DEFINING THE ELEMENTS OF THE CRIME OF GENOCIDE:
THE NEED OF A “PLAN”
A. General Reference to the inclusion of plan as an Element of the Crime and the close conceptual proximity of Genocide with Crimes against Humanity
One of the most contentious issues with regard to the definition of the crime of genocide is whether a genocidal policy or plan organized by the State is an element of the crime. Many authorities have considered this issue in the context of discussion of the mental element (mens rea) of the crime, holding that the plan or circumstances of genocide must be known to the offender, thereby implicitly confirming that a plan or policy is a material element of the crime.
Mens rea is a general principle of law derived from the Latin maxim actus non facit reum nisi mens sit rea and provides that a person shall be criminally responsible for a crime only if its material elements are committed with intent and knowledge. In this respect, knowledge means “awareness that a circumstance exists or a consequence will occur in the ordinary course of events”.
Mens rea has been applied by the International Criminal Tribunal for the Former Yugoslavia (hereinafter, ‘ICTY’) from its very first decisions as an essential element of the offences within its jurisdiction. Its essence was explained in the Tadic Appeal Decision, where the Appeals Chamber stated that:
“[..] the basic assumption must be that in international law as much as in national systems, the foundation of criminal responsibility is the principle of personal culpability: nobody may be held criminally responsible for facts or transactions in which he has not personally engaged or in some other way participated (nulla poena since culpa)”.
The essential role of the existence of a plan for the commission of the crime of genocide can be inferred by the close conceptual and theoretical ties between the crime of genocide and crimes against humanity. For the latter, it is generally accepted as customary international law that they must have been committed within the context of a “widespread and systematic attack”. Moreover, the ICTY has definitively stated that “a policy must exist to commit” these crimes and that the accused must, at the very least, have knowledge of the context of persecution:
“[..] there must be an element of subjective knowledge on the part of the accused of the factual conditions which render the actions a crime against humanity. The mental element of the crime against humanity must involve an awareness of the facts or circumstances which would bring the acts within the definition of a crime against humanity”.
There is much authority for the proposition that genocide is a subset of crimes against humanity . One of the leading experts on crimes against humanity, Professor M. Cherif Bassiouni, has argued that the “widespread or systematic” elements are better viewed as means of proving the State plan or policy and, therefore, the truly distinguishing elements of the crimes against humanity is the fact that they are part of a State plan or policy rather than that they are widespread or systematic. Another prominent scholar in this field, William A. Schabas, points out that the same reasoning should apply to genocide and, thus, establishing the mens rea of the crime should actually be an attempt to define the content of the State plan or policy.
B. Reference to ICTY’s inconsistent jurisprudence
The Trial Chamber of ICTY has explicitly stated in an early decision (Prosecutor v. Jelisic) that it deems “theoretically possible” that a single individual may commit the crime of genocide as perpetrator without being supported by any Organization. However, the Court underscored the importance of the existence of a plan stating that
“[…] it will be very difficult in practice to provide proof of the genocidal intent of an individual if the crimes committed are not widespread and if the crime charged is not backed by an Organization or a system”.
This approach, developed as obiter dictum, now stands as authority for the “entirely speculative and hypothetical proposition that genocide may be committed without any requirement of an organized plan or policy of a State or similar entity”. This position was confirmed on appeal:
“The Appeals Chamber is of the opinion that the existence of a plan or policy is not a legal ingredient of the crime. However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases. The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of plan or policy may facilitate proof of the crime”.
However, the Trial Chamber’s approach in the Jelisic case is in itself contradictory. It originally dismissed a charge of complicity and said that the accused could not be an accomplice to genocide on the ground that the Prosecution had failed to prove the existence of any organized plan or policy of a State or similar entity to destroy in whole or in part the Bosnian Muslims. In other words, the Trial Chamber assessed that genocide was not committed by others on the ground that a State plan in this respect did not exist. Nevertheless, as mentioned above, it reversed this reasoning when it considered whether Jelisic could have been a principal perpetrator of the crime of genocide, without providing proper justification for this approach.
