1. Introduction

Since the world promised that the horrors of the Holocaust would “never again” be repeated, genocides, and atrocities more widely, have occurred in Cambodia, Rwanda, Bosnia, Darfur, and against the Rohingya and Uyghurs.[1] Parties to the Genocide Convention have a duty to prevent and punish genocide where they learn of a serious risk that it will be committed.[2] It therefore begs the question: why has this occurred yet again? In 2005, the International Commission of Inquiry on Darfur reported that they were unable to establish the requisite genocidal intent as far as central Government authorities were concerned.[3] Discussion of whether the acts constituted genocide superseded discussion on preventative action.[4] As such, prevention did not materialise, and Darfur has been added to the international community’s list of failings.[5]

Similar purposeless discussions are not uncommon in the UK when the Government is tasked with responding to alleged genocide. The Committee need not look further than the recent Parliamentary debate on the Uyghur Tribunal Judgment, in which the Minister for Asia reiterated the Government’s unworkable policy that ‘any determination of genocide is a matter for a competent court rather than for the Government or non-judicial bodies.’[6] At the outset of this submission it is important to stress that final determinations of genocide should not be relied upon before State Parties engage with their obligations under the Genocide Convention.

As this submission will emphasise, beyond the obvious practical difficulty that judicial determinations are only possible after an atrocity has been committed, the restrictive nature of genocidal intent makes such determinations unjustifiably difficult to ascertain. As such, this submission is focused primarily on detailing the legal deficiencies within the Genocide Convention so that the Committee may understand why the ICTY failed to identify genocide in Bosnia, except in Srebrenica, and the devastating impact this may have where genocide determination is treated as a precursor to preventative action.

For centuries, genocide has permeated global history, however its existence within ICL is comparatively modern. Indeed, from the ratification of the Genocide Convention in 1948, this body of law remained relatively untouched until the establishment of the ad hoc tribunals for Rwanda and the former Yugoslavia in the 1990s.[7] Having now created a body of jurisprudence, the fundamental failings of the Convention are clear; most notably, the ‘intention to destroy in whole or in part a [protected] group as such’, or dolus specialis.[8] Although some jurists mount compelling criticisms of this, many conclude that its issues can be resolved through reinterpretation of the Convention.[9]

This submission therefore seeks to draw attention to these failings and propose an alternative which could modernise the UKs approach to atrocity prevention. It shall begin by outlining the distinctive characteristics of the concept of genocide, before going on to explain how the restrictive drafting of genocide within international law came to be, and the practical barriers this has placed in making determinations of genocide.

The UK has legal obligations to ‘employ all means reasonable available to them’ to prevent genocide so far as reasonably possible. Whilst this submission identifies the legal deficiencies and cautions against reliance on determinations of genocide, it must be emphasised that effective atrocity prevention is pre-emptive and all-encompassing. Whilst there is a temptation to treat genocide as the crime above all crimes, to exclude crimes against humanity as peripheral would be to the detriment of atrocity victims. Although similar preventative obligations do not exist for crimes against humanity within international law, atrocity prevention should be guided by what is needed, not what is mandated. As this submission shall make clear, crimes against humanity is different in nature, but not severity. Put simply, inaction in the face of genocide and crimes against humanity cannot continue: ‘We must take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented. Sometimes we must interfere’.[10]

2. The Concept of Genocide

Routinely understood as the ‘crime of crimes’,[11] the understanding that the dolus specialis is genocide’s distinguishing characteristic has come to dominate both academic and public opinion.[12] As such, the role genocide plays in ICL is overlooked and its failings underappreciated. This section shall therefore engage in the definitional debate to answer the hotly contested question: what is genocide?[13] Appropriately, this section shall consider the writings of Raphael Lemkin and illustrate how the concept of genocide is an holistic one that focuses on the consequence of destruction. Fundamentally, this section shall demonstrate how the objective of criminalisation should be the protection of human groups and articulate genocide’s distinguishing characteristics, principally: the sanctity of the human group; the group’s right to life equal to that of the sovereign individual; the essentiality of human groups to the world community; the destruction of these groups through physical and non-physical techniques; and the loss of future contributions to the world from such destruction.

2.1 Raphael Lemkin

In 1944, Raphael Lemkin, a prominent Jewish-Polish legal scholar, conceived the crime of genocide. In his book, Axis Rule in Occupied Europe, Lemkin coined the term genocide as an amalgamation of the ancient Greek genos meaning race or tribe, and the Latin cide meaning killing.[14] Simply, genocide is ‘the destruction of a nation or of an ethnic group’.[15] Lemkin’s conception of genocide actively responded to the atrocities committed by the Nazis and collaborators.[16] The failure of international legal provisions to adequately capture the atrocities inflicted upon the Jewish people required, in Lemkin’s view, ‘a new term to reflect a new conception’.[17] He defined 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. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.[18]

This conception has two foundations. First, the sanctity of human groups. Genocide, in contrast to crimes against humanity, emphasises the human group over the individual;[19] it is the harm inflicted upon and destruction of human groups.[20] Second, the techniques of genocide extend beyond physical destruction and incorporate the essential foundations of the group. Both of these foundations constitute genocide’s distinctive nature.[21]

2.1.1 Human Groups

In 1933, prior to Axis Rule, Lemkin contrived two crimes which he posited amount to genocide.[22] These being: barbarity, the oppressive and destructive actions directed against individuals as members of a national, religious, or racial group; and vandalism, the malicious destruction of works of art and culture because they represent the specific creations of the genius of such groups.[23] Both crimes illustrate the sanctity Lemkin accorded to human groups.

The criminalisation of barbarity reconciles the failure of international law at the time to recognise human groups' existence within state boundaries. Article 46 of the Hague Regulations 1907, for example, mandates that belligerents must respect ‘family honour and rights, the lives of persons, and private property, as well as religious convictions and practice’[24] when occupying the territory of another state in times of military conflict. This seemingly humanitarian provision provides protection for religious groups in times of war. However, the Regulations refer solely to occupation.[25] They do not offer the same protection in times of peace to groups within the boundaries of their own state. Lemkin’s principal criticism of the Regulations is that they only deal with the sovereignty of states, but are ‘silent regarding the preservation of the integrity of a people’.[26] For this reason, barbarity, and thus genocide, penetrate state boundaries and accords protection to human groups in times of ‘war but also of peace’.[27]

Like genocide, barbarity refers to the destruction of human groups. Under the definition of crimes against humanity, the groups against which persecution may occur include ‘any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender [...] or other grounds that are universally recognized’.[28] For Schabas, this broad range of groups receiving protection from persecution ‘is no more than the “expanded” definition of genocide’,[29] thereby intimating that genocide’s distinctive harm is discriminate persecution. This is a misconception. Human groups are an essential element of the world community.[30] In their destruction, the world loses future contributions from that group; thus ‘such destruction offends our feelings of morality and justice’.[31] Although grotesque acts of persecution are levelled against individuals because of their membership of a group,[32] it is the destruction and subsequent loss of a human group that should be understood as genocide’s distinctive harm, not persecution per se.[33]

Yet, the interpretation of genos is contested. Moses accurately categorises scholarly interpretations into two schools of thinking: liberal and post-liberal.[34] The liberal interpretation insists that human groups are merely a collective of individuals which can be subject only to physical extermination.[35] This consequently excludes cultural destruction and therefore fails to recognise the sanctity of the human group as something more than a physical construction. This study therefore adopts the post-liberal interpretation which recognises that groups are a composite of cultural structures and individuals.[36] To adopt any other interpretation would be contrary to the plain meaning of Lemkin’s definition of genocide. In acknowledging that ‘the world represents only so much culture and intellectual vigor as are created by its component national groups’,[37] Lemkin underscores that physical destruction of the individual, as a component of the group, results in the loss of ‘something more’.[38] Not only was this loss reflected in Lemkin’s crime of vandalism, it has been subsequently affirmed in his unpublished work, A History of Genocide, in which he remarked: ‘groups are not only protected by reasons of human compassion, but also to prevent draining the spiritual resources of [hu]mankind.’[39] Further, the relationship between individuals and the groups within which they are members is inextricable; thus the destruction of a collective identity would destroy ‘a crucial part of the individual self’.[40] Accordingly, to view human groups simply as a collective of individuals would be a grave misinterpretation of Lemkin; the human group has an inherent right to life ‘equivalent to that of sovereign individuals’.[41]

2.1.2 Techniques of Genocide

As established, genocide is the destruction of the human group. In Axis Rule, Lemkin outlined the various techniques that achieve this, namely: political, social, cultural, economic, biological, physical, religious and moral.[42] Importantly, the various techniques underscore how genocide does not necessarily require immediate or physical destruction of the group; rather it is the consequence of destruction that is fundamental to genocide.

