By Shriya Maini*
(This post is third in the series by where she writes on contemporary issues of international criminal law and human rights. Read the other posts here)
“More case law on genocide established in the last twenty years than in the previous fifty-five illustrate that this is not a Convention in decline, but rather one in renaissance.”
The crime of genocide was described as the “crime of crimes” by William Schabas, denoting the degree of gravity and outrage to human dignity that is incomparable by other international crimes. The Convention on the Prevention and Punishment of the Crime of Genocide, 1948 (“Convention”) is an iconic, foundational legal treaty that created a powerful word which is more than mere political rhetoric. By its very nature, the Convention is indispensable, since it (at least in spirit and most parts as norms of jus cogens now) plays an integral role in maintaining civility in international law and progressiveness of the society. However, due to its many shortcomings, I believe the true potential of the term ‘Genocide’ as enshrined in Article 2 of the Convention, has not yet been exploited. The International Criminal Court in Articles 6 and 30(1) of its Statute also accepts the same definition and further elaborates on it: encapsulating a volitional (intent) and/or a cognitive or intellectual (knowledge) element.
In this article, I reason and argue that even in the backdrop of numerous shortcomings, it won’t be correct to outrightly conclude that the definition of “genocide” as enshrined in the Convention, is too inclusive or exclusive, outdated and hence, starkly in need of revision. Be it customary law, state practice or jurisprudence developed by the ICTY and ICTR – all have (inspite of heavy criticism showered by scholars) managed to wheel their decisions on the same definition. However, I concede that some of the aspects of the definition are problematic and could be modified to develop a working definition acceptable to one and all.
Prior to highlighting why the definition of genocide must not be altered, I set out three basic facts to be kept in mind while reading this article.
Firstly, in dealing with such a major international document, while gauging its credibility in tackling what is the textual meaning and breadth of encompassment, it is essential to make an objective evaluation of the pros and cons of how the term has been defined. I do the same at length in this article and urge my readers to have an open mind while reading the same.
Secondly, the fact that the inception and subsequent definition of genocide was influenced primarily by a single historical event (Holocaust), questions regarding the applicability of the definition are raised, given the prevalence of widespread atrocities in our contemporary world (Max du Plessis). This is confirmed by the travaux préparatoires of the Convention which admit that the drafters solely used the events of the Jewish Holocaust as guidance in devising the legal definition. This has drawn much flack from the legal community, the likes of John Quigley who notes, “..going by the current definition a conclusion that a particular situation involves genocide is tantamount to equating it with the Holocaust of World War II.” However, this argument can easily be countered by the explanation that any novel term that is yet to be defined, evolves in response to one incident or the other, deriving strong flavour from the same. Hence, there is nothing new or incorrect of the drafters of genocide having done the same. However, to the extent that the Convention is a codification of genocide law as it existed in half a century ago, I agree that (customary) law today may define the same more broadly.
Thirdly, there is a limitation on the jurisdiction of the ICC such that the trial by domestic courts for genocide takes precedence if carried out in good faith (the domestic criminal law of over 70 states, with some modifications of the definition, make genocide a domestic crime). And one cannot shy away from the fact that the prosecution of genocide in domestic courts is becoming more frequent. Therefore, although the scope of the ICC is far reaching, it still has limited jurisdiction and hence, clear cases of genocide may go untried and unpunished, for instance Saddam Hussein’s systematic destruction (poison gas) of the Iraqi Kurd minority in 1988. Hence, redefining genocidal norms is an issue distinct from threats if plausible failure of redressal machinery that include implementation or domestic jurisdiction issues. This is of course, outside the purview of my discussion in this article.
- Jus cogens Status:
The most exceptional and possibly the greatest strength of definition enshrined in the Convention can be found in the non-derogable responsibilities thrust upon states to comply with its requirements. The exclusivity of Genocide as a crime under International Law can be gauged from the fact that it is one of the few crimes that has universally been conferred a jus cogens status – a mandatory enforcement of prohibition against genocide as an “obligatio erga omnes”. Hence, in hindsight, the definition has stood the test of time and whatever be the objections raised, has until today not been altered, except for its scope being widened by Judge Meron in his seminal judgment.
- Broad Definition Encompassing Rape:
Another strong point of the definition is the fact that its effect is not limited to the direct killing of an ethnic or religious group and also includes other methods of gradual extermination of a group. This is apparent from the way sub-section (d) of Article II of the Convention approaches the prevention of child birth within a community. This sub-section was put to great use by the ICTR and ICTY to prosecute perpetrators of genocide who used rape as a deadly tool to carry out their ghastly agendas, especially in Prosecutor v Karadžić and Prosecutor v. Mladić. Hence, the definition on these grounds appears to be inclusive and well-worded.
