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“To what extent is the definition of ´genocide´ in international criminal law adequate?
Does the existence of ´crimes against humanity´ render the value of the crime of
genocide redundant?”
13/01/2021 | 2559 words
Introduction
“For...victims under Rios Montt´s dictatorship, the importance of this trial was unrelated to any
geopolitical significance. It was about having their reality, their truth recognized...It did not matter
that the former dictator avoided imprisonment (after being found guilty of Genocide) ...Once the label
of Genocide is stamped, nothing can erase it”
1
To understand the law on Genocide, one must first understand its origin. The crime of Genocide as we
know it today has not been around for as long as it may seem. The story of its enshrinement in
International Law begins in Poland with a Jewish lawyer named Raphael Lemkin. Lemkin was
astonished when he found out that the organisers behind the Armenian Genocide
2
which occurred
during the First World War, never faced prosecution.
3
He discovered that it was due to there being no
legal framework under which they could be tried.
4
In 1933 he submitted a proposal for an International
Treaty that made attacks on religious, national and ethnic groups an International crime with global
jurisdiction.
5
Lemkin, himself, said that it was unsuccessful due to arguments made that it occurred too
rarely to legislate against it.
6
During the Second World War Lemkin, believed that existing Law was
inadequate in prosecuting the Nazis for their crimes against national minorities and preventing future
Genocides.
7
Lemkin, a polyglot, understood the power of words.
8
He combined Genos (Greek for race,
tribe or nation) with Cide (Latin for killing)
9
and coined the term Genocide in 1944,
10
to provide a name
for the “crime with no name”.
11
As a result of Lemkin’s efforts and the Holocaust, Genocide became a
crime under International Law in the United Nations General assembly in 1946. Crimes against
Humanity became a part of International Law around the same time, around the Nuremberg trials.
12
The
crime is now set out in The Rome Statute of the International Criminal Court.
13
Prima Facie the two
crimes may appear similar. However, upon closer inspection, the distinction is that Genocide aims to
1
Alice C. Hu ´"Genocide” Taboo Why We´re afraid of the G-word”´ [2017] HIR 4, 6
2
Referred to as a mass-killing at the time
3
Philip Spencer, Genocide since 1945 (Routledge 2012) 2
4
ibid
5
Raphael Lemkin, Axis Rule in Occupied Europe (First published 1944, 2nd edn, The Lawbook Exchange Ltd
2008) ix
6
ibid
7
Devrim Aydin, ´The Interpretation of Genocidal intent under the Genocide Convention and the Jurisprudence
of the International Courts´ [2014] 423, 428
8
Raphael Lemkin, Axis Rule in Occupied Europe (First published 1944, 2nd edn, The Lawbook Exchange Ltd
2008)
9
George J. Andreopoulos, ‘Genocide’ (Britannica, 14 January 2020) accessed 1 January 2021
10
ibid 79
11
Samantha Power, A problem from hell: America and the age of genocide (Flamingo, 2003) 28
12
Robert Colson, ´What's the Difference Between 'Crimes Against Humanity' and 'Genocide?'´ (The Atlantic,
19 March 2013) <https://www.theatlantic.com/international/archive/2013/03/whats-the-difference-between-
crimes-against-humanity-and-genocide/274167/> accessed 19 December 2020
13
Rome Statute of the International Criminal Court (adopted 17 July 1998, in force 1 July (2002)
protect people who are harmed solely because they belong to a group. Crimes Against Humanity aims
to protect people who are harmed as individuals, as part of a widespread or systematic attack.
14
15
This essay will critically discuss to what extent the definition of Genocide is adequate and if it should
be reclassified as a Crime Against Humanity instead of being a separate offence under International
Criminal Law. In brief, this essay argues that there are flaws in the definition of Genocide. It does need
to be amended; nevertheless, the Crime of Genocide is not redundant co-existing with Crimes Against
Humanity.
