University of Kragujevac, Faculty of Law
GENOCIDAL INTENT – THE ESSENCE OF THE CRIME OF GENOCIDE - The issue of the interpretation of the elements of genocidal intent in the procedure determining the existence of genocide crime -
The subject of this paper is twofold – it consists of the analysis of general characteristics of genocidal intent, as the essential feature of the crime of genocide and the assessment of its major elements from the aspect of the theory of international law and jurisprudence of relevant international courts, before all of the ad hoc tribunals and the International court of justice. By presenting the key elements of the legal regime of genocide, principal doctrinal stands and the court practice related to genocide cases, the authors of the paper underline the substantial elements of genocidal intent, their conceptual interconnection, as well as the difficulties in defining and applying clear and generally accepted standards and criteria for determining the existence and interpretation of various forms of genocidal intent. The basic document the authors rely on in proving the hypothesis on dangerous trivialization and undervaluing of genocide concept via devastation of the cumulative elements of genocidal intent, is the Genocide Convention of 1948. The other segments of the legal regime of genocide also attracted the attention of the authors, including, among others, the Statute of the permanent court of international criminal justice. The observation and analysis of particular court cases, indictments and other relevant documents of two criminal tribunals, as well as the judicial opinions in three genocide cases tried before International court of justice form the substantial part of this paper. Some traditional stands inherent to the Genocide Convention are now conflicted with new conceptual approaches with the aim to unveil positive and negative sides of offered practical solutions, all in context of the current prevailing paradigm on the mission and main objective of an imaginary system of the protection from genocide. The existence of this intellectual “quasi-conflict” has led the authors to conclude that there is a discrepancy, inconsistency and even some confusion between normative, doctrinal and practically applied standards and criteria related to genocide material, which, according to the authors’ opinion, may lead to disavowing and trivialization, as well as the political abuse of the concept of the prevention and punishment of this crime as it is foreseen in, more or less, justifiably criticized Genocide Convention of 1948. To be more precise, this general opinion – conclusion can be divided into several segments: 1 the key feature of genocidal intent lies in its specific final goal and dominantly expressed desire to accomplish that goal; 2 the quantitative and qualitative criteria of the scope of destruction are by their nature mutually exclusive. Jointly applied they lead to designing a group within a group which devastates and relativizes the Convention’s pattern of objective protection. The authors, of course, favor the quantitative criteria due to the element of objectivity which is implicit to its nature; 3 Attribution (categorization) of genocide, even in cases when the intent of distraction has restricted geographical scope, is not a good solution since it brings subjectivity and arbitrariness in the process of determining the existence of genocidal intent, which is utterly unacceptable; 4. An attempt to accept a dualistic nature of the expression “partially” in a form of an eclectic agreement defies the idea of the prevailing role of the intent in determining the essence of the crime of genocide.