GLOBAL DIALOGUE
Volume 15 ● Number 1 ● Winter/Spring 2013—Genocide The Genocide Convention: Conundrums of Intent and Utility
The difficulty of ascertaining the intent required for genocide has cropped up repeatedly. Article II gives a definition of genocidal intent that conceals a number of issues of interpretation. Article II lists certain acts against members of “a national, ethnical, racial or religious group” that may constitute genocide—killing, causing bodily or mental harm, inflicting conditions of life calculated to bring about the group’s physical destruction, preventing births within the group, or transferring children out of the group. These acts must be done, says Article II, “with intent to destroy” the group “as such”, “in whole or in part”. Anti-Group IntentOne issue that became controversial was whether that definition assumed an animus against the target group by one who would have to be a member of some other group. The Genocide Convention may have been written on the assumption that atrocities would be committed against a group by someone from a different group, but no such requirement was written into the definition. “Hatred” against the group may have been assumed, but hatred was not an element as the definition stood. So when the Khmer Rouge in Cambodia was thought to have committed atrocities against the Khmer population of Cambodia, the predominant ethnic group in the country, the question arose whether genocide could be charged. Some commentators coined the term “auto-genocide”, meaning genocide without a group difference between perpetrators and victims, and argued it could not be prosecuted under Article II of the Genocide Convention.
In Cambodia, some atrocities were perpetrated against ethnic and religious minorities, but with the bulk of allegations, the perpetrators could not be distinguished from the victims on the basis of ethnicity, religion, or any such factor.
The government that came into control of Cambodia in 1979 by overthrowing the Khmer Rouge did invoke the Genocide Convention as applying to Khmer Rouge atrocities, regardless of the group identity of the victim. Cambodia had become a party to the Genocide Convention prior to the Khmer Rouge’s accession to power. Two Khmer Rouge leaders, Pol Pot and Ieng Sary, were tried in absentia by a People’s Revolutionary Tribunal set up by the new government of Cambodia for atrocities of the Khmer Rouge government. The charges included depredations against ethnically Khmer citizens of Cambodia, the group of which the Khmer Rouge leadership was a part.
I was asked by the government of Cambodia to participate in the trial to give an assessment of the penal responsibility of Pol Pot and Ieng Sary for genocide. I was called as an expert witness on genocide. Except for the quasi-genocide prosecution in Israel of Eichmann, no prosecution for genocide had been conducted since the adoption of the Genocide Convention, which entered into force in 1951. Nor had any international decision-making body interpreted genocide as a crime, or analysed its intent element. The drafting history of the Genocide Convention was meticulously recorded, but on the “auto-genocide” issue, the drafting history had little to offer.
I told the People’s Revolutionary Tribunal in a public session in Phnom Penh that in my view genocide had been perpetrated against various elements of Cambodian society, including the majority Khmers.2 My rationale was that the Genocide Convention must be construed like any other international instrument on the basis of its text, taken in the context of the document as a whole. The Genocide Convention required, for guilt, the perpetration of given acts against members of a group, with the intent to destroy that group “as such”, as the convention read, “in whole or in part”. I found no requirement that the perpetrator differ by ethnicity, religion, or any other factor, from those victimised.
A generation later, the government of Cambodia and the United Nations jointly set up a new tribunal to try Khmer Rouge figures, calling it the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea. Prosecutors had to decide which crimes, if any, to charge against surviving Khmer Rouge leadership figures. The prosecutors indicted for genocide only in relation to acts against two population groups, namely, the Cham minority group and the Vietnamese national group. They did not charge genocide for acts against the majority Khmer population. For these acts, prosecutors charged crimes against humanity and war crimes. This mode of charging avoided the question of whether “auto-genocide” was covered by Article II. Given the availability to the Extraordinary Chambers of the offence of crimes against humanity, the decision to avoid genocide for acts against the majority Khmer population deprived the defence of an argument the prosecution may have sought to avoid. The decision not to charge genocide for acts against the majority Khmer population did not necessarily involve a judgement as to whether genocide could have been charged.
