By: Mahmudul Hasan, Research and Publication Officer, Human
Rights Support Center (HRSC), Bangladesh
INTRODUCTION
From the beginning of international law
concerns about genocide and other mass crimes, it was considered a category of
crime against humanity, not having been prosecuted as a special crime. However,
due in large part to the advocacy of Raphael Lemkin, Polish lawyer and American
professor of law, genocide obtained autonomy as a specific crime. From the
early biblical era to modern-day Sudan, this heinous crime has plagued the
world in almost every corner of the globe. Since the adoption of the Convention
on the Prevention and Punishment of the Crime of Genocide (the Convention), the
United Nation’s (UN) response has been paralyzed by legal debates about what
the definition given in the Convention actually means, and whether a situation
is or is not genocide, according to the definition in the Convention.
On February 3 2015
the UN International Court of Justice (ICJ) delivered the verdict about
the controversy in the
landmark case Croatia vs. Serbia. This case involved an “application” by
the Republic of Croatia instituting proceedings against the FederalRepublic of
Serbia “for violation of the Convention on Prevention and Punishment of The Crime of
Genocide” The application was filed July 2, 1999 and the opinion ofthe Court
was delivered on February 5, 2015.
The ICJ decided
that neither Croatia nor Serbia committed genocide against each other during
the wars that followed the break-up of Yugoslavia (1991-1995), as the evidence
provided to the court by the Croatian and Serbian legal teams was inadequate to
prove intent of genocide. Judge Peter Tomka, the President of the ICJ, said: “The court
considers that even taken together, and interpreted in light of the
contemporaries’ overall political and military context, do not establish the
existence of the specific intent (dolus specialis) which characterizes
genocide.”
This article firstly
addresses the issue of definition of genocide by analyzing different
allegations presented by parties of the case. Secondly it turns to the doctrine
of specific intent as an essential requirement for genocide and the problem of
its determination. Here it analyzes different scholastic approaches to the
doctrine and whether ICJ inferred too high threshold of evidence for
establishing dolus specilalis. The article summarizes the final outcome
of the case and calls Croatia
to continue prosecuting individual war crimes suspects and remove the impunity
for war crimes or suspected war crimes given to thousands of Serbs. (The ICJ opinion in fact calls on both parties to
work together to resolve outstanding issues, such as missing persons, lost property,
and further criminal prosecutions.)
Definition of
Genocide
The definition of
the crime of genocide is considerably narrower in international law (as set out
in Article 2 of the Convention) than in the colloquial, everyday use of this
word.
Article II of the Convention defines
genocide in the following terms:
“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.”
According to that Article, genocide
contains two constituent elements: the physical element, namely the act
perpetrated or actus reus, and the mental element, or mens rea.
Although analytically distinct, the two elements are linked. The determination
of actus reus can requires an inquiry into intent. In addition, the
characterization of the acts and their mutual relationship can contribute to an
inference of intent.
Genocide, writes U.S. law professor Alexander
K. A. Greenawalt, “is a crime of specific intent, involving a perpetrator who
specifically targets victims on the basis of their group identity with a
deliberate desire to inflict destruction upon the group itself.”
Different allegations raised by parties
In the ICJ case, the Parties differed on
the meaning and scope of “destruction” of a group, on the meaning of
destruction of a group “in part”, and finally on what constitutes the evidence
of the dolus specialis.
The meaning and scope of “destruction” of
a group
Physical or biological destruction of the
group
Croatia argues that the required intent is
not limited to the intent to physically destroy the group, but includes also
the intent to stop it from functioning as a unit. Thus, according to Croatia,
genocide as defined in Article II of the Convention need not take the form of
physical destruction of the group. As evidence of this, it points out that some
of the acts of genocide listed in Article II of the Convention do not imply the
physical destruction of the group. By way of example, it cites “causing serious
. . . mental harm to members of the group”, and “forcibly transferring children
of the group to another group”.
Serbia, to the contrary, rejected this
functional approach to the destruction of the group, taking the view that what
counts is the intent to destroy the group in a physical sense, even if the acts
listed in Article II may sometimes appear to fall short of causing such physical
destruction. The Court noted that the travaux préparatoires of the
Convention show that the drafters originally envisaged two types of genocide,
physical or biological genocide. It was decided to limit the scope of the
Convention to the physical or biological destruction of the group.
Scale of destruction of the group
Croatia contends that the extermination of
the group is not required according to the definition of genocide as set out in
Article II of the Convention. It argues that there is a requirement to prove that
the perpetrator intended to destroy the group, in whole or in part, and that
that intent need not necessarily involve the extermination of the group.
Croatia has even argued that a small number of victims who are members of the
group would suffice, citing the travaux préparatoires, and in particular
the draft amendment proposed by the French delegation to the Sixth Committee of
the General Assembly even though that proposal was ultimately withdrawn.
According to Serbia, extermination, as a
crime against humanity, may be related to genocide in that both crimes are
directed against a large number of victims. It accepts that, in order to
demonstrate the existence of genocide, it is necessary to prove that the acts
were committed with the intent to destroy the group physically. It argues,
however, that, where there is evidence of extermination, “the deduction that
the perpetrator intended the physical destruction of the targeted group will be
much more plausible”.
The Court considers that Article II of the
Convention, including the phrase “committed with intent to destroy”, must 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”, as prescribed by customary law as reflected in Article 31 of the
Vienna Convention on the Law of Treaties.
The Preamble to the Genocide Convention
emphasizes that “genocide has inflicted great losses on humanity”, and that the
Contracting Parties have set themselves the aim of “liberating mankind from
such an odious scourge”. As the Court noted in 1951 and recalled in 2007, an
object of the Convention was the safeguarding of “the very existence of certain
human groups.”
The Court recalls that, in 2007, it held
that the intent to destroy a national, ethnic, racial dor religious group as
such is specific to genocide and distinguishes it from other related criminal
acts such as crimes against humanity and persecution.
The meaning of destruction of the group
“in part”
Croatia accepts that, according to the
case law of the Court and the international criminal tribunals, “the intent to
destroy . . . in part” the protected group relates to a substantial part of
that group. However, it objects to a purely numerical approach to this
criterion, arguing that the emphasis should be on the geographical location of
the part of the group, within a region, or a sub-region or a community, as well
as the opportunities presented to the perpetrators of the crime to destroy the
group.
Serbia focuses on the criterion that the
targeted part of the group must be substantial and on the established case law
in that regard, while accepting that it might be relevant to consider the issue
of opportunity.
The Court recalls that the
destruction of the group “in part” within the meaning of Article II of the
Convention must be assessed by reference to a number of criteria. In this
regard, it held in 2007 that “the intent must be to destroy at least a
substantial part of the particular group” and that this is a “critical”
criterion. Account must also be taken of the prominence of the allegedly
targeted part within the group as a whole. With respect to this criterion, the
Appeals Chamber of the ICTY specified in its Judgment rendered in the case of Bosnia
and Herzegovina vs. Serbia and Montenegro that “if a specific part
of the group is emblematic of the overall group, or is essential to its
survival, that may support a finding that the part qualifies as substantial
within the meaning of Article 4 of the ICTY Statute, paragraph 2 of which
essentially reproduces Article II of the Convention”