17 Jun The Domestic Definitions of the Crime of Genocide: A Dizzying Diversity
[Dr. Tamás Hoffmann is a Senior Research Fellow at the Centre for Social Sciences Institute for Legal Studies and an Associate Professor at Corvinus University of Budapest.]
Since the adoption of the Genocide Convention by the United Nations General Assembly on 9 December 1948, the crime of genocide has been universally regarded as the ”crime of crimes” in international criminal law. Article II of the Convention defined genocide as:
[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.
In contrast to all other international crimes, the legal concept of genocide has remained unchanged ever since on the international plane. The Genocide Convention’s definition was adopted and reiterated verbatim in the statutes of all international and internationalized criminal fora whose material jurisdiction extended to genocide, including the Yugoslavia Tribunal, the Rwanda Tribunal, the International Criminal Court, the Iraq High Tribunal and the Extraordinary Chambers of the Courts of Cambodia.
Given the general acceptance of this construction and the widespread ratification of the Genocide Convention and the Rome Statute of the International Criminal Court, it might be expected that the domestic definitions of the crime of genocide would be identical to the international one. Until now, the scholarly literature only focused on a select number of jurisdictions and generally held that even though there are a few notable examples of changes in domestic criminal legislation, these can be seen as aberrations and the overwhelming majority of states implemented the international definition. However, after conducting a comprehensive review of the domestic criminal laws of 196 countries (all 193 UN Member States and the Holy See, Kosovo, and Palestine) and the Special Administrative Region of Macao, I have found that the differences are actually much more significant than hitherto assumed.
My research have obvious limitations: I could only draw on the original text of the domestic criminal law if it was in a language I could read (English, French, German, Hungarian, Italian, Portuguese, and Spanish). In all other instances I had to rely on the available English translations, which could have potentially resulted in mistakes. Moreover, focusing solely on domestic legislation inevitably gives an incomplete picture, as domestic legal doctrine and ultimately domestic courts might (re)interpret the diverging national criminal provisions to better align them with the international standard(s); choose between plausible contradictory interpretations; or even significantly expand their application. Nevertheless, the compiled data enabled me to draw certain preliminary findings.
Modifications of the Domestic Crime of Genocide
Most states have changed the text of their domestic definition of the crime of genocide, resulting in limiting or expanding its scope of application. National definitions resulting in a narrower construction of the crime, however, are outliers. Only 9 countries exclude specific protected groups, and none of these states opted to exclude more than one protected group. This is important as the exact definition of protected groups is far from obvious and they significantly overlap so the absence of reference to a national, ethnic, or racial group from the domestic definition of genocide might not necessarily result in excluding a targeted group from protection. Moreover, 11 states include the requirement of a genocidal plan which clearly deviates from the customary law position holding that “the existence of a plan or policy is not a legal ingredient of the crime” (Jelisić, para. 48), and even the ICC Elements of Crimes’ approach that “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.” (Art. 6(a)(4)). Finally, 9 countries and the Special Administrative Region of Macao omitted or restricted underlying offences, mostly failing to acknowledge causing serious mental harm as a potential form of genocide as set out in Art. II(b) of the Genocide Convention. Thus the United States only criminalizes “the permanent impairment of the mental faculties of members of the group” (Section 1091(a)(3)).
The number of countries, however, that opted to broaden the scope of application of the crime of genocide is much more significant. The legislation of 34 countries incorporated new protected groups beyond the closed enumeration of the Genocide Convention. The most common addition is to include political groups, with 13 countries taking this path, while 6 nations decided to criminalize as genocide atrocities committed against social groups. Besides political and social groups, some states have opted to introduce other specific protected groups as well. For instance, the Czech Republic criminalizes underlying offences against people belonging to a class, Estonia prosecutes crimes committed against “a group resisting occupation”, and Honduras criminalizes offences against “ideological groups”. Interestingly, 16 countries decided to adopt an all-encompassing approach that potentially extends to any identifiable group usually using the wording “group determined by any arbitrary criterion.” The Criminal Code of Uruguay seems to have the most idiosyncratic definition of protected groups in the world, as it protects “political, syndical, and any other group identified by reasons of gender, sexual orientation, cultural or social background, age, disability or health.”