However, scholars such as Chalk and Jonassohn counter-argue that such a widespread application of the term genocide due to its broad physical elements extends its application to a variety of unrelated situations, thereby creating unnecessary confusion. They call the term over inclusive, suggesting that mixing lethal with non-lethal acts allow many individuals opposed to particular actions (relating to birth control, cultural assimilation and the prohibition of a particular language or religion) to invoke the Genocide Convention. An example often given is that China’s one-child policy would have to be considered genocidal because it limits or reduces the population growth of particular segments of China’s ethnic groups. However, it is obvious that China’s aim is to reduce the growth rate of its enormous population.
- Conceptualization of International Penal Tribunals:
The “principle of legality” in cases of ex post facto genocide has been addressed under Article 6 of the convention, where the drafters have shown a reasonable amount of anticipation and provided for international prosecutions to take place in future by international penal tribunals. This article is of enormous help to international lawyers since in such tribunals, international precedents such as the Nuremberg Court, the cases dealt with by the ICTY and ICTR which serve as important guidelines for trial and conviction. Also, in this manner, perpetrators of genocide in a state that doesn’t have any domestic law to prevent genocide shall not go unpunished since the international tribunal could always use the Genocide Convention and International Customary Law to convict the accused, thereby negating obstacles in the form of questions regarding ex post facto genocide. Many argue that in the light of such a coverage, the weightage of the definition assumes greater importance.
- Requirement of ‘Intent’ (General and Special):
Genocide has been defined under Article 2 of the Convention in a manner that establishes ‘intent’ as an essential prerequisite for accountability to be ascertained. This acts as a huge advantage since it promotes the cause of detecting genocide at an early stage, thereby making it possible to curtail its telling horrors.
Qualified as a special intent crime or ‘dolus specialis’ crime i.e. genocide requires two separate mental elements to be proved, namely general intent (objective element – actus reus) over and above the additional ‘intent to destroy’ (additional subjective element). In 2007 the European Court of Human Rights noted that the narrow view of ‘intent to destroy’ was the majority opinion among legal scholars. This narrow view included the necessity of biological-physical destruction of groups in order to qualify and act as genocide. It concluded furthermore that both the ICTY and the ICJ agreed to the narrow interpretation.
Though the narrow interpretation of ‘intent’ does allow a greater amount of focus and ease in prevention of genocide, it does generate vulnerability in that it doesn’t allow for much flexibility in interpretation and could be of little use in prosecuting perpetrators using unconventional methods of Genocide. This would in effect mean that a mere demonstration by the perpetrator that he did not intend to commit genocide (most extreme and inhuman of all crimes) is enough, by definition to conclude that genocide must not have occurred and hence, could be conveniently placed into crimes against humanity (Article 7 (1)(h)). Hence, Kaki is absolutely correct to argue that though the distinguishing element of ‘special intent’ exists, there is no clarity in the definition of genocide as to what is the concrete meaning and degree of this intent. This is the sole major flaw apart from inclusion of political groups as far as the definition of genocide is concerned.
It is hard to find a comprehensive meaning in the ‘intent’ theories put forth by dissenting scholars, whether it be Gil Gil’s dolus eventualis – conditional intent (broad general awareness of the likely outcome of an action) or Greenwalt’s direct intent for differential treatment apply to High, mid and low level perpetrators. Jurisprudence appears to be settled on the point. Moreover, these seem to subsume the concept of genocide into crimes against humanity for they treat the general intent as one akin to that of special intent, solely required for the former.
The case of Akayesu (“Akayesu”) understood ‘intent to destroy’ as a special intent or dolus specialis required as the constitutive element of crime, which demanded that the perpetrator clearly sought to produce the act charged. It elucidated a psychological relationship between the physical result and mental state of the perpetrator. The ICTR in Rutuganda and Bagilishema followed Akayesu and laid down the test to be that of ‘clearly intended the result charged’. The same was the case with ICTY who in Jelisic diligently applied the Akayesu test once again, confirming the irrelevance of motive as far as genocidal intent was concerned. Evidently, with the Sikirica, Blagjovec and Brdjanin judgments in pipeline, ‘intent to destroy’ had been craved into a goal-oriented concept rather than a mere knowledge requirement one.
The same was argued by Sir Siswo Pramono in his paper titled “An Account of the Theory of Genocide”, revealing several critical flaws in the Convention elucidating how the definition of genocide was “designed to allow an exit strategy for those planning a future policy of genocide;” while also protecting the majority of perpetrators in the Modern World from being charged with this most abhorrent crime. Pramono suggested that the definition instead should be “end-oriented” that “a standard of knowledge on the course and outcome of genocidal acts” should be introduced to ensure genocidal acts can actually be punished (Teleological interpretation). However, the Dafur Report vehemently disagrees on simple ground that the literal interpretation of ‘intent to destroy’ does not lead to any purpose-based interpretation. 
