Whether Specific Intent To Destroy (Dolus Specialis) Is Required For Genocidal Crime Or Mere Prior Knowledge Is Sufficient?
INTRODUCTION
Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It 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. 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[1]
Before 1944 term genocide was never used and it was firstly used by a Polish-Jewish Lawyer namely Raphael Lemkin[2] who termed an act of destruction of any specific group with intention to vanish the same, as Genocide. Genocide is a mixture of two words Geno which is a Greek word meant for race or tribe and cide is a latin term which means killings.
Since then, considering case-law, there have been many debates and conventions for prevention of genocide by defining it in its true spirit. Initially, crime of genocide seemed to be committed by the specific intention to destroy some protected group and for this purpose Mens Reus or specific intention to destroy (Dolus Specialis) was the basic requirement. But with the passage of time and discussion, to curb and restrain this heinous crime, only actus reus is now sufficient to constitute the crime and it may be committed by those who even have no prior intention to destroy some group or, are not the major perpetrators of genocidal crime, but the consequences of which culminate into genocidal crimes (Dolus Eventualis).
Historical and literal interpretations on crime of genocide remained limited to the extent of Specific Intention to destroy and it was adapted in many case-laws e.g. Prosecutor Vs. Radislav Krstic[3], Prosecutor Vs. Dusko Sikirica[4] etc. Recently some discussions has started that by only focusing on intention to destroy, it is extremely difficult to curb and limit the crime of genocide due to its seriousness as this is not a simple or general crime but a crime against humanity, and, therefore, it is not necessary that the criminal must have specific or prior intention to commit genocide but only his involvement with knowledge in any act which ultimately is constitutive of genocidal crime, is sufficient. In this paper I will discuss the genocide, its requirements as general intent to destroy which is purpose based approach and its requirement as knowledge-based and structure-based approach with respect to top-level, mid-level and low-level perpetrators.
TOP-LEVEL, MID-LEVEL AND LOW-LEVEL PERPETRATORS
Here we will categorize crime of genocide in three categories i.e. Top-level Perpetrator, Mid-level Perpetrator and Low-level perpetrator. Top-level perpetrator is the master mind who has a specific intention for destruction and extinction of certain group on the basis of politics, financial benefits, religion, race, creed and ethnicity etc. and so is the case of mid-level perpetrator, may be. But low-level perpetrator may be used as pawn and may or may not have any knowledge of the very intention of top-level and mid-level perpetrators and they are being used by the master mind. Knowledge based approach is therefore necessary because top-level perpetrators cannot commit genocidal crimes individually and to meet their evil designs they need some other persons, therefore, only purpose-based approach is insufficient. It is the reason that Statute of International Criminal Court (Rome Statute) also used the word Knowledge in its Article 30.
SPECIFIC INTENT TO DESTROY (DOLUS SPECIALIS)
From the very beginning of its definition, genocide was a crime which required prior preparation and specific intention of destruction of protected group as basic ingredient of crime and it must be in a systematic and planned way[5], but the basic purpose of International Convention on Prevention and Punishment of the Crime of Genocide is to restrain any further massive killings on the basis of sex, race, creed or religion etc. but the same purpose could not be achieved as in 1994 in Rwanda, a massive killings of moderate Hutu and Tutsi was occurred by Hutu majority and about 8 Million people were assassinated.[6] Not only this, but also Trial conducted by International Criminal Tribunals for the Former Yugoslavia (ICTY), International Criminal Tribunals for Rwanda (ICTR) and War Crimes Section of the Court of Bosnia Herzegovina (WCS BiH), courts consistently, though at certain points they did conisder knowledge based approach for establishing the crime of genocide, but rejected the same, overall,[7] and, held that planning and systemization of prior intention is basic ingredient for commission of crime. It was held by the ICTR trial judgment titled as Prosecutor Vs. Akayesu that:
“Genocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in “the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.[8]”
Similar was the findings in case of Prosecutor Vs. Radoslav Brdjanin[9] Chamber consistently held the intention to destroy as prior element and requirement to commit genocide crime.