More recently, in the Krstic case, the Trial Chamber followed a different approach on this issue and stressed that a plan is indeed an element of the crime of genocide. In its Judgment, where the factual developments were discussed under the heading “A Plan to execute the Bosnian Muslim Men of Srebrenica”, it explicitly stated that the requirement of a “widespread or systematic attack” was:
“[..] comprised within the genocide requirement that there be an intent to destroy a specified type of group. As discussed above, acts of genocide must be committed in the context of a manifest pattern of a similar conduct, or themselves constitute a conduct that could in itself effect the destruction of the group, in whole or in part, as such”.
To this end, in assessing the guilt of General Krstic, the central issue was whether or not he had knowledge of the overall genocidal plan, thereby confirming that a plan is an implicit element of the crime of genocide. In particular, the Trial Chamber held that
“The plan to execute the Bosnian Muslim men may not have been of his own making, but it was carried out within the zone of his responsibility of the Drina Corps. Furthermore, Drina Corps resources were utilized to assist with the executions from 14 June onwards. By virtue of his position as Drina Corps Commander, General Krstic must have known about this”.
Moreover, the Appeals Chamber corroborated this approach in the Blagojevic case, where it stroke a conviction for complicity to commit genocide on the ground that the accused had no knowledge of the mass executions and, therefore, he could not have possibly known of the overall plan.
However, the Appeals Chamber in the Krstic case rejected the Trial Chamber’s approach and stated that the “[…] requirement that the prohibited contract be part of a widespread or systematic attack does not appear in the Genocide Convention and was not mandated by customary international law”. Nevertheless, the Appeals Chamber does not substantiate its claim on the scope of the customary international law and makes only a very general and vague reference to the Genocide Convention, without producing any further evidence to support this allegation. Therefore, this reasoning amounts only to a gratuitous claim with rather weak authority, as it will be demonstrated below.
The inconsistency in the ICTY jurisprudence on this issue is further highlighted by some early decisions of the Tribunal. In its original consideration of indictment for Dr. Radovan Karadzic, the Tribunal spoke of a ‘project’ or a ‘plan’ while reviewing the sufficiency of evidence for the commission of the crime of genocide and specifically states that the existence of the genocidal intent can be inferred by reference to the ‘pattern of conduct’. Moreover, in the Tadic case, the Trial Chamber stressed that genocide can only be an organized and not a spontaneous crime, since a “[…] a policy must exist to commit these acts”.
The Office of the Prosecutor has also adopted a contradictory approach on the issue. Although it rejects that the existence of a plan is an element of the crime of the genocide, it still argues that “proof of the objective context in which genocidal acts are committed with requisite intent is an integral part of the proof of a genocide case”. Moreover, the Office of the Prosecutor contends that the ‘objective context’ may be one limited to persecution as it is contemplated by the crimes against humanity provisions. But, as already mentioned, the Appeals Chamber has definitively stated that the accused must, at the very least, have knowledge of the context of persecution, thus corroborating the proposition that a plan is a formal element of the crime of genocide.
Nevertheless, the Prosecution’s approach to limit the mens rea of the crime of genocide to the level of knowledge of widespread or systematic persecution is totally incoherent. The Office of the Prosecution actually argues that a double standard should be applied in genocide, although a more consistent approach would be to admit a requirement that proof of knowledge of a genocidal plan should be made. This is so, especially in view of the ruling of the Kupreskic et al case, where the Trial Chamber explicitly makes a distinction stating that the mens rea for genocide is higher than for persecution and, from the view of mens rea, genocide is an extreme and most inhuman form of persecution.
It can plausibly be inferred from the above that, despite the explicit exclusion of a State plan as an element of the crime of genocide, the respective Tribunal’s jurisprudence is manifestly contradictory and, indeed, highlights the relevance and importance of proving the existence of a genocidal plan. The following arguments shall further underline why the current Tribunal’s approach on this issue should be reassessed to conform to the proper definition of the crime of genocide under customary international law and promote coherence in international judicial policy.
