LAW YOG

Genocide under International criminal law

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Genocide is one of the most heinous crimes against humanity. It involves the mass extermination of a large group of people in order to wipe out their complete existence. Although the term was started to be used in the post-world war two era, it has been present since the olden days. For example, the Greek historian Thucydides had written about the massacre of the people of Melos after they refused to surrender to the Athenians during the Peloponnesian War. The Cathari massacre of 1209 during the Albigensian Crusade is another historical example. Other recent examples include the Armenian massacre, the Holocaust, and the killing of Tutsi by Hutu in Rwanda in the 1990s.

The Term Genocide

The term ‘genocide’ was coined by a Polish-Jewish lawyer named Raphael Lemkin who sought to describe Nazi policies of systematic murder during the Holocaust, especially that of the European Jews. He formed the word by combining geno-, from the Greek word for race or tribe, with –cide, from the Latin word for killing. He defined it as “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 term was originally meant to refer to 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.

UN and Genocide

The term was first used in an international scenario in 1946 by the International Military Tribunal held at Nuremberg, Germany, who charged top Nazis with “crimes against humanity.” The word “genocide” was included in the indictment, but as a descriptive, not legal, term. And on 9th December 1948, the UN General Assembly unanimously adopted the draft in resolution 260 A (III), known as the UN Convention on Genocide. It finally came into effect on 12th January 1951.

Article 2 of the Convention defines genocide as

 “… any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  • 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;
  • Forcibly transferring children of the group to another group.”

Article 3 punishes the following acts – Genocide; Conspiracy to commit Genocide; Direct and Public incitement to commit genocide; attempt to commit genocide and Complicity in genocide. Article of the ICC Statute (Rome Statute) defines genocide by the same definition given in Article 2 of the UN Convention on Genocide.

Material and Mental Elements of Genocide

Every crime has certain elements as the material or objective element (actus reus) and the mental or subjective element (mens rea). The former consists of a physical act or omission, while the latter refers to the psychological bond that links the act to the perpetrator.

Material Elements

The mental elements are derived from the definition of genocide under Article 2 of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. The mental elements can be divided into three – Perpetuators; Protected Groups, and the Individual Acts.

Perpetuators       

There is no classification of people on the basis of who has done the act. The crime of genocide does not presuppose the holding of a certain position within a State. Also, this crime cannot be only attributed to the controller/enforcer of the genocide plan as a leadership crime, because from the example from the Holocaust, there were many subordinates who were also equally responsible for the grave crime as much as the Nazi leaders. Finally, even a member of the targeted group may commit the crime.

Protected Groups

The Convention has made an exclusive list to protect only four groups, namely – national, ethnic, racial, and religious groups. The common criteria are common customs, language or religion, or visible characteristics such as skin color or stature.  The general concept of a protected group does not include a requirement of a mutual feeling of belonging together; nor needs a protected group to be a minority within a State. Furthermore, the group members need not live within one defined territory.

Individual Acts

Genocide involves committing any of the five acts mentioned under Article 6 of the ICC Statute. Although the Statute definition requires conduct against the group, it is said to have done if any single member of the group has been attacked. Conduct under this statue means causing serious harm to body or health, mutilation, use of force, sexual violence, etc.

Mental Element

The mental element of genocide was not mentioned either during the Nuremberg trials or in the UN Convention. The discussion on the mental element of the crime of genocide or ‘genocidal intent’ took place within international criminal law for the first time during the international trials for the Former Yugoslavia and Rwanda in order to prove the perpetrators’ genocidal intent. The two distinct mental elements are – the general intent requirement which pertains to the material elements and the special intent requirement pursuant to which the perpetrator must act with the special intent to destroy, in whole or in part, a protected group as such. It is the special intent that distinguishes genocide from other crimes.

Objections to the UN Definition

Since the adoption of the UN Convention, it has been the topic of many controversies and arguments. It has often been argued that the definition is too narrow and is devalued by misuse. Other objections raised include that the definition offered by the UN Convention as well as the ICC Statute does not take into consideration targeted political and social groups. Also, it is often argued that the definition of the act is limited to direct acts against the people, and does not include acts against the environment which sustains them or their cultural distinctiveness. The special intent element of genocide mentions “… in whole or in part…” It is difficult to determine the meaning of “in part”, and establishing how many deaths actually equals to a genocide. Thus proving intention beyond a reasonable doubt is often hard under the present Statute. 

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Giri Aravind

Student, National University of Advanced Legal Studies

Giri is a huge finance buff. An enthusiast of IP, corporate law, he is a writer by day and a reader by night.  For any Clarifications, feedback, and suggestion, you can reach him at giriaravindonline@gmail.com

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