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The War Crime of Genocide: A Critique of America’s Approach to Protected Groups

law.utah.edu

The War Crime of Genocide: A Critique of America’s Approach to Protected Groups

by Adam J. Knorr

Introduction-

Genocide is defined by the United States of America, and the international community, by Article 4 of the Statute of the International Tribunal for the former Yugoslavia (“ICTY”).[1] It is defined 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: (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; [and] (e) forcibly transferring children of the group to another group.”[2]

The main question to be addressed is how the groups protected by the international community are overly narrow with regard to genocide. Indeed, many international war criminals that clearly deserve punishment under these laws are excluded for seemingly negligible reasons.

A Brief History-

After the Second World War ended, the United Nations decided to draft and adopt the Genocide Convention.[3] The genocide convention refers to legislation that was passed in 1948, by the United Nations General Assembly, with the hope of preventing the reoccurrence of atrocities that were previously committed be the Nazi party in Germany. The phrase (“Genocide Convention”) is used as shorthand for the long title of the act, which is the Convention on the Prevention and Punishment of the Crime of Genocide.  

The initial drafting of the Genocide Convention was significantly influenced by both the Holocaust and the Cold War. [4] Yet, there “have been no major textual changes to the Genocide Convention since its passage.” Despite its age, the Genocide Convention is sufficiently broad in some aspects, such as section c., which punishes actions “[d]eliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part.”[5] This section sweeps a wide net because of the phrase “conditions of life,” which embraces “situations in which the actor does not actually kill the victim, but intends to cause a slow death that may or may not be realized.” In other aspects, however, the Genocide Convention is insufficiently narrow. The narrowing that this blog will criticize is that deletion of “political groups” from the list of groups protected by the Genocide Convention, which occurred during the sixth committee before the official passage.[6] The reason for the removal of “political groups,” is largely due to objections by the Soviet Union and other nations. Their argument was that only racial and national groups could be objectively identified, and the use of “political” could lead to international interference with intranational political issues.[7]

The Intent Requirement and its Consequences-

The list of groups protected by the Genocide Convention is part of the mens rea requirement of the crime. Specifically, before a person can be charged with genocide, they must meet the two step intent outlined in the statute. First, the person must intend to commit one of the actions outlined in sections a-e, such as intentionally killing multiple people. This intent needs to be proven, just like any other element of a crime, and is a general mens rea requirement. Second, the person must have a specific intent “to destroy, in whole or in part, a national, ethnical, racial or religious group,” while the person intentionally commits one of the violent acts described above. This blog asserts that “political group” should be inserted into the specific intent component of the statute. Thus, if a person had the required specific intent to eliminate a political group while committing one of the enumerated violent acts, that person would have committed genocide.

The best illustration of the problems caused by the deletion of political groups from the list of groups protected by the Genocide Convention is the events that have unfolded in Darfur since 2003. Darfur is a province located in western Sudan, and is the location of a massive conflict between government-sanctioned Arab militias called “Janjaweed,” and various African rebel groups.[8] To date, over 400,000 civilians have been killed in this conflict, and has been described as the “worst humanitarian crisis in the world today.”[9] The severe atrocities that happen in Sudan are not based on the direct conflict of the civil war. Instead, the atrocities occur when innocent civilians, who have no connection to the African resistance movement, are being systematically killed and tortured by the Janjaweed.[10] Aside from the 400,000 civilian casualties that have result from entire village being wiped out, “[h]undreds of thousands more have been tortured, gang-raped, subjected to sexual servitude or displaced by the Janjaweed.”[11]

The connections between these incidents and the events that occurred in Rwanda are hard to avoid in any discussion of this topic. On September 21, 2006, many survivors gathered in Kigali, Rwanda,to remember the massive genocide in 1994, wherein almost 1 million men, women, and children were destroyed. During this moment of remembrance a survivor of the Rwandan war, who had organized the rally, addressed the international community by saying “If you don’t protect the people of Darfur today… never again will we believe you when you visit Rwanda’s mass graves, look us in the eye and say ‘Never again.”’[12]