As a result, it remained to be determined whether these offences were committed with the specific intent for genocide, conscious that where direct evidence of intent is absent, the specific intent may still be inferred from the factual circumstances and particularly conscious also that where an inference needs to be drawn, it has to be the only reasonable inference available on the evidence. In this case, the Trial Chamber is not satisfied that the only reasonable inference that may be drawn from the evidence is that the offences were committed with the specific intent to destroy the Bosnian Muslim and Bosnian Croat groups of the ARK.[10]
It was also held in Prosecutor Vs. Goran Jelisic[11]
“It is in fact the mens rea which gives genocide its specialty and distinguishes it from an ordinary crime and other crimes against international humanitarian law. The underlying crime or crimes must be characterized as genocide when committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. Stated otherwise, “[t]he prohibited act must be committed against an individual because of his membership in a particular group and as an incremental step in the overall objective of destroying the group”87. Two elements which may therefore be drawn from the special intent are:”
- that the victims belonged to an identified group;
- that the alleged perpetrator must have committed his crimes as part of a wider plan to destroy the group as such:”
While, setting aside argument of prosecutor regarding knowledge based approach chamber also declared in Jelisic trial as he (Jelisic) was not motivated by dolus specialis of crime and committed these murders randomly and due to his disturbed personality[12].
In Trial Chamber judgment Prosecutor Vs. Alfred Musema[13] it was held that specific intention to destroy specific protected group, is necessary to commit genocidal crime so, if an accused deliberately assisted or instigated other one for committing murder and unaware that the person to whom he is helping, is committing such murder with the intent to destroy whether wholly or partly, such protected group then such person would not fall within the definition of genocide crime but if he knew or had some reasons to believe that such person has genocidal intention then such instigating person would be a partner in crime and would be dealt as such.[14]”
KNOWLEDGE-BASED AND STRUCTURE BASED APPROACH (DOLUS EEVENTUALIS)
But nowadays general intent or specific intent to destroy as an element to commit genocide crime is not necessary and insufficient to limit this crime as there may be motivated criminal intent or dolus specialis. This means that the perpetrator intentionally and deliberately committed some act to result in the annihilation of some protected group, however on the other hand it also includes the knowledge of the perpetrator, that such act of perpetrator may cause destruction of that group in whole or in part[15].
Though specific intent or ulterior intent to destroy was considered to convict or acquit the accused being tried, but a knowledge-based approach has confronted the old idea of special intent (Dolus Specialis) and promoted this argument to connect the act of killing with genocidal crime instead of prior preparation or prior intention as a basic ingredient[16]. Otto Triffterer[17] turned up the very conclusion and supported the dolus eventualis instead of dolus specialis. According to him a factual and chronological interpretation regarding the intention as a requirement for genocidal crime is not convincing and his argument is that whenever genocidal crime has been committed, it makes no difference that the criminal acts with very intention for destruction of some protected group or in eventuality of his acts caused destruction of the group[18], and this is only because it is very difficult to prove someone’s special or specific intention for commission of genocidal crime. Similar arguments were extended by Alexander K.A. Greenawalt[19] on the basis of literal and historical explanation of concept of intention and he says that there are various interpretations of word intent and did not stick upon intent to destroy requirement as a specific intention and argued that along with principal perpetrator, low-level perpetrators must be punished for the offence of genocide because notwithstanding his intention for genocidal acts or not, but if he committed genocidal acts whilst having consciousness of destructive results, he is responsible and be treated in the same manner as the principal perpetrator[20].
As per historical and case law perspective, as interpreted and discussed, genocide is a crime which is done by the one who is in authority e.g. Holocaust by Hitler or Genocide committed in Rwanda i.e. Hutu & Tutsi war, but where knowledge based or structure based approach failed, convicting perpetrators involved genocide at a large scale also failed to achieve its goal, because there are many questions that would arise e.g. what would happen if some rebels of a state established their army and did not create any chaos, killings or disturbance for people and demanded their so-called (whatsoever) rights which a state cannot possibly accept then what would be the option left for Govt. Whether it will accept the demands of rebels (which never happens easily and amicably) or will it attack those rebels for their occupation and convict them for the offence of constitution of State within a state. In this regard, whether this is genocide or safeguard of state sovereignty?
