In Part 1 we looked at the history of the word genocide and the definition of genocide used in the United Nations Genocide Convention (UNGC). For a refresher, here it is again:
……genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
As you read this definition, the critical thinking wheels in your head are churning, and you probably have questions. That’s a good thing, because there are big questions and ambiguities surrounding Article II that haven’t been resolved. So, here we go. In order for an individual or group to be charged with the crime of genocide, specific criteria of the definition must be met.
The first criterion is the intent clause, which states that genocidal acts must be committed “with intent to destroy in whole or in part”. This mens rea (to use a fancy legal term that just means the necessary elements of a crime) is, in the words of Payam Akhavan, one of my absolute favorite genocide legal thinkers, both qualitative and confused (44). Akhavan notes the difference between the scope of intent, which requires that one intend to destroy a group as such, and the scale of intent, which makes reference to the hierarchy of mental states such as dolus eventualis (indirect intent), dolus generalis (general intent), and dolus specialis (special intent). It is the last of these – dolus specialis – which is necessary for a conviction of genocide to occur. As such, there is an understood difference between intended destruction, and intention towards other acts that may result in destruction (Akhavan 44). However necessary the intent clause may be to upholding a fair legal structure, it is difficult to prove the intention to destroy. Kurt Johannson notes three factors that make intent difficult to prove in a court or law (20). First, written materials may not exist, or may be destroyed before they are archived (20). Second, perpetrators may have elaborate means of hiding the truth, regulating access to information, and the ability to spread carefully contrived disinformation (20). Third, as explains why most genocide until the mid-20th century were not reported, “there appears to have existed a sort of conspiracy of collective denial whereby the disappearance of a people did not seem to require comment or even mention” (20). There is also the question of what counts as destruction – must it be physical, or can it be social or cultural as well?
The second criterion, is that the crimes be committed against one of the specific categories of groups listed in Article II. The United Nations Genocide Convention applies only to four groups, those that are a national, ethnical, racial or religious. As such, many other groups – including political and economic groups – are excluded. To use a familiar case study, from 1975 to 1979 the Khmer Rouge killed an estimated 1.7 million – 2.5 million Cambodians out of a population of roughly 7 million total (Sadat xxi). While the phrase “Cambodian genocide” in widespread in common parlance, it is difficult to make a legal case for what happened in Cambodia as being a genocide, because people were targeted for being members of social, political, or economic classes (Sadat xxi). While many scholars have advanced arguments that the mass torture, starvation, and killings that took place in Cambodia during this time was indeed a genocide, there are many legal scholars who hold that the specific requirements of genocide were unmet (Sadat xxi). Gareth Evans writes that for all its compelling general moral authority, the UNGC held no legal application to the Cambodian situation. He says: “Because those doing the killing and beating and expelling were of exactly the same nationality, ethnicity, race and religion as those they were victimizing – and their motives were political, ideological and class-based…the necessary elements of specific intent required for [the Genocide Convention’s] application were not there” (Sadat xxi).
These issues with the UNGC have led many members of the academic community to formulate their own definitions of genocide.
Horowitz wrote, “Genocide is defined as a structural and systematic destruction of innocent people by a state bureaucratic apparatus”.
Fein wrote, “Genocide is the sustained purposeful action by a perpetrator to physically destroy a collectivity directly or indirectly through interdiction of the biological and social reproduction of group members, sustained regardless of the surrender or lack of threat offered by the victims.”
Charny wrote, “Genocide in the generic sense means that mass killing of substantial numbers of human beings, when not in the course of military action against the military forces of an avowed enemy, under conditions of the essential defenselessness of the victims.”
But there is something that must remain at the forefront of our minds: prosecution of the crime of genocide is based on genocide as defined in Article II (well, the Article II text was put in the Rome Statue, which is what the ICC uses). Do you think that we need to reevaluate and possibly change the accepted legal definition of genocide to make it more inclusive? What do you think?
Leave your responses in the comments!
Akhavan, Payam. Reducing Genocide to Law. Cambridge: Cambridge U Press, 2012.
———– “The Universal Repression of Crimes Against Humanity before National Jurisdictions : The Need for a Treaty-Based Obligation to Prosecute”. Forging a Convention for Crimes Against Humanity. Ed. Leila Nadya Sadat. Cambridge: Cambridge U Press, 2011. 8-27. Print.
“Convention on the Prevention and Punishment of the Crime of Genocide.” United Nations Treaty Collection. Web. 14 Oct. 2012.
Johannson, Kurt. “What is Genocide?”. Ed. Helen Fein. New Haven: Yale U Press, 1992. 17-26. Print.
Sadat, Leila Nadya. “Preface and Acknowledgments”. Forging a Convention for Crimes Against Humanity. Ed. Leila Nadya Sadat. Cambridge: Cambridge U Press, 2011. xix-xxviii. Print.
———- “A Comprehensive History of the Crimes Against Humanity Conventio”. Forging a Convention for Crimes Against Humanity. Ed. Leila Nadya Sadat. Cambridge: Cambridge U Press, 2011. 455-531. Print.
Neekoo Collett is a political science student from the University of Alberta. Her research focuses on “factors of restraint” and the situation of Baha’is in Iran, as well as the politics of genocide language and the proposed Crimes Against Humanity Convention. You can find her eating cake, applying for graduate programmes, and watching documentaries about the Amish when she should be studying.
What is Genocide? by Neekoo Collett is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License.