Subsequent to Axis Rule, significant distinction has been made between the techniques of genocide that result in physical destruction and those that do not.[43] The liberal interpretation excludes “cultural genocide” and strictly emphasises the physical extermination of a people.[44] Moses posits that liberal scholars rely upon Lemkin as an authority to support this interpretation; principally, Lemkin’s assertion that genocide ‘is intended rather to signify 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’.[45] To hone in on this and emphasise that genocide must be committed through a coordinated plan with an accompanying annihilative aim, cherry picks from Lemkin’s arguments and excludes key assertions he makes. Plainly, it is a misreading of Lemkin.

Physical destruction of a group is, of course, genocide. This, Lemkin outlines, can be achieved through: physical techniques such as mass killing, endangering of health and racial discrimination in feeding;[46] as well as through biological techniques that reduce the birth-rate of the group such as sterilisation and the separation of males and females.[47] Yet, from research conducted after the publication of Axis Rule, Lemkin explicitly denounced the exclusion of non-physical techniques and categorised the techniques of genocide into three: physical, biological and cultural.[48] In fact, Lemkin made clear that ‘genocide does not necessarily mean the immediate destruction’ of a group.[49] This is emblematic of his wider thinking. Lemkin understood how genocide has been committed through colonisation.[50] In Axis Rule, he outlined two phases to genocide: ‘one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor.’[51] Lemkin’s detailed focus on the non-physical techniques of Nazi atrocity, alongside the physical, stresses how both techniques of destruction are fundamental to genocide.

Indeed, Moses and McDonnell stress how Lemkin regarded the Holocaust ‘as a consequence of Nazi imperialism and colonialism in Europe’.[52] To this end, the tendency of liberal theorists to view destruction solely as a physical possibility, demonstrates a misunderstanding of the human group. The group represents something more than the physical sum of its individuals. The non-physical, or cultural, foundations of the group are equally as important as the physical;[53] without both the group could not exist. In Lemkin drawing attention to colonialism and the steady eradication of culture and other non-physical foundations of the group, he foregrounds the consequence of destruction, over the means by which it is achieved. Whether eradication of a group occurs immediately through physical means or later in time through non-physical means, the outcome is the same; the group is destroyed.

In liberal theorists failing to appreciate this, genocide is warped into something paradoxical. In excluding non-physical techniques of genocide, the liberal interpretation ‘stresses the agency of the state as the intending genocidal subject’.[54] As such, liberal theorists emphasise the intention of the agent and fail to consider the ‘structural determinants’ and social forces that precipitate genocide;[55] the consequence of destruction becomes unimportant.

Fein, for example, proposes that genocide, like other murders, ‘may be premeditated or an ad hoc response to a problem or opportunity’;[56] intimating that genocide is a problem of intention. She goes on to outline different scenarios and models of genocide. Each model is based on the motives and justifications of the perpetrator. The question of whether genocide has been committed is framed in terms of why the perpetrator destroyed the group rather than has the group been destroyed. For example, in Fein’s retributive genocide model she considers a scenario of colonialism but only as a means of demonstrating class polarisation and the ideational justification for genocide.[57] The problem, as with all of these models, is that the obsession with intention presupposes that the group has been destroyed, which is far easier to conclude with physical destruction as opposed to non-physical destruction. It is, therefore, understandable why Fein views genocide as ‘the apotheosis of collective violence, the annihilation of the other’.[58]

The needless emphasis liberal theorists place on intention means that they restrictively view genocide solely as the immediate physical destruction of the group. Yet, it is clear that Lemkin’s inclusion of physical and non-physical techniques demonstrates how genocide is a process concerned with the consequence of destruction, rather than it’s purpose. As such, genocide should be understood holistically. The sanctity of the human group, and destruction thereof, should be recognised as genocide’s distinguishing characteristic which criminalisation would seek to prevent.

3. From Concept to Crime

Having established that genocide’s distinct character is the destruction of human groups, this section shall now illustrate how the Genocide Convention defines genocide in a starkly different manner to Lemkin. The drafting parties adopted a liberal interpretation of genocide which consequently emphasises the physical destruction of the group and the intention of the perpetrator. The travaux préparatoires to the Convention outline how the drafting parties were fixed on creating a crime of limited scope which has resulted in the production of an incredibly complex intent criterion that has created an exceptionally high threshold in proof. Ultimately, the crime of genocide has moved away from Lemkin’s holistic conception, at the heart of which is the sanctity of human groups, to a stringent criterion that emphasises the purpose of destruction, over the fact of destruction.[59]

3.1 The Genocide Convention

In 1946 Lemkin’s international campaigning led the General Assembly of the UN to pass resolution 96(1) requesting ECOSCO to prepare a draft convention on the crime of genocide. Although this resolution recognised some of Lemkin’s principles, it was fundamentally liberal in its understanding. From the outset, the crime of genocide was destined to be a warped reflection of its original conception.

Importantly, the resolution recognised that genocide ‘is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings’,[60] thereby acknowledging genocide’s distinct harm: the destruction of the human group. Yet, despite the resolution appreciating that genocide ‘results in great losses to humanity in the form of cultural and other contributions represented by these human groups’,[61] it is clear, from the initial reference to homicide, that this was no more than an observation of the consequences of physical destruction, rather than a recognition that genocide can, in fact, occur through non-physical techniques.[62]

This liberal interpretation dominated debates and draft texts. The first draft, by the UN Secretariat, composed with the assistance of Lemkin, Henri Donnedieu de Vabres and Vespasian Pella, is littered with examples of the liberal interpretation. Lemkin insisted on categorising the techniques of genocide into physical, biological and cultural,[63] and so article 1 of the draft identified the acts of genocide as such.[64] Yet, this inclusion was opposed by Donnedieu de Vabres and Pella who saw “cultural genocide” as an undue extension from the notion of genocide.[65] As a result of this division in opinion, the draft rhetorically posed the question: should all these three notions be accepted or only the first and second (physical and biological)?[66] This, however, was implicitly answered through the draft’s subsequent foregrounding of intention and physical destruction. On acts of violence committed by individuals or communities, the draft notes that these would be outside the notion of genocide where the ‘intention to physically to destroy’ a human group is absent;[67] similarly under conditions that result in the dehabilitation or death of individuals, the draft describes this as a ‘slow death’ where ‘the intention of the author of genocide may be less clear’.[68]

The scepticism of “cultural genocide” and the successive emphasis on intention became commonplace. Throughout the drafting process countries such as France and Belgium argued that “cultural genocide” was a protection of minorities issue.[69] Indeed, France went further and argued that physical and “cultural genocide” were ‘not exactly the same crime’,[70] whilst John Maktos, head of the United States delegation, argued that the crime ‘should be limited to barbarous acts committed against individuals’; this, he noted, constituted the basic concept of genocide.[71] Unsurprisingly, the inclusion of non-physical techniques was subsequently rejected by the Sixth Committee.[72] The emphasis on physical destruction and the individual underscores how the destruction of the group became a subsidiary consideration to the techniques of destruction and that genocide was destined to be a specific intent crime.[73]

