The Majority’s Problematic Interpretation of Genocide’s Contextual Element

One of the most important issues in international criminal law is whether a genocidal policy or plan is an element of the crime of genocide.  The ICTY Appeals Chamber held in Jelisic that it is not — and that, as a result, genocide can be committed by a lone genocidaire.  Some scholars disagree, most notably Bill Schabas, who pointed out in recent — and very important — article that “while theoretical exceptions cannot be ruled out, it is nearly impossible to imagine genocide that is not planned and organized either by the State itself or a State-like entity, or by some clique associated with it.”

The Elements of Crimes take what might be thought of as an intermediate position.  They do not completely rule out prosecuting the lone genocidaire, but they make clear that a genocidal plan or policy is an element of genocide in all but the most extreme cases.  Here is Element 4 of genocide by killing, an element that is required for all five forms of genocide:

The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

The requirement — normally referred to as the “contextual element” of genocide — is disjunctive: the conduct that satisfies the actus reus of the crime must either be committed as part of a genocidal policy or plan or be capable of directly effecting the total or partial destruction of a protected group.  (The lone genocidaire who has a nuclear weapon, for example.)

The majority’s decision in Bashir provides an important — and in one respect very troubling — interpretation of the contextual element of genocide.  The relevant paragraphs are paras. 123 and 124:

123. The Majority further observes that, according to this contextual element provided for in the Elements of Crimes, the conduct for which the suspect is allegedly responsible, must have taken place in the context of a manifest pattern of similar conduct directed against the targeted group or must have had such a nature so as to itself effect, the total or partial destruction of the targeted group.

124. In the view of the Majority, according to this contextual element, the crime of genocide is only completed when the relevant conduct presents a concrete threat to the existence of the targeted group, or a part thereof. In other words, the protection offered by the penal norm defining the crime of genocide – as an ultima ratio mechanism to preserve the highest values of the international community – is only triggered when the threat against the existence of the targeted group, or part thereof, becomes concrete and real, as opposed to just being latent or hypothetical.

Two things are worth noting here.  To begin with, the majority takes a definitive position concerning a recurring debate in ICC scholarship: whether the genocidal plan or policy element is a formal element of the crime or is simply a jurisdictional prerequisite to the Court’s exercise of jurisdiction.  That is a distinction with a difference: if it is a formal element, Article 30’s default mens rea applies and the prosecution will have to prove that the defendant either intended his conduct to be part of the larger genocidal plan or policy or at least knew that his conduct was part of that plan or policy.  By contrast, if it is simply a jurisdictional prerequisite, the prosecution will only have to prove the existence of the genocidal plan or policy; it will not have to prove a nexus between the plan or policy and the defendant’s act.

My own view is that, in fact, the genocidal plan or policy requirement is a formal element of genocide.  A similar nexus requirement exists for crimes against humanity: to convict a defendant of any crime against humanity, the prosecution must prove that he “knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.”  The idea behind that requirement is a simple one, and it applies no less to the crime of genocide: the existence of the nexus between the defendant’s act and the larger attack is what distinguishes an international crime from an “ordinary” one.  To be sure, the defendant who commits an act that would otherwise qualify as genocide is more blameworthy than the defendant who commits an act that would otherwise qualify as a crime against humanity, but that difference does not justify not requiring the nexus: there is no point in making the genocidal plan or policy an element of the crime if the lone genocidaire who poses little threat to the protected group and knows nothing of the plan or policy can still be convicted of genocide.

In any event, noting that the jurisdictional interpretation would create a strange inconsistency between genocide and crimes against humanity, the majority unequivocally holds that the genocidal plan or policy is a formal element of genocide.  As it says in footnote 142, “in the absence of an express subjective requirement in relation to the contextual element of genocide, the general subjective element provided for in article 30 of the Statute would be applicable.” (Judge Usacka disagrees, see paras. 16-18.)

I have no problem with that holding, for the reasons mentioned above. I do have a problem, however, with the majority’s insistence that, “according to this contextual element, the crime of genocide is only completed when the relevant conduct presents a concrete threat to the existence of the targeted group.”  That conclusion, I think, is problematic in two respects: (1) it collapses the distinction between the two different ways in which the contextual element of genocide can be satisfied; and (2) it elides the distinction between the contextual element of genocide and the actus reus of genocide.

First, as noted earlier, the contextual element is disjunctive: it can be satisfied either by a genocidal plan or policy or by isolated conduct capable of destroying a protected group in whole or in part. The majority’s interpretation, however, reads the second condition into the first — insisting that even conduct committed pursuant to a genocidal plan or policy must be (collectively) capable of posing “a concrete threat to the existence of the targeted group.” That “concrete threat” requirement makes complete sense in terms of the second prong of the contextual element, where we are concerned with separating the truly dangerous lone genocidaires from the ones not worthy of international prosecution.  But there is no justification for reading that requirement into the first prong of the contextual element: that prong says nothing about how effective the genocidal plan or policy must be; it simply requires the existence of the plan or policy.

Second, there is nothing in the actus reus of genocide that justifies interpreting the plan or policy prong of the contextual element to require a “concrete threat to the existence of the targeted group.”  On the contrary, the Elements of Crimes make clear that there is no such requirement.  Here are the relevant actus reus elements of the five forms of genocide:

The perpetrator killed one or more persons.

The perpetrator caused serious bodily or mental harm to one or more persons.

The perpetrator inflicted certain conditions of life upon one or more persons.

The perpetrator imposed certain measures upon one or more persons.

The perpetrator forcibly transferred one or more [children].

Nothing in the Elements of Crimes, in short, supports the majority’s “concrete threat” requirement.  Except in the exceptional lone genocidaire situations, the crime of genocide requires: (1) a genocidal plan or policy; (2) the commission of a prohibited act of genocide against one or more protected persons with the necessary specfic intent to destroy the group; and (3) a nexus between the prohibited act and the genocidal plan or policy.  The effectiveness of the genocidal plan or policy is irrelevant.

To be fair, it is difficult to imagine how a genocidal plan or policy would not pose a concrete threat to the existence of the targeted group.  (But not impossible: a weak state or a poorly armed and organized rebel group might pursue a largely ineffective genocidal plan or policy.)  Moreover, it may well be the case that the PTC would interpret the “concrete threat” requirement broadly, as encompassing almost any prohibited act committed pursuant to a genocidal plan or policy.  Nevertheless, the fact remains that there is no justification for the majority’s restrictive interpretation of the contextual element’s plan or policy prong.  The OTP should appeal that interpretation — and the Appeals Chamber should disavow it.