A Potential Resolution-

The possible solution that this blog proposed is to modify the Genocide Convention to include situations such as those that are occurring in Darfur. This could be done in various ways, but this blog suggests that the international committee could add “political groups” to the specific intent definition of the statute, which would reflect the way the statute was set up before the sixth committee. This would serve to protect groups such as those in Darfur because the term “political group” has evolved, and can now be made up of various racial, ethnic, and religious peoples. Specifically, the Janjaweed can be classified as a group with different political ideals than those of the African groups being slaughtered, because they represent the current government’s interests. Conversely, the two primary African rebel groups, the “Sudanese Liberation Army/Movement” and the “Justice and Equality Movement,” were created to resist President Omar al-Bashir and fight for political equality for Darfuris.[13]

Alternatively, the international committee could take a more drastic approach and add “other groups” to the specific intent definition of the statue. This would reflect the way the statute was set up in 1946. This definition could potentially encompass almost any group that needed protection, whether the group be political, tribal, social, or economic. Regardless of the specific definitional change, the goal of the change is to get more of the violent acts committed in the world, such as those in Darfur, included within the international definition of genocide.

The benefit getting violent acts identified as genocide is that it increases the likelihood that the United Nations, the United States, or other countries, will get involved to stop it. Over 130 nations have adopted the Genocide Convention, which states that “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”[14]Thus, the label of genocide activates the obligation of the rest of the world to provide aid under the Genocide Convention.

The potential problem with enacting this solution is the UN has been hesitant to label anything as genocide. This problem was most evident in Rwanda in 1994, the obvious atrocities were largely ignored, despite the direct correlation to the definition of genocide. See Id. While the UN’s hesitation will likely never be fully explained, the Former Secretary General of the U.N. has stated that “the reason why the U.N. refused to label the crimes in Rwanda genocide was because of fear that the U.N. might be compelled to intervene militarily.”[15] This hesitation was so unjustified, and so costly, that Former U.S. President William Clinton officially apologized to the Rwandans for not calling the war crimes by their rightful name: genocide.

Conclusion-

People are not united just by ethnicity, race and religion; rather, people can be united in political causes with greater passion than any other identifiable group. Therefore, it stands to reason that the definition of genocide should be expanded to include “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, political or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group…” This new definition would serve the purpose of including horrific events, such as those in Darfur, with the definition of genocide. Then, once these events are identified as genocide, hopefully it will cause the rest of the world to honor their agreement and interfere.

Adam Knorr is a S.J. Quinney College of Law class of 2014 candidate from Heber City, Utah. Knorr’s entry to the GlobalJustinceBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.

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[1] See Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on 25 May 1993, U.N. Doc. S/RES/827 (1993) (available at http://www1.umn.edu/humanrts/icty/statute.html).

[2] Id. at Article 4.

[3] Paul Mysliwiec, Accomplice to Genocide Liability: The Case for A Purpose Mens Rea Standard, 10 Chi. J. Int’l L. 389 (2009).

[4] Id. at 390-391.

[5] ICTY at Article 4.

[6] See Matthew Lippman, The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 3 B U Intl L J 1, 42-43 (1985).

[7] See Staub, Ervin. The Roots of Evil: The Origins of Genocide and Other Group Violence. Cambridge, UK: Cambridge University Press. p. 8. ISBN 0-521-42214-0

[8] William Reisinger, Beyond “De-Nile” the United Nations’ Genocide Problem in Darfur, 23 Touro L. Rev. 685, 697 (2007).

[9] Kristina Nwazota, The Darfur Crisis, Online NewsHour, Apr. 6, 2006 (available at http://www.pbs.org/news hour/indepth_coverage/africa/darfur/origins.html).

[10] Reisinger, 23 Touro L. Rev. at 697-98.

[11] Id. at 698.

[12] Id. at 690.

[13] Reisinger, 23 Touro L. Rev. at 697.

[14] Id. at 694.

[15] Id. at 730.