II. Genocide and Other Underlying Offences
(Faculty of Law, University of Toronto)
The paragraphs below provide a brief definition of genocide and other underlying offences as prohibited under Articles II and III of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter ‘Genocide Convention’ or the ‘Convention’). In so doing, they identify the two elements that must exist simultaneously before a conduct can be qualified as a crime of genocide; namely, the intent to destroy a protected group on the one hand, and the commission of a prohibited act against members of such group, on the other hand. The combination of these two elements would give rise either to liability for the completed crime of genocide, or to inchoate liability for preparing for, or seeking to commit, genocide.
1. Definition of genocide
Article II of the Genocide Convention defines genocide as any acts committed with the 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.
Article II is the founding provision of the Convention in that the definition it contains has influenced all subsequent legal instruments dealing with genocide both at national (statutes, legislation, case law, etc.) and international (treaties, United Nations Resolutions, jurisprudence, etc.) levels. Article II gives a definition that clearly differentiates genocide from ‘simple’ mass murder. Genocide is something more than that. For instance, mass murder generally requires the commission of violent acts causing the death of a substantial number of individuals. Conversely, the requirements of genocide can be met even if the incriminated conduct does not involve a lethal act.
2. Elements of the crime of genocide
Under Convention Article II, the crime of genocide will be considered committed if two distinct elements are simultaneously present: firstly, the special intent to destroy in whole or in part a national, ethnic, racial or religious group as such; secondly, the commission of any of the prohibited acts against any (member of the) protected group.
The first key element in the definition of genocide is the specific intent to destroy a protected group in whole or in part. This subjective element is not only what differentiates genocide from other serious crimes; it is also what makes it an international offence. The implication of the requirement of this mental element is that the perpetrator does not necessary need to succeed in his attempt to destroy the entire protected group. What is required for genocide to be considered as committed is merely that a prohibited act committed against a substantial part of the protected group aimed at the destruction of that group; even if, in the end, nothing actually happened to the group in question. The part of the group aimed at may be substantial either in size (in terms of numbers) or in quality (in terms of its prominence or in terms of the leading role it plays within the protected group as a whole; persons concerned in this category may include, intellectuals, spiritual leaders, leaders of opinion, scientists, etc.).
Absent the specific ‘intent to destroy’, the crime committed would merely amount to either mass murder or crimes against humanity. The specific intent to destroy a group is the qualitative element that transforms into genocide a conduct that would otherwise amount to an act of crime against humanity or mass murder. Such intent constitutes, therefore, the essence of genocide. When it is present, the conduct itself does not need to be completed to constitute genocide, as we shall see later when discussing the act of ‘attempt’ to commit genocide. In addition, to ‘destroy’ in the sense of Genocide Convention Article II connotes a physical or biological annihilation of the protected group.
Requiring that the genocidal intent be directed against a national, ethnic, racial or religious group ‘as such’, means that the victim is chosen not on account of his individual characteristics or identity, but rather because of his membership to at least one of these groups.
However, the most common problem associated with the determination of the mental element of the crime of genocide is that, in practice, its presence is difficult to prove. In many cases, genocidal intent is inferred from the general context of the crime itself.
The second element that must exist alongside the intent to destroy a group is the conduct itself. Such conduct can take the form of any of the five categories of act listed in sub-paragraphs (a) to (e) of Genocide Convention Article II as mentioned above. It may also take the form of an omission. In both cases, the incriminated acts must be committed either against the physical or psychological integrity of the members of the targeted group, or against their existence or biological continuity. It is important to observe at this point that members of political, social, economic or cultural groups are excluded from the purview of Article II of the Genocide Convention.
