Persecution and Genocide. About the Delimitation of Genocide and Persecution

Essai , 2015 , 11 Pages

Droit - Droit communautaire/européen, Droit international, Droit privé international

Despite sharing historical roots, genocide and persecution are increasingly considered two separate crimes with divergent legal elements that represent two different social wrongdoings. Genocide is a crime aimed at the destruction of groups, characterized by intent to destroy the group, whereas persecution is an offense aimed at serious discrimination against individuals, characterized by the mass or systematic character of the killing. Therefore, this paper will tackle the question of moral difference between genocide and persecution and ask why genocide can still be considered the “crime of crimes” if, contrary to persecution, it does not even require a mass-scale attack or a high number of victims. The most convincing approach argues that genocide risks more ancillary harm due to the additional intent not only
to harm current group members, but also to destroy the group itself. Genocide per se is not worse than persecution, but it is more likely to expand into massive devastation. This is the reason why even “small” genocides need to be prosecuted, punished and prevented by international law.

I. INTRODUCTION

History is full of man’s inhumanity to man, but it was not until after World War II that the most terrifying crime known to humankind would get its name. The Polish Jewish lawyer Raphael Lemkin coined the term “Genocide” shortly after World War II and the Holocaust in order to describe a new form of human destructive behavior, and pushed a convention outlawing it through the United Nations General Assembly¹. After that, our view of the “crime of crimes” has been colored by the mass murders in Nazi Germany, Rwanda and Former Yugoslavia. The public notion is that genocide consists of persecution bleeding into mass-scale and systematic killing, representing a thus the most terrifying form of persecution.

From a legal point of view, however, the situation is different. First of all, legally seen, genocide does not require a single person to be killed. Also non-lethal actions, such as birth control, cultural assimilation and the prohibition of a particular language or religion, can already be considered genocidal². Second, genocide is not required to be mass-scaled or systematic. In contrast, persecution always requires a widespread or systematic attack. Put differently: Genocide can be much less harmful than persecution. The massive and systematic killing associated with genocide seems to find its basis in the harrowing images of the Holocaust, but not in the legal text and the case law.

Why, then, is genocide considered to be the “crime of crimes”³ ? Where is the moral difference between genocide and persecution that makes genocide so much worse?

These are questions that will be analysed in this working paper. First of all, Section II aims to briefly present the legal differences between genocide and persecution. Furthermore, Section III of this paper will examine the relationship between the two crimes. Because they both share the same historical roots, genocide has traditionally been considered a subgroup of crimes against humanity and a particularly heinous form of persecution. However, through developments in recent years, persecution and genocide have increasingly begun to be considered separate crimes that represent two different social wrongdoings. In Section IV, this paper will tackle the question of moral difference between genocide and persecution and ask why genocide can still be considered the “crime of crimes” if, contrary to persecution, it does not even require a massive-scale or systematic attack. Finally, Section V will sum up the conclusions.

II. LEGAL DIFFERENCES BETWEEN GENOCIDE AND PERSECUTION

First of all, it is useful to define the notions of crimes against humanity, persecution and genocide and briefly explain the differences between them. The definition of these crimes has long been uncertain due to the complex history of their development. However, more recently, they have been defined by the statutes of the International Criminal Tribunal for the Former Yugoslavia (hereinafter ICTY) and International Criminal Tribunal for Rwanda (hereinafter ICTR), which emerged after serious offences, and the Rome Statute of the International Criminal Court (hereinafter ICC).

Despite considerable differences between the Statutes, they all define crimes against humanity ⁴ as including a certain listed act (murder, extermination, torture, rape, persecution, etc.) committed as a part of a widespread or systematic attack directed against any civilian population.

Persecution ⁵ is one of the acts that can constitute a crime against humanity. However, in contrast to the other crimes against humanity, persecution “derives its unique character from the requirement of a specific discriminatory intent”⁶. An unlawful discrimination must be the perpetrator’s goal. It is not enough for him to know or even to be virtually certain that discrimination will occur⁷.

The crime of genocide ⁸ consists of a mental element, namely the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such, and a physical element, which includes one of certain listed acts. These acts can be non-lethal in nature, such as causing serious bodily or mental harm, preventing births or enforcing the transfer of children to another group.

Both crimes against humanity and genocide can be committed in times of peace. There is no requirement that the acts take place during an armed conflict⁹. Also, both can be committed against any individual, whether civilian or combatant¹⁰. However, there are three important differences between persecution and genocide, one of them affecting the mens rea and two affecting the actus reus.

1) Mens rea – Genocidal intent

A discriminative approach is a common factor for both genocide and persecution; both are crimes perpetrated against people who belong to a particular group and who are targeted because of being a member of that group¹¹. Yet the first and main distinction is that mens rea for persecution is lower than for genocide. The perpetrator of genocide must intend to destroy all or part of the protected group, while the perpetrator of a persecution need not have such intent¹². This genocidal intent is thus a specific intent that is separate from and goes beyond the discriminatory intent included in the crime of persecution.