This liberal tendency appears to be predicated on two considerations: first, the resolution was inspired by the atrocities committed by the Nazis and their collaborators;[74] second, states see the Convention as a measure to prevent similar evils and would therefore be unwilling to ratify it if it was drafted ‘too wide’.[75] The consequence of interpreting genocide in this way is that the interests of the state trump the protection of the group, as clearly demonstrated with genocidal intent. The secretariat draft introduced intent by outlining that the article 1 genocidal acts would be committed where there is the ‘purpose’ of destroying the group.[76] This, the comments added, was to reflect the fact that genocide is the ‘deliberate destruction of a human group’[77] and should be distinct from other acts, which may occasion the group to be destroyed. The draft included examples such as international or civil war, mass displacement and acts of violence that were not designed to physically destroy the group.[78] It is clear the Convention was only prepared to recognise genocide where states pursued a clear annihilative policy, similar to that seen in the 1940s. It is therefore equipped to deal with genocides that have occurred historically but is incapable of anticipating modern manifestations.[79] This, Moses rightly contends, is because nation-states have ‘profited enormously from imperialism, and often owe their very existence to their projects of settlement’.[80]

It is therefore clear that the drafting parties were fixed on creating a limited notion of genocide in ICL. In focusing solely on physical destruction and the intention of the agent, the Convention clearly diverges from Lemkin’s original conception. Hence, whether the group has, in fact, been destroyed becomes a peripheral concern. To this end, article 2 of the Convention defines the crime of genocide in the following terms:

[A]ny 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.[81]

3.2 The Dolus Specialis

Alongside the basic intent required for the underlying crimes, the Convention requires proof of an ‘intent to destroy, in whole or in part ... [the protected] group as such’.[82] It is insufficient that the perpetrator intended to undertake criminal acts that incidentally destroyed the group, he must undertake such acts with the specific intent, or dolus specialis, to destroy that group as such.

The ICTY noted in Krstić that the dolus specialis should be understood as ‘the goal of destroying all or part of a group'.[83] This can be broken down into two essential elements: knowledge and will.[84] As the International Law Commission made clear, genocidal acts could not be committed without knowing that certain consequences were likely to result.[85] Yet, general awareness of the probable consequences with respect to the victims(s) is not enough.[86] They must also will that consequence to be realised.[87] To that end, the dolus specialis is a limiting criterion which has given it just cause, rightly or wrongly, to be considered the crime’s ‘distinguishing characteristic’.[88] Yet, in light of the Convention’s ambition to prosecute perpetrators of genocide, this threshold is ‘surprisingly strict’.[89] Such stringency is the product of the restrictive way the dolus specialis was drafted which consequently creates practical difficulties in proof.

‘Intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’ has four elements. The first, ‘to destroy’, has been narrowly interpreted to refer solely to the ‘material sense’ of destruction;[90] in line with the Convention’s liberal definition. Therefore, in cases where cultural destruction is committed, should physical destruction then ensue as a result of any of the (a)-(e) underlying crimes being committed, this would not amount to genocide unless the physical destruction of the group can be proven, beyond a reasonable doubt, to have been willed by the perpetrator. Although, the Trial Chamber in Krstić said that simultaneous attacks on religious property and symbols of the target group would be considered legitimate evidence of an intention to physically destroy,[91] the dolus specialis invites the potential for cultural and physical destruction of a group to be unrecognised as genocide. Put simply, the purpose of destruction trumps the fact of destruction.

Second, ‘in whole or in part’, establishes intention, not the result.[92] However, establishing this has proven to be difficult. As the ICTY noted, part of a group must constitute a ‘distinct part’ so as to create a distinction from an accumulation of isolated individuals within the group.[93] Three approaches have been advanced to determine whether the perpetrator willed the destruction of part of a group: geographical, the perpetrator need not target the group globally but may focus on the opportunity to destroy a group ‘in a specific geographical area within the sphere of his control’;[94] quantitative, the perpetrator intended to destroy a ‘substantial part’[95] or ‘considerable number of individuals’[96] of the victim group; and qualitative, the perpetrator intended to destroy ‘a significant section of a group such as its leadership’,[97] including religious leaders, political leaders, intellectuals and so forth, because of the impact this limited number of individuals may have on the survival of the group.[98]

The exactness of these approaches creates an immensely high threshold in proof which can only practically be overcome where a genocide is systematic. As emphasised in Gacumbitsi, only the perpetrator has knowledge of his own mental state, therefore intention must be inferred.[99] Such inferences may be made in consideration of the perpetrator’s acts and the scale of the atrocities committed. [100] In Jelisić, the ICTY was clear that although genocide does not require a plan, the existence of one may become an ‘important factor’ in most cases.[101] In limiting the scope of genocide to planned, systematic destruction of human groups, the dolus specialis foregrounds how the perpetrator destroyed the group. Consequently, smaller scale, non-systematic genocides go unrecognised, as was the case in Darfur; the finding that the Sudanese government did not pursue a policy of genocide was one of the principal reasons the dolus specialis could not be established.[102]

Third, the group the perpetrator intends to destroy must be ‘a national, ethnical, racial or religious group’. Fourth, ‘as such’, requires the perpetrator to target the group. It is not sufficient for individuals within the group to be targeted in their individual capacity, the persecution of individuals within the group must be done to wound and destroy the group itself;[103] thereby limiting genocide to a targeted crime.[104]

Taken together, these four elements underscore the complexity of the dolus specialis. Yet, this is unsurprising given the liberal interpretation of genocide that was employed by the Convention’s drafters. The Convention deliberately restricts genocide through its emphasis on physical destruction and the intention of the agent. In defining genocide in this way, the ability for perpetrators to be found criminally responsible becomes limited given the high threshold this creates in proof. Therefore, by foregrounding the purpose of the genocidal act, the Convention’s definition of genocide conditions itself on the mind of the perpetrator, rather than the experience of the group.

4. The Crime of Genocide Before the ICTY

The ICTY adopted the Convention’s limited definition of genocide.[105] Consequently, Trial Chambers had difficulty in establishing the dolus specialis, which proved to act as a gatekeeper to securing convictions. Appropriately, this section shall illustrate how the dolus specialis obstructs the protection of human groups by exploring the judgements of former Bosnian-Serb leaders, Momčilo Krajišnik and Radovan Karadžić. The former was acquitted due to insufficient evidence to establish the dolus specialis and is exemplary of how perpetrators can exploit this through the deployment of genocidal double rhetoric. The latter was acquitted on one count of genocide and convicted on another. The contrast in the circumstances between the acquittal and conviction will demonstrate how the dolus specialis requires genocide to reflect a certain level of organisation and cohesion, and that this can only be met where explicit documentary evidence pertaining to the perpetrator’s specific intent is available.

4.1 Momčilo Krajišnik

Momčilo Krajišnik was President of the Bosnian-Serb Assembly,[106] and an active member of the Presidency of the RS.[107] As a leading figure in the Republic, he was charged with and found guilty on six counts of crimes against humanity and war crimes.[108] Although he did not physically commit these crimes, his liability was hinged upon him being a member of a JCE.[109] The impacts of JCEs shall be considered at 4.2.2 below. Although the Trial Chamber accepted that genocidal acts had taken place, Krajišnik’s liability for genocide could not be sustained as the objective of the JCE could not be said to have amounted to an intention to destroy the Bosnian-Muslim or Bosnian-Croat groups as such. By extension, Krajišnik could not possess the requisite genocidal intent.[110] He was therefore acquitted on the counts of genocide and complicity in genocide.