C. Counter-arguments
1. Customary International law and the jurisprudence of the International Criminal Tribunal for Rwanda
William A. Schabas advocates in favor of the inclusion of the plan requirement as an element of the crime of genocide. He reckons genocide is closely associated with a State plan or policy, so that “it is nearly impossible to imagine genocide that is not planned or organized either by the State itself or a state like entity or by some clique associated with it”. To support these claims, he cites a considerable number of historical sources, as well as the jurisprudence of the International Criminal Tribunal for Rwanda (hereinafter, ‘ICTR’).
Raphael Lemkin, the prominent international criminal lawyer who coined the term ‘genocide’ in his work “Axis Rule in Occupied Europe” and was instrumental in the drafting of the Genocide Convention, spoke regularly of a plan as if this was a sine qua non for the crime of genocide. He defines genocide as “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves”. At this point, it should be stressed that the Appeals Chamber has made extensive reference to Lemkin and his works in the Krstic case and, therefore, his analysis should be regarded as compelling authority in this regard.
In the most significant judicial proceedings before the establishment of ICTY on the interpretation of the definition of genocide, the Eichmann case, the Israeli Courts followed the approach suggested by Lemkin. In essence, the Court’s entire judgment is based upon evidence of the Nazi plan or policy and the Israeli judges considered it a formal element of the crime of genocide in the application of mens rea. In particular, the Court ruled that Eichmann knew of “the secret of the plan for extermination” only since June 1941 and, therefore, acquitted him for genocide prior to this date.
Moreover, the position adopted by International Law Commission on its 1996 Commentary on the Draft code of Crimes against Peace and Security of Mankind reiterates that a State plan is central to the crime of genocide:
“The extent of knowledge of the details of a plan or a policy to carry out the crime of genocide would vary depending on the position of the perpetrator in the governmental hierarchy or the military command structure. This does not mean that a subordinate who actually carries out a plan or policy cannot be held responsible for the crime of genocide because he did not possess the same degree of information concerning the overall plan or policy as his superiors. The definition of the crime of genocide requires a degree of knowledge of the ultimate objective of the criminal conduct rather than knowledge of every detail of a comprehensive plan or policy of genocide”.
The same approach was followed by the Guatemalan Truth Commission which examined charges of genocide with regard to atrocities committed during the country’s civil war in the early 1980’s. To substantiate the charges, the Commission considered it necessary to demonstrate the existence of plan to exterminate the Mayan communities that “obeyed a higher, strategically planned policy, manifested in actions which had a logical and coherent sequence”.
Another argument in favor of the plan requirement comes from the practice of an expert commission of inquiry chaired by the distinguished international legal scholar Antonio Cassese that was mandated in 2005 by the United Nations Security Council to investigate “whether or not acts of genocide have occurred” in Darfur. In its Report, the International Commission focused on the State policy rather than examining acts of individual offenders and concluded “that the Government of Sudan has not pursued a policy of genocide”. Elaborating in this finding, the Commission reported that
“However, one crucial element appears to be missing, at least as far as the central Government authorities are concerned: genocidal intent. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare”.
In the first contemporary judgment on genocide, the International Criminal Tribunal for Rwanda (hereinafter, ‘ICTR’) convicted Akayesu of genocide and crimes against humanity. At one point at the judgment, the Tribunal referred to the “massive and/or systematic nature” of the crime of genocide and then stated that the pattern of criminal conduct had been widespread and systematic. Moreover, it defined ‘systematic’ as involving “some kind of preconceived plan or policy” and, in this respect, it cited the aforementioned Draft code of Crimes against Peace and Security of Mankind of the International Law Commission.
A year later, in the Kayishema and Ruzindana case, the ICTR reiterated that a genocidal plan is required for evidential purposes. In particular, the Trial Chamber wrote that “[…] it is not easy to carry out a genocide without a plan or organization” and, to this end, “the existence of a plan would be a strong evidence of the specific intent requirement for the crime of genocide”.