What is also worth mentioning here is that a single (individual) act directed against one single member of the selected group, with the requisite intent, may constitute genocide against the entire group. This is because the intent to destroy a protected group in whole or in part is the driving force behind the perpetration of any of the following acts:
(1) Killing members of the group: it means intentionally causing the death of a person belonging to any of the protected groups;
(2) Causing serious bodily and mental harm to members of the group: this means inflicting serious injuries to physical health (e.g., through mutilation and excessive use of force, beating with rifle butts, wounds inflicted with machetes.) The perpetrator must act intentionally, and his acts must be directed to at least one member of the targeted group. In addition, causing a ‘serious mental harm’ requires that the impairment of mental faculties be of the nature that causes “a grave and long-term disadvantage to the victim’s ability to lead a normal and constructive life”. This implies that the harm must be permanent or irreversible. Instances of acts that Article II (b) of the Genocide Convention aims at include torture; interrogations combined with beatings and/or threats of death, rape, or inhuman or degrading treatment; sexual violence or sexual crimes (in that they cause both serious bodily and mental injuries);
(3) Deliberately inflicting conditions of life calculated to bring about the physical destruction of the group: this subparagraph mainly criminalizes what is generally referred to as slow death measures (such measures do not immediately kill the victims, but they ultimately seek their physical destruction on a long-term basis) imposed on the group as such. Such measures may include long-term forced labor or physical exertion; deportation; subjecting a group to a subsistence diet; imprisonment in concentration and extermination camps; and deliberate deprivation of resources indispensable for survival of the group (such as food, medical services, clothing a
(4) Imposing measures intended to prevent births within the group: such measures, which must be forcible, threaten the biological existence of the group by limiting or destroying its capability to reproduce. Relevant incriminated conduct includes enforced sterilization, forced birth control or restriction (e.g., sterilization and/or compulsory abortion), segregation of sexes, prohibition on or erecting obstacles to marriages. Rape committed with the purpose of changing or modifying the ethnic composition of the targeted group is also included in this category of measures. However, public policy measures of general application adopted by densely populated countries (such as China or India) to lower the birth rate for social or economic reasons do not reflect genocidal intent;
(5) Forcibly transferring children of the group to another group: the word ‘forcibly’ may be interpreted to include actual acts of forceful physical transfer or threats of force or coercion. The intention behind such transfer is to destroy the group’s existence. The assumption underlying this prohibition is that when transferred to another group, children lose the cultural identity of the group to which they originally belong. However, legally transferring children for any other reason (social, economic, protection, etc.) would not violate the present provision.
In sum, when any of the acts listed above is committed with the underlying intent to destroy a protected group in whole or in part, the perpetrator thereof is fully liable for the commission of genocide. However, the Genocide Convention also outlaws a number of conduct, which are likely to culminate in the perpetration of the core crime of genocide.
3. Other acts of genocide or ‘inchoate genocide’
Article III of the Genocide Convention punishes certain categories of acts, which are committed in preparation of the main offence of genocide. These are conspiracy and incitement to commit genocide, attempt to commit genocide, and complicity in genocide. These conduct constitute what is technically referred to as ‘inchoate offences’; i.e., conduct deemed criminal without the actual crime having been committed and for which the perpetrator may be prosecuted. That being said, persons who engage in any of these conduct may be held liable for genocide if it is established that their action was guided by the necessary intent to destroy a protected group in whole or in part. The paragraphs below briefly discuss the extent and limits of inchoate liability for each of the categories of ‘inchoate genocide’.
A. Conspiracy and incitement to commit genocide
Conspiracy is an agreement between two or more persons to commit an act prohibited by law, whereas incitement is an act by which one person encourages or pressurizes another person to commit an offence. Conspiracy and incitement are ‘preparatory offences’ in the sense that the underlying acts thereof are committed before a completed offence occurs. In fact, they ‘set the table’ for the actual perpetration of a particular crime. Conspiracy and incitement are penalized in order to encourage early intervention to prevent the actual completion of the crime envisaged.
Conspiracy and incitement to commit genocide are explicitly proscribed under Article 3(b) and (c) of the Genocide Convention.
The general legal understanding of conspiracy is that once a group of individuals have intentionally and knowingly agreed to commit a particular crime, the crime in question is considered or deemed to have in fact been committed. The seriousness of the crime of genocide would therefore justify that the mere agreement to commit genocide is punishable even if it fails to produce the result intended. For the offence of conspiracy to obtain, the conspirators must act in concert. Their agreement need not be an express or a formal one, but it may be inferred from the concerted or coordinated efforts of all members of the group to achieve their common criminal purpose.
Several states (among which Italy, Austria, the US and Canada) have enacted domestic legislation that penalizes conspiracy to commit genocide. In Canada, the Canadian Crimes against Humanity and War Crimes Act of 24 June 2000 (Bill C-19) makes it clear that conspiracy to commit genocide within or outside of Canada is an offence.
However, the future of conspiracy as an offence under international law is uncertain, as its exclusion from the Statute of the International Criminal Court clearly indicates. It is hoped that domestic legislation would continue to develop and apply this concept with respect to genocide.
A person may be convicted for the offence of incitement even if his conduct did not substantially contribute to the actual perpetration of genocide. As a consequence, one does not need to prove the existence of a causal link between incitement and genocide to be convicted for incitement to commit genocide. The offence of incitement exists independently of the actual perpetration of genocide.