4.1.1 Genocidal Double Rhetoric

As the dolus specialis is reliant on inferences, it invites perpetrators to exculpate themselves through adjusting how a genocide may be conducted and thus genocidal intent inferred.[111] As Bećirević importantly draws attention to, the use of genocidal double rhetoric allows a perpetrator to disguise a genocide from the international community.[112] On 12 May 1992, following a speech by Radovan Karadžić́ in the Bosnian-Serb Assembly, where he outlined the ‘strategic goals of the Serb people’, General Ratko Mladić expressed practical concern over plans to ethnically cleanse municipalities across Bosnia-Herzgovenia. In the Assembly, where Krajišnik as President was present, Mladić argued: “I do not know how Mr Krajišnik and Mr Karadžić́ would explain this to the world [...] that would be genocide”.[113] This was not a humanitarian consideration, rather Mladić’s concern was routed in the possible international condemnation such actions would receive. In fact, he went on to propose a practical solution that would allow the ethnic cleansing campaign to occur without attracting international attention. He said:

“We should not say: we will destroy Sarajevo, we need Sarajevo. We are not going to say that we are going to destroy the power supply pylons or turn off the water supply, no, because that would get America out of its seat, but ... one day there is no water at all in Sarajevo. What it is we do not know ... And the same with the electrical power ... we have to wisely tell the world, it was they who were shooting, hit the transmission line and the power went off, they were shooting at the power supply facilities ... that is what diplomacy is”.[114]

In their judgement, the Trial Chamber cites this passage to demonstrate Krajišnik’s knowledge of military operations as a member of the JCE. Yet, they interpret this calculating tactic as ‘an alternative to genocide’.[115] In fact, they go on to say that Mladić proposed a course of action that would ‘achieve controversial military objectives quietly, cynically, ruthlessly, while staying below the radar of international attention’.[116] This conclusion is deeply troubling. Bećirević rightly describes this as an illustration of ‘misleading not only international diplomats but the judges at the ICTY as well’.[117] However, this criticism must go further. The dolus specialis conditions genocide on the mind of the perpetrator, rather than the experience of the group; it gives perpetrators control over when a genocide will be recognised as such. The Trial Chamber noted that in order for the actus reus to be established, the genocidal ‘acts must destroy, or tend to destroy, a substantial part of the group’.[118] They concluded that the underlying crimes of genocide, such as mass killing, met this requirement.[119] Put simply, the Bosnian-Muslim and Bosnian-Croat groups were destroyed, in part, across multiple municipalities in Bosnia-Herzgovenia; plainly, this is genocide. However, the ICTY did not recognise it as such. Mladić's proposal to use genocidal double rhetoric effectively inhibited the Tribunal from inferring genocidal intent. This is perhaps one of the clearest examples of how the dolus specialis enables perpetrators to deny the group recognition of its partial destruction; woefully, it gives the perpetrator power to legitimise genocide denial.[120]

4.2 Radovan Karadžić

Radovan Karadžić was President of the RS and the Supreme Commander of the Armed Forces.[121] As one of the leading figures within the Republic, Karadžić was charged on 11 counts.[122] He was convicted on five counts of crimes against humanity, and on four counts of war crimes. The charges of genocide were separated into two counts. Count one referred to the genocide committed throughout ‘the municipalities’ and count two to the genocide in Srebrenica. The ICTY found that the dolus specialis could only be established for the genocide committed in Srebrenica. The same could not be said for the municipalities, despite the Trial Chamber finding Karadžić guilty of murder, persecution and extermination as crimes against humanity. As such, Karadžić was found guilty on count two and acquitted on count one. The ICTY’s finding in Karadžić is one of the starkest examples of how the dolus specialis obstructs convictions for genocide where genocide has occurred.

4.2.1 Genocide in the Municipalities

On count one, the Trial Chamber was satisfied that the actus reus, namely genocidal killing and causing serious bodily or mental harm, had been established.[123] The Chamber, however, did not find the ‘Overarching JCE’ to have the requisite genocidal intent. This lack of intent therefore extended to Karadžić and other members within the JCE. The Chamber identified that the JCE’s objective was to ‘create an ethnically homogenous Serb State’ in Bosnia-Herzegovina.[124] Therefore, the intention to physically destroy part of the Bosnian-Muslim and Bosnian-Croat groups as such was distinct and did not form part of the JCE’s objective and thus intention.[125]

The absence of the dolus specialis meant that the ICTY was unable to convict and therefore recognise genocide had been perpetrated in the municipalities, despite Karadžić being found guilty of murder, extermination and persecution as crimes against humanity.[126] Yet, as Murray fittingly makes plain, extermination and genocide are technically different but substantially the same,[127] that is to say the destruction of the group is the self-same consequence. As outlined by the ICTY, extermination is ‘the annihilation of a mass of people’.[128] The distinction between murder and extermination is a question of scale; extermination is killings that occur on a ‘mass scale’.[129] The perpetrator, therefore, must have ‘knowledge that his action is part of a vast murderous enterprise in which a large number of individuals are systematically marked for killing’.[130] The victim group, meanwhile, is not as restrictive for extermination as it is for genocide. Extermination simply requires the victim group to be a ‘civilian population’.[131] However, this distinction is irrelevant as in the present case the victims were the Bosnian-Muslim and Bosnian-Croat civilian populations, both of which are protected groups under the Convention. The principal difference, therefore, is the intentional requirements of the two crimes.

In finding Karadžić guilty of extermination, the ICTY confirmed that in the municipalities the Bosnian-Muslim and Bosnian-Croat groups had been subject to a widespread and systematic attack of mass killings which, it would be prudent to conclude, destroyed these groups in part.[132] Moreover, the perpetrators intended to kill members of these groups on a mass scale.[133] Further, as persecution requires the underlying crime to ‘discriminate in fact’,[134] for Karadžić to be found guilty, individuals of the victim groups must be targeted because of their membership of the group; it is not coincidental, but deliberate. So concluded the trial chamber in Karadžić: ‘the perpetrators of the killings [...] intentionally targeted their victims solely on the basis of their identity as Bosnian Muslims or Bosnian Croats; these killings were carried out on discriminatory grounds.’[135] In sum, the Bosnian-Muslim and Bosnian-Croat groups had been deliberately and intentionally destroyed in part in the municipalities. It is without question this is genocide. Indeed, the deliberate destruction of the group through mass killing was expressly identified by Lemkin in Axis Rule.[136]

The dolus specialis, however, requires more. Although members of the group were targeted, the explicit intention to destroy the group was not established. The near impossibility of proving this fails to take account of one basic notion: ‘most rogue leaders, prone to engaging in genocidal behaviours against particular groups, do not publish edicts and other documents demonstrating specific genocidal intent.’[137] As Karadžić demonstrates, the only reason a guilty verdict was found for count two was because of the explicit organisation and planning of the genocide in Srebrenica.

4.2.2 Genocide in Srebrenica

In the same way as count one, murder, extermination and persecution as crimes against humanity were found to have been committed in Srebrenica. Incidentally, this satisfied the actus reus of genocide.[138] The difference between the findings on the two counts rests solely with the dolus specialis. Where genocidal intent could not be inferred from the underlying crimes committed in the municipalities, the way in which the Bosnian-Muslim males were taken to various locations and killed,[139] in addition to the way in which the Zvornik Brigade Engineering Company was mobilised to dig graves and bury bodies,[140] led the Trial Chamber to conclude that ‘these killings were carried out pursuant to a systematic and highly organised plan’,[141] which ‘demonstrates a clear intent to kill every able-bodied Bosnian Muslim male from Srebrenica.’[142]

The imposition of criminal responsibility for this count was based upon Karadžić’s membership of a different JCE, the ‘Srebrenica JCE’. The Trial Chamber identified that, in the same way as the Overarching JCE sought to ethnically cleanse Bosnia-Herzegovina, the Srebrenica JCE initially shared the same objective, but this ‘transformed into a concrete common plan to eliminate’ the Bosnian-Muslim population.[143] To establish Karadžić’s criminal responsibility, the ICTY had to be satisfied that he participated in furthering this common purpose.[144] In making this finding, the Chamber considered Karadžić’s position as President and Supreme Commander of the Armed Forces, in conjunction with the flow of information he received and a conversation he had with Miroslav Deronjić, President of the Bratunac Municipal Board.[145] Particular reliance was placed upon this conversation where both spoke in code about the operation: “All the goods must be placed inside the warehouses before twelve tomorrow”.[146] The Chamber concluded that it was this conversation which demonstrated ‘malign intent’, in addition to subsequent acts, that illustrated Karadžić’s agreement to the expansion of the objective to encompass the killing of the Bosnian-Muslim males.[147] Indeed, without this conversation as evidence, Karadžić may have been acquitted on count two.[148]

