Are we about to see more prosecutions for genocide?

This law has undergone a growth spurt in recent history

Genocide is one of the most heinous crimes in existence, the very word conjuring images of extreme persecution, death and holocaust. This is a large part of the reason why it makes such good hyperbole. But, what is the state of the current law on genocide?

The word genocide was coined by Raphael Lemkin, a Polish lawyer, in the early part of the 20th century. Lemkin formulated the idea of genocide as an international crime as a response to the emergence of what he termed the “phenomenon of the destruction of whole populations”, following the events of the second world war.

Of course, this was by no means a new phenomenon in the history of humanity but it was perhaps the first time that it had appeared on such a large and public scale. Lemkin felt that simply referring to the crime as mass murder wouldn’t do justice to the motivation behind the act. So he devised the name genocide by combining genos, a Greek word meaning race or clan, and cide, from the Latin ‘killing’.

In law, genocide is: the killing, causing of serious bodily or mental harm, infliction of destructive conditions of life (slow death), imposition of birth control measures, or the forcible transfer of children committed against an ethnic, racial, religious or national group with the intent to destroy, in whole or in part, the group (See the Genocide Convention, Rome Statute, ICTR statute, or the ICTY statute). The listed acts capable of being genocidal must be committed with intent or knowledge under the Rome Statute s30(2).

The crime as currently codified in the various international statutes can be split into three constituent elements:

1. The commission of an enumerated act
2. Against one of the protected groups
3. With the specific intent to destroy, in whole or in part, that group.

The groups were further defined in Akayesu as follows:

• A nation follows the Nottebohm criteria in that there must be “a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties”.
• An ethnic group is one “whose members share a common language or culture”.
• A racial group is based on “the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors”.
• The religious group is one “whose members share the same religion, denomination or mode of worship”.

To give a very current example, the Rohingya are denied citizenship of Myanmar as they are considered to have arrived illegally (this, despite some families having been settled there for generations). Moreover, they are not recognised as an ethnic group by the government of Myanmar.

There may be situations where a particular group doesn’t fit neatly into one of the defined groups above. The trial chamber in Akayesu recognised that the intention of the Genocide Convention was to protect “any stable and permanent group”. Kayishema added that self-determination may suffice when determining whether a group is indeed an ethnic group. Indeed, the very fact that they are persecuted as part of a discrete group by their attackers may be enough to prove that they are a protected group for the purposes of the convention.

We can plainly see that the statute is to be given a wide interpretation in this regard and its purpose is simply the protection of any permanent and stable group typically characterised by involuntary membership. Certain groups are not covered by the statute and these tend to be the transient groups that one can voluntarily become a member of, for example based on a subjective political or economic belief.

The intent to destroy has been recognised as the defining feature of the crime of genocide, separating it from the ordinary crime of murder and crimes against humanity.

The defendant must have committed the acts in question with the intention to destroy the group in question. If the defendant did not intend to destroy the group in question then there is no genocide (in the eyes of the law).

This is in keeping with Lemkin’s original view that genocide ought to be a crime based on motivation and intended consequence rather than a crime based on the occurrence of a particular consequence. For example, in the late 60s and 70s approximately 85% of the population of Ache Indians were slaughtered by the Paraguayan government to allow for the industrialisation of rural Paraguay. The extinction of the Ache was not genocide in the legal sense because it was an ancillary consequence to industrial development and not a specifically intended result, though that doesn’t make it any less abhorrent on a moral level.

We should be able to see an obvious problem. How do you prove that someone specifically intended to destroy a particular group? In the absence of an explicit confession the answer is either that you can’t, or with great difficulty.

The international tribunals (e.g. the ICTR and the ICTY) have navigated this obstacle by recognising that specific intent may be deduced from the general context of the culpable acts whether committed by the defendant or others (Prosecutor v Akayesu), from evidence of a pattern of purposeful action (Prosecutor v Kayishema and Ruzindana), or from evidence showing a consistent pattern of conduct by the accused (Prosecutor v Rutaganda).

This means that you don’t necessarily have to prove intent to destroy definitively if the context of the defendants’ actions could objectively be viewed as showing an intent to destroy. For example, in the case of Kayishema, intent to destroy was deduced from the number of Tutsis killed by Kayishema either directly or under his supervision, the fact that the Tutsis were killed regardless of their age and gender, and the consistent and methodical pattern of the killings.

A further issue with the intent to destroy is the degree to which the defendant is capable of achieving his intention through his actions; in other words, is there a plausible connection between his act and his reason for committing the act (i.e. the total or partial destruction of the group in question)?

Where the harm caused by the perpetrator has a mental element it must be of sufficient severity to “contribute or tend to contribute” to the destruction of the protected group (Prosecutor v Tolimir) or “threaten the destruction” of the group (Prosecutor v Seromba).

These judgments would suggest that the act committed needs to have a genocidal capability and not merely be committed with the intention of the group’s destruction. However, the appeals chamber of the ICTY blurred the line somewhat in Tolimir by finding that the forcible transfer of Bosnian Muslim women caused grave and long-term disadvantage to the ability of the protected group to lead a normal and constructive life. The inability to lead a normal and constructive life was found to be akin to total or partial destruction of the protected group and there is some argument, for instance from the Centre for International Criminal Justice, that this sets the threshold too low.

The law on genocide has undergone something of a growth spurt throughout the 90s, although we have yet to see how the crime and the case law of the ICTY and ICTR are to be interpreted by the International Criminal Court. This court is yet to try a case of genocide, although it is currently investigating allegations of genocide in Sudan. Meanwhile the events in Myanmar continue to rumble on and unless we see a referral from the United Nations (which seems unlikely at the moment) then it is improbable, in my opinion at least, that we will see prosecutions for genocide in the near future.

Luke Baxter is a chemistry graduate from the University of East Anglia who is currently studying the GDL.