In view of the above, Schabas is of the opinion that there is little argument with the notion that plan is an implied element in the definition of the genocide and the debate is only about the scale of the context. From a policy perspective, admitting a requirement of proof of a genocidal plan ensures a more appropriate stigmatization of the crime of genocide. Considering the restorative function of the Tribunal and its objective to contribute to peace, accountability and, ultimately, reconciliation, the requirement of a genocidal context would exclude isolated incidents commanded by military deviants and would not distort the historical record in an unnecessarily provocative fashion.
2. The approach of the International Criminal Court
i. Elements of crime
The jurisprudence of the International Criminal Court (hereinafter, ‘ICC’) on this issue is of critical importance. Following the traveux preparatoires of the Rome Statute, it can be easily inferred that the delegations of the negotiating states insisted the subject-matter jurisdiction of the Court should cover only elements of international crimes that comply with existing customary law .
The “Elements of Crime” (hereinafter, ‘Elements’) adopted by the Assembly of States Parties of the ICC in September 2002 provide that any of the five acts of Genocide enumerated in Article 6 of the Rome Statute must be committed with a genocidal plan. In particular, the particular element reads as follows:
“The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction” .
Under article 9 of the Rome Statute, the Elements is a normative text that “shall assist the Court in the interpretation and application of articles 6, 7 and 8”. Pursuant to article 21 of Rome Statute, the Elements have a binding character and are applicable law before the ICC. The Elements elaborate on the definitions of the international crimes that fall within the jurisdiction of the ICC by describing them in a detailed manner and, thus, they actually prescribe the “objective and subjective prerequisites that together constitute the prohibited act” .
The requirement that the genocidal acts are performed within the context of a manifest pattern is what the Elements consider to be ‘contextual circumstances’, to distinguish such facts from the classic criminal law concept of material elements (actus reus) . The term ‘circumstance’ is central in the discussion of the mens rea of the international crimes within the jurisdiction of ICC. It appears in Article 30, requiring as a component of the mental element of crimes that an accused has “awareness that a circumstance exists”. In view of the above, it is apparent that the Elements mandate that a plan is an implied element of the crime of genocide, since if an accused lacks knowledge of it, the mens rea of the crime cannot be established. The Elements eschew the word plan in favor of requiring a “manifest patter of similar conduct”, but it is widely accepted in theory that any difference between the two expressions appears to be largely semantic.
In practice, pursuant to recent ICC jurisprudence, it has been indisputably recognized that a genocidal plan or policy amounts to a formal element of the crime. The majority at Pre-Trial Chamber I unequivocally come to this definitive finding in the course of discussing the recurring debate in ICC scholarship as to whether the plan requirement is a formal element of the crime or is simply a jurisdictional prerequisite to the Court’s exercise of jurisdiction. This distinction is significant, since if it is a formal element, the aforementioned Article 30’s default mens rea applies and the prosecution will have to prove that the defendant either intended his conduct to be part of the larger genocidal plan or policy or at least knew that his conduct was part of that plan or policy. By contrast, if it were simply a jurisdictional prerequisite, the prosecution would only have to prove the existence of the genocidal plan or policy and not have to prove a nexus between the plan or policy and the defendant’s act.
Noting that the jurisdictional interpretation would create a strange inconsistency between genocide and crimes against humanity, the majority held, in particular, that “in the absence of an express subjective requirement in relation to the contextual element of genocide, the general subjective element provided for in article 30 of the Statute would be applicable”.
Moreover, as per the aforementioned decision, the contextual element essentially confines the scope of the crime of genocide to those particular situations where a State plan or policy pose a concrete threat to the targeted group, or part thereof. In particular, the majority held that
“[..] the protection afforded by the penal norm defining the crime of genocide – as an ultima ratio mechanism to preserve the highest values of the international community – is only triggered when the threat against the existence of the targeted group, or part thereof, becomes concrete and real, as opposed to just being latent or hypothetical” .
ii. Darfur case
The aforementioned approach of the ICC on the issue under question was corroborated in the Darfur case. In his application for the issuance of a warrant of arrest against Omar Al Bashir, the Prosecutor makes specific reference to the existence of a State organized genocidal plan or policy. By his analysis it can be inferred that the OTP of the International Criminal Court also embraces the idea that a plan is an indispensable element of the crime of genocide.
