SELECTED ARTICLE ON INTERNATIONAL HUMANITARIAN LAW: What does .intent to destroy. in genocide mean?

Genocide is a crime with a double mental element, i.e. a general intent as to the underlying acts, and an ulterior intent with regard to the ultimate aim of the destruction of the group. The prevailing view in the case-law interprets the respective ‘intent to destroy’ requirement as a special or specific intent (dolus specialis) stressing its volitional or purpose-based tendency. While this view has been followed for a long time in legal doctrine without further ado, it has recently been challenged by knowledgeand structure-based approaches, which have not received sufficient attention. A historical, literal, systematic and teleological interpretation of the ‘intent to destroy’ requirement, taking into account the particular structure of the genocide offence and the meaning of ‘intent’ in comparative law, reveals that the traditional view can no longer be maintained. It should be replaced by a combined structureand knowledge-based approach that distinguishes according to the status and role of the (low-, midand top-level) perpetrators. Thus, the purpose-based intent should be upheld only with regard to the topand mid-level perpetrators, whereas for the lowlevel perpetrators knowledge of the genocidal context should suffice. Lastly, this new Volume 91 Number 876 December 2009 SELECTED ARTICLE ON INTERNATIONAL HUMANITARIAN LAW * [email protected] – I thank Professor Robert Cryer, Birmingham, for a critical revision and useful comments. I also thank the participants of the various events where I presented this paper (Professor Stephen Shute’s Seminar on Issues in Criminal Law Theory, Birmingham, 23 January 2009; International Law Forum, Law Faculty Hebrew University, Jerusalem, 16 March 2009; Seminario ‘Problemas fundamentales de derecho penal internacional’, Universidad de Belgrano, Buenos Aires, 26 March 2009; Expert meeting ‘Collective violence and international criminal justice’, VU University Amsterdam, 18–21 June 2009). Lastly I thank Marı́a Laura Böhm, PhD candidate at the Universität Hamburg and research assistant at the Georg-August Universität Göttingen, for her assistance. doi:10.1017/S1816383110000056 833 approach requires a fresh look at the ‘intent to destroy’ requirement in cases of participation in genocide. Preliminary remarks: the ‘intent to destroy’ requirement in the particular structure of the genocide offence The genocide offence has two separate mental elements, namely a general one that could be called ‘general intent’ or dolus, and an additional ‘intent to destroy’. A general intent normally relates to all objective elements of the offence definition (actus reus) and has now been defined in international criminal law by Article 30 of the Statute of the International Criminal Court (ICC) as basically encompassing a volitional (intent) and/or a cognitive or intellectual (knowledge) element. In the case of genocide, the general intent relates to the opening paragraph as well as to the acts listed in the offence and directed against one of the protected groups. The perpetrator must, for example, know that his actions target one of the protected groups, since the group element is a factual circumstance as defined by Article 1 See also International Commission of Inquiry on Darfur, Report of the International Commission of Inquiry on Darfur to the UN Secretary-General, pursuant to SC Res. 1564, 18 September 2004, Annex to letter dated 31 January 2005 from the UN Secretary-General addressed to the President of the Security Council, S/2005/60, 1 February 2005, para. 491; Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009 (ICC-02/05-01/09), para. 139; Otto Triffterer, ‘Genocide, its particular intent to destroy in whole or in part the group as such’, Leiden Journal of International Law (LJIL), No. 14, 2001, pp. 399– 408, at pp. 400ff.; Otto Triffterer, ‘Kriminalpolitische und dogmatische Überlegungen zum Entwurf gleichlautender ‘Elements of Crimes’ für alle Tatbestände des Völkermords’, in Bernd Schünemann et al. (eds.), Festschrift für Claus Roxin zum 70. Geburtstag am 15. Mai 2001, Beck, Munich, 2001, pp. 1438ff.; William Schabas, ‘The Jelisić case and the mens rea of the crime of genocide’, LJIL, Vol. 14, Issue 1, 2001, pp. 125–139, at p. 129; Elies van Sliedregt, ‘Joint criminal enterprise as a pathway to convicting individuals for genocide’, Journal of International Criminal Justice (JICJ), No. 5, 2007, pp. 184–207, at p. 195; Robert Cryer, ‘The definitions of international crimes in the Al Bashir Arrest Warrant Decision’, JICJ, No. 7, 2009, pp. 283–296, at 293. The double intent structure has apparently been overlooked by the International Law Commission (ILC), see ‘Report on the Work of its Forty-Eighth Session to the U.N.’, UN GAOR, 51st session, Supp. No. 10, UN Doc. A/51/10 (1996), p. 87, referring only to (one) mens rea and actus reus. Roberta Arnold, ‘The mens rea of genocide under the Statute of the International Criminal Court’, Criminal Law Forum (CLF), No. 14, 2003, pp. 127–151, at pp. 135–136 also argues in favour of one intent, considering that the ‘special intent’ is an element of the mens rea and encompasses the general intent. She ignores, however, that in the genocide definition the points of reference of the ‘general’ and ‘special’ intent are different. She also confuses intent with motive (misinterpreting the German doctrine in fn. 43). 2 Art. 30(1) reads: ‘Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.’ 3 See Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 U.N.T.S. 277 (hereinafter Genocide Convention), now the identical Art. 6(a)-(e) of the ICC Statute. 4 See also Otto Triffterer, ‘Genocide ...’, above note 1, pp. 400, 403. 834 K. Ambos – What does ‘intent to destroy’ in genocide mean?