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Essay: Understanding the Historical and Legal Notion of Genocide: A Call for Prevention and Punishment

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An achievements in identifying the notion of genocide was made through very steady progress over the past decades in order to persuade prosecutors and UN officials responsible for initiating proceedings. Many academic scholars, as well as judicial bodies and politicians has debated about the legal concept of genocide with desire to fully apprehend the complex structure of the crime. However, the overall assessment of the definition of the genocide becomes more misunderstood due to divergent views, that remain to outbalance the simple definition contained in the Convention on the Prevention and Punishment of Genocide 1998.

Thus this report seeks to inform victims about the law and the historical development in respect of Genocide and in the light of the future events, the International Prevention Institute calls to:

prevent armed conflict and protect civilians

gather information in other to identify the problem at the early stage

undertake an urgent review of the legislative frameworks to establish credible tools of punishment

The historical notion of genocide

Prior to the horror experienced by Jews in 1943-1945, the debate over the „crime as old as the world” was generally silent, because, as mentioned by Frank Chalk and Kurt Jonassohn, many of „the historical records as exist are ambiguous and undependable”. By dint of the human curiosity and the progressive advancement in the field of legal studies, a horrendous practices were named after a very detailed analysis of the Nazis practice of extermination.

The author of Axis Rule in Occupied Europe, the polish scholar and pioneer Raphael Lemkin defined the atrocity referring to the ancient Greek word genos and the Latin cide, which form the genocide. As the result of his lobbying, the concept of genocide was discussed in the pursuit of indictment at Nuremberg Tribunal, but unsuccessfully lost in favour of arguments made by Hersch Lauterpacht.

Following the death of Raphael Lemkin, the question of genocide was mostly influenced by growing criticism among many legal scholars. Their inducement of the United Nations resulted in adopting the General Assembly Resolution 96(1) followed by the introduction of the Convention on the Prevention and Punishment of Genocide 1948.

The purpose of the implementation of the Genocide Convention 1948 was to outlaw the genocide and to give certain officials simple and legal basis for determining the crime. Nonetheless, it was widely accepted and affirmed in the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda that the legal provisions are part of customary international law and the prohibition is peremptory.

The Definition of Genocide

The definition of genocide can be found in the Convention on the Prevention and Punishment of the Crime of Genocide 1948 and the Rome Statute of the International Criminal Court. They state that:

„ 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.”

Protected Groups

One of the essential issues for consideration is the „closed list” of protected groups. Genocide applies only in circumstances when a prohibited act is committed against a member of „national, ethnical, racial or religious group”. The concept of groups itself was not provided in the travaux prèparatoires of the Genocide Convention and thus, it may constitute a restrictive problem in any further meaningful discussion in case of presumed prohibited acts against  unprotected groups.

Certainly problematic is to give the listed groups an objective meaning. Schabas suggested that „ the four terms in the Convention overlap, they also help to define each other, operating much as four corner posts that delimit an area within which a myriad of groups covered by the Convention find protection.” However, such an approach does not provide a necessary legal test, but only „describes a single phenomen, corresponding to the older idea of national minorities”. On the other hand, a targeted group should be „a subjective cultural constructs rather than fixed biological facts” and should has „stable characteristics”. Following the Rwandan genocide, whose findings stand in favour of objective approach, the point of distinction may be possible by assessing a complex characteristics of two groups, even if they share the same language and embrace the same religion. However, a broad approach of „a stable and permanent group” taken in Akayesu case was not given any support in the opinio juris of States, due to the fact that it constitutes too liberal interpretation of the Convention and that the permanent membership in one of the groups is not necessarily an obligation in a liberal world.

Given the difficulties of objective definition of groups, the subjective approach makes a distinction between self- identification and identification by others by focusing on the view from the perpetrator or victim’s perspective. Thus, a victim would belong to a group when a perpetrator believed them to be a part of that group. In Jelistic the Trial Chamber acknowledged the evaluation of the status of the group by relying on positive and negative criteria. Similarly, in Kayishema and Ruzindana the perpetrators were asked to identify the existence of a protected group. In reality the identification under the subjective criteria may reflect racist perceptions, which could led to elimination of the need to expand the four categories. Thus, the judicial body should be advised to take into consideration more guarded approach consisting of subjective and objective elements in the light of historical, political and cultural context, as taken in Rutaganda case. In the result, the successful evaluation of the elements of the crime would led to the lawful and more accurate outcome.

