article 2 of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. According to this, the crime of genocide is committing any of the acts enumerated in the Convention with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. The mental element of genocide was not mentioned either during the Nuremberg trials or in the Convention. The discussion on the mental element of the crime of genocide or ‘genocidal intent’ took place within international criminal law for the first time during the trials at international courts for the Former Yugoslavia and Rwanda in order to prove the perpetrators' genocidal intent. This article discusses the definition of genocide, the mental element of the crime in substantive criminal law, the mental element of the crime of genocide and the jurisprudence of the international tribunals related to the issue.
... In spite of the fact that the vast majority of academics are in agreement that humanitarian interventions have to be carried out on a multilateral scale, there is still some discussion regarding which specific actors -the United Nations, regional organisations, or a group of states -ought to engage in response to widespread breaches of human rights [31]. The choice of actor has repercussions for the problem-solving strategy of collective action, which involves the mobilisation of political will and material resources. ...
Humanitarian intervention and Peace support operation has become an increasingly important and as well as turning into controversial topic over time. The Russian-Ukrainian War, which began in 2014, serves as a relevant case study for the discussion of humanitarian intervention and Peace support operation. The Russia-Ukraine war is a complex and politically sensitive matter involving several parties with competing interests. The violence within the region has resulted in a substantial amount of human suffering, including displacement, injuries, and deaths; as a result, there is an immediate need for humanitarian relief to assist those who have been affected. However, before taking any action, especially one with military repercussions, there is a need to weigh the political ramifications and ensure that doing so will not only make things worse but also violate international norms. Thus, the difficulty lies in bringing about a permanent and peaceful conclusion to the conflict while also providing adequate humanitarian aid in various forms. Therefore, this paper examines the impact of humanitarian intervention and Peace support operation in the context of the Russian-Ukrainian War. From the findings of the paper, it was revealed that the war has had a huge humanitarian impact on both Russia and Ukraine. While allies of either side could not officially participate in the war, they provided each side with various supports ranging from military assistance, financial aid, healthcare services to diplomatic support, to bring the woes of the war to an end. This paper concludes that the Russian-Ukrainian War serves as a key example of the complexities and challenges of humanitarian intervention in situations of war. It highlights the importance of finding new and innovative approaches to address mass atrocities, while also emphasizing the need for the international community to find a way to address the humanitarian crisis in conflict-affected regions.
... Moreover, in a manner linked to preserving genocide's top-tier status upon an informal hierarchy as the 'crime of crimes', the threshold for proving the requisite intention to commit genocide is distinct in its stringency. Influentially developed through the case law of ad hoc international tribunals created to adjudicate events publicly decried as genocide in the former Yugoslavia and Rwanda in the 1990s, a consensus emerged that, beyond the knowledge of wrongdoing that furnishes general intent, genocide requires a dolus specialis or specific intent (Aydin 2014). As foundationally established by the International Tribunal for Rwanda's Akayesu case (1998, para. ...
For critical legal scholars, the ongoing far-right assault upon the liberal status quo poses a distinct dilemma. On the one hand, the desire to condemn the far-right is overwhelming. On the other hand, such condemnations are susceptible to being appropriated as a validation of the very liberalism that critical theorists have long questioned. In seeking to transcend this dilemma, my focus is on the discourse of ‘white genocide’ — a commonplace belief amongst the far-right/white nationalists that ‘whites’, as a discrete group, are facing demographic destruction as a result of deliberate policy choices. Such a belief has motivated acts of extreme violence. While libel to dismissal by experts on mainstream understandings of genocide, namely international criminal lawyers, I argue that this ‘white genocide’ discourse deserves careful scrutiny as a jurisprudential and socio-legal phenomenon that reveals key weaknesses in present modalities of liberal justification. Drawing upon an array of recent critical theories, I show how a liberalism unable to face its own decline enables the very far-right assertions it purports to oppose. Thus, given liberalism’s failure to act as a neutral arbiter, an alternative approach for those opposing the far-right is to develop a vision of politics and society that confront believers in ‘white genocide’ on a more substantive level. This, I argue, forces the far-right’s opponents to disavow liberal scepticism towards utopian transformation as well as the juridical understandings and institutions that allow this scepticism to durably persist.