The conclusion of the Trial Chamber on count two is heavily reliant on two factors. First, the systematic nature of the genocide at Srebrenica.[149] In order to establish individual criminal responsibility, a JCE may, on the face of it, appear a sound mechanism to incorporate the multiple levels of perpetration.[150] Practically however, they mandate that genocide can only be committed where there is a plan, policy or some other form of clear organisation from which genocidal intent can be inferred,[151] despite this not being a requirement for genocide. In framing the inquiry into a common criminal purpose which the accused shared as a member of a JCE,[152] the ICTY is demanding a certain level of cohesion and operation in order for a common criminal purpose to be existent. Yet, as Karadžić demonstrates, the consequence of demanding such organisation will ultimately result in acquittals. Indeed, it was the level of organisation that proved to be the principal difference between the ICTY finding that the overarching JCE only had the intention to ethnically cleanse, whereas the Srebrenica JCE had developed the intention to destroy the Bosnian-Muslim population. This is unreflective of the reality of genocide. As Strauss reminds us: ‘in the often opaque and informal power structures of governments today, a Wannsee Conference-type of decision-making process would not have to take place for events to unfold’.[153] As Karadžić shows, modern warfare and atrocity may often be conducted with the intention to ethnically cleanse, but the deliberate physical destruction of a group may still result.

Second, the explicit expression of genocidal intent. The emphasis the Trial Chamber placed on the conversation with Deronjić illustrates the possibility that, without such clear evidence, Karadžić may not have been found guilty of genocide.[154] Indeed, Sterio doubts the Chamber’s conclusion and argues that Karadžić may have been informed about the plan to forcibly transfer all Bosnian-Muslim males from Srebrenica, but not to kill them. This, she contends, does not provide clarity that, beyond a reasonable doubt, he had the requisite mens rea to participate in the Srebrenica JCE.[155] In proposing this sound criticism, Sterio illustrates the stringency of the dolus specialis and the near impossibility of proving it. The absolute reliance on explicit documentary evidence of a genocidal intent is worrisome, particularly where the deliberate destruction of a group can be established. As such, it is fair to posit that the crime of genocide does not punish a particular conduct, but the forbidden purpose of the perpetrator.[156] To that end, it is clear the dolus specialis distorts genocide and foregrounds the intention of the perpetrator at the expense of the destruction of the group. The result of which is widespread acquittals for perpetrators of genocide; thereby furthering international impunity.

5. Time for Change

As already established the dolus specialis has two elements: knowledge and will. In requiring both to be proven beyond a reasonable doubt, instances of deliberate destruction of human groups is excluded from the notion of genocide. The stress placed upon purposeful intentionality has damaging ramifications, not only in failing to secure convictions of perpetrators after the fact, but also in preventing genocide in the first instance. This section shall therefore challenge the requirement for knowledge and will, and advocate for the need for change. It is not the ambition of this study to submit an exact proposal for change, merely to illustrate that the current approach is insupportable and that there are more suitable alternatives. As such, section shall consider the knowledge-based approach and determine that this approach is more reflective of Lemkin’s original conception of genocide as it places the protection of the group at the forefront of ICL.

5.1 Purpose-Based Approach

In incorporating knowledge and will, genocide is conditional on the purpose of the perpetrator. Such a purpose-based approach creates an unjustifiably high threshold in proof, thereby restricting genocide to particular instances of destruction. In the dolus specialis foregrounding purpose, it restricts genocide on two grounds: cohesion and policy.

Naturally, the two are intertwined. On the first ground, cohesion, the success of the prosecutions of Krajišnik and Karadžić were reliant on how the group was destroyed. Whether the techniques utilised by the perpetrators were systematic or arbitrary made all the difference in the ICTY being able to impute responsibility. Although the Trial Chamber in Jelisić noted that genocide does not need a cohesive plan, it did identify that this may be an ‘important factor’.[157] On reflection, ‘essential factor’ may be a more apt observation. Such essentiality is the inevitable result of the second ground, the need for a policy. In requiring the underlying crimes to be committed with the specific intent to destroy the victim group as such, it practically requires the perpetrator to pursue a policy of destruction so that the specific intent can be inferred. As such, intention becomes synonymous with a plan that is systematic and organised.[158] Yet, given that the Convention was drafted against the background of the Holocaust and Armenian genocide,[159] it is unsurprising that it insists on modern-day genocides reflecting the annihilative policies pursued during the 1940s.

The question this section therefore endeavours to answers is: does genocide require a plan or policy? This should be answered negatively. In presently requiring these non-essential characteristics, the Convention places beyond the scope of its definition deliberate genocidal practices that result in the destruction of human groups. In the ICTY effectively distinguishing between the intention to create an ethnically homogenous territory and the intention to destroy, perpetrators may safeguard themselves against criminal sanction.[160] Yet, as Sirkin compelling asserts: ‘a policy of ethnic cleansing is a genocidal policy’[161] which can be achieved through dismemberment.[162] This, he asserts, is committed through displacing an ethnic group so as to effectively dismember the group by severing the bonds between members.[163] Crucially, the Trial Chamber in Blagojević acknowledged that when this is achieved through forcible transfer, it will occasion physical destruction as ‘the group can no longer reconstitute itself – particularly when it involves the separation of its members’.[164] As such, Sirkin posits that the dolus specialis should be interpreted to include the intention to ethnically cleanse: ‘ethnic cleansing is capable of destruction and the ethnic cleanser's mental state is one of extreme intolerance, a policy of ethnic cleansing intends to destroy’.[165] However, rather than embarking on a convoluted journey to justify reinterpretation of the dolus specialis, it should simply be noted that it is simply not fit for purpose.

As shown in the previous section, the findings of the ICTY that murder, extermination and persecution occured, illustrate how the ethnic cleansing campaign should be recognised as genocide. Lemkin himself noted in Axis Rule that ‘genocide is [...] a composite of different acts of persecution or destruction’.[166] Yet, the purpose of the perpetrator has come to dominate the crime of genocide. Genocide was destined to prevent and punish the destruction of the group, not the purpose to destroy the group.

There are some who disregard this premise. When discussing the lowering of the intent standard to incorporate ‘negligent genocide’, Schabas argues that this would become ‘far removed from the stigmatization of genocide as the ‘crime of crimes’ for which the highest level of evil and malicious intent is presumed. Extending the scope of genocide to crimes of negligence can easily trivialize the entire concept’.[167] Likewise, in preparing the ad hoc committee draft for the Convention, the US argued that the crime should be limited solely to ‘barbarous acts’ as they form the ‘basic concept of public opinion on this subject’.[168] This perception that genocide exists at the top of a hierarchy, the maintenance of which is conditional on it being exclusive, is misguided. The argument that the threshold for conviction should be high so as not to trivialise the crime is an argument routed in concern for public opinion, rather than the need to protect human groups. It is objectionable to restrict certain instances of genocide to the crime of genocide. After all, it is irrelevant whether the group was destroyed because they were subject to purposeful annihilation, as a means to another end, or out of disregard for its survival and existence. In the experience of the group, they suffer destruction at the behest of all three.