In addition, at its decision on the above mentioned application, the Pre-Trial Chamber makes continuous reference to the overall counter-insurgency campaign initiated by the Government of Sudan and it is the particularities of this State organized policy that the Chamber examines in order to decide whether a genocidal intent may be inferred from them. In this respect, the majority of the Chamber concluded that the evidence produced by the Prosecution failed “[…] to provide reasonable grounds to believe that the GoS [Government of Sudan] acted with dolus specialis”.
In view of the above clear and consistent ICC jurisprudence that explicitly establishes a plan requirement for the crime of genocide, ICTY should readdress its approach on this issue on its future decisions to promote international judicial coherence and avoid applying an inconsistent standard in genocide cases. This proposition is supported by the fact that ICTY has already found in several cases provisions of the Rome Statute to be of persuasive authority in the application of international criminal law and there is no reason why the same rationale ought not to apply to the Elements. In particular, the Appeals chamber has already invoked the Rome Statute as authority for customary international law in the Tadic Case, when it first enunciated the theory of joint criminal enterprise, and considered the relevant provisions of the Rome Statute as important evidence of the opinio juris of states, and therefore, of customary law. Given that the Elements have been adopted by the Assembly of States, it should be inferred that the ICC approach is genuinely representing the existing customary norm.
3. The approach of the International Court of Justice
In its February 2007 judgment on the claim filed by Bosnia and Herzegovina against Serbia and Montenegro pursuant to Article 9 of the Convention on the Prevention and Punishment of the Crime of Genocide, the International Court of Justice (hereinafter, ‘ICJ’) discussed whether or not the policy of Serbia and its Bosnia allies was one of ethnic cleansing or genocide.
Although it was a case of state liability, it is widely accepted that the ICJ followed a rather criminal approach on the issue. To this end, its judgment on responsibility is pertinent to the question of criminal liability and is heavily grounded on an analysis of the elements of the crime of genocide.
The ICJ paid particular attention to establishing the mental element of the crime of genocide through the lens of State responsibility. Schabas points out that what the court was looking for was evidence of State plan or policy and, absent such evidence, it concluded that genocide was not committed. Indeed, the Court did not focus its inquiry on the nature of acts committed by individuals that could be attributed to then Federal Republic of Yugoslavia, but on the existence of a State plan to commit such acts that apparently considered it a formal element of the crime of genocide.
In particular, for the purpose of establishing the mental element of the crime of genocide, the ICJ states that the acts must be committed “[…] with the necessary specific intent (dolus specialis), that is to say, with a view to the destruction of the group, as distinct from its removal from the region”. Conflating specific intent and plan or policy, the Court reached the conclusion that
“The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist” and that “The Applicant has not established the existence of that intent on the part of the Respondent, either on the basis of a concerted plan, or on the basis that the events reviewed above reveal a consistent pattern of conduct which could only point to the existence of such intent”.
D. Conclusive Remarks – Doctrine of strict construction of criminal law and in dubio pro reo argumentation
As demonstrated above, there is wide consensus among the major international judicial institutions and the most prominent international scholars on the necessity of confirming the existence of a genocidal plan as a formal element of the crime of genocide. In this respect, there is an apparent inconsistency on the issue under question between the ICTY jurisprudence and the aforementioned authority that defies the legitimacy of the standard applied by the Tribunal.
Denying the necessity to prove the existence of a genocidal plan leads to an expansion of the limits of the mental element of the crime of genocide and, thus, contravenes the doctrine of strict construction of criminal law, a general principle of law that is recognized in the ICTY jurisprudence, providing that criminal norms must be interpreted narrowly. There is persuasive authority arguing that the crime of genocide should be narrowly construed and dilution of the required elements should be avoided.