... 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. 1 The term "human non-persons" refers to the members of the human race who fail short of legal recognition of their personhood. ...
First article investigates if the group of disabled could be granted with victim status for the purpose of genocide. The discussion refers to the theoretical understanding and judicial interpretations of the protected groups and their scope. Considering that the theory and case law provide grounds for both, exclusive and extensive, understanding of the protected groups and their scope, it has been addressed what are the common features of the groups that are indisputably protected. The findings that were reached through the discussion are that the group of the disabled has all the characteristics as the other protected groups, which qualifies them for the victim status.
It was published at KOLARIĆ, Dragana (ed.). Archibald Reiss Days: International Scientific Conference, Belgrade, 10-11 March 2016, Thematic Conference Proceedings of International Significance. Vol. 1. Belgrade: Academy of Criminalistic and Police Studies; 2016, pp. 296-305. ISBN 978-86-7020-356-3
Second article investigates if there is specific element or, equivalent, of the crime of genocide in abortion laws which introduce fetal malformation as absolute abortion defense. The inquiry referred to psychological element of the crime – intent. The findings that were reached through the discussion are that the equivalents of genocidal intent exist in laws that introduce fetal malformation as the absolute defence of abortion. The application of these laws directly results in a drastic reduction of the number of disabled persons. Time-unlimited abortion on the grounds of fetal disability discriminates against disabled persons providing them with a narrower “right to a safe life” zone.
It was published at Gorazd Meško, Branko Lobnikar (eds.). Criminal justice and security in Central and Eastern Europe : safety, security, and social control in local communities, Ljublјana, 26-27. September 2016., Thematic Conference Proceedings of International Significance. T. 1: Faculty of Criminal Justice and Security, pp. 300- 312. ISBN: 978-961-6821-59-9
... Lemkin tried to explain the crime of killing the members of a group by the term 'genocide' , which he combined from the Greek word genos (community, people, race) and the word cide (killing). Lemkin thought that the crime of genocide involves a wide range of actions, including not only deprivation of life, but also the prevention of life (abortions, sterilisations), etc. 50 In the Resolution 96(1) of 11 December 1946 of the General Assembly of the United Nations it has been stated that: 51 Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; 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. ...
The intent of this article is to explore whether the group of the disabled people could be considered as a protected group under the international instruments referring to the crime of genocide. To that end, it has been discussed whether the listed groups (national, ethnical, racial and religious) are the only groups that are protected against the “ultimate crime”. The discussion refers to the theoretical understanding and judicial interpretations of the protected groups and their scope. Considering that the theory and case law provide grounds for both, exclusive and extensive, understanding of the protected groups and their scope, it has been addressed what are the common features of the groups that are indisputably protected. The findings that were reached through the discussion are that the group of the disabled has all the characteristics as the other protected groups, which qualifies them for the victim status. Bearing this in mind as well as the historical context of the concerning crime and its purpose, the teleological interpretation appears to be the most appropriate when defining which groups are protected for the purpose of genocide. Perhaps there is no possibility for the repetition of the Holocaust due to the present day historical circumstances, at least not in its latter scope. But, there is a latent tendency toward the creation of new threats against humanity arising out of new technologies. There lies the main value of this article. It contributes to the development of the ability to detect potential violations beyond those committed against the disabled people during the WWII.
The 1948 Genocide Convention is a vital legal tool in the international campaign against impunity. Its provisions, including its enigmatic definition of the crime and its pledge both to punish and to prevent the 'crime of crimes', have now been considered in important judgments by the International Court of Justice, the international criminal tribunals and domestic courts. Since the second edition appeared in 2009, there have been important new judgments as well as attempts to apply the concept of genocide to a range of conflicts. Attention is given to the concept of protected groups, to problems of criminal prosecution and to issues of international judicial cooperation, such as extradition. The duty to prevent genocide and its relationship with the doctrine of the 'responsibility to protect' are also explored.