Stannard does, however, present a cogent practical caveat to this. He posits that ‘the more shielded the major nations of the world are by a narrow definition of the crime, the more likely they will be to seek the convictions of others.’[169] Despite the soundness of this observation, the failings of international law should not be tolerated because of the failures of international relations. Returning to Axis Rule, genocide recognises the sanctity of human groups, the destruction of which ‘offends our feelings of morality and justice’ and ‘results in the loss of its future contributions to the world’.[170] This basic premise should be elemental to any legal construction of genocide. Yet, the preoccupation with criminalising a destructive purpose instead of destructive actions, underscores the crime of genocide’s distorted manifestation as a ‘political instrument’.[171]

For these reasons, the purpose-based approach is insupportable. As most recent conflicts have been ‘marred by incidents of ethnic cleansing and abhorrent violence where leaders have left very little paper evidence of their intentions’,[172] prevention and convictions of genocide have become non-viable. The incidental exclusionary way in which the dolus specialis recognises instances of genocide gives perpetrators sufficient cause to believe they may act with impunity. This, Murray, posits can be reconciled by using the lower threshold of crimes against humanity.[173] Although he rejects the role genocide has within ICL, it is clear a knowledge-based approach is eminently more suitable, particularly should the UK adopt a preliminary determination procedure in accordance with identifying a ‘serious risk’ of genocide.

5.2 Knowledge-Based Approach

Genocide is the destruction of human groups. Viewing this objectively, this would constitute a strict liability crime.[174] Although this may be an appropriate standard by which to judge atrocity historically, it would be unwise, as Lewy does,[175] to equate historical and legal standards.[176] Therefore, any legal construction of genocide must also take into consideration the relevant criminal law principles so as to create a credible argument for change.[177] As such, the knowledge-based approach is a compelling one as it maintains the actus non facit reum nisi mens sit rea (conviction of a crime requires proof of a criminal act and intent) principle, whilst reflecting the distinguishing characteristics of genocide.

To reconcile the aforementioned problems of the dolus specialis, Greenwalt proposes that a knowledge-based approach should be adopted to emphasise ‘the destructive result of genocidal acts instead of the specific reasons that move particular individuals to perform such acts’.[178] This approach, he contends, considers genocidal intent to be satisfied ‘if the perpetrator acted in furtherance of a campaign targeting members of a protected group and knew that the goal or manifest effect of the campaign was the destruction of the group in whole or in part’.[179] This knowledge-based approach to intention has two fundamental elements: (i) targeted selection and (ii) knowledge regarding the destructive consequences.

The first element should be approached with caution. Targeted selection may require the perpetrator to make a positive identification of his victims. That is to say, in Bosnia, the perpetrator would have to positively identify the Bosnian-Muslim and Bosnian-Croat groups as his victim. This may not necessarily be a straight-forward task, with victims of ethnic cleansing campaigns usually being identified negatively; in Bosnia, the victims were negatively identified as non-Serbs. Crucially however, Greenwalt includes this as his approach is based upon reinterpreting the Convention. Therefore, targeted selection simply reflects the Convention’s current aim to present genocide as a ‘targeted crime’.[180] Yet, the travaux préparatoires make clear that, from the outset, the Convention was designed to reflect a crime of specific intent.[181] The secretariat draft explicitly notes that ‘certain acts which may result in the total or partial destruction of a group of human being are in principle excluded from the notion of genocide’;[182] acts not aimed at the destruction of the group should be excluded.[183] It is therefore non-viable to reinterpret the Convention as it stands. Instead, the knowledge-based principles should be utilised to redraft the Convention.

The second element, knowledge of destruction, doesn’t provide clarity as to what level of knowledge would be required. Likewise, caution should be exercised in this regard. If the requisite level was to a virtual certainty, this would invite perpetrators to exercise ‘wilful blindness’ and therefore deliberately fail to inquire as to the consequences of certain conduct.[184] As such, it would be sensible to incorporate ‘reckless genocide’ into this approach. Simply, genocidal intent would be established where the perpetrator ‘possessed knowledge of a danger or risk and knows that the consequence is possible’.[185] Practically, it ensures the crime of genocide is an intentional one that imposes individual responsibility for unplanned collective action.[186]

In sum, the knowledge-based approach is better suited to recognising instances of genocide and should therefore be adopted by the UK when considering whether there exists a ‘serious risk’ that genocide will be committed. Reflecting on the JCEs outlined in Krajišnik and Karadžić, the distinction the ICTY drew between the intention to ethnically cleanse and the intention to destroy would become superfluous. Given the convictions for murder, persecution and extermination, both perpetrators had the knowledge of the consequence of destruction from the ethnic cleansing campaign. If this approach had been applied at the ICTY, it would have resulted in successful convictions for genocide in the municipalities as well as in Srebrenica. In addition to the practical change the knowledge-based approach would bring, it would bring international law in line with Lemkin’s original conception. In replacing the dolus specialis, the crime of genocide refocuses the question away from why the perpetrator has destroyed the group, ie because he willed its destruction, to has the perpetrator knowingly and deliberately destroyed the group. As such, the sanctity of human groups becomes central, rather than peripheral. In this way, international law would be based upon the protection of human groups.

5.3 Sexual Violence

A fundamental understanding that must be central to atrocity response is broadening the understandings and definitions of rape and sexual violence, especially as to what constitutes a ‘genocide’. Rape and sexual violence are often understood as collateral damage of a state in conflict. Where the destruction of the group is the primary aim however, rape and sexual violence can be used with intent, or a part of a policy, of the destruction of a people. This is sometimes called “mass rape”, although sexual violence can encompass a complex range of offences. Some of the lesser-known crimes can include but are not limited to; mutilation, forced nudity, sexual slavery, intentional transfer of sexually transmitted diseases, and threatening sexual violence. Sexual violence can also be used as part of a wider strategy of ethnic cleansing, as in the Bosnian genocide; Serbian authorities planned the genocidal mass rapes of Bosnian women, aiming to destroy the continuity of their lineage, and force these women and their families out of their regions.

The academic literature offers useful frameworks that categorise some of these crimes. Scholar, Elisa von Joeden-Forgey, conceptualises ‘life-force atrocities’ as “a ritualized pattern of violence that targets the life force of a group by destroying both the physical symbols of its life force as well as its most basic institutions of reproduction, especially the family unit.” In this sense, we can understand that sexualised violence exists within a broader lens, and as having broader scope in its detriment to the individual, family and community. One example of this is also described as an ‘inversion ritual’ defined as “forcing family members to watch or participate in the torture and murder of loved ones”. Historically, this was common during the Rwandan Genocide (e.g.) and is recurring with worrying regularity in the testimonies surfacing from the conflict in Tigray, Ethiopia.

Current infrastructure for intervention is heavily reliant of understandings of states in conflict, or what is known as conflict-related sexual violence (CRSV). Conflict drastically increases the probability and prevalence of sexual violence affecting women and children especially, but also all members of a vulnerable group. Necessitated by this fact are schemes such as the UK’s Preventing Sexual Violence in Conflict Initiative (PSVI). This however, has the potential to leave a vacuum of responsibility and intervention in cases where sexual violence and rape occurs in states not characterised by conflict. An example of this is the ongoing genocide against the Uyghur Muslim community, primarily in the Xinjiang Uyghur Autonomous Region in China. Here, international intervention is already hindered, and calls have been made to have a body set up by the PSVI to document the CCP’s crimes and support survivors. Ostensibly however, this is yet to come to fruition. Avenues of intervention and aid are not as clear, in part because a non-conflict framework is lacking.

International Courts are also inherently limited, largely because they mostly assess crimes after the fact, and also exist to indict those most responsible for the worst possible crimes. The witness and survivor is peripheral to this process, only presented to offer a testimony of their relevant experiences to the court.

Rosalind Dixon, argues broadly that the courts fail women and victims of sexual violence due to a lack of ‘listening’ power, but also that “’secondary’ harms to women go unrecognised”. In Bosnia for example, taboos and prejudices exist regarding women, sexuality and rape, where a victim of rape would likely be excluded from her community for being untouchable, unmarriable and impure. The experience of sexual violence can be considered the primary ‘harm’, where the exclusion from society and community, deeming a woman socially ‘dead’, can be considered a secondary ‘harm’. In some cases, this can lead them to living with their trauma while carrying unwanted children, or infections with little to no support system.

