Introduction
Prosecutor v Kambanda[1], one of the first cases tried in the International Criminal Court against genocide, distinguished the crime by the element of ‘dolus specialis’ (special intent). To prove special intent, one must be able to show that the crime was committed with the intention “to destroy in whole or in part a national, ethnic, racial or religious group[2]“. This understanding makes genocide superior to every crime that may be recognized under the law. Genocide is not only considered a crime under general international law but also is treated as a legal prohibition imposed on states. In 1951, the International Court of Justice recognised the crime as customary which was followed by the court acknowledging in 2006 that the prohibition of genocide equates to ‘jus cogens. The crime of genocide aims to destroy the very basis of the foundations of the life of national groups to decimate the groups themselves. This would lead to chaos within the political and social framework of race, culture, religion, ethnic groups, and sentiments as well as destroy millions of lives and families.
History
The United Nations General Assembly was the first ever body to recognize the crime of genocide as an offense under international law in 1946. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide defined it as a separate offense (The Genocide Convention)[3]. Throughout human history, mass murder of communities has been evident. It projects varied and diverse reasons for such level annihilation. The 20th century marked the beginning of such a crime. When World War 1 was on the verge of ending the Armenians residing in Turkey were subjected to an extermination operation. An estimated number of victims that were killed ranged from five lakh to a million[4].
One of the most brutal instances of such an already heinous crime is the Jews’ killing in Germany through various policies imposed by Hitler. Large groups of Jew people were placed in gas chambers by the Nazis to suffocate them to death[5]. As a response to such a large-scale Nazi genocide, The Convention on the Prevention and Punishment of the Crime of Genocide was approved on December 9, 1948[6]. However, this did not stop the atrocity, the crime resurfaced in Nigeria where the Rwanda Civil War[7] was ongoingly converted into genocide.
Elements of the Crime of Genocide
The United Nations is a body that believes that the ‘intention’ to do a criminal act is the most difficult element to prove while determining the guilt of the accused. Moreover, the crime of genocide poses a double challenge to not only prove intention but specifically the intentional to eliminate a certain group of individuals. Following a review of the existence of a genocidal plan and the execution of genocide, the ad hoc judges’ legal assessment of the dolus specialis[8] moved on to a look at the accused’s genocidal goal, which is distinct from but connected to the underlying plan. The genocidal purpose need only be evident at the time the acts are committed; it doesn’t need to have been formulated beforehand. According to the Appeals Chamber’s decision[9] in the case of Media, another essential component of genocide is when a victim is targeted because they belong to a specific national, ethnic, racial, or religious group rather than because they are an individual or for any other particular reason.
The International Criminal Tribunal for the former Yugoslavia had to determine how to interpret the phrase “in whole or in part” concerning a murder in the Prosecutor v Radislav Krstic case[10]. The tribunal had determined in its decision that “the component must comprise a substantial part of that community. The area of assault must be signified enough to have an impact on the complete group. The expression “in part” may be broken if a murderous operation aims to kill so many people who belong to a protected group. However, the campaign won’t have homicidal characteristics if the victims are chosen because of their characteristics rather than their membership in one protected group, such as their political beliefs (genocide will not be assumed in such cases).
Conclusion
Genocide is undoubtedly the most heinous offence against humanity. All groups have a right to exist irrespective of their differences thus any attempts to eliminate such organizations are against their right to continue to develop within the global community.
Although the creation of special tribunals like ‘The International Criminal Tribunal for the former Yugoslavia’, ‘The International Criminal Tribunal for Rwanda’ and ‘The International Criminal Court’ have brought to light the atrocities of genocide, it is yet questionable whether these actions will be effective in putting an end to such crimes. Genocide is born in societies comprising diverse ethnic, national, racial, or religious groups and where these groups are involved in identity-related conflicts. Since no society is uniform and stable, protection against such crimes poses a challenge. Only through the elimination of political and economic disparities and inculcating a feeling of common belonging on an equitable basis, we will be able to overcome the bigger challenge this crime has created for humanity.
Author(s) Name: Esha Sharma (Nirma University, Ahmedabad)
Reference(s):
[1] Claus Kress, The Crime of Genocide under International Law, 6 INT’l CRIM. L. REV. 461 (2006).
[2] Devrim Aydin, The Interpretation of Genocidal Intent under the Genocide Convention and the Jurisprudence of International Courts, 78 J. of CRI. LAW, 423–441 (2014), https://journals.sagepub.com/doi/10.1350/jcla.2014.78.5.943.
[3] Mohi Kumari, Genocide Under International Criminal Law, LEGAL SERVICE INDIA, (Feb. 28, 2023, 09:45 PM), https://www.legalserviceindia.com/article/l433-Genocide-Under-International-Criminal-Law.html.
[4] Suny, Ronald Grigor, Armenian Genocide, ENCYCLOPEDIA BRITANNIA (Feb. 28, 2023, 09:47 PM), https://www.britannica.com/event/Armenian-Genocide.
[5] Lewi Stone, Quantifying the Holocaust: Hyperintense kill rates during the Nazi genocide, SCIENCE ADVANCES (Feb. 28, 2023, 09:53PM), https://www.science.org/doi/10.1126/sciadv.aau7292#tab-contributors.
[6] Convention on the Prevention and Punishment of the Crime of Genocide, UNITED NATIONS, https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-prevention-and-punishment-crime-genocide.
[7] Rwanda Genocide: 100 days of slaughter, BBC NEWS (Feb. 28, 2023, 09:59 PM), https://www.bbc.com/news/world-africa-26875506.
[8] Yusuf Aksar, The Specific Intent (Dolus Specialis) Requirement of the Crime of Genocide: Confluence or Conflict between the Practice of Ad Hoc Tribunals and ICJ, 6 Uluslararası İlişkiler (2009), https://dergipark.org.tr/tr/download/article-file/540015.
[9] Marko Milanovic, ICTY Appeals Chamber Reinstates Genocide Charges in the Karadzic Case, EJIL TALK, https://www.ejiltalk.org/icty-appeals-chamber-reinstates-genocide-charges-in-the-karadzic-case/.
[10] D MUNDIS, Introductory Note to ICTY: Prosecutor v Kristic, 40 INT. LEGAL MAT., (2001), https://doi.org/10.2307/20694199.