The Objective Element – Actus Reus

The several techniques of genocide directed at various aspects of the life of the group are listed under five categories, which focus on the physical dimension and biological destruction. If at least one of them would be identified by the Prosecution the objective element would be satisfied, which leds to identification of mental and contextual element.

Killing members of the group:

The term „killing” entails the cause of death of members of a group or injuring their health or physical intergity” and it has been interpreted as "voluntarily intentionally causing death”. Judgements of the Tribunal support the thesis that the identification of the act consists of two material elements such as „the death and the unlawful act or omission of the accused or a subordinate”. Moreover, the death must be a result of action taken by a reasonable person, who could have foreseen a consequance. Thus, the negligent, recklessness  or spontaneous acts are unlikely to constitute genocide.

Causing serious bodily or mental harm to members of the group:

Following the recommendations of several states, the interpretation of the „serious  harm” in principle amounts to acts of physical violence in pursuit of causing „a long disadvantage to a person’s ability to lead a normal and constructive life” The findings and factual evaluation of cases suggest that „ the serious harm” should be decided on the case to case basis, but at the same time reflect the Kristić findings, which ignore the need for „permament and irremediable” effects. However, the mental impairment usually goes beyond a temporary unhappiness and embarrassment. The example of serious mental harm can be found in a Trial Chamber of the International Criminal Tribunal for Rwanda, which indicates that „the harm in general must be of such a serious nature as to threaten its destruction in whole or in part” On that point, the prohibited conduct may include:

– sexual violence and rape

– acts of torture

– inhuman and degrading treatment

– deportation

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part:

The measures, which constitute in physical destruction of the group in whole or in part were characterised by Cassese as „slow death measures” and under its heading result in deprivation of all means of livelihood. The Akayesu and the Kayishema and Ruzindana are two of many other examples, in which protected groups were subject to a subsistence diet, a deprivation of resources and reduction of essential services, such as medical services, proper housing, clothing and hygiene. However, unlike other acts described  under paragraph (a) and (b), the result is not required for paragraph (c). For example the applicability of paragraph (c) was only addressed in the prosecution of Jews who survived the Holocaust in the A-G Israel v.Eichman. Thus, the omission of the interest persons, who not survived may limit the scope of the Convention and accordingly ignore the human rights law.

Imposing measures intended to prevent births within the group:

The provision under paragraph (d) originally has originated in Nazi serialisation laws and as commented by Cassese its aim is to „prevent the biological reproduction of the group” by imposing measures of physical and mental nature. The legal analysis of sexual mutilitation, forced birth control, rape, separation of the sexes and prohibition of marriages was made in Akayesu case, which constitutes a leading authority on that matter.

Forcibly transferring children of the group to another:

It was generally suggested that the crime under provision (e) has a little impact on the destruction of the group, however it may be considered the only form of cultural genocide included within the Convention, due to the serious consequences of the future vivacity of the group as such. According to the International Law Commission and Akayesu approach, the forcible transfer of persons under the age of 18 would give the objective to sanction also acts of threats and trauma. However, such findings would be problematic in case of the transfer of unborn children.

The Contextual Element

The ICC Elements of Crimes add a contextual requirement not found in the convention or the ICTY and ICTR case law that the conduct must have occurred „in the context of a manifest pattern of similar conduct” directed against a protected group or which was „conduct that could itself effect such destruction”. Thus, the final and general accepted approach is that intent and knowledge are the core requirements for the conduct to be considered a manifest pattern.

The Subjective Element – Mens Rea

The offence of genocide must be carried out with the „special intent” to destroy, in whole or in part, a protected group, as such and the individual perpetrator must be shown to have had this intent. Evidentiary issues concerning the mens rea of genocide were discussed mostly under the intent- based approach and the knowledge based approach. But, each of them favours the genocide from a very different standpoint, thus the judicial body is advised to infer the genocidal intent form various factors found in the ICC Statute. In this context, the interpretation of the words may help to identify dolls specials. Thus:

„to destroy” means the „material destruction of a group either by physical and biological means and not the destruction of the national, linguistic or cultural identity of a group”

„in whole or in part” represent the fact that „the targeted group should significant enough to have an impact on the group as a whole”

„as such” identifies a proof of motive that crime was carried out against a particular group.

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