In support of the approach I took in my statement before the People’s Revolutionary Tribunal, I can imagine examples outside the context of Cambodia. Suppose, to take one hypothetical example, a government most of whose officials belong to ethnic Group A is killing members of ethnic Group B, with the aim of wiping out that group. Suppose as well that X is an official in the government but is a member of ethnic Group B. X engages in the conduct of his colleagues against members of ethnic Group B. He is aware that the aim of the government is to kill all members of ethnic Group B, except perhaps those like him who work on behalf of the government. He participates in acts aimed at killing members of ethnic Group B. His motivation is to keep his job, and fear that if he does not participate, he himself may be targeted. X has no animosity towards members of his own ethnic Group B. By the terms of Article II, X could readily be prosecuted for genocide. He has engaged in acts against members of ethnic Group B, aware of the aim of destroying the group. His own fears might be relevant for sentencing but would not negate the intent required for genocide. Intent to Disperse as GenocideThe intent issue raised its head again in relation to atrocities in the Balkans in the early 1990s. As Yugoslavia unravelled, Serbs who found themselves in the territory of the breakaway state of Bosnia feared becoming a minority in that new state, where they predominated in the eastern sector. Militia formed within the Serb population became embroiled in warfare against the Bosnian Muslims, who formed the majority within Bosnia as a whole. The aim of the militia was apparently to force Muslims out of the eastern sector, with the further aim that that sector might join with Serbia, where ethnic Serbs predominated.
The Serb militia committed atrocities against Bosnian Muslims, including killing and rape. The apparent aim was to frighten the Muslims into fleeing, so that the eastern sector could be joined to Serbia without a substantial Muslim population. In the spring of 1993, Bosnia filed suit in the International Court of Justice against Yugoslavia, alleging that Yugoslavia, by then in effect only Serbia, was providing governmental support to the Serb militia, hence was responsible for its actions. Bosnia made its allegations under the Genocide Convention. Here genocide was being charged against a government in the context of a lawsuit, rather than against an individual as a crime, but the same definition of genocide applied. The Bosnia suit was the first to be filed against another state under the Genocide Convention, and after the Khmer Rouge trial only the second legal proceeding of any kind under the Genocide Convention. So issues of the intent required for genocide had received no more clarification.
I was part of a team of lawyers that was formed to present Bosnia’s contentions to the International Court of Justice. As for the facts, we argued to the court that Yugoslavia was supporting genocide by its role in the atrocities being committed by the Serb militia aimed at forcing the Muslims out of the eastern sector of Bosnia.
But if we had solid evidence on the facts, was genocide present? Does an intent to frighten into flight by committing atrocities amount to genocide? Do such actions reflect an intent to destroy? The context made the issue one of some urgency. Bosnia sought an injunctive order from the court as atrocities were in progress, with no end in sight. An injunctive order from the court that genocide was taking place might help mobilise international action. In particular, an arms embargo was in place on the entirety of what had been Yugoslavia. That embargo left Yugoslavia’s arms in the hands of the government of Serbia. So Bosnian Muslims were being victimised, but their breakaway government was ill equipped to stop the atrocities. Atrocities were reliably reported to be ongoing, with the Bosnian Muslims the primary victims. Internment camps like Keraterm and Omarska were reliably reported to be sites where women were being subjected to rape. An injunctive order from the court might at least create pressure to end the arms embargo and let Bosnia protect itself.