This essay is divided into five sections. Section one to four goes through the definition of Genocide
deconstructed into five parts. Each part discusses a part of the definition, examining some of the
arguments and evidence regarding its adequacy. To provide new insight, this essay has chosen to
address some of the less common arguments on this topic. Section five draws on the arguments made
in section one to four and investigates what value Genocide has as a crime of its own in International
Criminal Law alongside Crimes Against Humanity. The essay is concluded by a brief summary of what
has been discussed.
Deconstructing the Definition of Genocide
1. Intent (to Destroy)
Genocidal intent is the first part of the mens rea of Genocide
16
. Genocide has a higher standard of intent,
dolus specialis (special intent).
17
Hence, the perpetrator must act with Genocide as their conscious
purpose and there has to be proof of that.
18
Genocidal intent is easier to prove when the perpetrator has
stated their intention in public, in private statements or confessed..
19
If there is no such evidence "intent
can be inferred from a certain number of presumptions of fact" according to The International Criminal
Tribunal for Rwanda (ICTR) in Akayesu.
20
Knowledge of the circumstances is usually taken into
14
Robert Colson, ´What's the Difference Between 'Crimes Against Humanity' and 'Genocide?'´ (The Atlantic,
19 March 2013) <https://www.theatlantic.com/international/archive/2013/03/whats-the-difference-between-
crimes-against-humanity-and-genocide/274167/> accessed 19 December 2020
15
Rome Statute of the International Criminal Court (adopted 17 July 1998, in force 1 July (2002)
16
Devrim Aydin, ´The Interpretation of Genocidal intent under the Genocide Convention and the Jurisprudence
of the International Courts´ [2014] 423, 431
17
ibid
18
ibid 432
19
Kjell Anderson, ´Judicial Inference of the ‘Intent to Destroy’: A Critical, Socio-legal Analysis´ [2019] Journal
of International Criminal Justice 125, 3
20
ibid
account as well.
21
The Milorad Trbic Framework
22
sets out a list of elements. The more that are met,
the more likely it is for intent to be found.
23
Schabas argues that ´what sets genocide apart from crimes
against humanity...is that the act...must be committed with...specific intent´.
24
In other words, without
Genocidal Intent, any crime of Genocide is likely to be a Crime Against Humanity. Crimes Against
Humanity
25
is subject to only general intent, and it has been argued that this distinction correctly holds
Genocide above Crimes Against Humanity in terms of severity. Conversely, Kinseth argues that
“members of the international community continually justify their inaction with the Convention's third,
and most amorphous, element: genocidal intent.”
26
Kinseth asserts that despite compelling evidence of
Genocidal intent in an ongoing conflict between the Myanmar Government and the Rohingya people,
Genocide is being denied by all states except for one.
27
However, it appears that the main obstacle in
the conflict being recognised as Genocide is that the Rohingya people do not fall into any of the
protected groups.
28
Regardless of how much evidence there is of genocidal intent, the group must be
covered by the definition. Nonetheless, this essay agrees with Kinseths argument that the high threshold
of intent has adverse effects on the prevention of Genocide. As demonstrated by inaction of states in
the current events in Myanmar, this element is unfit for purpose. The defintion itself should not be an
obstacle for intervention in crimes that are clearly Genocide.
29
The definition is clearly inadequate and
needs to be amended.
30
2. In whole or in part
´(Intent to destroy) In whole or in part´
31
is the second part of the mens rea of Genocide. ´The offender
must have the knowledge that the consequences of his acts...would be to destroy, in whole or in part,
21
ibid
22
Judgment, Trbic (X-KR-07/386), Trial Chamber, 16 October 2009
23
Kjell Anderson, ´Judicial Inference of the ‘Intent to Destroy’: A Critical, Socio-legal Analysis´ [2019] Journal
of International Criminal Justice 125, 5
24
William Schabas, Introduction to the International Criminal Court, 2nd ed. (New York: Cambridge University
Press, 2004) 38
25
Rome Statute of the International Criminal Court (adopted 17 July 1998, in force 1 July (2002) art 7
26
Ashley S. Kinseth, ´The trouble of proving “Genocidal Intent”: The modern Rohingya crisis in historical and
political context´ (2020) NYUJILP <https://nyujilp.org/wp-content/uploads/2019/03/Kinseth_Final-.pdf>
accessed 1 January 2021
27
ibid Only acknowledged by Canada at the time of writing
28
Adriá Ferrer-Montfort, ´Revisiting the Interpretation of the protected groups of the Genocide Convetion in
light of the Rohingya case´(2019) 22 Trinity CL Rev 77
29
Adriá Ferrer-Montfort, ´Revisiting the Interpretation of the protected groups of the Genocide Convention in
light of the Rohingya case´(2019) 22 Trinity CL Rev 94 “A leaked document of the
Myanmar government entitled 'Rohingya Extermination Plan', was written in 1988, and a senior military
official called the atrocities 'an unfinished job”.