These victims require access to courts of justice, reparations, counselling, and communities that can help them heal. This is not something that the international courts can offer them alone. Organisations like Medica Zenica (Bosnia) are designed to offer some of this support and support and collaboration with these groups is as essential as their existence.

Women and young girls are disproportionately victims of CRSV and systematic sexual violence, but are often underrepresented in the courts and organisations that exist to support communities in post-conflict (or non-conflict) transitional justice. The official UN statistics on women’s participation in peace processes state that women constituted 13% of negotiators, 6% of meditators, and 6% of signatories in major peace processes throughout the world between 1992 and 2019, and that 7 out of every 10 peace processes did not include any women in these roles at all. It is crucial to implement measures to increase the equal participation of women in peace and reconciliation processes, in order to ensure recognition of the inherently gendered aspects of conflicts and genocide.

The International Peace Institute has stated that where women are involved in peace agreements, language on sexual violence and violence against women is far more likely to be included in the final agreements, and that ‘where women are substantively involved in the process, agreements are more gender-sensitive and thus more comprehensive and legitimate’, as well as longer-lasting. A direct consequence of the absence of women in high-level conflict mediation is that the percentage of peace agreements which contain gender provisions was 28.6% in 2020. None of the ceasefire agreements reached between 2018 and 2020 include provisions on gender or sexual violence. Sexual violence is idly regarded as an inevitable by-product of genocide, yet it continues to be used as a strategic, calculated, systematic tool of war. The UK government must embark on a mission to tackle sexual violence in conflict inclusive of the objective to improve the proportion of women in roles of mediation and negotiation, and implementing widespread training on gendered aspects of genocide.

6. A Cautionary Tale

Whilst these failures of international law have demonstrably impeded the administration of justice after genocide has been committed, they also have direct and devastating consequences on a states’ willingness to act. Other than failing to identify genocide for the purpose of prevention and unjustifiably placing genocide as an exclusive crime that sits above all others, there is a broader failing of ICL that the Committee should pay caution to.

States reply upon the two key objectives of ICL, retribution and deterrence,[187] to soothe their consciences when they fail to prevent atrocity. With respect to the former, it begs the question whether retribution is at all possible or whether it is ‘little more than rhetoric’.[188] As explained in Nikolić, ‘retribution is better understood as the expression of condemnation and outrage of the international community at such grave violation of, and disregard for, fundamental human rights’.[189] To this end, retribution must be treated solely as condemnation and nothing more. The devastation suffered by the victims of atrocity is irreconcilable and international courts and tribunals provide a false sense of security if retribution has little prospect of being realised.

Turning to the latter objective, deterrence suffers from two similar fundamental failings. First, the poor pursuance of individuals for prosecution undermines the effectiveness of deterrence. Succinctly put, ‘relative certainty trumps relative severity’.[190] The apparent ‘ad-hocery’[191] that has come to dominate ICL is tantamount to impunity. Perpetrators of atrocity can rationalise that they are more likely to avoid criminal sanction than receive it. Practically, ICL is incapable of holding all perpetrators accountable and thus ICL could only ever deter senior figures of international criminal structures; most of those that physically perpetrate violence and atrocity remain unaccountable.

Second, even if ICL was able to prosecute all perpetrators of international crimes, the incorrect assumption is made that they are rational actors. As Wippman makes plain, these sorts of rational calculations are not factors in whether a perpetrator commits artrocity;[192] in the case of Bosnia, ethnic tensions and the perception of total war were the primary motivations.[193] Once again, the expectation that ICL deters future crime, creates a false sense of security among the nations who have preventative capabilities. This is a dangerous predicament. As the preamble to the ICC statute outlines, deterrence is a measure of prevention.[194] Yet, it places focus on the individual not to perpetrate international crimes, to the exclusion of states understanding their responsibilities to prevent perpetrators from committing international crimes. Therefore, despite ICL supposedly being force against impunity, with the object of providing retribution and deterrence, there is little awareness of the danger a false sense of security creates which simultaneously assuages the consciences of those states unwilling to act.

7. Concluding Remarks

Genocide is the destruction of human groups. Conceptually, it foregrounds the experience of the group and focuses on the consequence of destruction, rather than its purpose. In contrast, the travaux préparatoires make clear that, from the outset, the drafting parties were fixed on creating a notion of genocide that was restricted in scope. The exclusion of non-physical techniques and the focus on the perpetrator’s intention to physically destroy the group, limits a finding of genocide to instances where an annihilative aim is clear. Consequently, not only does the dolus specialis represent a complex criterion that creates a high threshold in proof, in principle, it foregrounds the purpose of destruction over the fact of destruction. In this way, the crime of genocide is a warped manifestation of its original conception.

As a result, the dolus specialis has proven to be obstructive in practice. As Krajišnik exemplifies, perpetrators are able to effectively exploit this legal requirement through genocidal double rhetoric. As such, perpetrators are given control over when a genocide is recognised as such. Moreover, as the dolus specialis can only be satisfied through inferences, how a genocide is conducted becomes fundamental. Inevitably, this demands a certain level of cohesion and policy. Indeed, how the group was destroyed became the determining factor in convicting Karadžić of genocide in Srebrenica but not in the municipalities. Yet, the findings that murder, extermination and persecution as crimes against humanity occured illustrate how the Bosnian-Muslim and Bosnian-Croat groups were deliberately destroyed in part. This therefore exemplifies how the dolus specialis obstructs recognition of genocide, thereby denying human groups protection the criminalisation of genocide was conceived to provide; this is a direct result of the purpose-based approach the dolus specialis is emblematic of.

In consideration of these failings, and the inaction that ensues as a result, the UK should approach with caution aligning its obligation to prevent and punish genocide with a corresponding judicial determination of genocide. Furthermore, whilst this submission has predominantly focused upon the Genocide Convention and the corresponding duties to act, it must be stressed that incorporation of crimes against humanity, irrespective of the lack of preventative obligations within international law, should likewise become focal to the UKs atrocity prevention strategy. The status quo cannot continue, for to tolerate the failings of international law comes at a grave human cost.

[1] Max Roser and Mohamed Nagdy, ‘Genocides’, (Our World In Data, 2020) <https://ourworldindata.org/genocides> accessed 13 May 2020; See also Tun Khin, 'Rohingya: A Preventable Genocide Allowed to Happen' (2017) 19(4) Insight Turkey 43, 44.

[2] Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovinia v Serbia and Montenegro), ICJ, Judgement, 26 February 2007, para 431.

[3] International Commission of Inquiry on Darfur, 'Report of the International Commission of Inquiry on Darfur Pursuant to Security Council Resolution 1564 (2004) of 18 September 2004', S/2005/60, 1 February 2005, 4.

[4] Ekkehard Strauss, 'Reconsidering Genocidal Intent in the Interest of Prevention' (2013) 5 Global Resp Protect 129, 132

[5] Olivier Bercault, 'The Crisis in Darfur' (2008) 31 Fordham Int'l LJ 859, 859.

[7] Cecile Tournaye, 'Genocidal Intent before the ICTY' (2003) 52 Int'l & Comp LQ 447, 447; See also Guglielmo Verdirame, 'The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals' (2000) 49 Int'l & Comp LQ 578, 598.

[8] Convention on the Prevention and Punishment of the Crime of Genocide 1948, art 2; See also Chanthima Neth, 'The Issue of Mens Rea in the Crime of Genocide and Why It Needs to be Amended' (2019) 7 Legal Issues J 15, 22.

[9] Alexander K A Greenawalt, 'Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation' (1999) 99 Colum L Rev 2259, 2288.

[11] Prosecutor v Kambanda (Case No. ICTR-97-23-S), Judgement, 4 September 1998, para 16.

