Genocidal intent is the 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 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]
For an act to be classified as genocide, it is essential to demonstrate that the perpetrators had a deliberate and specific aim ( 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]
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." [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15]
It is non-controversial that proving dolus directus would meet the Genocide Convention's intent requirement; the weaker standard of 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. [16]
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. [17] 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. [16]
In 2010, the Khmer Rouge Tribunal referred to the precedent of the ICTR in discussing the role of genocidal intent. [18]
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. [19] Hans Vest argued for the interlinked roles of an individual's intent and the individual's expectation of contributing to a collective action. [20] Kjell Anderson discussed ways of separating out the roles of collective policies and their interaction with individual intent. [21] 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. [17]
Genocide is the intentional destruction of a national, ethnic, racial, or religious group, in whole or in part.
The International Criminal Tribunal for Rwanda was an international court established in November 1994 by the United Nations Security Council in Resolution 955 in order to adjudicate people charged for the Rwandan genocide and other serious violations of international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994. The court eventually convicted 61 individuals and acquitted 14.
The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), or the Genocide Convention, is an international treaty that criminalizes genocide and obligates state parties to pursue the enforcement of its prohibition. It was the first legal instrument to codify genocide as a crime, and the first human rights treaty unanimously adopted by the United Nations General Assembly, on 9 December 1948, during the third session of the United Nations General Assembly. The Convention entered into force on 12 January 1951 and has 153 state parties as of June 2024.
The Bosnian genocide refers to both the Srebrenica massacre and the wider crimes against humanity and ethnic cleansing campaign throughout areas controlled by the Army of Republika Srpska (VRS) during the Bosnian War of 1992–1995. The events in Srebrenica in 1995 included the killing of more than 8000 Bosniak men and boys, as well as the mass expulsion of another 25000–30000 Bosniak civilians by VRS units under the command of General Ratko Mladić.
Jean-Paul Akayesu is a former teacher, school inspector, and Republican Democratic Movement (MDR) politician from Rwanda, convicted of genocide for his role in inciting the 1994 genocide against the Tutsi.
International criminal law (ICL) is a body of public international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. The core crimes under international law are genocide, war crimes, crimes against humanity, and the crime of aggression.
Manjača was a concentration camp which was located on mount Manjača near the city of Banja Luka in northern Bosnia and Herzegovina during the Bosnian War and the Croatian War of Independence from 1991 to 1995. The camp was founded by the Yugoslav People's Army (JNA) and authorities of the Republika Srpska (RS) and was used to collect and confine thousands of male prisoners of Bosniak and Croat nationalities.
In the practice of international law, command responsibility is the legal doctrine of hierarchical accountability for war crimes, whereby a commanding officer (military) and a superior officer (civil) is legally responsible for the war crimes and the crimes against humanity committed by his subordinates; thus, a commanding officer always is accountable for the acts of commission and the acts of omission of his soldiers.
Bosnia and Herzegovina v Serbia and Montenegro [2007] ICJ 2 is a public international law case decided by the International Court of Justice.
An atrocity crime is a violation of international criminal law that falls under the historically three legally defined international crimes of genocide, war crimes, and crimes against humanity. Ethnic cleansing is widely regarded as a fourth mass atrocity crime by legal scholars and international non-governmental organizations (NGOs) working in the field, despite not yet being recognized as an independent crime under international law.
Prosecution of gender-targeted crimes is the legal proceedings to prosecute crimes such as rape and domestic violence. The earliest documented prosecution of gender-based/targeted crimes is from 1474 when Sir Peter von Hagenbach was convicted for rapes committed by his troops. However, the trial was only successful in indicting Sir von Hagenbach with the charge of rape because the war in which the rapes occurred was "undeclared" and thus the rapes were considered illegal only because of this. Gender-targeted crimes continued to be prosecuted, but it was not until after World War II when an international criminal tribunal – the International Military Tribunal for the Far East – were officers charged for being responsible of the gender-targeted crimes and other crimes against humanity. Despite the various rape charges, the Charter of the Tokyo Tribunal did not make references to rape, and rape was considered as subordinate to other war crimes. This is also the situation for other tribunals that followed, but with the establishments of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), there was more attention to the prosecution of gender-targeted crimes with each of the statutes explicitly referring to rape and other forms of gender-targeted violence.
The term international framework of sexual violence refers to the collection of international legal instruments – such as treaties, conventions, protocols, case law, declarations, resolutions and recommendations – developed in the 20th and 21st century to address the problem of sexual violence. The framework seeks to establish and recognise the right all human beings to not experience sexual violence, to prevent sexual violence from being committed wherever possible, to punish perpetrators of sexual violence, and to provide care for victims of sexual violence. The standards set by this framework are intended to be adopted and implemented by governments around the world in order to protect their citizens against sexual violence.
During the Rwandan genocide of 1994, over the course of 100 days, up to half a million women and children were raped, sexually mutilated, or murdered. The International Criminal Tribunal for Rwanda (ICTR) handed down the first conviction for the use of rape as a weapon of war during the civil conflict, and, because the intent of the mass violence against Rwandan women and children was to destroy, in whole or in part, a particular ethnic group, it was the first time that mass rape during wartime was found to be an act of genocidal rape.
Incitement to genocide is a crime under international law which prohibits inciting (encouraging) the commission of genocide. An extreme form of hate speech, incitement to genocide is an inchoate offense and is theoretically subject to prosecution even if genocide does not occur, although charges have never been brought in an international court without mass violence having occurred. "Direct and public incitement to commit genocide" was forbidden by the Genocide Convention in 1948. Incitement to genocide is often cloaked in metaphor and euphemism and may take many forms beyond direct advocacy, including dehumanization and accusation in a mirror.
Complicity in genocide is illegal under international law both for individuals, as part of international criminal law, and state parties to the Genocide Convention. The latter was first held in the Bosnian genocide case (2007) in which the International Court of Justice held Serbia responsible for failure to prevent the Bosnian genocide.
Genocide is the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group. The term was coined in 1944 by Raphael Lemkin. It is defined in Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) of 1948 as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group's conditions of life, calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group."
Jennifer Trahan is an American legal scholar and academic. She is a Clinical Professor at New York University's Center for Global Affairs and directs their Concentration in International Law and Human Rights.
The contextual element of genocide is an ongoing issue in the jurisprudence of genocide; the question of whether a genocidal policy or plan is an element of the crime of genocide has implications for the rights of the accused, the right to have the law interpreted in their favor where it is ambiguous, and the risk of harm from a theory of culpability that could be satisfied by simple participation in any large-scale killing.
Starvation of a civilian population is a war crime, a crime against humanity, or an act of genocide according to modern international criminal law. Starvation has not always been illegal according to international law; the starvation of civilians during the siege of Leningrad was ruled to be not criminal by a United States military court, and the 1949 Geneva Convention, though imposing limits, "accepted the legality of starvation as a weapon of war in principle". Historically, the development of laws against starvation has been hampered by the Western powers who wish to use blockades against their enemies; however, it was banned in the 1977 by Protocol I and Protocol II to the Geneva Conventions and criminalized by the Rome Statute. Prosecutions for starvation have been rare.