This book explores why some episodes of mass political violence and genocide are so much deadlier than others and under what conditions perpetrators in government and society opt for brutality as a means of accomplishing their goals. Introducing the new concept of "mass political violence" to explain genocide and other mass killings in the modern world, the author investigates "how" perpetrators sustain the capacity to enact violence on a large-scale, irrespective of motives. Cases including the Holocaust, Soviet Union, Rwanda, Cambodia, the Lord’s Resistance Army, the Islamic State, the Ottoman Empire of the 1890s, Mao Zedong’s revolutionary violence, the Congo Crisis, and Darfur are used by the author to identify four types of mass political violence perpetrators – state actors, state-society coalitions, state-sponsored groups, and non-state actors to explain historical trends and identify which perpetrators are most likely to emerge in a given socio-political context and sustain violence over time. Comparative and grounded in case studies, this book will interest policymakers, diplomats, governmental advisers, practitioners, and industry researchers. It will also be invaluable to students and scholars of Political Science, International Affairs, Holocaust and Genocide Studies, Human Rights, Sociology, Anthropology, Geography, Political Psychology, Religious Studies, Gender Studies, Public Policy, Media Studies, and Criminology.
The Genocide Convention lists intent as a critical element that must be proven to secure convictions for genocide. Many defendants have been acquitted or convicted of lesser crimes due to the difficulty in proving genocidal intent. The argument presented in this paper is that the large-scale negative impact of genocide on humanity should be considered when defining its scope in penal legislation. A fortiori, the crime of genocide should be given similar consideration to other crimes that have been classified as strict liability crimes due to their severity and cost to society. Intent as an element should, therefore, be deduced from the general purpose of the perpetrator’s acts. Although the strict legality principle is not perfect and has some flaws, it is still the most just, effective, coherent, persuasive, and proper reading of the genocide convention. The goal here is to contribute to the conversation on the limitations of genocidal intent to the effectiveness of the enforcement of the crime of genocide in international criminal law.
Like all other crimes, genocide has some common elements such as an actus reus and a corresponding mens rea. Moreover, another subjective element is also present in all crimes of genocide which is the “intent to destroy, in whole or in part, a […] group as such.” This is also referred to as “genocidal intent” and it indicates that the criminal liability of genocide does not merely rely on the completed result of the committed act but depends on the intention of the perpetrator to achieve. However, the threshold of this intention is not as high as the mens rea narrated in Article 30 of the ICC Statute. In addition, there is no requirement for the existence of any special extent of this intention. Indeed, Dolus eventualis is adequate to perform the actus reus as well as to establish the particular “intent to destroy […].” The theoretical criterion of The Draft Elements of Crimes is both inadmissible and unadvisable for limiting the criminal liability of genocide or the authority of the Court for trying such crimes Keywords: Genocide, Genocidal Intent, ICC Statute, Mens Rea, Holocaust Abstrak. Seperti semua kejahatan lainnya, genosida memiliki beberapa elemen umum seperti actus reus dan mens rea yang sesuai. Selain itu, unsur subyektif lainnya juga hadir dalam semua kejahatan genosida yaitu “niat untuk menghancurkan, seluruhnya atau sebagian, suatu […] kelompok itu sendiri.” Ini juga disebut sebagai “niat genosida” dan ini menunjukkan bahwa pertanggungjawaban pidana genosida tidak hanya bergantung pada hasil akhir dari tindakan yang dilakukan tetapi tergantung pada niat pelaku untuk mencapainya. Namun ambang batas niat ini tidak setinggi mens rea yang diriwayatkan dalam Pasal 30 Statuta ICC. Selain itu, tidak ada persyaratan untuk adanya tingkat khusus dari niat ini. Memang, Dolus eventualis cukup untuk melakukan actus reus serta untuk menetapkan niat untuk menghancurkan [...]” tertentu. Kriteria teoretis dari Rancangan Elemen Kejahatan tidak dapat diterima dan tidak disarankan untuk membatasi pertanggungjawaban pidana genosida atau otoritas Pengadilan untuk mengadili kejahatan semacam itu Kata kunci: Genosida, Niat Genosida, Statuta ICC, Mens Rea, Holocaust
Many criminal lawyers and scholars of criminal law have applied an analytical method to examine the elements of crime, and such elements are comprised of subjective elements (mens rea) and objective elements (actus reus). According to this, a crime is either an act or omission with a psychological bond relating to the physical act of the criminal. Regarding the crime of genocide, its elements are derived from the definition of genocide under the Genocide Convention and the Rome Statute. The Genocide Convention defines genocide as the commission of an act with the intent to destroy, either wholly or partly, a national, racial, ethnical, or religious group. However, the 'genocidal intent' or mental element to commit the crime of genocide was not considered in the military trials of Nuremberg and Tokyo. This 'genocidal intent' received its very first attention during the trials of two ad hoc international tribunals for the Former Yugoslavia and Rwanda. This paper attempts to discuss the definition of genocide under the Genocide Convention and the Rome Statute. This paper, then, focuses on the mental element of genocide and the approach of the international criminal courts during the trial of genocide.