It is not far from truth that these arguments do have some meat and merit to them, especially because existence of such a high threshold or special intent based approach could result in very few convictions. Many argue that such an approach could complicate the issue of subordinate responsibility, as seen in the case of Eichmann. However, the question here is not of responsibility vis-à-vis the superior but that vis-à-vis the crime of genocide. Hence, such a proposed evaluation seems interesting to explore and I would be keen to modify the definition on a teleological basis.
Another case was one of the US policies on Vietnam War. During the 1960s when it resorted to indiscriminate bombings and chemical weapons, which inflicted massive “collateral damages” on civilians and the environment, had attracted condemnation and charges that the US was waging genocidal war. The point is: if Vietnam war was a genocide, then, how to detect the US genocidal intent that marked the shift in the character of the conflict, from war to genocide? This highlights further calamities that maybe caused as far as application of the current definition is concerned.
- “in whole or in part”:
An equally difficult discussion is about the phrase ‘in whole or in part’. In Prosecutor v. Radislav Krstic (IT-98-33, 2004) the ICTY concluded that:
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. …..”
The ICTY further elucidated that the determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. It stated that the number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, the ICTY explained that its prominence within the group can be a useful consideration. 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.
- Protected groups:
The Convention’s list of protected groups, although restrictive, contains vague terms without supplementary criteria. Antonio Cassese criticizes the Convention’s lack of criteria for protected groups as a “serious” omission. In fact, one of the first codifications of customary law on the subject, U.N. General Assembly Resolution 96 (I), established a non-exhaustive list of protected groups in 1946. Scholars such as Adam Jones have proposed definitions of genocide that entail a larger scope of protected groups, including ‘ideological, linguistic, economic and political groups’ as well. Some scholars even go on to argue that Genocide minus politicide is a scandal, if not a conspiracy.
The most obvious counter-argument to this is that if the UN definition has been criticized because it was a political compromise resulting in the deletion of political groups, it seems that all parties agreed to the definition except the one issue in question. Thus, it could be concluded that without the compromise, an ideal definition of genocide should include political groups.
However, one must not forget that the exhaustive list of ‘protected groups’ is the product of considerable deliberation and for thought by the drafters. It has sustained itself through subsequent corresponding codifications at both the domestic and international levels. At the same time, the list has been the subject of considerable criticism and debate concerning its narrowness. M. Hassan Kakar argued that the definition should include political groups or any group so defined by the perpetrator, preferring the definition of Chalk and Jonassohn: “Genocide is a form of one-sided mass killing in which a state or other authority intends to destroy a group so defined by the perpetrator.”
The ICTR stated that “the concepts of national, ethnical, racial and religious groups have been researched extensively and that, at present, there are no generally and internationally accepted precise definitions thereof.” Likewise, the ICTY stated that “to attempt to define a national, ethnical or racial group today using objective and scientifically irreproachable criteria would be a perilous exercise” and, accordingly, suggested that targeted groups be categorized based on the specific context of each case. As the categories of protected groups are “social constructs, not scientific expressions,” enumerated in the Convention, unaccompanied by suggested definitions, customary law is needed to clarify the scope of protected groups.
Besides, Kuper seems to support the definition with an interesting argument that political groups and the four groups mentioned are always connected and that the perpetrators can exterminate an ethnic group by identifying them as politically affiliated. Conversely, if political and other groups are intertwined, then killing on political grounds could be proved as racial or ethnic when members of that group are consistently and systematically killed, hence, circumventing the need for addition of the term ‘political groups’ and need for defining the victim group more broadly.
- Difficulty in Amending the Convention:
At various points in time, analysts and critics of the Convention have suggested amendments to it, especially with regard to what has come to be known as the ‘mental element’ of genocide. They argue that by including the phrase “mental harm” under Article 2 of the Convention, the scope of instituting liability is restricted because of the requirement of ‘intent’. To add to such drawbacks of the Convention, the possibility of amending the text of the document is slender. Historically speaking, there has never been an amendment or for that matter, any kind of successive alteration in any human rights treaty. A recourse sought by many European countries that has enjoyed great success is the use of subsequent ‘protocols.’ dealing with specific matters under the treaty. While the method of using protocols instead of amendments holds immense promise, it is still an arduous process considering an initial approval of a number of states is required in order for it to have any major bearing. Hence, the definitional problem is not one to be easily solved by a meager Parliament amending process and in my opinion, must be circumvented by interpretative devices, as elucidated above.
(*Shriya is a practicing advocate at the Supreme Court of India, the Delhi High Court and district courts at New Delhi. She is a graduate of Gujarat National Law University, India and University of Oxford. At Oxford, she completed her Bachelor of Civil Law programme on a full scholarship and obtained a Master’s in Law majoring in International Crime. A recipient of the Oxford Global Justice Award 2015 for Public International Law, she is currently assisting the President of the International Residual Mechanism for the Criminal Tribunals (MICT).)