2) Actus reus - Part of Widespread or Systematic Attack

As a second difference, the Statutes of the ICTR and ICC clearly require that acts constituting crimes against humanity are “committed as part of a widespread or systematic attack”. “Widespread” here refers to the scale of the offences or number of victims¹³, whereas a “systematic” attack refers to “a pattern or methodical plan”¹⁴ (although no formal state policy is required¹⁵ ).

In contrast, for genocide, the criminal acts do not have to be part of a widespread or systematic attack or part of a general and organized plan. An act of genocide can be planned or committed on a large scale, but it can also be committed as an individual undertaking¹⁶. Of course, the jurisdiction of the international courts is limited by the “seriousness requirement” of Art 5 of the ICC Statute¹⁷. Also, in the Tadic case, the Trial Chamber stated that it would only decide on “serious” violations of humanitarian law, that is, over breaches of rules protecting important values and breaches involving grave consequences for the victim¹⁸. Furthermore, the existence of a plan and a significant number of victims may become an important factor in the context of proving specific intent to destroy the members of the group. However, apart from that, the actual number of the victims and the size of the genocidal attack are irrelevant¹⁹.

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¹ Convention on the Prevention and Punishment of the Crime of Genocide, Resolution 260 (9 December 1948).

² See Article 6(c) of the ICC Statute; see also Noor, Akbar (2010). “How Should We Define Genocide?”. London: University of Roehampton, Human Dignity and Humiliation Studies, p. 3.

³ Schabas, William (2011). “An Introduction to the International Criminal Court”. Cambridge University Press, p. 100.

⁴ Article 7 of the ICC Statute, Article 5 of the ICTY Statute and Article 3 of the ICTR Statute.

⁵ Article 7(1)(h) of the ICC Statute, Article 5(h) of the ICTY Statute and Article 3(h) of the ICTR Statute.

⁶ Prosecutor v. Milorad Krnojelac, IT-97-25-T, ICTY Trial Chamber (15 March 2002), para. 435; Yavuz, Aydin (2014). “The distinction between crimes against humanity and genocide focusing most particularly on the crime of persecution”. p. 7.

⁷ Prosecutor v. Mitar Vasiljevic, IT-98-32-T, ICTY Trial Chamber (29 November 2002), para. 248; Nersessian, David (2007). “Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes Against Humanity”, in: Stanford Journal of International Law No. 43 2007, pp. 221-264, p. 243.

⁸ Article 6 of the ICC Statute, Article 4 of the ICTY Statute and Article 2 of the ICTR Statute.

⁹ See Article 7 of the ICC Statute and Prosecutor v. Dusko Tadic, IT-94-1-A, ICTY Appeals Chamber (15 July 1999), para. 251, declaring that crimes against humanity can be committed in peace time; see also Schabas (2003), p. 933.

¹⁰ As for crimes against humanity, scholars seem to agree that “not only any civilian group but also members of armed forces may be the victims of this class of crimes”, see Cassese, Antonio (2013). “Cassese’s International Criminal Law”. Oxford University Press, p. 77; Yavuz (2014), p. 13.

¹¹ Prosecutor v. Zoran Kupreskic et al, IT-95-16-T, ICTY Trial Chamber (14 January 2000), para. 636, see also Prosecutor v. Dusko Sikirika et al, IT-95-8-T, ICTY Trial Chamber (3 September 2001), para. 58.

¹² Prosecutor v. Goran Jelisic, IT-95-10-T, ICTY Trial Chamber (14 December 1999), para. 79.

¹³ Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, ICTR Trial Chamber (2 September 1998), para. 579; Prosecutor v. Clément Kayishema and Obed Ruzindana, ICTR-95-1-T, ICTR Trial Chamber (21 May 1999), para. 123.

¹⁴ Prosecutor v. Akayesu (TC 1998), para. 580; Prosecutor v. Kayishema (TC 1999), para. 123.

¹⁵ Schabas, William (2003). “Punishment of Non-State Actors in Non-International Armed Conflict”, in: Fordham International Law Journal, Volume 26 No. 4 2002, pp. 907-933, p. 926.

¹⁶ Yavuz (2014), p. 9.

¹⁷ Article 5 of the ICC Statute: “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.”

¹⁸ Prosecutor v. Dusko Tadic a/k/a “DULE”, Decision on the Defence Motion for the Interlocutory Appeal on Jurisdiction, Trial Chamber (2 October 1995), para. 94. The Trial Chamber stated that it would not decide over the case of a combatant simply appropriating a loaf of bread.

¹⁹ Prosecutor v. Goran Jelisic, IT-95-10-A, ICTY Appeals Chamber (5 July 2001), para. 48; Yavuz (2014), pp. 8.

• Auteur: Sonja Kahl (Auteur)
• Année de publication: 2015
• Pages: 11
• N° de catalogue: V502387
• ISBN (ebook): 9783346036483
• ISBN (Livre): 9783346036490
• Langue: anglais
• mots-clé: persecution, genocide, about, delimitation