Vanshika Shroff , SVKM’s Pravin Gandhi College of Law, Mumbai University
Even before the outbreak of World War I, the world has been intimated of the grave atrocities created by mankind and caused to mankind. Genocide is one of these serious atrocities which is recognised by international criminal law as a “core crime”. When one hears the term “genocide”, the general idea is mass killing. We can infer this from the longue durée of world history especially the memories of Armenians and the Jews during the Holocaust. The word “genocide” was first coined in 1944 by Raphäel Lemkin, a Polish lawyer in his book Axis Rule in Occupied Europe. It includes the Greek prefix genos, meaning race or tribe, along with the Latin suffix ‘cide’, meaning killing. Lemkin developed the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, but also in response to his tragic childhood memories of the Turkish massacre of hundreds of thousands of Armenians during World War I.[1] Later on, Lemkin led the campaign to have genocide recognised and codified as an international crime.
Genocide was codified as an independent crime in accordance to the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 (‘the Genocide Convention’). This Convention often resonates the principles that are a part of customary international law.[2]This means that whether or not States have ratified the Genocide Convention, they are all bound by the principle that genocide is a crime prohibited under international law as a matter of law. It is a jus cogens[3]crime and its prohibition is an erga omnes obligation[4] that all states are legally bound by within the international community. In this article, the author elaborates on the intent requirement of the crime of Genocide.
What is Genocide?
Genocide in simple words is referred to as the destruction of a specific group. It does not mean the immediate destruction of the group but different actions aiming to destroy the foundation of the group. The purpose of destruction is to put an end to the cultural and national feelings of the group. Genocide was described by the UN General Assembly as “a denial of the right of existence of entire human groups, as homicide is the denial of the right to life of individual human beings.”[5]
Under Article II of the Genocide 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:[6]
- killing members of the group;
- causing serious bodily or mental harm to members of the group;
- deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- imposing measures intended to prevent births within the group; and
- forcibly transferring children of the group to another group.
Elements of genocide
Under international law, genocide can be committed in times of peace or war. A nexus to an armed conflict or the existence of a plan are not necessary elements to constitute genocide.[7] The perpetrator committing genocide must consist of two main elements i.e. a mental element and a physical element. The mental element implies the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” and the physical element consists of the abovementioned five acts laid down in the Genocide Convention.
The mental element must be present the moment the acts are committed but do not have to be formed prior to committing the acts. The intent of genocide is not simply to cause harm or discriminate against the group but rather the specific intention of the perpetrator must be “to destroy the protected group” physically and biologically. The International Criminal Tribunal for the former Yugoslavia (‘ICTY’) and The International Criminal Tribunal for Rwanda have called this requirement genocide’s special intent, or dolus specialis. In the case of Prosecutor v. Krstic, the Trial Chamber observed that “customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide”[8]In this case, Radislav Krstic, a General-Major in the Bosnian Serb Army (‘VRS’) was found guilty of genocide, persecution through murders, cruel and inhumane treatment, terrorizing the civilian population, forcible transfer and destruction of personal property, and murder as a violation of the laws or customs of war. The indictment, with respect to the count of genocide, was that Radislav Krstic intended to destroy a part of the Bosnian Muslim people as a national, ethnical, or religious group. The first question presented in this appeal is whether Radislav Krstic had genocidal intent.
The intent requirement of genocide under Article IV of the Genocide Convention is therefore satisfied when evidence shows that the alleged perpetrator intended to destroy the group “in whole or in part.” This means the destruction of a considerable number of individuals or a substantial part of the group although this part is not a very important part.[9]“Part” can also be defined geographically, such as a specific identity located in a particular location. It is well established that where a conviction for genocide relies on the intent to destroy a protected group “in part,” the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole.[10] There is no numeric threshold of victims necessary to establish an act of genocide. However, the numeric size of the targeted part of the group can help determine whether act was committed towards a “substantial” part of the group as a whole.
The last ingredient is the intent of destruction of “Protected groups”. Protected groups include national, ethnic, racial or religious groups.Ethnic group are groups whose members possess common culture of language. Racial group are characterised on the basis of hereditary physical traits, which are often identified with a geographic region irrespective of linguistic, national, cultural, or religious factors. Lastly, religious groups are groups whose members share the same religion, denomination, or mode of worship. In the Krstic case, the identified protected group were the Bosnian Muslims of Srebrenica. Although this population constituted only a small percentage, the importance of the Muslim community of Srebrenica is not captured solely by its size. Srebrenica was of immense strategic importance to the Bosnian Serb leadership. Without Srebrenica, the ethnically Serb state they sought to create would remain divided into two disconnected parts, and its access to Serbia proper would be disrupted. Consequently, control over the Srebrenica region was instrumental to the goal of some Bosnian Serb leaders in directing a viable political entity in Bosnia.[11]
The Trial Chamber inferred that Radislav Krstic and some members of VRS had the requisite intent to destroy a substantial part of the Bosnian Muslim group by treating the killing of the men of military age as evidence for the said inference . As a specific intent offense, the crime of genocide requires proof of intent to commit the underlying action and to destroy the targeted group, in whole or in part and this serves as evidence that the accused possessed the specific intent to destroy.
