Genocide : The complexity of genocidal intent

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ÖREBRO UNIVERSITET

Akademin för Juridik, psykologi och socialt arbete Rättsvetenskap, C-uppsats VT 2012

Genocide

The complexity of genocidal intent

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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.

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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.}

2_{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.

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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, 1}st_{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, 1}st_{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.

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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.

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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 genocide1617_{, 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;

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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.

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(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

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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.

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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, 2}nd_{ed., The Lawbook Exchange Ltd, 2008, p. 79.} 24₂₀th_{Century History,}_{http://history1900s.about.com/od/holocaust/a/holocaustfacts.htm}_{10/05 2012} 20.23.

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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.

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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.}

30_{Economic and Social Council, Resolution 117 (VI) of 3 March 1948; Second Draft, E/794, 5} April-10 May 1948.

31_{Meeting, Sixth Committee of the UNGA in 1948.} 32_{UNGA Resolution 260 (III)}

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.

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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.

38_{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.}

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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;..”.

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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.

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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.

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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 Sixth-Committee 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.

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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.} 55_{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.}

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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 parties61_{, 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-to-case 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.

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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.

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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.}

72_{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}

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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

76_{The majority of the Muslims were ethnic Bosnians; however, there were also Serbian Muslims.} 77_{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.}

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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.

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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.