30
Katherine Goldsmith, ´The Issue of Intent in the Genocide Convention and Its Effect on the Prevention and
Punishment of the Crime of Genocide: Prevention and Punishment of the Crime of Genocide: Toward a
Knowledge-Based Approach´ [2010] Genocide Studies and Prevention: An International Journal 238, 8
31
Convention on the Prevention and Punishment of the Crime of
Genocide (adopted 9 December 1948, opened for signature 12 January (1951) art 2
the group´.
32
This element is mainly unproblematic except for arguments that it calls for a larger group
of victims before the requirement is satisfied. The International Criminal Court confirmed that in all
acts of Genocide there has to be at least one victim.
33
The same applies to Crimes Against Humanity.
34
This avoids evidential focus on the number of victims and instead places it on the atrocity of the crime
itself. In practise, it is unlikely that a perpetrator would be convicted of Genocide if they committed an
act of Genocide against one person only. But regardless, the threshold of one person is suitable in theory
as it enables prevention. Consequently, there is no necessity to wait for a certain number of victims
before a perpetrator can be charged with Genocide.
3. A National, ethnical, racial or religious group
The groups protected under the Genocide Convention are what was considered national minorities at
the time of drafting and the definition has not been updated since then.
35
The rationale for selecting the
groups was that they were deemed to be stable, cohesive and permanent.
36
For this reason, more
protection was justified than for groups where membership could easily be acquired or denounced.
37
This section discusses two arguments for this element being inadequate. Firstly, there are conflicting
judgements as to what constitutes one of these groups, ´racial´ in particular. Two cases heard at the
International Criminal Tribunal for the former Yugoslavia (ICTY) Nikolic
38
, and Jelisic
39
takes the
subjective (minority) approach.
40
In contrast, four ICTR cases mainly take an objective approach with
some subjective elements.
41
Lingas sets out the differences between cases in her article, including a
long list of different approaches taken by the ICTY and ICTR for defining racial.
42
Lingas observes that
“International criminal tribunals are manifestly uncomfortable with collective groupings and interpret
32
Devrim Aydin, ´The Interpretation of Genocidal intent under the Genocide Convention and the Jurisprudence
of the International Courts´ [2014] 423, 437
33
International Criminal Court, ‘Elements of Crimes’ (ICC-CPI, 2011) accessed 11 January 2021
<https://www.icc-cpi.int/resourcelibrary/official-journal/elements-of-crimes.aspx#article6a>
34
ibid
35
Francis Rose, ‘The Law and Genocide’ in Donald Bloxham and A.Dirk Moses (eds),
The Oxford Handbook of Genocide Studies (OUP 2013)
36
Carola Lingaas, ´The Elephant in the Room: The Uneasy Task of Defining Racial in International Criminal
Law´ [2015] ICLR 485, 512
37
ibid
38
Prosecutor v. Nikolic (Review of Indictment) IT-94-2-R61, (20 October 1995)
39
Prosecutor v. Jelisic (Appeals Judgement) IT-95-10-A, (14 December 1999)
40
ibid 511
41
Carola Lingaas, ´The Elephant in the Room: The Uneasy Task of Defining Racial in International Criminal
Law´ [2015] ICLR 485, 511 Objective approach: “A group is regarded as a social fact, a stable and permanent
reality. Neither the views of the victims or the perpetrators are decisive” Subjective Approach: The group exists
to the extent that its members perceive themselves as belonging to it or are perceived as such by the
perpetrator”.
