Organizing Rebellion Symposium: Who Can Commit Genocide? A Discerning Analysis of Non-State Entities as Perpetrators

[Sareta Ashraph is an international criminal law barrister, specializing in international criminal, humanitarian law and human rights law – with a particular focus on the gendered commission and impact of genocide. This is the latest post in the co-hosted symposium with Armed Groups and International Law on Organizing Rebellion.]

In the summer of 2014, the armed group, the Islamic State of Iraq and the Levant (ISIL), razed a path of destruction through northern Iraq’s Nineveh plains, advancing southwards to within 60 kilometres of Baghdad. Their crimes – which included mass executions, sexual enslavement of women and girls, forced recruitment of boys into its forces, and systematic destruction of cultural property – were shocking, but the fact that they were committed by a non-state entity was not. The conflicts in Yemen, Syria, Myanmar, and the Central African Republic, to name but a few, have habituated the public to crimes against humanity and war crimes being committed by those operating outside of a state structure. In contrast however, the crime of genocide – the commission of a prohibited act with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such – continues to be seen as a crime planned, instigated and/or carried out by States and their agents.

This comes, in part, from the historical context woven into the 1948 Genocide Convention. Throughout the text, and in the records of the often-contentious negotiation which underpinned it, the Convention provided a powerful retrospective condemnation of the policies and conduct of the Nazi regime. Given this, it is all the more remarkable, as the final chapter of Tilman Rodenhäuser’s excellent Organizing Rebellion astutely notes, that the drafters, with great consideration, decided not to include a requirement for state involvement in the definition of genocide.

Rodenhäuser recognises that it is accepted, both in legal theory and practice, that genocide can be committed by States as well as by non-State entities that exhibit state-like characteristics, ISIL being perhaps the most recent example of the latter. Consequently, he directs the bulk of his attention to the far more complex and interesting question of whether the involvement of any collective entity, state or non-state, is legally required for the crime of genocide. It’s a cogent question that deserves the focus that Rodenhäuser gives it. The drafters of the Genocide Convention carefully (and many would say, narrowly) restricted victims of genocide to members of national, ethnical, racial or religious groups, often referred to as the “protected” groups. When it came to perpetrators, however, the Convention allows for the widest possible definition, declining to require any state or collective entity involvement in the crime. But is such involvement required in practice? That is to say, does the fundamental nature of the crime of genocide demand collective activity for its commission? And do post-Convention jurisprudential developments – notably the exploration of the factors from which one may infer genocidal intent or the ICC’s Elements of Crimes requirement that an act of genocide be committed in the context of similar conduct, or itself have the potential to destroy a group in whole or in part – implicitly now require collective entity involvement?

As Rodenhäuser develops his analysis, he asks his readers to contemplate the conditions under which non-state entities could have the capacity to commit or instigate genocide. Can genocide be committed or instigated by a lone génocidaire? Could a group of loosely affiliated individuals, not constituting a defined group or organisation, commit genocide? And, if the involvement of a collective entity is required, how organised would it need to be?

Genocide, committed by a lone individual

The jurisprudence of the ad hoc tribunals, together with statements from eminent jurists, confirms that a collective genocidal policy or campaign is not a legal element of genocide, and that it is theoretically possible for the crime to be committed by a lone génocidaire. Yet, as the final chapter of Organising Rebellion ably explores, a credible or realistic intent on the part of the perpetrator(s) – that is to say, that the perpetrator intends and has the capacity to commit a genocidal act that can cause the destruction of a substantial part of a protected group – is needed, limiting in practice a single individual’s capacity to commit genocide.