The aforementioned ingredients establish the specific intent requirement or dolus specialis which sets genocide apart from other crimes. The specific intent element is difficult to prove as direct evidence of genocidal intent is often unavailable. Specific intent is often inferred from circumstantial evidence, such as the actions and words of the perpetrator, or from the behavior of others. If specific intent cannot be proved, alternative forms of liability, such as aiding and abetting is charged on the perpetrator.
Is direct participation necessary to prove genocide?
The actus reus of the crime is not limited to direct and physical perpetration but includes other acts which constitute direct participation. The question of whether an accused acts with his own hands when killing people is not the only relevant criterion. The term “commission” is inclusive in nature, holding that an accused that personally and closely supervised a massacre on the basis of ethnicity may be convicted of “committing” genocide even though he did not personally indulge in the act of murdering or killing anyone.[12] Therefore, the participation of an accused is not limited to the act of direct action by killing people. The knowledge and reason, or passing on the knowledge and reasons to others and directing them to kill also constitutes as an act of genocide. However, another question arises here as to whether an accused can be charged as a direct perpetrator or as an accomplice? An accomplice does not necessarily possess the same degree of mens rea as the principal perpetrator but is only to be aware of the perpetrator’s intent. A person cannot be convicted of both genocide and complicity in genocide in respect of the same act because he cannot be both the principal perpetrator and accomplice at the same time.
Interestingly, in Prosecutor v. Krsti ́c, the ICTY observed that in circumstances where the accused knew of the genocidal intent of others and failed to take any action to stop troops under his command participating in genocidal acts, his knowledge alone cannot support an inference of specific genocidal intent. For instance, the superior does not need to have the specific genocidal intent himself but must have known or had reason to know that his subordinates had the required specific intent. This is because Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent. Convictions for genocide can be entered only where that intent has been unequivocally established. If it has not been so established, the accused might not be convicted as a principal perpetrator of genocide but may be convicted of having aided and abetted genocide. Therefore Krsti ́c Appeals Chamber held that when complicity in genocide is charged for conduct broader than aiding and abetting, proof that the accomplice had the specific intent to destroy a protected group is required.[13]
Conclusion
Genocide often occurs in a society where protected groups are seen as a threat to the political dynamics of a particular region as seen in Rwanda and Bosnia. Millions of men, women, and children have been brutally killed and been prey to this crime in the past. Genocide is termed as “the crime of crimes” as the perpetrator does not limit himself to acts of torture, murder, or inhuman treatment but also commits acts of sexual violence and rape. In Prosecutor v. Akayesu, the Chamber held that sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.[14] Fear is merely used as tool by the perpetrator to wreck the protected group psychologically and make them feel powerless so as to regain control of the disputed territory. Therefore, the intentionality of the perpetrators to eliminate a group as defined by the genocide convention must be clearly demonstrated.
Genocide is a global phenomenon and has occurred in various parts of the world and in different types of civilisations and cultures. Expansionism, the seizure of territory and the killing of its inhabitants has incited this heinous crime. The grave and vindictive character of genocide often prompts one to ponder upon its overarching physical and mental effects and the threat the act of genocide can pose to mankind. The question that arises is can we put an end to it? The determination of the commission of genocide is dictated by the dolus specialis or the intent of the perpetrator. It’s imperative to decipher what prompts this very dolus specialis. This intent is the combination of desire for more power and the psychological element of retaining one’s supremacy. This raises alarming concerns with regards to tackling the outset of such intent at grassroots and realising the gravity a potential act of genocide holds in contrasts to the virtues of peace and tolerance. Once we find a way to put an end to this intent, we can put an end to genocide.
[1]https://theconversation.com/genocide-isnt-history-its-part-of-the-long-term-human-experience-40013> [accessed 25th, September 2020].
[2] United Nations, Genocide Prevention, <available at https://www.un.org/en/genocideprevention/genocide.shtml> [accessed 21st, September 2020].
[3]https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0124.xml
[4] Jochen A Frowein(2008), Obligations erga omnes, Max Planck Encyclopedia of Public International Law [MPEPIL],<available at:https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1400> [accessed 21st September 2020].
[5] International Criminal Law Services, Supporting the transfer of knowledge and materials of war crimes cases from the ICTY to National Jurisdictions, < available at: https://iici.global/0.5.1/wpcontent/uploads/2018/03/icls-training-materials-sec-8-war-crimes.pdf> [accessed 21st September 2020].
[6] Article 6 of ICC (International Criminal Court) Statute, Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG).
[7] Ibid at v.
[8] Prosecutor v. Krsti ́c, case no. IT98 33T, Judgment, Paragraph 133-144.
[9] Prosecutor v. Kayishema et al., case no. ICTR951T, Judgment.
[10] Ibid at viii.
[11] Ibid at viii.
[12] Ibid at v.
[13] Ibid at viii.
[14] Prosecutor v. Akayesu, case no. ICTR964T, Judgment.
Society of International law and its Affairs (SAIL) 