42
ibid
‘race’ rather inconsistently.”
43
Evidently there is a need for a set approach to reduce the uncertainty of
what constitutes race. In 1992, France extended its national legislation on Genocide to include any
arbitrarily defined group.
44
For reasons set out above, a standard definition used by all states is needed
to reduce uncertainty.
Secondly, limiting groups that can by legal definition be subject to Genocide indicates that some groups
are more important than others that are not included. The Holocaust was the main reason that Genocide
became Law.
45
Nevertheless, the groups set out in the convention does not cover the large number of
people killed solely for being disabled.
46
Ford rightfully asserts “The same Nazi ideology that targeted
Jews for extermination targeted disabled persons for extermination first, subjecting both disabled
children and adults to the same rituals of mass killing endured by Jews”.
47
Ford argues that disabled
people should be included in the definition.
48
On the other hand, Lingas argues that extending the
definition is a slippery slope.
49
Kress agrees, stating that extending the definition to include all groups
would “transform Genocide into an unspecific crime of group destruction based on a discriminatory
motive”.
50
Schabas even argues that the gap in protected groups in the definition of the Crime of
Genocide has been filled by the non-exhaustive list of groups in Crimes Against Humanity.
51
52
If that
were true, there would not be cases where people have been victims of Genocide under all other aspects
of the definition but not satisfied the protected group element. Examples include the Myanmar-
Rohingya conflict
53
, secondly, the Disabled and political groups in the Holocaust and finally social and
43
Carola Lingaas, ´Imagined Identities: Defining the Racial Group in the Crime of Genocide´ [2016] Genocide
Studies and Prevention: An International Journal 79, 1
44
Ibid 497
45
Philip Spencer, Genocide since 1945 (Routledge 2012) 2
46
A. Rahman Ford, ´A race apart: Genocide and the Protection of disabled persons under International Law´
(2014) Review of Disability studies, an International Journal
<https://www.rdsjournal.org/index.php/journal/article/view/217> accessed 4 January 2021
47
ibid
48
ibid
49
Carola Lingaas, ´The Elephant in the Room: The Uneasy Task of Defining Racial in International Criminal
Law´ [2015] ICLR 485, 514
50
Claus Kress, ´The International Court of Justice and the Elements of the Crime of Genocide´ [2007] EJIL 619,
624
51
William A. Schabas, Genocide in International Law: The Crime of Crimes (CUP 2009) 120
52
David Shea Bettwy, ´The Genocide Convention and Unprotected Groups: Is the Scope of Protection
Expanding under Customary International Law?´ [2011] Notre Dame Journal of International & Comparative
Law 167, 6
53
Adriá Ferrer-Montfort, ´Revisiting the Interpretation of the protected groups of the Genocide Convetion in
light of the Rohingya case´(2019) 22 Trinity CL Rev 77
economic groups in Cambodia.
54
It is clear that the Genocide Convention need to be more inclusive
when one of the targeted minority groups that inspired its creation is not even protected under it.
55
4. The Five Acts
The Five acts refer to the exhaustive list of the actus reus of Genocide.
56
57
In contrast, Crimes Against
Humanity has a non-exhaustive list of acts, and paragraph 1(k) of the definition enables the inclusion
of ´other inhumane acts...´
58
as well. Furthermore, In contrast to Crimes Against Humanity, no one
needs to be harmed in order for Genocide to take place according to Alice C. Hu.
59
After carefully
examining the definitions, this essay disagrees with that conclusion. All acts of Genocide cause some
type of harm, whether physical or mental. Killing and serious bodily or mental harm are self-
explanatory. ´Inflicting on the group conditions of life...´, ´imposing measures to prevent births and
forcibly transferring children´ all cause harm to the victims of it.
