Criminal Characterization of Genocide, Article Writing Example

Abstract

There is some debate in the discussion of the criminal characterization of genocide as to what precisely comprises genocide. In other words, is genocide the criminal act of attempting to dispose of a race, or is it an ethnic group as target that comprises the criminal intent and act known as genocide. Could genocide be the killing of members of a group based on their religious beliefs or even the location in which the group dwells together. This work examines the criminal characterization of genocide and seeks to disseminate what  target or group in terms of the characterization of that group that results in the commission of genocide, what it is that expressly defines genocide and to identify the characteristics of the perpetrators of such crimes.

Introduction

There is some debate in the discussion of the criminal characterization of genocide as to what precisely comprises genocide. In other words, is genocide the criminal act of attempting to dispose of a race, or is it an ethnic group as target that comprises the criminal intent and act known as genocide. Could genocide be the killing of members of a group based on their religious beliefs or even the location in which the group dwells together. This work examines the criminal characterization of genocide and seeks to disseminate what  target or group in terms of the characterization of that group that results in the commission of genocide, what it is that expressly defines genocide and to identify the characteristics of the perpetrators of such crimes.

Convention on Prevention and Punishment of the Crime of Genocide

The Convention on the Prevention and Punishment  of the Crime of Genocide defines genocide as “any of the following acts, when committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole …”(Morris, 2003)

The work of Bassiouni (2008) states that “conspicuously absent from the Convention is that of ‘Cultural Genocide’ and it isstated that the Protection of a group’s culture, as well as its physical integrity is consistent with the prophylactic intent of the Genocide Convention.” (Bassiouni, 2008) The failure to incorporate such a provision is stated to be of the nature that would enable those who have “embraced the dictates of authority to invoke superior orders in those jurisdictions which recognize the defense.” (Bassiouni, 2008) It was also suggested by the Special Rapporteur in 1985 that the Genocide Convention should be aligned with “prevailing international standards by specifying that liability apply for acts of omission as well as commission.” (Bassiouni, 2008) Included was a proposition for extension of the prohibition on incitement to genocide to encompass propaganda infavor of genocide.” (Bassiouni, 2008)

There is a provision for jurisdiction of the International Court of Justice to order a state to pay damages for genocide committed against the citizens but now requirement exists that a state that victimizes its own nationals provide compensation. The Convention drafters did not want to use the term ‘racial groups and no significant discussion of the term is stated to suggest “that it is very close to the core of what the drafters intended the Convention to protect.” (Bassiouni, 2008, p.120)

Examination of Criminal Characterization of Genocide

Racial group according to the Rwanda Tribunal in its most conventional form is based “on the hereditary physical traits often identified with a geographic region, irrespective oflinguistic, cultural, national or religion factors.” (Schabas, p.120) In fact, the term has been omitted throughout many countries in their submitted drafts and genocide provisions. Race in the work of Stefan Glasser means “a category of person who are distinguished by common and constant, and therefore hereditary features.” (in Schabas,2002, p.121)

The Oxford Dictionary states that race is defined as “a group of persons, animals or plants, connected by common descent or origin; a group or class of persons, animals or things having some common features or features.” (Schabas, 2002, p.121) Schabas states that the International Convention on the Suppression and Punishment of the Crime of Apartheid, that the General Assembly adopted in 1973 defined apartheid as ‘inhuman acts committed for the purpose of establishing and maintain domination by one racial group of persons over any other racial group of persons. The notion of race is not specifically rejected in the UNESCO Declaration on Race and Race Prejudice of November 27, 1978 however, it is affirmed that  “all human beings belong in a single species and are descended from a common stock. It condemns theories which label ‘racial or ethnic groups’ as inherently superior or inferior.” (Schabas, 2002, p.122) The Declaration is stated to resist any idea that racial and ethnic groups are separate and address this concept “only within the context of denouncing theories about racial superiority.” (Schabas, 2002. p.122)  From the scientific point of view, the use of the term race is no longer applicable in classification of humans into groups and the International Covenant on Civil and Political Rights, Article 27 states that individuals that belong to ethnic minorities have the inherent right to “enjoy their own culture.” (Schabas, 2002, p.125) Ethnic, according to the Oxford Dictionary has two meanings:

(1) pertaining to nations not Christian or Jewish, gentile, heathen , pagan; and

(2) pertaining to race peculiar to a race or nation; ethnological. (Schabas, 2002, p. 125)

The term ethnic is stated to be “larger than racial and designated a community of people bound together by the same customs, the same language and the same race.” (p.126) The International Law Commission when working on the draft Code of Crimes Against the Peace and Security of Mankind is stated to have given consideration of the necessity to retain “both ethnic and racial, given the apparent redundancy.” (Schabas, 2002, p.126)

Thiam is noted to have observed that the ethnic bond “is more cultural….is based on cultural values and is characterized by a way of life, a way of thinking and the same way of looking at life and things. On a deeper level the ethnic group is based on a cosmogony. The racial elements, on the other hand, refers more typically to common physical trails.” (Schabas, 2002, in: p.126)