A particularly fascinating finding is that 66 countries have omitted the term “as such” from their domestic definition. This suggests that even though it has a potentially crucial function highlighting the importance of motive, in practice most countries disregard its relevance.
Many states have expanded the domestic scope of application of the crime of genocide by altering the wording of underlying offences. For example, 31 countries extended the actus reus of “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” by removing the term ”deliberately” during their national implementation and thus potentially expanded the applicability of the underlying offence to acts that are not calculated or intentional.
10 countries have decided to expand the scope of actus reus by introducing new underlying offences of genocide in their domestic legislation, usually incorporating certain instances of crimes against humanity into genocide. For instance, Panama, Spain, and Uruguay created the underlying offence of “preventing a group’s way of life” to complement preventing birth, while Italy and San Marino criminalized as genocide “forcing members of the protected group to wear distinctive signs or emblems”. The most colourful deviation might possibly be found in the Criminal Code of Vietnam that prohibits “destroying sources of living, cultural or spiritual life of a nation or sovereign territory, upsetting the foundation of a society in order to sabotage it”. With the exception of Mozambique, however, all countries have retained the mens rea, i.e. the special intent requirement of the crime of genocide.
Beyond the actual modification of the international definition, there are numerous domestic alterations that do not necessarily expand or restrict the scope of application of the crime of genocide but simply further specify the actus reus, often implementing the explanation given in the ICC Elements of Crimes. For instance, different forms of sexual violence are included in the criminal legislation of 9 states, which clearly still falls within the scope of causing serious bodily or mental harm to members of the group. In similar vein, “over-definition” of protected groups, i.e. further defining national, ethnic, racial or religious groups does not change the personal scope of application. Thus, even though the Austrian Criminal Code and the Criminal Code of Liechtenstein define genocide as acts committed against a ”group determined by belonging to a church or religious community, to a race, an ethnic group, a tribe or a state”, the reference to “church” and “tribe” clearly falls within the remit of religious and ethnic groups.
Reasons of Divergence
Various explanations can be given to this surprising divergence from the international definition of genocide. Idiosyncratic domestic definitions are often used as a means to ensure historical justice – to symbolically mark historic grievances as particularly significant by attaching the stigma of genocide and also ensure that the perpetrators cannot rely on statutes of limitations. This is clear in many Latin-American countries and the Baltic States. However, diverging national definitions of genocide might often be the result of different legal socialization processes and the necessity to adapt international norms into the domestic legal environment. These distinct definitions often remain unaltered and can even spread to other jurisdictions, which adopt them due to existing historical/cultural/linguistic ties between the countries. Finally, local differences are sometimes simply the result of translation and drafting errors. In Bangladesh and Cambodia, for instance, the domestic legislation accidentally reversed the order of the words of the genocide definition by implementing it “such as” instead of “as such”.
Altogether, 101 countries and the Special Administrative Region of Macao have opted to change through national implementation at least some aspects of the internationally-recognized definition of genocide, often significantly expanding or limiting the scope of application of the crime. Only 41 countries have completely retained the international definition and 54 countries have not even implemented the crime of genocide in their domestic criminal law. This brings up interesting questions about the formation of customary international law and to what extent such domestic norms could (or should) be regarded as evidence of custom.
[This entry is a brief summary of my forthcoming chapter ‘The Crime of Genocide in Its (Nearly) Infinite Domestic Variety’ in Marco Odello, Piotr Łubiński (eds.) The Concept of Genocide in International Criminal Law – Developments after Lemkin (Routledge, 2020) 67-97. If you are interested in reading the paper, please contact me at firstname.lastname@example.org]