60
However, it is fair to recognize that
the idea of what harm is can, of course, be subjective. Furthermore, it has been argued that all acts of
Genocide are likely to automatically be Crimes Against Humanity anyway but not the other way around
so, this renders Genocide redundant. The Chamber in Prosecutor v Akayesu declared this argument
incorrect due to Crimes Against Humanity and Genocide have different purposes.
61
´The Chamber
believes that...Genocide (and) crimes against humanity...have different elements and... are intended to
protect different interests. The crime of genocide exists to protect certain groups from extermination or
attempted extermination. The concept of crimes against humanity exists to protect civilian populations
from persecution...These crimes have different purposes and are, therefore, never co-extensive. ´
62
The
Chamber also provide an example of when a Crime of Genocide would not be a Crime Against
Humanity. ´If, for example, a general ordered that all prisoners of war belonging to a particular ethnic
group should be killed, with the intent thereby to eliminate the group, this would be...Genocide, although
not necessarily a crime against humanity. ´
63
To the contrary, this argument does not strengthen the
notion that crimes of Genocide are unlikely to be Crimes Against Humanity automatically. Without
54
David Shea Bettwy, ´The Genocide Convention and Unprotected Groups: Is the Scope of Protection
Expanding under Customary International Law?´ [2011] Notre Dame Journal of International & Comparative
Law 167, 23
55
A. Rahman Ford, ´A race apart: Genocide and the Protection of disabled persons under International Law´
(2014) Review of Disability studies, an International Journal
<https://www.rdsjournal.org/index.php/journal/article/view/217> accessed 4 January 2021
56
Rome Statute of the International Criminal Court (adopted 17 July 1998, in force 1 July (2002) art 6
57
William A. Schabas, Genocide in International Law: The Crime of Crimes (CUP 2009) 176
58
ibid Art 7 ´Other inhumane acts of similar character intentionally causing great suffering, or serious injury to
body or to mental or physical health´.
59
Alice C. Hu ´"Genocide” Taboo Why We´re afraid of the G-word”´ [2017] HIR 4,5
60
Rome Statute of the International Criminal Court (adopted 17 July 1998, in force 1 July (2002) art 6-7
61
Prosecutor v Akayesu (Judgement) ICTR-96-4-T, T Ch I (2 September 1998) para 46
62
ibid
63
ibid
intent present in the example, it would likely be a Crime Against Humanity.
64
However, the argument
by the Chamber that the crimes are intended for different purposes remains strong, nonetheless. To
return to the introduction of this essay, Genocide for the protection of groups and Crimes Against
Humanity for the protection of civilian individuals.
65
5. Should Genocide be reclassified as a Crime Against Humanity?
Sands argues that Genocide is unfit for purpose. He thinks that the definition should be amended or that
Genocide should be merged with Crimes Against Humanity as an aggravating factor when a crime
concerns group destruction.
66
Sands previously argue that he believes neither one of the crimes are
worse than the other and equally severe.
67
This contradicts his statement that Genocide could be an
aggravating factor in Crimes Against Humanity.
68
It does imply that Genocide is more serious.
Subsequently, this paragraph sets out a compelling argument for why Genocide is regarded as more
severe than Crimes Against Humanity in the International Community and why a Genocide conviction
is more desired by those affected. “Who, after all, speaks today of the annihilation of the Armenians?”.
69
Adolf Hitler made this argument when reassuring his military to commit Genocide against the Polish
population.
70
Hitler was wrong about the impunity for his actions after the war. Nevertheless, only
around 50 years later, the Holocaust appears to have been a distant memory when US State Department
lawyers were concerned that acknowledging what was happening in Rwanda as Genocide would require
that the administration take action.
71
According to the United Nations, the Genocide Convention marks
the International community's commitment to 'never again'
72
. Nevertheless, states appear more inclined
to acknowledge atrocities as being Crimes Against Humanity than Genocide.
73
Article one of the
Genocide Convention states that 'The Contracting Parties confirm that Genocide...is a crime...which
64
Devrim Aydin, ´The Interpretation of Genocidal intent under the Genocide Convention and the Jurisprudence
of the International Courts´ [2014] 423, 441 “Due to the narrow legal definition of ‘genocide’ in relation to other
mass crimes, if the perpetrator is found to have no genocidal intent, then other serious crimes will be at issue,
such as massacre, murder, ethnic cleansing, and even crimes against humanity, but not the crime of genocide.”
