Reflections on the Mental Elements of the Crime of Genocide in the Rome Statute
By Dr Victor Tsilonis
“At Nuremberg, however, the word simply disappeared, and after the early salvo of the opening days, 130 days of hearings passed with not one mention of genocide.” Phillippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity, p.332
On 9 December 1948, the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide. Despite the international community’s commitment to prevent genocide and punish its perpetrators, several cases of genocide have occurred subsequently including in Asia, Africa and Europe. Millions of people have been murdered solely or primarily on account of their perceived group identity – national, ethnic, racial, religious, political. In fact it is noteworthy that during the 20th century alone – the century marked by the human evolution – the crime of genocide has occurred at least three times.(p.127) Since the 70th anniversary of the recognition of the crime of genocide is approaching, this brief paper will focus on some key elements of genocide’s mens rea element within the legal framework of the Rome Statute of the International Criminal Court (ICC), which includes genocide as one of its four core crimes (genocide, crimes against humanity, war crimes and the crime of aggression).
Although the post-World War II Nuremberg trial did not formally accept the existence of genocide, soon after the trial’s conclusion the United Nations General Assembly adopted its Resolution 96 in which genocide was recognised as “a crime under international law”. Furthermore, on 9 December 1948, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, the first human rights treaty after the end of the Second World War.(p.377)
The Crime of Genocide at the ICC Rome Statute
Article 6 of the ICC’s Rome Statute (ICCRSt) defines ‘genocide’ by using the exact wording of Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide:
Article 6 – Genocide: For the purpose of this Statute, ‘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.
It is noteworthy that so far as the interpretation of Article 6 ICCRSt is concerned, the Preparatory Committee on the Establishment of an International Criminal Court repeated approvingly the view of the Working Group on the Definition of Crimes that:
“With respect to the interpretation and application of the provisions concerning the crimes within the jurisdiction of the Court, the Court shall apply relevant international conventions and other sources of international law. In this regard…for purposes of interpreting [the provision concerning genocide] it may be necessary to consider other relevant provisions contained in the Convention for the Prevention and Punishment of the Crime of Genocide, as well as other sources of international law. For example, article I would determine the question of whether the crime of genocide set forth in the present article could be committed in time of peace or in time of war. Furthermore, article IV would determine the question of whether persons committing genocide or other acts enumerated in the present article [article III of the Genocide Convention] shall be punished irrespective of their status as constitutionally responsible rulers, public officials or private individuals.”
Hence, one major conclusion drawn pursuant to the above path of reasoning is that Article I of the Convention for the Prevention and Punishment of the Crime of Genocide applies to the interpretation of Article 6 ICCRSt and, consequently, that it is irrelevant whether the crime of genocide occurs during times of peace or war. Additionally, that the same logic applies to all articles of the Convention for the Prevention and Punishment of the Crime of Genocide.
Nonetheless, the statements of the Preparatory Committee on the Establishment of an International Criminal Court and the Working Group on the Definition of Crimes must be read with some caution, because it is not certain that this line of interpretation will always be to the benefit of the conferment of international criminal justice and the ICC’s jurisprudence. Moreover, notwithstanding the importance of the Working Group’s and Preparatory Committee’s statements, one should not argue that the legal interpretation of members comprising the international legislature should always be followed by the ICC’s judges without a proper ad hoc examination of each case’s merits.
The limitations of placing an impregnable seal on each and every legal interpretation advanced by the relevant Committees prior to the ratification of the Rome Statute can be easily determined if we make the following hypothesis. If, for example, Article I stated that genocide could occur only in times of war, an interpretation of Article 6 ICCRSt excluding times of peace – even though the wording of the article did not exclude a priori such possibility – would clearly run contrary to international justice’s interests and ICC’s legacy.
Moreover, it must be stressed that the suggested interpretative avenue does not conflict with Article 21§1(b) ICCRSt under the title “Applicable Law”. This states that “The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict.”
Thus, Article 21§1(b) ICCRSt gives clear order of preference to the Statute, the Elements of Crimes and the Rules of Procedure and Evidence, while “applicable treaties and the principles and rules of international law” are placed in an auxiliary, second position. Although this means that the applicable treaties, principles and rules of international law should be thoughtfully considered, in no way does Article 21§1 ICCRSt connote that the interpretation of legal issues arising out of the Rome Statute must be made exclusively through the prism of “applicable treaties”. Instead, one can validly argue that the evolving case law of the ICC, which constitutes an integral part of international criminal law – together with the “Statute, Elements of Crimes and the Rules of Procedure and Evidence” – should be one of the primary guides of the Rome Statute’s interpretation, even though the ICC’s case law is not explicitly mentioned in Article 21 ICCRSt.