Some limited learning was available from the drafting conference for the Genocide Convention in late 1948. The issue of forced removal had been discussed as Article II was being written. Syria had proposed that the listing of acts that might constitute genocide be expanded to include a category of “imposing measures intended to obligate members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment”. This addition was not made, but what was occurring in Bosnia involved more than mere threat of “subsequent ill-treatment”. The ill-treatment was all too ongoing. Tellingly, when Syria made its proposal at the drafting conference, Yugoslavia spoke up in support, citing “an instance in which the Nazis had dispersed a Slav majority from a certain part of Yugoslavia in order to establish a German majority there”. Yugoslavia argued that the German action was “tantamount to the deliberate destruction of a group”. Genocide, Yugoslavia said, “could be committed by forcing members of a group to abandon their homes”.3
In the end, no mention was made in the final text of the Genocide Convention about forced removal. This omission could have meant that forced removal did not constitute destruction, but the issue was left hanging. The International Court of Justice, well aware that this was the context for Bosnia’s claim, decided to issue an injunctive order. For purposes of issuing an injunctive order, the court, by its rules, need not resolve all factual or legal issues definitively. It suffices at that stage of proceedings if the plaintiff has a plausible factual case, and if it seems that the court might ultimately resolve relevant legal issues in the plaintiff’s favour. So in April 1993, the court issued an order that Yugoslavia should
ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide, of conspiracy to commit genocide, of direct and public incitement to commit genocide, or of complicity in genocide, whether directed against the Muslim population of Bosnia and Herzegovina or against any other national, ethnical, racial or religious group.4
By August 1993, it was apparent that atrocities were continuing, so Bosnia requested a second interim order. The International Court of Justice issued one in September, reaffirming its April order. By these orders of April and September 1993, the court seemed to take the position that ethnic cleansing, perpetrated by the means being used against Bosnian Muslims, constituted genocide. In fact, two of the court’s judges who dissented from issuing those two orders complained that the court was prejudging Bosnia’s case against Yugoslavia in Bosnia’s favour.
But when the court eventually gave its definitive judgement in the case fourteen years later, in 2007, it concluded that the 1992–3 acts did not in fact reflect genocide.5 The court focused, in the 2007 judgement, on the later and more massive killings at the town of Srebrenica in 1995, which it did find to constitute genocide. The court distinguished the Srebrenica killings from those of 1992–3.
In its 2007 judgement, however, the court did not convincingly distinguish the two situations. In both instances, persons were killed with the aim of taking over territory free of Bosnian Muslims. Judge Khasawneh, who dissented from the 2007 ruling, referred to a decision of the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia, a case involving General Krstic, who was in charge of the Bosnian Serb forces at Srebrenica. Judge Khasawneh pointed out that the appeals chamber in that case found genocidal intent for the Srebrenica killings on the basis of an aim to rid the Srebrenica area of Bosnian Muslims.6 Thus, the killings at Srebrenica were committed with the same aim as those of 1992–3. The only difference with Srebrenica was that the killing was in higher numbers, and more concentrated in time.
The International Court of Justice’s majority in the 2007 judgement acknowledged the ethnic cleansing aim behind the Srebrenica killings. The majority judges quoted decisions of the International Criminal Tribunal for the Former Yugoslavia to say that
the Bosnian Serb forces not only knew that the combination of the killings of the men and the forcible transfer of the women, children and elderly, would inevitably result in the physical disappearance of the Bosnian Muslim population of Srebrenica, but clearly intended through these acts to physically destroy this group.7
The majority of Bosnian Muslims at Srebrenica were not physically destroyed, but rather were forcibly removed. The apparent purpose of killing the men was to prevent the reconstitution of a Bosnian Muslim population at Srebrenica and the surrounding area.
To justify its conclusion in relation to Srebrenica, the court used numbers, based on its questionable prior conclusion that genocide is committed only when some level of substantiality is reached with respect to the population “targeted”. The court said that there were forty thousand Bosnian Muslims in Srebrenica in July 1995.8 The court reasoned that the Army of the Republic of Srpska, the Bosnian Serb militia, intended to destroy forty thousand. But there had been an effort to remove the Bosnian Muslims from the entire eastern sector of Bosnia, so killing seven thousand or so at Srebrenica could just as easily be characterised as part of an intent to destroy the entire Bosnian Muslim population of eastern Bosnia, rather than the forty thousand of Srebrenica only. The killings and other atrocities of 1992–3 had the same aim. There is little reason to distinguish based on numbers between the 1992–3 atrocities and the Srebrenica atrocities as regards characterising them as genocide.
Nonetheless, the fact that the International Court of Justice called the Srebrenica killings genocide, based on the context for those killings, shows that the court viewed an aim of forcing departure as consistent with genocide, so long as the acts and intent required for genocide are present. Indeed, the court said that ethnic cleaning, on those bases, may constitute genocide.9 Utility of the Genocide ConventionThe ambiguities of the Genocide Convention doubtless impair its effectiveness in preventing atrocities. But whether prosecution is being conducted in an international tribunal, or in a domestic court, the Genocide Convention is far from the only route whereby those committing atrocities may be prosecuted. Alternative charges are available in either forum. And those alternative charges are typically easier to prove.
