The Interpretation of Genocidal Intent under the Genocide Convention and the Jurisprudence of International Courts
| Author | Devrim Aydin |
| DOI | 10.1350/jcla.2014.78.5.943 |
| Published date | 01 October 2014 |
| Date | 01 October 2014 |
| Subject Matter | Articles |
The Interpretation of Genocidal
Intent under the Genocide
Convention and the Jurisprudence
of International Courts
Devrim Aydin*
Abstract Many scholars studying substantive criminal law examine the
crime in an analytical way to determine the elements of crime, determining
these elements as the material or objective element (actus reus) and the
mental or subjective element (mens rea). In accordance with this, a crime
consists of a physical act or omission (material element) and the psychological
bond that links the act to the perpetrator (mental element). The elements of
the crime of genocide are derived from the definition of Article 2 of the 1948
United Nations Convention on the Prevention and Punishment of the Crime
of Genocide. According to this, the crime of genocide is committing any of
the acts enumerated in the Convention with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group, as such. The mental
element of genocide was not mentioned either during the Nuremberg trials
or in the 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 trials at international courts for the Former
Yugoslavia and Rwanda in order to prove the perpetrators’ genocidal intent.
This article discusses the definition of genocide, the mental element of the
crime in substantive criminal law, the mental element of the crime of
genocide and the jurisprudence of the international tribunals related to the
issue.
Keywords Criminal law; International criminal law; Genocide;
Elements of crime; Intention; Genocidal intent
The doctrinal evolution of genocide
There was no legal definition of ‘genocide’ as an international crime until
after the systematic Nazi atrocities aimed at the destruction of, particularly,
the Jews (the Holocaust) during the Second World War. Although terms,
such as ‘massacre, mass killing, and destruction’, describing the broad and
systematic Nazi practices, which were intended to destroy the Jews and
other targeted groups, indicated the gravity of the incidents, they did not
demonstrate the purpose of the Nazis. A legal term for these atrocities had
not been yet been formulated. Nazis killed members of a certain group.
Therefore, the target of the Nazis was not individuals of the group one by
one, but the intention was to target directly a group in whole or in part.
Destruction of members of a group by perpetrators in order to destroy, in
The Journal of Criminal Law (2014) 78 JCL 423–441 423
doi:10.1350/jcla.2014.78.5.943
* Assistant Professor of Criminal Law at Ankara University Faculty of Political Science;
e-mail: daydin@politics.ankara.edu.tr.
The Journal of Criminal Law
424
whole or in part, the targeted group is the defining characteristic of the
crime of ‘genocide’ in law in the present day. The crime will be committed
where victims were targeted because they had the characteristics of a
certain group; and the perpetrators’ actual purpose was the destruction, in
whole or in part, of an ethnic, racial, national or religious group to which
the targeted people belong, by committing one or more acts enumerated
in the Convention on the Prevention and Punishment of the Crime of
Genocide.1
It is not a coincidence that the definition of ‘genocide’ was coined in
1944 by Raphael Lemkin for these ‘crimes without a name’. Lemkin was
a Polish man who was obliged to settle in America after he witnessed the
policies of the Nazis during the Second World War.2 Lemkin proposed the
term ‘genocide’ to cover the broad and systematic policy of destruction
carried out by the Nazis against the Jews during the Second World War.
Lemkin tried to explain the crime of killing the members of a group by the
term ‘genocide’, which he combined from the Greek word genos
(community, people, race) and the word cide (killing). Lemkin thought
that the crime of genocide involves a wide range of actions, including not
only deprivation of life, but also the prevention of life (abortions,
sterilisations) and also devices considerably endangering life and health
(systematic killing in internment camps, deliberate separation of families
for depopulation purposes, and so forth); the acts are directed against
groups, as such, and individuals were selected for destruction only because
they belong to these groups. Although killing the members of a targeted
group is one of the distinguishing characteristics of the crime of genocide,
Lemkin referred to eight different acts of genocide of political, social,
cultural, economic, biological, physical, religious and moral character
intending the extermination of the existence of a group.3 Lemkin was
criticised as being a romantic for referring to eight different genocidal acts
based on the systematic oppression policies of the Nazis against Jews.4
Despite the definition and efforts of Lemkin, the scope of the crime of
genocide has been held to be narrower under international law. The
conduct through which this crime might be committed and the elements
of the crime have been formulated under the Genocide Convention.
The crime of genocide was not mentioned during the Nuremberg and
Tokyo trials where Nazi atrocity policies and massacres were brought
before the international military courts, and the term ‘genocide’ did not
appear in the trial records. Although following the Nuremberg and Tokyo
trials, wars, widespread armed conflicts and massacres took place in
different regions of the world, a ‘destruction’ similar to ‘the Holocaust’
1 Adopted by the UN General Assembly on 9 December 1948 (hereafter ‘the Genocide
Convention’). The Convention was brought into force on 12 January 1951.
2 See D. Stone, ‘Raphael Lemkin on the Holocaust’ (2005) 4 Journal of Genocide Research
539. For Lemkin’s motive and study on definition of the Nazi atrocities. See also
W. A. Schabas, Genocide in International Law (Cambridge University Press: Cambridge,
2000) 24 et seq.
3 R. Lemkin, ‘Genocide as a Crime under International Law’ (1947) 41 American Journal of
International Law 145 at 145.
4 A. K. A. Greenawalt, ‘Rethinking Genocidial Intent: The Case for a Knowledge-Based
Interpretation’ (1999) 99 Columbia Law Journal 2259 at 2272.
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