Another issue which needs to be considered is the interrelation between the Rome Statute and the other equally significant documents pursuant to Article 21 ICCRSt, namely the Elements of Crimes and its Rules of Procedure and Evidence. It is noteworthy in the case of genocide that the Elements of Crimes, which are approved by a two-thirds majority of the member states, delineate quite analytically and not always predictably genocide’s mens rea.(p.132-133)
William Schabas notes that “although only summary attention was paid to article 6 during the drafting of the Rome Statute, some of the issues involved in the crime of genocide were explored in more detail by the Preparatory Commission in preparation of the Elements of Crimes”.(p.128) However, the Elements of Crimes refer not only to various aspects of genocide’s mental elements, but, more importantly, they impose a contextual element in each specific act of genocide that does not exist in the Rome Statute. Thus the Elements of Crimes state for each specific act of genocide – i.e. (a) killing group members, b) causing serious bodily or mental harm to group members, 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) – that each one of them must take “place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.’ (Emphasis added).
Genocide is defined in Article 6 ICCRSt as requiring an ‘intent to destroy’, which has been frequently described in case law as a ‘specific intent’ or dolus specialis and constitutes a higher standard than that posed by the default rule of Article 30 ICCRSt regarding the international crimes’ mental elements (‘with intent and knowledge’).
The term “in the context of” refers to the initial acts in an emerging pattern, while the word “manifest” appears as an “objective” qualification, which will be examined and decided ad hoc by the competent ICC Chamber. Finally, yet importantly, the most troublesome and subjective term is the “similar conduct” requirement, which can mean various things and is open to many interpretations. Clearly, the fact that even the Elements of Crimes do not exemplify what is meant by the phrase “in the context of a manifest pattern of similar conduct” clouds this critical issue, because the interpretation must be inevitably based on the legal meaning of phrases “in the context of”, “manifest pattern” and “similar conduct”. And while for phrases such as “in the context of” and “manifest pattern” some guidance can be found in the Elements of Crimes, as referred to above, no such assistance is provided for the term “similar conduct”.
Current and Potentially Emerging Implications
Unfortunately, the 21st century has not remained unstained by acts of genocide. In an address to the UN Human Rights Council in Geneva, Zeid Ra’ad Al Hussein characterized the case of the Rohingya as “a textbook example of ethnic cleansing”. Following the expulsion of more than 700,000 Rohingya since August 2017, a recent 440-page report of a UN Human Rights Council fact-finding mission, and the ICC Pre-Trial Chamber I decision that the ICC can exercise its jurisdiction, the ICC Prosecutor Fatou Bensouda announced the launch of a preliminary investigation into the deportations of hundreds of thousands of Rohingya Muslims from Myanmar into Bangladesh.
Perhaps of even greater, wider significance – both more generally, as well as in relation to genocide specifically – is what appears to be a growing trend for states (especially the African continent at present) to withdraw from the Rome Statute. The implications of this mean that should the crime of genocide occur in the territory of such states after the time of their withdrawal from the Rome Statute, then it might become legally impossible for jurisdictional reasons – or at least much harder – for the ICC to prosecute the commission of these and other serious international crimes. Furthermore, since the crime of genocide is often fuelled by political undercurrents, the likelihood of any bona fide or effective prosecution being brought against the perpetrators of such crimes at the national level is highly unlikely, especially if those responsible for them remain in power. Nor are most states in which the crime of genocide is committed likely to have the necessary capacity and resources to investigate and prosecute such legally complex crimes. Therefore, States’ withdrawal from the Rome Statute could effectively deprive many victims of their fundamental human rights to justice and reparation following the commission of such heinous crimes. In turn, both the commission of acts of genocide, as well as any denial of justice, could further fuel regional instability thereby posing threats to international peace and security.
That said, the horizon does not look entirely bleak. In the most recent emerging case of alleged genocide being perpetrated against the Rohingya in Myanmar, the Pre-Trial Chamber I was convinced by the Prosecutor’s novel argument that even though the allegedly coercive acts that forced the Rohingya to flee took place in Myanmar, the deportation offense (included in Art. 7(1)(d) ICCRSt – crimes against humanity) was not fully completed until the refugees entered Bangladesh, a State Party to the Rome Statute. Chief Prosecutor Fatou Bensouda likened deportation to “a cross-border shooting”, arguing the crime “is not completed until the bullet (fired in one state) strikes and kills the victim (standing in another state).” In such ways, the ICC is exploring innovative interpretative avenues in order to preserve or even expand its jurisdiction, even over states that have never been or are no longer State Parties. If certain factual conditions are met, then no-one can exclude the possibility that this might occur for the crime of genocide as well, especially under Art. 6(c) (deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part), Art. 6(d) (imposing measures intended to prevent births within the group), and Art. 6(e) (forcibly transferring children of the group to another group).
Whether or not individual states, on whose territory acts of genocide are alleged to have been committed, remain parties to the ICC, certain activities will remain important. These include the establishment of mechanisms for the prevention of the crime of genocide; the effective and timely investigation of such alleged acts; the accurate verification of the criteria necessary for establishing the crime of genocide in particular cases; and the evaluation of the realistic likelihood of a case alleging the commission of these and/or other core crimes reaching the ICC.
GSDM would be pleased to advise and assist on these and related issues.
Dr Victor Tsilonis is a Principal Associate of GSDM. A barrister by background, he specialises in international criminal law, is a Focal Point for Greece of the International Criminal Court Bar Association, and is on the Roster of Experts of the International Nuremberg Principles Academy.