Benjamin Whitaker, one of the most prominent international lawyers on genocide issues, when reporting to the United Nations in 1985, urged that “the offense of genocide can only retain its awesome nature, if the strictness of its definitional elements is retained and not in any way trivialized”. In the same line, William Schabas points out that “there are undesirable consequences to enlarging or diluting the definition of genocide. This weakens the terrible stigma associated with the crime and demeans the suffering of the victims. It is also likely to enfeeble whatever commitment States may believe they have to prevent the crime. The broader and more uncertain the definition, the less responsibility States will be prepared to assume”.
Moreover, the Office of the Prosecutor has itself recognized the need for maintaining stringent adherence to a strictly constructed definition of genocide. Payam Akhavan, the first Legal Advisor to the Prosecutor’s Office, told the 92nd Annual Meeting of the American Society of International Law:
“In essence, genocide is a scarce resource, a precious moral commodity, by which judges determine—incidental to the attribution of individual culpability, whether a people’s suffering deserves to be situated in the domain of the ultimate crime. The Prosecutor’s approach has been to adopt a rather strict approach to the definition of genocide based on the view that the currency of this crime should not be diluted or its historical heritage trivialized”.
In case the Tribunal fails to apply this established principle, the result will be an interpretation of the genocide statute so broad that genocide could be found to have occurred by a lone genocidaire. Such a scenario would result to a trivialization of the crime of genocide, since its scope could include an isolated hate crime, where “a single crazed individual formed the necessary genocidal intent in his or her own mind and committed an isolated murder”.
The overall attitude of the Tribunal so far has, nevertheless, pointed to the other direction, since it has definitively convicted only one person (in particular, an average-level military official who was present on the ground) with regard to the crime of genocide (complicity in the form of aiding and abetting). In particular, with regard to the Srebrenica prosecutions, the Tribunal has concluded that the mass killings of Bosnian men were part of an ‘execution plan’ formulated by the local military leadership. However, the evidence produced in the Srebrenica cases actually show that the said execution plan was a last-minute, improvised business, devised by General Mladic and his close collaborators on or about July 11-12, 1995.
This fact is further corroborated by the practice of the Prosecutor who did not engage in establishing the existence of genocidal plan prior to this date, one that could have been attributed to an overall strategy of the Bosnian Serb leadership. Moreover, no evidence produced in the aforementioned proceedings before the ICJ supports the suggestion that the Srebrenica events were organized, planned and coordinated at the highest political level, or that they responded to the imperatives of a strategic plan. Based on the above analysis, it is apparent that, absent a State plan in this respect, these events do not amount to the commission of the crime of genocide.
At any rate, in view of the above argumentation, the Tribunal must recognize at the very least point that the definition of the crime of genocide is uncertain as to whether a plan is a formal element of it. Therefore the Tribunal ought to apply the principle in dubio pro reo, a well established general principle of criminal law already applied by the Appeals Chamber of ICTY in the Tadic case, providing in concreto that any doubt should be resolved in favor of the defence when interpreting the genocide provisions of its Statute. Accordingly, it is this version of genocide that is more favorable to the defender that should be applied. In this respect, the Trial Chamber of ICTR also applied the principle in dubio pro reo in the Akayesu case stating that “the general principles of law stipulate that, in criminal matters, the version favorable to the accused should be selected”.
The requirement that statutes be construed in favor of the accused has been recognized and applied by the Rome Statute for the International Criminal Court. Article 22(2) of the Rome Statute provides:
“The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted, or convicted”.
Accordingly, the Tribunal should ad hoc apply the version of the crime of genocide that includes the requirement of a genocidal plan as a formal element of it. Such being the case, absent an organized State plan of a genocidal content that could be attributed to the Bosnian Serb political leadership or absent knowledge of Dr. Radovan Karadzic of such plan, the genocide charges cannot be substantiated.
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