An ethnic group is defined by the United States as a term used to refer to common cultural traditions or heritage where other countries definition of ethnic group differ however, Schabas states that the best way to view this is “to take the concept as being largely synonymous with the other elements of the enumeration, encompassing elements of national, racial and religious groups within its scope.” (Schabas, 2002, p.127)  Therefore, genocide may be variously targeted groups of individuals based upon their common culture and traditions, their racial and ethnic characteristics, and even their language and religion it is necessary to understand what constitutes the criminal charge of genocide. There is stated to be a fundamental distinction existing between what is known as “collective and individual genocidal intent”. This is expressed in the Trail Chamber in Krstic as follows:

“The Chamber emphasizes the need to distinguish between the individual intent of the accusedand the intent involved in the conception and commission of the crime. The gravity and scale ofthe crime of genocide ordinarily presume that several protagonists were involved in its preparation.Although the motive of each participant may differ, the objective of the enterprise remainsthe same. In such cases of joint participation, the intent to destroy, in whole or in part, a groupas such must be discernible in the act itself, apart from the intent of particular perpetrators.” (Kreb, p.622)

Protected Group

The protected group has been examined and to have been defined as groups that are characteristically similar in terms of their cultures, traditions, language, religion, ethnicity, race, and nationality. It is reported that the International Court of Justice “correctly recalled that the drafters of the Convention also gave close attention to the positive identification of groups with specific distinguishing characteristics in deciding which groups they would include and which they would exclude.” (Kreb, 2007, p.623)

Lone Perpetrator Classification as Criminal Genocide

Raphael Lemkin is noted as having stated that genocide is “intended to signify a coordinated plan of different actions aiming at the destruction of the essential foundations of the life of national groups, with the aim of annihilating the groups themselves.”(Kreb, 2007, p.623) The isolated perpetrator or the lone individual insofar as categorizing their crime as genocide “would disconnect the crime of genocide from its historical roots as a crime against humanity. The requisite contextual element of all crimes against humanity is that they must occur as part of a

systematic or widespread attack against any civilian population. Such a disconnection would not only be highly implausible in light of the historical development of the law, but also for reasons of coherency within the corpus of crimes under international law. Indeed, it would be an oddity to dispense with a context requirement for the crime of genocide, while at the same time emphasizing the special stigma that attaches to this crime.” (Kreb, 2007, p.624)

Genocidal Intent and Capacity to Effect Such Destruction

The individual perpetrator cannot be cast in the light of one seeking to commit genocide as the lone individual does not have the capacity to “effect such destruction.” (Kreb, 2007, p.625) In order for the individual perpetrators to  have genocidal intent there is stated to be the requirement of a ‘genocidal campaign as an implicit point of reference.The requisitecontextual element of all crimes against humanity is that they must occur as part of asystematic or widespread attack against any civilian population. Such a disconnectionwould not only be highly implausible in light of the historical development of the law,but also for reasons of coherency within the corpus of crimes under international law.Indeed, it would be an oddity to dispense with a context requirement for the crime ofgenocide, while at the same time emphasizing the special stigma that attaches to thiscrime.” (Kreb, 2007, p. 626)

The intent must be to destroy a group “in whole or in part” and the inclusion of the ‘in part” by the convention  is stated to mean “ a distinct entity” of that group. (Kreb,  2007, p. 627) The International Court of Justice holds that group members living “within a geographically limited area may form a part of this group.” (Kreb) However, in a decision the Court held that there are consideration due to be given to the “area of the perpetrator’s activity and control.” (Kreb, 2007, p. 627) There has been a failure on the part of the International Court of Justice to precisely define or to set out what is mean by ‘in part’ although there appears to be a percentage basis for making this determination it is unclear what measure is used by the Court in making the call as to whether the criminal act of genocide has been committed.

Summary and Conclusion

This work has examined the criminal characterization of genocide and has sought to understand what elements must be present for the crime of genocide to have been committed or the intent of this crime to be present. Genocide has been shown in this study to be such that is based on religious, ethnic, racial, political, racial, and other such reasons. Genocide is the intent to rid or eliminate a group based on various factors related to race, religion, culture, tradition, language and other such factors. Genocide is a crime that is committed by a group of individuals rather than the lone perpetrators and requires the elements of genocidal intent and the capacity to actually follow through on the criminal act.

References

Kreb, Claus (2007) The International Court of Justice and the Elements of the Crime of Genocide. The European Journal of International Law Vol. 18 no. 4 © EJIL 2007

Morris, Madeliene (2003) War Crimes Research Symposium: The Role of Justice in Buidling Peace. Genocide Politics and Policy¨Conference Remarks. Case Western Reserve Journal of Internatioanl Law. Spring 2003. 35 Case W. Res J. Int’l L.205. Retrieved from: https://litigation-essentials.lexisnexis.com/webcd/app?action=Document Display&crawlid=1 &doc type=cite&docid=35+Case+W.+Res.+J.+Int%2 7l+L.+205&srctype=smi&srcid=3B15&key=e2262bfc20f662760f29a0d8b54dde7b

Schabas, William (2000) Genocide in international law: the crimes of Publisher Cambridge University Press, 2000. Retrieved from: http://books.google.com/books?id=pYptuRHDQPgC&dq=cultural+genocide+and+the+International+Convention+on+Human+Rights&source=gbs_navlinks_s