Codification of the crime of genocide
A lot has been written about the origins of the crime of genocide that need not be repeated here. It is well known that Lemkin originally saw genocide as a broad concept, i.e. as different acts aimed at destroying the culture and livelihood of groups (Axis Rule in Occupied Power, pp. 79-82). Along the same lines, the 1946 UN General Assembly Resolution 96 described genocide as the denial of the right of existence of entire human groups – including political ones. However, the scope of the definition adopted in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide was significantly narrower. Cultural destruction and forcible population transfer were not included in the final text, protected groups were restricted, and jurisdictional reach limited. Yet, the Convention must be understood in the context of time. Indeed, having in mind the historical background, it is quite remarkable that the Convention was adopted at all – and broad support was generated by making concessions and imposing more stringent requirements.
Since the Genocide Convention defined and codified the crime of genocide as an independent crime, the definition of genocide has remained firmly settled in international law. Perhaps prematurely, the ICJ had already proclaimed its customary status in 1951, which was subsequently fortified by the verbatim reproduction of Article II of the Genocide Convention in the statutes of international ad hoc tribunals (here and here) as well as the Rome Statute of the ICC. This surely contributed to legal certainty and, from this perspective, codification can be viewed as a blessing for the relatively consistent application of the definition of genocide at the international level. Yet, simultaneously, it was a curse, preventing the crime from undergoing a development similar to that of crimes against humanity and even war crimes. This downside of the early codification could have been at least partially addressed through teleological and evolutive interpretation of the offence. The international tribunals, however, failed to realize the potential of the definition and thus contributed to frustrations surrounding prosecutions of genocide as well as to claims that genocide today is a redundant crime.
Interpretative dilemmas and structural inconsistencies
Although the definition’s wording has remained the same for 70 years, it is still surrounded by interpretative dilemmas (e.g. knowledge v. purpose-based approach, lone génocidaire theory v. requirement of contextual element, all stable and permanent groups v. close list of four protected groups, physical v. social destruction, etc.). These dilemmas have led to inconsistent judicial interpretation of certain elements and disparate concepts of genocide in the case law and in academic literature (a similar point is made here).
It is clear that the definition of genocide evolved around the paradigm of the Holocaust, and its historical roots do not necessarily reflect the values and political environment of the 21st century. To start with, in today’s environment it is difficult to rationalise the inclusion of some groups, while leaving others without any protection. Further, the definition suffers from structural inconsistencies. Some are a result of the drafting process, during which the original concept of genocide was incoherently narrowed down. Others derive from case law, which dominantly interpreted the legal elements of this crime restrictively and then subsumed relatively ambiguous fact patterns under the narrow paradigm.
To illustrate the last point, one may recall the finding of genocide in Srebrenica. Although the ICTY from Krstić onwards insisted on a strict interpretation of destruction as physical or biological, one could argue that the facts of the case fit more neatly within the notion of destruction of the group as a distinct social entity. Further, despite the insistence on the purpose-based interpretation of ‘intent to destroy’, the purpose – shared genocidal intent of the perpetrator – is in practice inferred from his or her knowledge (Karadžić, para. 5811, see also Ambos’ critique).
An example of the structural incoherence may be seen in the formulation of actus reus from the perspective of a subordinate actor, whereas the (purpose-based) interpretation of the intent to destroy is a leadership mens rea standard (Kreß). Along the same lines, the leading interpretation of the word ‘destroy’ as limited to the physical or biological destruction of the group seems somewhat disconnected from the list of genocidal acts – most evidently from forcible transfer of children, which is reminiscent of the abandoned concept of cultural genocide, but also from causing serious mental harm, including by rape.
Is genocide ‘the crime of crimes’?
While some argue that judicial interpretation has significantly broadened the offence’s scope (e.g., Schabas), the reality is prevailingly the opposite. In fact, all of the interpretative dilemmas sketched above were at least nominally solved in favour of the restrictive approach.