[12] Patricia M Wald, 'Genocide and Crimes against Humanity' (2007) 6 Wash U Global Stud L Rev 621, 624.

[14] Raphael Lemkin, Axis Rule in Occupied Europe : laws of occupation, analysis of government, proposals for redress (Washington, DC: Carnegie Endowment for International Peace, 1944) 79.

[16] Perry S Bechky, 'Lemkin's Situation: Toward a Rhetorical Understanding of Genocide' (2012) 77 Brook L Rev 551, 559.

[20] Larry May, 'How Is Humanity Harmed by Genocide' (2004) 10 Int'l Legal Theory 1, 15.

[21] David L Nersessian, 'The Razor's Edge: Defining and Protecting Human Groups under the Genocide Convention' (2003) 36 Cornell Int'l LJ 293, 326.

[24] Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, art 46.

[25] Nicholas F Lancaster, 'Occupation Law, Sovereignty, and Political Transformation: Should the Hague Regulations and the Fourth Geneva Convention Still Be Considered Customary International Law' (2006) 189 Mil L Rev 51, 52.

[32] M Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev ed, The Hague : Kluwer Law International 1999) 327.

[34] Anthony Dirk Moses, ‘Conceptual blockages and definitional dilemmas in the 'racial century': genocides of indigenous peoples and the Holocaust’ (2002) 36(4) Patterns of Prejudice 7, 19.

[38] Christopher Powell, ‘What do genocides kill? A relational conception of genocide’ (2007) 9(4) Journal of Genocide Research 527, 528; See also Shamiran Mako, 'Cultural Genocide and Key International Instruments: Framing the Indigenous Experience' (2012) 19 Int'l J on Minority & Group Rts 175, 180.

[39] Raphael Lemkin, Lemkin On Genocide (Steven Leonard Jacobs ed, Lexington Books 2012) 3.

[43] Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May-26 July 1996’, UN Doc A/51/10, 91.

[48] Michael A McDonnell and Anthony D Moses, “Raphael Lemkin as historian of genocide in the Americas,” (2005) 7(4) Journal of Genocide Research 501, 504.

[50] Michael A McDonnell and Anthony D Moses, “Raphael Lemkin as historian of genocide in the Americas,” (2005) 7(4) Journal of Genocide Research 501, 502.

[53] Robert van Krieken, 'Cultural Genocide Reconsidered' (2008) 12 Austl Indigenous L Rev 76, 77.

[56] Helen Fein, ‘Scenarios of genocide and critical responses’ in Israel Charn (ed) Towards the Understanding and Prevention of Genocide (Westview Press 1984) 4.

[59] Kai Ambos, ‘What Does ‘intent to Destroy’ in Genocide Mean?’ (2009) 91(876) International Review of the Red Cross 833, 838.

[60] UN General Assembly, The Crime of Genocide, GA Res 96(1), 11 December 1946, A/RES/96.

[69] General Assembly, ‘Draft Convention on the Crime of Genocide: Communications Received by the Secretary General’, UN Doc A/401/Add.3, 2; see also General Assembly, ‘Genocide: Draft Convention (E/794) and Report of the Economic and Social Council: Amendments to the Draft Convention / Belgium’ UN Doc A/C.6/217, 2.

[70] ECOSOC, ‘Ad Hoc Committee on Genocide: Summary Record of the 10th Meeting, Held at Lake Success, New York, Thursday, 16 April 1948’, UN Doc E/AC.25/SR.10, 8.

[71] ECOSOC, ‘Ad Hoc Committee on Genocide: Summary Record of the 10th Meeting, Held at Lake Success, New York, Thursday, 16 April 1948’, UN Doc E/AC.25/SR.14, 10.

[72] Sixth Committee, Eighty Third Meeting, Held at Palais de Chaillot, Paris, On Monday, 25 October 1948’, UN Doc A/C.6/SR.83, 192.

[73] Matthew Lippman, 'The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide' (1985) 3 BU Int'l L J 1, 11

[75] ECOSOC, ‘Ad Hoc Committee on Genocide: Summary Record of the 10th Meeting, Held at Lake Success, New York, Thursday, 16 April 1948’, UN Doc E/AC.25/SR.5, 3.

[79] Milena Sterio, 'The Karadzic Genocide Conviction: Inferences, Intent, and the Necessity to Redefine Genocide' (2017) 31 Emory Int'l L Rev 271, 298.

[83] Prosecutor v Krstić (Case No. IT-98-33-T), Judgment, 2 August 2001, para 571 (emphasis added).

[84] Devrim Aydin, 'The Interpretation of Genocidal Intent under the Genocide Convention and the Jurisprudence of International Courts' (2014) 78 J Crim L 423, 433.

[85] Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May-26 July 1996’, UN Doc A/51/10, 88.

[86] ibid; Prosecutor v Blagojevic et al (Case No. IT-02-60), Judgment, 17 January 2005, paras 656, 670.

[88] Micol Sirkin, ‘Expanding the Crime of Genocide to Include Ethnic Cleansing: A Return to Established Principles in Light of Contemporary Interpretations’ (2010) 33 Seattle UL Rev 489, 499; see also 1996 Report of the International Law Commission (n 85) 87.

[94] Prosecutor v Karadžić and Mladić (Case Nos. IT-95-18-R61, IT-95-5-R61), Transcript of Hearing of 27 June 1996, 25.

[95] Prosecutor v Jelisić (Case No. IT-95-10-T), Judgement, 14 December 1999, para 82.

[96] Prosecutor v Kayishema and Ruzindana (Case No. ICTR-95-1-A), Judgement, 21 May 1999, para 97.

[97] Benjamin Whitaker, ‘Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide’, UN Doc E/CN.4/Sub. 2/1985/6, 16.

[99] Prosecutor v Gacumbitsi (Case No. ICTR-2001-64-A), Judgement, 7 July 2006, para 40.

[100] Prosecutor v Akayesu (Case No. ICTR-96-4), Judgement, 2 September 1998, para 523; see also Kayishema and Ruzindana (n 100) para 93.

[101] Prosecutor v Jelisić (Case No. IT-95-10-A), Appeal Judgement, 5 July 2001, para 48.

[103] Prosecutor v Sikirica et al (Case No. IT-95-8-I), Judgement on Defence Motions to Acquit, 3 September 2001, para 89.

[105] Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 1993.

[106] Prosecutor v Krajišnik (Case No. IT-00-39-T), Judgement, 27 September 2006, para 4.

[108] Prosecutor v Krajišnik (Case No. IT-00-39-T), Amended Consolidated Indictment, 7 March 2002, paras 15-27.

[112] Edina Bećirević, ‘The Issue of Genocidal Intent and Denial of Genocide’ (2010) 24(4) East European Politics and Societies 480, 485.

[121] Prosecutor v Karadžić (Case No. IT-95-5/18-T) Judgement, 24 March 2016, para 2.

[122] Prosecutor v Karadžić (Case No. IT-95-5/18-PT) Third Amended Indictment, 27 February 2009.

[127] Alexandar R J Murray, 'Does International Criminal Law Still Require a Crime of Crimes: A Comparative Review of Genocide and Crimes against Humanity' (2011) 3 Goettingen J Int'l L 589, 591.

[128] Prosecutor v Stakić (Case No. IT-97-24-T), Judgement, 31 July 2003, para 641; see also Prosecutor v Kamuhanda (Case No. ICTR-95-54A-T), Judgement, 22 January 2004, para 686.

[130] Prosecutor v Vasiljević (Case No. IT-98-32-A), Judgement, 29 November 2002, para 229.

ECOSOC	Economic and Security Council of the United Nations
ICC	International Criminal Court
ICTR	International Criminal Tribunal for Rwanda
ICTY	International Criminal Tribunal for the Former Yugoslavia
ICL	International Criminal Law
JCE	Joint Criminal Enterprise
RS	Republika Srpska
SDS	Serbian Democratic Party of Bosnia and Herzegovina
UN	United Nations