Genocidal intent explained

Genocidal intent is the Latin: [[mens rea]] (mental element) for the crime of genocide.[1] Intent to destroy is one of the elements of the crime of genocide according to the 1948 Genocide Convention.[2] There is an unresolved "intend debate" over whether Latin: dolus directus (direct intent, meaning that the perpetrator committed the act with both the knowledge of its harmful consequences and the desire to cause that harm) needs to be proven to convict for genocide, or whether a knowledge-based standard should be enough to convict for genocide.[3]

Definition and legal standards

For an act to be classified as genocide (under the Genocide Convention), it is essential to demonstrate that the perpetrators had a deliberate and specific aim (Latin: [[dolus specialis]]) to physically destroy the group based on its real or perceived nationality, ethnicity, race, or religion. Intention to destroy the group's culture or intending to scatter the group does not suffice.[4]

In 2019, Canada's National Inquiry into Missing and Murdered Indigenous Women argued that when it comes to state responsibility for genocide, "a state's specific intent to destroy a protected group can only be proved by the existence of a genocidal policy or manifest pattern of conduct."[5]

Judicial interpretations

International Criminal Tribunals

The International Criminal Tribunal for Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and International Court of Justice have ruled that, in the absence of a confession, genocidal intent can be proven with circumstantial evidence, especially "the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups."[6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16]

Standards of intent

It is non-controversial that proving Latin: dolus directus would meet the Genocide Convention's intent requirement; the weaker standard of Latin: dolus indirectus (indirect intent, meaning that the perpetrator did not desire the harm but foresaw it as a certain result of their actions and committed the act with this knowledge) is less clear.

Some scholars argue that a knowledge standard would make it easier to obtain convictions. Some of the existing international tribunal cases like Akayesu and Jelisić have rejected the knowledge standard.[17]

The acquittal of Jelisić under the more onerous standard was controversial, and one scholar opined that Nazis would have been allowed to go free under the ICTY's ruling. When Radislav Krstić became the first Serb convicted by the ICTY under the purpose standard, the Krstić court explained that its decision did not rule out a knowledge standard under customary international law.

Recent developments

In 2010, the Khmer Rouge Tribunal referred to the precedent of the ICTR in discussing the role of genocidal intent.

Debate

In the 2004 United Nations Commission of Inquiry into the War in Darfur, Claus Kress argued that the ICTY and ICTR were incorrect in their view of the genocidal intent of individuals. Hans Vest argued for the interlinked roles of an individual's intent and the individual's expectation of contributing to a collective action. Kjell Anderson discussed ways of separating out the roles of collective policies and their interaction with individual intent. Olaf Jenssen disagreed with the lack of sentencing Goran Jelisić for genocidal intent, arguing that legal consistency would imply that some of the perpetrators of the Holocaust would not have been convicted for genocide.

Cases

Notes and References

  1. Book: Thomas W. Simon. Genocide, Torture and Terrorism: Ranking International Crimes and Justifying Humanitarian Intervention . 2016 . Palgrave Macmillan . 978-1-349-56169-8 . 17.
  2. [s:Convention on the Prevention and Punishment of the Crime of Genocide|Convention on the Prevention and Punishment of the Crime of Genocide]
  3. Book: Rodenhäuser . Tilman . Organizing Rebellion: Non-state Armed Groups Under International Humanitarian Law, Human Rights Law, and International Criminal Law . 2018 . Oxford University Press . United Kingdom . 284.
  4. Web site: United Nations Office on Genocide Prevention and the Responsibility to Protect . 2024-01-26 . www.un.org.
  5. Web site: Z . Lara . 2019-05-29 . Final Report MMIWG . 2024-01-26 . www.mmiwg-ffada.ca . en.
  6. Book: Lattanzi . Flavia . Flavia Lattanzi . The Armenian Massacres of 1915–1916 a Hundred Years Later: Open Questions and Tentative Answers in International Law . 2018 . Springer International Publishing . 978-3-319-78169-3 . 27–104 [65–66] . en . The Armenian Massacres as the Murder of a Nation?.
  7. Book: Smith . Roger W. . Studies in Comparative Genocide . 1999 . Palgrave Macmillan UK . 978-1-349-27348-5 . 3–14 . en . State Power and Genocidal Intent: On the Uses of Genocide in the Twentieth Century.
  8. Book: Campbell . Jason J. . On the Nature of Genocidal Intent . 2012 . Lexington Books . 978-0-7391-7847-8 . en.
  9. Book: Kim . Sangkul . A Collective Theory of Genocidal Intent . 2016 . Springer . 978-94-6265-123-4 . en.
  10. Clark . Janine Natalya . 2015 . Elucidating the Dolus Specialis: An Analysis of ICTY Jurisprudence on Genocidal Intent . Criminal Law Forum . 26 . 3–4 . 497–531 . 10.1007/s10609-015-9260-5 . 143072669.
  11. 2008 . Three Responses to 'Can There Be Genocide Without the Intent to Commit Genocide?' . Journal of Genocide Research . 10 . 1 . 111–133 . 10.1080/14623520701850955 . 216136915.
  12. Aydin . Devrim . 2014 . The Interpretation of Genocidal Intent under the Genocide Convention and the Jurisprudence of International Courts . The Journal of Criminal Law . 78 . 5 . 423–441 . 10.1350/jcla.2014.78.5.943 . 144141503.
  13. Behrens . Paul . 2015 . Between Abstract Event and Individualized Crime: Genocidal Intent in the Case of Croatia . Leiden Journal of International Law . 28 . 4 . 923–935 . 10.1017/S0922156515000503 . 152124051.
  14. Singleterry . Douglas . 2010 . "Ethnic Cleansing" and Genocidal Intent: A Failure of Judicial Interpretation? . Genocide Studies and Prevention . 5 . 1 . 39–67 . 10.3138/gsp.5.1.39.
  15. Dojčinović . Predrag . 2016 . The chameleon of mens rea and the shifting guises of culture-specific genocidal intent in international criminal proceedings . Journal of Human Rights . 15 . 4 . 454–476 . 10.1080/14754835.2015.1127139 . 148074049.
  16. Ambos . Kai . 2009 . What does 'intent to destroy' in genocide mean? . International Review of the Red Cross . 91 . 876 . 833–858 . 10.1017/S1816383110000056 . free.
  17. Nersessian . David L. . The Contours of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribunals . Texas International Law Journal . 2002 . 37 . 231.

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