In domestic prosecution, the Genocide Convention is far from a necessity for the prosecution of atrocities. The convention requires states that are party to it to insert a genocide provision in their penal law so that they can prosecute for genocide. While inserting such a provision may encourage prosecutorial action, prosecutors have other tools that serve the same purpose. Anyone who can plausibly be charged with genocide can be charged with other crimes found in most penal codes. If, as is typical of genocide prosecutions, killing or assault is involved, statutes on those subjects can readily be used. If the act in question involves imposing conditions of life to bring about destruction of the group, similarly, one would likely find other articles in a penal code, such as those on abduction or sequestration. If children are forcibly transferred to another group, that act, too, might be covered by other code articles.
Genocide seems to be charged in a domestic court only when prosecutors want to make a point, usually a political point. The most frequent genocide charges in domestic courts come following a change of government, with the new government prosecuting figures from the former government. Typically, such prosecutions could be pursued on charges other than genocide. In Rwanda, to take one major example, when genocide was charged in domestic courts following the atrocities of 1994, reliance was placed as well on the commission of offences against the person as found in Rwanda’s penal code. The law of Rwanda was not clear as to whether genocide could be charged as a self-standing offence.
In international forums, other charges can be used, thus obviating the need for genocide as an indictable offence. While in 1948, genocide was the only accepted internationally defined offence dealing with atrocities, nowadays crimes against humanity are accepted as well. Thus, an international tribunal has at its disposal offences that do not involve the complexity of the intent element of genocide.
As we saw, prosecutors in the current Khmer Rouge proceedings in Cambodia have resorted to genocide charges only for atrocities allegedly committed against the Cham and Vietnamese. Such a limited use of genocide charges may come as a surprise, given that the Khmer Rouge atrocities in their totality—and the bulk of them were against ethnic Khmers—were widely regarded as genocide in the public mind. Yet when it came to filing charges that would have to be proved in a court of law, prosecutors shied away from genocide. The offence of crimes against humanity provides almost a complete alternative to that of genocide.
The offence of crimes against humanity does, to be sure, include a requirement that genocide does not. For a crime against humanity, the act must be systematic or widespread. For genocide, perhaps surprisingly, there is no such minimum of atrocity. The genocide definition puts stress on the intent to destroy a group, but the actual acts need not be massive, so long as they reflect an intent to destroy the group. It was in fact that lack of a minimum that gave pause to senators in the United States when President Harry Truman signed the Genocide Convention in 1948 and the next year asked the Senate, as required by the US Constitution, to assent so that he might ratify. In that era, lynching of African Americans in the American South was not an unknown phenomenon. Senators worried that the organisers of a lynching party might be deemed guilty of genocide, given that there might be evidence that a lynching was carried out with intent to destroy African Americans as a group, or at least a part of that group.
For domestic prosecution, the Genocide Convention may serve a purpose in that it places pressure on a state party to react to genocide. Under the Genocide Convention, states have a duty to prosecute if genocide is being committed in their territory. Charging a State with GenocideOne mechanism that increases the utility of the charge of genocide is represented by the Bosnia case against Yugoslavia, referenced above. That mechanism is legal action against a state, as opposed to legal action against an individual. Under the Genocide Convention, a state is responsible for preventing and punishing genocide. Thus, if genocide is committed and a state having the physical possibility of stopping it fails to do so, that state is legally responsible. Moreover, the Genocide Convention provides for the possibility of jurisdiction in the International Court of Justice, such that any state that is party to the Genocide Convention may sue another state party for failing to prevent or punish genocide.
The possible efficacy of such a suit is enhanced by the fact that the court has the option of issuing injunctive orders, as we also saw in Bosnia’s case against Yugoslavia. This possibility means that court action can come while atrocities are in progress, hence that court action may contribute to stopping genocide as it is occurring.
