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.
[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.