65
Robert Colson, ´What's the Difference Between 'Crimes Against Humanity' and 'Genocide?'´ (The Atlantic,
19 March 2013) <https://www.theatlantic.com/international/archive/2013/03/whats-the-difference-between-
crimes-against-humanity-and-genocide/274167/> accessed 19 December 2020
66
ibid
67
ibid
68
ibid
69
Nicole Rafter, ´The crime of all crimes, Toward a criminology of Genocide´ (NYU Press 2016) 9
70
ibid
71
Alice C. Hu ´"Genocide” Taboo Why We´re afraid of the G-word”´ [2017] HIR 4, 5-6
72
United Nations, ´The Genocide Convention´ (un.org) <https://www.un.org/en/genocideprevention/genocide-
convention.shtml> accessed 1 January 2021
73
Ashley S. Kinseth, ´The trouble of proving “Genocidal Intent”: The modern Rohingya crisis in historical and
political context´ (2020) NYUJILP <https://nyujilp.org/wp-content/uploads/2019/03/Kinseth_Final-.pdf>
accessed 1 January 2021 7
they undertake to prevent and to punish.'
74
Kinseth rightly states that “The United States, other
governments, and even the United Nations have similarly sought to downplay the severity of ongoing
genocides, describing them as ...“crimes against humanity” (etc) —acts that do not explicitly require
state or multilateral intervention.”
75
Prosecutors even use Genocide as a bargaining chip “because of its
super-stigma; it can be negotiated down to crimes against humanity in exchange for a guilty plea and
the accused’s’ help in prosecuting others.”
76
Furthermore, returning to the point made in the quote this
essay commenced with. As Crimes Against Humanity evidently is perceived as less serious, a Genocide
conviction is emotionally important to victims of atrocities because it adequately reflects their pain and
suffering in a way Crimes Against Humanity does not.
77
Conclusion
This essay sets forward two main arguments for why Crimes Against Humanity does not render the
crime of Genocide redundant. Firstly, even though there is clearly plenty of inadequacy in the definition
of Genocide (as this essay has set out) this can be amended
78
to be fit for purpose and similarities
between the two does not render Genocide redundant.
79
Secondly, Genocide is regarded as more serious
and explicitly demands multilateral and state intervention which Crimes Against Humanity does not.
80
Evidently, this ultimately makes Genocide more powerful in International Criminal Law, and as long
as Crimes Against humanity does not invoke the same demand of intervention, Genocide will never be
redundant.
74
Convention on the Prevention and Punishment of the Crime ofGenocide (adopted 9 December 1948, opened
for signature 12 January (1951) art 1
75
Ashley S. Kinseth, ´The trouble of proving “Genocidal Intent”: The modern Rohingya crisis in historical and
political context´ (2020) NYUJILP <https://nyujilp.org/wp-content/uploads/2019/03/Kinseth_Final-.pdf>
accessed 1 January 2021 7
76
Patricia M. Wald, ´Genocide and Crimes Against Humanity´ [2007] Washington University Global Studies
Law review 8
77
ibid 14
78
Ido Vock, ‘Philippe Sands on the Uighurs: “Why does it matter if we call it a genocide?”´ (NewStatesman, 15
July 2020) <https://www.newstatesman.com/world/asia/2020/07/philippe-sands-uighurs-why-does-it-matter-if-
we-call-it-genocide> accessed 5 January 2020
79
Prosecutor v Akayesu (Judgement) ICTR-96-4-T, T Ch I (2 September 1998) para 46
80
Ashley S. Kinseth, ´The trouble of proving “Genocidal Intent”: The modern Rohingya crisis in historical and
political context´ (2020) NYUJILP <https://nyujilp.org/wp-content/uploads/2019/03/Kinseth_Final-.pdf>
accessed 1 January 2021 7
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