One justification for the strict interpretation (even before the Rome Statute’s clear endorsement of the principle) lies in the belief that a more extensive interpretation of the elements of genocide would dilute its status as the ‘crime of all crimes’, attaching a particular stigma and moral opprobrium. As the ECtHR emphasised, citing the ICJ and the ICTY with approval, the gravity of genocide is reflected in the stringent requirements that must be satisfied before imposing a conviction (Vasiliauskas v. Lithuania, paras. 112, 176, 185). Yet, despite some initial attempts to officially put genocide on the ‘pedestal’ of an imaginary hierarchy of international crimes, the ad hoc tribunals eventually firmly took the view that there is no such hierarchy and that, in abstract, certain crimes are not to be sentenced more harshly than others. Consequently, from this perspective at least, there was no need to interpret its elements so restrictively.
At the same time, research shows that punishments for genocidaires far outweigh punishments for other international crimes (Hola) and many chambers continue to label genocide “an exceptionally grave crime” distinct from other serious crimes such as persecution as crimes against humanity (Karadžić, para. 551). The way the international tribunals have dealt with the issue of whether genocide is the ultimate crime or not is probably one of the most neurotic aspects of the jurisprudence of the ad hoc tribunals.
Genocide – a redundant crime?
In the early years after the adoption of the Genocide Convention, it was noted that the Convention was “unnecessary when applicable and inapplicable when necessary” (Georg Schwarzenberger, International Law, Vol. I, London, 1957, p. 143.). Genocide is clearly a politically charged concept. The word genocide has acquired extraordinary, almost propagandist, power (Akhavan), establishing an inappropriate desire to apply it to almost all forms of mass human suffering and creating competitive victimhood (Milanović). Finally, due to the evolution of crimes against humanity which abandoned the link with armed conflict, genocide has lost much of its initial practical importance and legal appeal (Kreß).
All of this could lead to the conclusion that genocide is today a redundant crime (as argued by Murray). Yet, if genocide is discarded, similar pressure will soon be attached to crimes against humanity, in particular if a (strong) compromissory clause is included in the final text of the proposed convention on crimes against humanity. Moreover, if the expressive function of law is ignored, one might ask whether the concept of international crimes was necessary in the first place, for all of these crimes can be prosecuted as ‘ordinary crimes’ as well.
Law is an articulation of societal values and it cannot be denied that in common discourse genocide denotes the worst crime (Amann). The international criminal justice institutions may be trying hard (albeit inconsistently) to communicate that there is nothing less serious about crimes against humanity, but evidently this is not understood by those listening (see also here), and it is fair to argue that norms deviating from the popular understanding of right and wrong will generally not be accepted. Consequently, if judicial interpretation is completely detached from what its audience perceives as genocide, international courts will fail to convey the intended message and will not be seen as legitimate authorities (similarly Amann and Damaška, although legitimacy depends on other factors as well).
Hence, it is not the concept of genocide per se that must be abandoned, but the outdated restrictive paradigm in which genocide is stuck.
The essence of the crime of genocide
The most comprehensive way to modernize the definition of genocide would be through a formal amendment of the definition. This could be done through an extension of the existing Draft Convention on Crimes against Humanity, to include an update of the Genocide Convention, as proposed by Kress. While without amendments at the international level it may not be possible to completely abandon the restrictive paradigm, e.g. to broaden the scope of protected groups, certain improvements could be achieved merely through teleological and evolutive interpretation. Resolving interpretative dilemmas outlined above in favour of the more extensive approach in most cases would not lead to essentially different outcomes of trials. For example, by recognizing the contextual element as the legal element of the offence and adopting the knowledge-based interpretation of the specific intent the courts would primarily contribute to consistency between what they say they do and what they actually do. In similar fashion, interpreting the intent to destroy so as to include social destruction would further ensure more structural harmony between genocidal intent and certain genocidal acts, without changing the essence of the offence.
Obviously, there are limits to a broad interpretation, including in particular the principle of strict construction found in Article 22(2) of the Rome Statute. Nevertheless, a broad interpretation would not be totally unprecedented even at the ICC (for a recent example see the ICC’s new approach to the war crimes of sexual slavery and rape in Ntaganda and its critique here and here). Further, in a regime of multiple sources of law, including customary law, the rule of strict construction should be interpreted as ruling out any judicial ‘wholesale’ creation of law and not its interpretation and development (see here).
By recognizing the full potential of the definition of genocide, the (international) courts could ‘break the curse’ of the frozen codification and interpret and apply the definition in a manner which more closely reflects legitimate expectations of the legal and political environment of the 21st century.