Most interesting in this section are two points Rodenhäuser touches upon lightly, leaving me hoping what whatever research didn’t make it into the chapter will feed into his later articles or blogposts. The first was his all-too-brief analysis of ICC Pre-Trial I’s Arrest Warrant Decision in the Al-Bashir case, which found that “the crime of genocide is only completed when the relevant conduct presents a concrete threat to the existence of the targeted group, or part thereof’, placing the genocidal context in the realm of the actus reus, whereas the ICTR and ICTY considered the context to primarily provide a basis for inferring the genocidal mens rea. The second was an exploration of the circumstances of a viable lone génocidaire, with Rodenhäuser briefly alluding to the use of weapons of mass destruction or the killing of the leadership of a targeted group. In this, as he notes, the analysis relies on genocide being committed through the first (killing) and/or second (causing seriously bodily or mental harm) prohibited acts as the third, fourth and fifth prohibited acts (deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group) almost certainly require an entity with organisational capacity most often found in state and state-like entities, and which would likely be beyond the capacity of the lone génocidaire. It left me wanting to ask Rodenhäuser whether it was his view that the drafters of the Genocide Convention, though consciously deciding against a requirement of state or other collective entity involvement still, and while deliberating in the shadow of the Holocaust, drafted some of the prohibited acts implicitly recognising the need for an organizational structure to accomplish the commission of crimes of such magnitude? Or is it that the space they left open for the lone génocidaire has become more and more viable with technological advances in weaponry and communications, both of which allow an individual the possibility of having a far greater destructive impact on the world than could have been envisaged in 1948?

Genocide committed by a loosely affiliated collective of individuals

With the crime of genocide not requiring state or collective entity involvement, there is no question that genocide can be committed by a non-state entity. But how organised does that entity need to be? Save for lone génocidaire cases, the crime of genocide requires (at least under the Rome Statute) that individual acts be committed in the context of a manifest pattern of similar conduct, with the requisite specific intent. The test then, as for the lone génocidaire, becomes one of functionality: does the loose collective have sufficient resources and the requisite intent to commit genocide? As Rodenhäuser correctly points out, if one can envisage genocide by a lone génocidaire, it is far less demanding to envision a group of individuals, acting collectively and spontaneously, attacking another group – particularly in the context of simmering ethnic or religious conflicts, for example. It is entirely possible given that context that one event – a brutal murder or rape – could lead to a genocidal attack. While a loosely affiliated group may well have the capacity to bring about the destruction of a protected group (or a substantial part thereof), the chapter pulls our attention back to the challenges of proving a shared genocidal intent without direction or instigation from some semblance of a senior command.

Genocide committed by a collective entity, state or non-state

Unsurprisingly, given the lack of a requirement for state or collective entity involvement, the Genocide Convention is silent on the degree of organisation needed for a non-state entity to commit genocide. Just as for a loosely affiliated group of individuals, the test is one of function: does the collective entity have the capacity to incite the crime or to direct a manifest pattern of genocidal acts against a particular group, with the requisite specific intent? Here, the chapter moves into known waters, it taking little to stretch one’s mind around the concept of a collective entity instigating a population to commit genocide, or committing the crime itself. This requires them to develop a plan or policy aimed at the destruction of a particular group and/or the logistical capacity to carry out the crime. A group that was sufficiently organised would be able to carry out all five of the prohibited acts enumerated in the Genocide Convention; lone génocidaires and groups of loosely affiliated individuals would, functionally, be restricted to the first and second prohibited acts.

Conclusion

The final chapter of Organising Rebellion stayed with me. For one, the discussion of genocide often focuses on the acts, the proving of the special intent, and more occasionally on the identity of the victims. Too rarely do we cast an analytical eye on who can commit the crime of genocide. For those who see the Holocaust as the ‘archetypal genocide’, this seems to have created almost a sense of exceptionalism – a desire to ring-fence the crime of genocide to more limited contexts, which are strikingly similar to the Nazi regime and its campaign of extermination of the European Jewry. To be sure, most genocides  – or at least most recognised genocides – have historically been carried out by States or non-state entities with state-like characteristics, as displayed arguably by Republika Srpska and ISIL. In a world where non-state actors are routinely involved in mass atrocity crimes and where the power of individuals to harness tremendously destructive powers and to incite large audiences, the question may be becoming less one of capacity and more one of the individual’s and loose collective’s ability to direct that capacity towards a specific group, with the intent to destroy it. Rodenhäuser’s excellent, thought-proving contribution is undeniably invaluable, particularly in today’s violent and increasingly nationalistic world.