As regards the substance of incitement as an offence, it must be direct; i.e. it must be of the nature to provoke on another person a state of mind necessary to engage in a criminal conduct. In addition, incitement may consist of verbal (e.g. an incendiary speech given in a public place or aired on the radio or television) or written (publications of genocidal articles in the press or distribution of incendiary materials) acts targeting a specific group. Finally, incitement must be public. This means that the call for criminal action must occur before a substantial number of individuals gathered in a public place, or must be directed to members of the general public at large by means of the mass media such as radio or television. The direct implication of this requirement is that private incitement (i.e. for instance, gathering a group of persons in a bedroom and then encourage them to commit genocide) is not criminal.
In a famous case involving the Canada and Mugesera, a Rwandan citizen accused of genocide back in Rwanda (Mugesera v. Canada (Minister of Citizenship and Immigration)  2 S.C.R. 100, 2005 SCC 40), the Supreme Court of Canada ruled that the accused could be deported to Rwanda where he faced prosecution on many counts of genocide, including incitement to commit genocide. It argued specifically that the ‘Minister does not need to establish a direct causal link between the speech and any acts of murder or violence’, thus confirming the inchoate nature of the offence of incitement. In addition, the Court made the following pronouncements on the basis of Articles 318-319 of the Criminal Code of Canada: that ‘In order for a speech to constitute a direct incitement, the words used must be clear enough to be immediately understood by the intended audience’; that according to the facts of the case, Mugesera’s message was ‘delivered in a public place at a public meeting and would have been clearly understood by the audience’; further that the ‘guilty mind is an intent to directly prompt or provoke another to commit genocide. The person who incites must also have the specific intent to commit genocide. Intent can be inferred from the circumstances’; and finally that when delivering his speech, Mugesera ‘was aware that ethnic massacres were taking place when he advocated the killing of members of an identifiable group distinguished by ethnic origin with intent to destroy it in part.’ These pronouncements o the Canadian Supreme Court clearly endorse the elements of the qualification of the offence of incitement as expounded in the foregoing paragraphs.
B. Attempt to commit genocide
Article 3(d) of the Genocide Convention penalizes any attempt to commit genocide. An attempted crime generally means a criminal action that is not completed. In
this sense, attempt to commit genocide is an offence where genocide itself has never been committed.
For the offence of attempted genocide to obtain, the perpetrator must have taken action commencing the execution of a particular crime, which, for reasons or circumstances independent of his intention or will, did not in fact occur. In addition, he must be aware that his action is directed toward the destruction, in whole or in part of a national, ethnical, racial or religious group. The required conduct is therefore the positive or substantial ‘steps toward execution of the crime’. Article 25 (3)(f) of the International Criminal Court Statute speaks in this respect of an action ‘that commences the execution of the crime by means of a substantial steps’.
However, if the perpetrator voluntarily or intentionally interrupts or abandons his criminal attempt before the crime is completed, he will escape liability for attempt. But, if abandonment or interruption is caused by an external factor (say if the victim succeeds in averting the attack thus dissuading the perpetrator from completing the offence), the perpetrator will still be held liable for attempted crime.
An attempt must, by nature, be incomplete. If the crime is completed i.e. committed, attempt is transformed into a complete offence.
C. Complicity in genocide
Article 3(e) of the Genocide Convention makes complicity an offence under international law. There is complicity in genocide when a group of persons, generally referred to as accomplices, knowingly or intentionally participate in the perpetration of genocide. Acts of participation in a crime may take any of the following forms: planning, preparing, facilitating, aiding, instigating, ordering, committing or inducing (the commission of) such crime. In addition, it is important that the participant had knowledge of the intent of the principal perpetrator and was aware that his own conduct would assist that perpetrator in the commission of the crime. Accordingly, a participant in a collective action would become an accomplice in genocide if his conduct is part of a campaign targeting a protected group and if he knew that such campaign aimed at the destruction of such group in whole or in part.
Since genocide can hardly be prepared and committed by a single person, Article 3(e) emphasizes the collective nature of this particular offence. It is therefore intended to prosecute and punish all persons who took part in the commission of genocide from its inception (preparation) to its execution phase, irrespective of their degree of participation or involvement. By the same token, it makes it possible to prosecute high-ranking government and military officials (who are usually remote from the actual scenes of the crime) for the acts directly committed on the field by low-ranking executants.
Dr. Faustin Ntoubandi
Faculty of Law, University of Toronto