In Prosecutor Vs. Omar Hassan Ahmad Al-Bashir[21], appeals chamber took notice of knowledge based approach but declared that only for the purpose of difference between low-level and mid-level perpetrators and denied genocidal intent as a prerequisite.
Even otherwise intention to destroy is not sufficient to curb this crime of crimes as one may start campaign to save/ protect his group but if eventually, due to that campaign, some members of that group created chaos and committed massacre, apart from that intention of the principal, then it would also fall within the definition of genocide and Greenawalt called this as an ambiguous intention in perspective of 1975-1979 atrocities of Cambodia and observed that amongst other groups, members of one Cambodian’s Muslims ethnic group was targeted by terror just because the campaign was committed in the name of communist ideology and it makes it hard to fit this specific destruction within the definition of genocide by certain group with intention to destroy the other group[22].
On the other hand suggestion is that knowledge must also be limited to its scope somewhere and to be read with intent to destroy and nature of acts done by the low-level perpetrators as if genocide committed by the mastermind who is one in authority and if low-level perpetrators are servants and in case of refusal they had to face execution or other penal consequences
Another basic reason to adopt this knowledge based approach is, that this crime can never be committed by a small number of extreme or mad persons but they need some intellectual mastermind who has a pre-planned systematic campaign or procedure. In this way purpose based approach is only for the top-level perpetrators and not for low level perpetrators as they are not the main masterminds to ignite genocidal crime and hence liable for involvement under the doctrine of knowledge or purpose based approach. As per my inference, reason behind this theory is that; whenever genocidal crime is committed by the low-level perpetrators, it will always be committed by such other like low-level perpetrators for the accomplishment of genocidical will of their mastermind top-level perpetrators’ evil desire, directly or indirectly. E.g. someone’s leader asks some of his disciples to murder person of another group or community belonging to another religion for some reasons by way of a direct order, similarly if someone’s leader did not directly ask to murder persons of some other group but represents his purpose in a manner that persons of some other group should be murdered, then this will be indirect. The subsistence of the endeavor or desire to commit genocide links the low-level perpetrators with the top-level perpetrator’s desire and in this way both of them jointly fulfilled the task of mastermind as individually, he could have done nothing. Darfur Report[23], in this regard, presented its findings as this may not be genocide but on other hand not less than heinous offence like genocide[24].In Darfur report, Commission recognized that in some cases, some individuals, including Government officials/ forces may commit acts with genocidal intention and whether this was the case in Darfur, however, is left to the competent courts to determine on case to case basis[25].
However, some of the trial cases held and gave some weight to the knowledge based approach but limited it for low-level perpetrators and observed that for the conviction of top-level and mid-level perpetrators for genocide, purpose-based intention is required.[26]
Now the difficulty is that mastermind of genocide may be executed for his crime on the basis of purpose based approach and low-level perpetrator, who is not directly criminal for this crime but he aided such crime and he will be liable for his crime due to his prior knowledge of mastermind’s will or knowledge of the direct consequences of his crime, but what would be the punishment for mid-level perpetrators, whether they will be liable for genocidal crime as such or will fall in low-level perpetrators? In this regard we can see that mastermind creates a plan and mid-level perpetrators who knows his intention and by implementing the same, commits genocide as by a top-level perpetrator because they are also intellectual perpetrators and thus qualified.