Soykırım suçunun uluslararası hukukta kabul edilen tanımı çerçevesinde, ulusal, etnik, ırksal veya dini bir grubu “tamamen veya kısmen yok etme kastı” şeklinde ortaya çıkan suçun manevi unsuru (mens rea), diğer unsurlardan bir adım öne çıkmaktadır. Zira manevi unsur, soykırım suçunun adam öldürme suçundan veya insanlığa karşı suçlar altında incelenebilecek diğer suçlardan ayrılmasını sağlayan öğesidir. Bu öneminden dolayıdır ki; öğretide soykırım suçu “mens rea suçu” olarak da anılmaktadır. Bununla birlikte, manevi unsurun somut olayda ispat edilmesi, failin suç işlediği sırada taşıdığı amacın, diğer bir deyişle zihinsel durumunun, ortaya konulmasını gerektirdiğinden çoğu zaman son derece güçtür. Buna ek olarak, niteliği gereği belli bir organizasyon ve belli bir yapılanma dahilinde, her seviyeden failin katılımını gerektiren soykırım suçu açısından, ilgili failin taşıması gereken grubu yok etme kastının içerik ve yoğunluğu da, bu fail için kabul edilecek standart bakımından manevi unsurun yorumlanmasını gerektirmekte olup, uygulama ve öğretide bu konuda çeşitli yaklaşımlar ortaya konulmuştur. Bu çalışmada, soykırım suçunun şüphesiz en ayırıcı özelliği olan manevi unsura ve bu unsurun yorumlanmasına dair yaklaşımlara daha yakından bakılmıştır.
Ceza hukuku yönünden temel sorumluluk şekli kasttır. Kast, hareketin bilerek ve istenerek gerçekleştirilmesidir. Bazı suç tiplerinde, suçun oluşumu için genel kastın yanı sıra özel kastın varlığı aranmaktadır. Bu özel kast hali, suç tanımında yer verilen ve failde bulunması gerektiği belirtilen saikten kaynaklanmaktadır. Soykırım suçu da özel kast ile işlenen suçlardandır. Soykırım suçunun oluşumu için failde, genel kastın yanı sıra, belirtilen grupların tamamını ya da bir kısmını yok etme saiki bulunmalıdır. Suç tanımında yer verilen bu özel kast soykırım suçunu, diğer suçlardan ayıran önemli bir unsurdur. Fiil işlenirken bu özel kastın (grubun tamamının ya da bir kısmının yok edilmesi saiki) bulunmaması halinde fail tarafından gerçekleştirilen fiil soykırım suçu kapsamında değerlendirilmez fakat diğer koşulların oluşması halinde insanlığa karşı suç ya da ceza hukukunda düzenlenen adi nitelikte kasten adam öldürme gibi başka bir suç kapsamına girebilir.
The subject of genocide in the language is widespread in our daily lives because of the existence of multiple and enormous cases of genocide events at the present situation. Genocide can be defined as the deliberate mass murder of a whole group of persons, one of the crimes against humanity. Genocide can be defined as atrocities committed during aggression, on ethnic or religious grounds. This research attempts to apply theory of Speech Acts to the International Law of inciting genocide. It also tackles the subject of genocide from the point of view of nomenclature uses and rhetorical strategies so as to check how leaders utilize these to justify their decisions to agitate killings large organs of people. Examples of historical genocides are exemplified. Besides, cases of genocide are analyzed thematically speaking based on the inducements of the wrongdoers.
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