One hurdle here is that the Genocide Convention does not explicitly say that it covers the perpetration of genocide by a state. The operative provisions of the Genocide Convention define a crime and require states to prevent its commission and to punish it when it occurs. But the operative provisions do not say in so many words that a state may not commit genocide. This issue has, however, been resolved in favour of the proposition that a state does indeed violate the Genocide Convention if it itself perpetrates genocide. In 1996, the issue was resolved after Yugoslavia raised it as a possible bar to its liability for the actions of the Bosnian Serb militia in Bosnia. The International Court of Justice said that Yugoslavia could be liable for its own perpetration of genocide, were that to be proved. The court relied on the fact that in Article IX of the Genocide Convention, mention is made of the “responsibility of a state” for genocide.
The utility of the Genocide Convention for a suit against a state is greater than it might otherwise be because of the difficulty of gaining jurisdiction over a state for the perpetration of atrocities. Whereas in international penal tribunals the charge of crimes against humanity is available, in the International Court of Justice, the perpetration of a crime against humanity by a state may not be actionable. The jurisdiction of the court is limited to instances in which states have accepted it. Membership in the United Nations does not give the court jurisdiction over a particular state, even though the court is an organ of the United Nations. There must be some other expression of consent to jurisdiction.
A state may accept jurisdiction when another state sues it, but—especially with the perpetration of atrocities—this is not likely. In effect, a state may gain jurisdiction over another for atrocities only if both states have previously accepted jurisdiction in a way that applies to the particular acts being alleged. One possibility is that states may give carte blanche to the court for suits against them for any violation of any international obligation. The Statute of the International Court of Justice provides for the possibility—indeed, encourages states—to give consent to be sued by any other state party to the statute over any international law obligation, so long as the potential plaintiff state has similarly given consent for itself to be sued. Unfortunately for holding states liable for genocide, not many states have accepted this route. Thus, the likelihood that both states will have filed is slim.
The other route to jurisdiction in the court involves a particular treaty that includes a clause submitting the parties to the court’s jurisdiction in the event of a violation. The Genocide Convention happens to be a treaty that not only contains obligations but that, additionally, requires a state party to submit to the court’s jurisdiction if sued by another state party. No similar procedure exists for crimes against humanity. Crimes against humanity are not the subject of a multilateral treaty. Few human rights treaties have clauses submitting a state party to suit in the court, and even with those that do, many states have filed reservations to evade this obligation.
So the Genocide Convention in a particular atrocity situation may be the only treaty another state may use that will yield jurisdiction in the International Court of Justice. This possibility is limited by the fact that, as with the human rights treaties, quite a few states have filed reservations to the submissions clause of the Genocide Convention. Nonetheless, many have not. Both Bosnia and Yugoslavia, as of 1993, were parties to the Genocide Convention, and neither had filed a reservation to the submissions clause.
This possibility of a suit against a state is perhaps the most likely route whereby the Genocide Convention can be used to prevent genocide. Final judgements in the International Court of Justice require time. In Bosnia’s case against Yugoslavia, a final judgement was issued only in 2007, fourteen years after Bosnia filed the suit in 1993. However, the injunctive order mechanism allows for judicial action against a state while genocide is being perpetrated. The court can issue an injunctive order within a short time after suit is filed. The fact that the International Court of Justice is able to issue an order while atrocities are in progress may be the greatest merit of the Genocide Convention.
2. See John B. Quigley, Howard J. DeNike and Kenneth J. Robinson, eds., Genocide in Cambodia: Documents from the Trial of Pol Pot and Ieng Sary (Philadelphia, Pa.: University of Pennsylvania Press, 2000), p. 518.
3. UN Doc. A/C.6/SR/81 (1948), pp. 176, 184.
4. International Court of Justice, Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Order of 8 April 1993, p. 24.
5. International Court of Justice, Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgement of 26 February 2025 [henceforth ICJ, Judgement of 26 February 2025], para. 370, p. 194.
6. ICJ, Judgement of 26 February 2007, Dissenting Opinion of Vice-President Al-Khasawneh, p. 257.
7. ICJ, Judgement of 26 February 2007, para. 294, p. 165.
8. Ibid., para. 296, p. 166.
9. Ibid., para. 190, pp. 122–3. |