CONCLUSION
Since term genocide is based upon killings of persons on the basis of sex, creed, caste, religion etc. no matter one has intention to destroy such protected group or not; only consequences and results coming out of his acts are sufficient evidence for his intention or knowledge. And as one cannot do this alone and he has to make an organization or some party or some group which will demonstrate his desires and ultimate goal, therefore, person who initiated this plan, will be mastermind or top-level perpetrator and that organization and his persons who fall in mid-level and low-level perpetrators are liable for that crime by way of assistance rendered. Different case laws interpreting different interpretations regarding intention to destroy and mere knowledge, while discussing these two doctrines, it was somehow consistently observed that purpose-based approach must be limited to top-level perpetrator being mastermind and mid-level perpetrator being direct helper for genocidal activities, however low-level perpetrator due to responsibility and involvement is liable for genocide if he has knowledge or circumstances to believe that such act would consequently destruct a specific group due to race, creed or religion etc. But, if he has no knowledge then he will be liable for crime but not for genocidal crime and it will depend upon the acts and nature of acts of that of low-level perpetrator. In short, Genocide is a crime where ulterior motive and ultimate goal is to destroy some protected group without getting into the fact that whether or not such criminal is capable to accomplish his goal[27].
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.
[1] Raphael Lemkin, Axis Rule in Occupied Europe, published in November 1944, in which term Genocide was firstly introduced.
[2] (1900-1959) Known for coining the term genocide and drafting the Convention on the Prevention and Punishment of the Crime of Genocide
[3] Appeal Judgment, Case No. IT-98-33-A, 19th April 2004
[4] Judgment on defence motions to acquit case No. IT-95-8-T, 3rd September 2001
[5] Dana Burns, Dolus Specialis, How the Judicial Interpretation of Genocidal Intent Devalues Genocide Special Status
[6] http://www.unitedhumanrights.org/genocide/genocide_in_rwanda.htm
[7] Prosecutor Vs. Goran Jelisic, Prosecutor’s Pre-Trial Brief, Case No. IT-95-10-PT, 19 November 1998
[8] Prosecutor Vs. Akayesu, Case No. ICTR-96-4, Judgment (Sept. 2, 1998) Para-498]
[9] Judgment in the Case the Prosecutor v. Radoslav Brdjanin: Radoslav Brdjanin Sentenced to 32 Years’ Imprisonment this trial was conducted in Hague on 1st September 2004
[10] Prosecutor Vs. Akayesu, Case No. ICTR-96-4, Judgment (Sept. 2, 1998) Para-498]
[11] Prosecutor Vs. Goran Jelisic, Case No. IT-95-10-T, Judgment (Dec. 14, 1999) Para-66]
[12] Ibid Para-108, “The words and attitude of Goran Jelisi} as related by the witnesses essentially reveal a disturbed personality162. Goran Jelisi} led an ordinary life before the conflict. This personality, which presents borderline, anti-social and narcissistic characteristics and which is marked simultaneously by immaturity, a hunger to fill a “void” and a concern to please superiors, contributed to his finally committing crimes.”
[13]Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgment and Sentence Jan. 27, 2000
[14] Ibid, 3.2.2, Complicity in Genocide, Para-182,
[15] Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General prepared on 25th January, 2005
[16] Kai Ambos, What does intent to destroy mean? Selected Article on International Humanitarian Law. P-840
[17] Ibid
[18] Kai Ambos, What does intent to destroy mean? Selected Article on International Humanitarian Law. P-840
[19] Associate Professor, Pace University School of Law, New York
[20] Rethinking Genocide Intent, The case for a knowledge-based interpretation, the meaning of intent, Page-2266 by Alexander K.A. Greenawalt, published in Columbia Law Review, Vol:99:2259
[21] Prosecutor Vs. Omar Hassan Ahmad Al-Bashir, ICC Pre-Trial Chamber I, Decision on arrest warrant of Omar Hassan Ahmad Bashir
[22] Rethinking Genocide Intent, The case for a knowledge-based interpretation, Ambiguous Motives, Page-2285 by Alexander K.A. Greenawalt, published in Columbia Law Review in 1999, Vol:99:2259
[23] Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General prepared on 25th January, 2005
[24] Darfur Report page-4, Article-II, Have acts of genocide occurred?
[25] Ibid
[26] Prosecutor Vs. Emmanuel Ndindabahizi, Trial Judgment, Case No. ICTR-2001-71-1 15 July 2004, para457
[27] Kai Ambos, What does intent to destroy mean? Selected Article on International Humanitarian Law. P-835
