Genocide in International Law

Genocide

Term genocide often abuse/misused

o Powerful term--spotlight on plights

o But has a strict legal definition

"The crime of genocide is unique because of its element dolus specialis (special intent) which requires the crime be committed with the intent 'to destroy in whole or in part, a national ethnic, racial or religious group as such; hence the Chamber is of the opinion that genocide constitutes the crime of crimes, which must be taken into account when deciding the sentence."

Genocide History

Term invented post WWII (R. Lemkin)

o Holocaust--- Nuremburg: prosecuted as "CAH"

o Defined in 1948 Genocide Convention

What other events can be labeled "genocide"?

o Unclear: "G word" often abused/minused

o Some clear cases (Armenia 1915, Cambodia 1975-79, Guatemala 1981-83, Rwanda 1994, Bosnia 1995, Darfur 2003)

o Some less so (Myanmar, Ugyhurs in China, Tigray crisis, Ukraine (Bucha), Gaza)

Is Gaza genocide according to my professor?

Gaza: reasonable grounds genocide is being committed

o Francesca Albanese, UN Special Rapporteur on human rights in Palestine (2024)

o Mass ethnic cleansing, dehumanizing, rhetoric + complete siege, starvation, denial of healthcare, scale of destruction (incl. civilian infrastructure)

Is Darfur genocide according to my professor?

o Alice Nderitu, UN Special Adviser on the Prevention of genocide (2024): "Strong identity-based components (Masalit)

o Oct. 2025: el-Fasher massacre

o Evidence: thousands of civilians killed by Rapid Support Forces (RSF) w/in a couple of days

o "Blood visible from space"

State vs. individual responsibility for genocide

1. Genocide as violation of a state's obligations under IL

o Governed by both CIL and conventional IL

o 1948 Genocide Convention

o Not ICL

o No stat has ever been found responsible for genocide

o Though Serbia in breach of 1948 Convention since it failed to prevent genocide (2007)

o ICJ cases (states): (Bosnia v. Serbia 2007), (Gambia v. Myanmar 2019), (Ukraine v. Russia (2022), (S. Africa v. Israel 2023)

VS.

2. Genocide as an individual crime under ICL

o The crime of genocide

o Governed by ICL--- Rome Statute of ICC

o Criminal justice: prosecution of individuals

o Int'l courts

o ICTR and ICTY- several changes/sentences

o ICC- a single charge (Omar-al-Bashir

o Hybrid (e.g. Cambodia- Khmer Rouge

o Domestic (e.g. Guatemala

Genocide Convention (1948)

1948, convention makes it illegal for any state to commit genocide, in order to join UN

o Convention on the Prevention and Punishment of the Crime of Genocide

o incl. legal definition of genocide

o 154 state parties

o Incl. US (signed 1948, only ratified 1984)

Rapidly recognized as part of customary IL

o 1951 ICJ Advisory Opinion

States duty to prevent + punish genocide

erga omnes

rights or obligations are owed toward all

Prohibition has an erga omnes effect

Prohibition of genocide is jus cogens

ICJ case: South Africa v. Israel

Proceedings instituted by South Africa at ICJ (2023)

o Alleges violations by Israel of its obligations under 1948 Genocide Convention

o Both are state parties--- incl, its jurisdictional clause

o States (not individuals)

o ICC also investigating possible individual crimes (ICL)

o Though not (yet) genocide

ICJ Actions for South Africa v. Israel

No judgement on jurisdiction yet

Judgement on the merits (if any) will take years

In the interim--- indication of provisional measures (3 requests)

Requests for provisional measures

o Based on "primia facie" jurisdiction

o ICJ must believe there's "primia facie" evidence of violation of the Convention (not necessarily of "genocide" but at least of failure to prevent and punish incitement)

o Not final judgement on jurisdiction to hear the case

Genocide definition

Rome Statute of ICC Art. 6 (same as 1948 Convention)

"Genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religous 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

Elements of genocide

1. Protected group (only)

o Only groups w/ a degree of permanence: national, ethnic, racial, religious

o Not political

o One or more of them

2. Material element (acta reus)- prohibited acts

o One/several of the listed acts in Art. 6

3. Mental element (mens rea)- incl. dolus specialis (special intent)

o Not just criminal intent---- genocidal intent

o Special "intent to destroy, in whole or in part" a protected group

Double intent

General criminal intent and special intent to commit genocide

Criminal intent

o Why is act (e.g. killing) not enough?

o Mental element (mens rea)

o Well-established legal principle: awareness of committing something wrong (even w/out awareness of law)

o e.g. ordered to kill a family + preceding to do so (clearly wrong in the person's mind)

o Grounds for excluding criminal responsibility?

o Same as dom. criminal law (insanity, self-defense, necessity, duress, intoxication), but controversial given the nature/extent of acts

Genocidal intent

Awareness the crime is committed with the special intent to participate in genocide (dolus specilais)

o e.g. killing a family (clearly illegal, clearly wrong in person's mind) but must also be aware such actions are part of larger campaign to "destroy in whole or in part", a national/ethnic/racial. religious group

o Extra hurdle--- show genocidal intent

o "destroy": in physical sense

o not just identity or "ethnic cleansing"

o "...or in part": a substantial part

Special intent (dolus specialis)

This extra hurdle (special intent)--- makes genocide harder to prove than other crimes

o Must establish "genocidal intent"

o Neccessitates investigating

o e.g. an individual's knowledge of situation/circumstances + mental state at the time of crime + forseeable consequences of the act itself (scale and gravity of the acts)

o e.g. Akeyesu (ICTR)- 1st case of genocide

o Statements ("cockroaches"), conscious planning, systematic targeting, scale of atrocities

Crimes against humanity usually preferred

The Crime of Crimes

Since genocide is particularly serious and unique + requires particularly stringent criteria to be established---- then its punishment should also be particularly significant