At the same time, and however unfortunate this arbitrariness may be, the conventional definition of genocide is probably more carved in stone that any other legal definition. It was not not even revisited in Rome in 1998 during the negotiations that led to adoption of the treaty establishing the International Criminal Court.
Most likely, back in 1948 the drafters of the Genocide Convention did not envisage that the Convention would be applied to a range of new situations.
As remarked by Professor William A. Schabas (left) some ten years ago, at the Convention’s fiftieth anniversary, the drafters of the Convention probably had in mind to erect a monument looking back at the Holocaust, rather than that they could conceive that the Convention would apply to genocides yet to occur. (credit for 2005 photo) As a result, the legal definition of genocide was tailored on past events rather than forward looking.
The definition in a way is the legal narrative of the Holocaust, rather than that it was specifically created for future application to yet unknown situations that were in essence comparable to the Holocaust. Even though the Holocaust has not been repeated in scale, form, and character, the qualification of genocide has been invoked in quite a number of situations, ranging from the massacres in Rwanda, Srebrenica, and Darfur, to the annihilations of Indians in the Americas and the transfer of Aboriginal children in Australia.
The question is:
► Are all these situations truly in essence comparable and is the qualification of genocide the most adequate one?
Or phrased in more abstract terms:
► To what extent is the definition of genocide as included in the Genocide Convention applicable to new situations, and what can recent jurisprudence teach us about the future application of the Convention?
In The Meaning of the Word 'Destroy' and the Implications for the Wider Understanding of the Concept of Genocide, an essay recently posted on SSRN, I have argued that the essence of the legal definition of genocide is captured in the word ‘destroy’, which is part of the mental element, namely that an act be committed with the specific intent to destroy the group.
The understanding of the word ‘destroy’ has been subject to different interpretations in the jurisprudence of the ad hoc Tribunals. The predominant and traditional view – as adhered to by the International Law Commission (here), by the International Criminal Tribunal for Rwanda, and mostly by the International Criminal Tribunal for the former Yugoslavia – is that the word destroy implies
'the material destruction of a group either by physical and biological means and not the destruction of the national, linguistic, religious, cultural or other identity of a particular group.'
In a Partial Dissenting Opinion to the Krstić Appeal Judgement (ICTY 2004), Judge Mohamed Shahabuddeen (right) advocated a different understanding of the word “destroy”. (photo credit) He proposed to distinguish more clearly between the acts of genocide and the mental element. Whereas the acts obviously had to be of a physical or biological nature, according to Judge Shahabuddeen,
'it is not apparent why an intent to destroy a group in a non-physical or non-biological way should be outside the ordinary reach of the Convention.'The Judge argued that whereas certain genocidal acts require or imply an intent to destroy physically or biologically, other acts do not specify this.
In other words, the definition of genocide does not articulate that the physical act of killing members of the group should occur with the intent to physically destroy that group. Shahabuddeen noted in this context that a group
'is constituted by characteristics – often intangible – binding together a collection of people as a social unit.'In the Krajišnik judgement, the ICTY Trial Chamber continued Shahabuddeen’s line of reasoning, and held that the word “destroy” as used in the mental element was not limited to physical or biological destruction of the group’s members, as a group could also be destroyed in other ways, such as transferring children or severing the bonds among its members.
The discussion above was echoed in the ICC case against Sudanese President Omar Al-Bashir.
In the first Bashir Arrest Warrant decision, issued in 2009, the majority of theICC Pre-Trial Chamber endorsed the more traditional view that clearly distinguishes between ethnic cleansing, deportation, and transfer, on the one hand, and a genocidal policy, on the other hand. Pursuant to this view, only in extreme cases can the practice of ethnic cleansing result in genocide.
In a Separate and Partly Dissenting Opinion, Judge Anita Ušacka (left) paid tribute to the more expansive approach suggested by Shahabuddeen, in an attempt to keep the discussion on this point open. (credit for photo ©ICC-CPI/Hans Hordijk)
After the ICC Appeals Chamber had reversed the first Arrest Warrant decision, the genocide counts were re-established in the second Arrest Warrant decision.
Most notably, in this latter decision, issued in 2010, the Pre-Trial Chamber opened the door for using genocide as a narrative for violations of socio-economic rights.
The Pre-Trial Chamber held that there were reasonable grounds at that stage of the procedure to believe certain acts of this nature could be qualified as genocidal acts; specifically:
► Contamination of water wells and other forms of destruction of means of survival in homelands;
► Systematic transfer to inhospitable terrains without proper access to water and food; and
► Denial and hindrance of medical assistance.
However, these acts could only be captured under the heading ‘deliberate infliction of conditions calculated to bring about the physical destruction of the group’ if committed against the backdrop of other more direct mass murder campaigns.
It remains to be seen how this matter is ultimately addressed if ever the case against Al-Bashir proceeds to the trial phase.
The recent jurisprudence does display an awareness that modern genocides will likely be committed through different strategies and policies than originally envisaged. The key to successful future application of the genocide definition requires a combination of a certain sensitivity and openness towards appreciating new modes of committing genocide – while also maintaining a strict interpretation of the word ‘destroy’ that does not undermine the essence of genocide.