Reducing Genocide to Law

Could the prevailing view that genocide is the ultimate crime

be wrong? Is it possible that it is actually on an equal footing
with war crimes and crimes against humanity? Is the power
of the word genocide derived from something other than
jurisprudence? And why should a hierarchical abstraction
assume such importance in conferring meaning on suffering
and injustice? Could reducing a reality that is beyond reason
and words into a fixed category undermine the very progress
and justice that such labeling purports to achieve?
For some, these questions may border on the international
law equivalent of blasphemy. This original and daring book,
written by a renowned scholar and practitioner who was the
first Legal Advisor to the UN Prosecutor at The Hague, is a
probing reflection on empathy and our faith in global justice.

payam akhavan is Professor of International Law at McGill

University in Montreal, Canada. He was the first Legal Advisor
to the Prosecutor’s Office of the International Criminal
Tribunals for the former Yugoslavia and Rwanda at The
Hague (1994–2000) and has served with the United Nations in
Cambodia, East Timor, and Guatemala. He is also the author
of the Report on the Work of the Office of the Special Advisor of the
United Nations Secretary-General on the Prevention of Genocide
(2005), has served as chairman of the Global Conference on
the Prevention of Genocide (2007), and is coproducer of the
documentary film Genos.Cide: The Great Challenge (2009).
cambridge studies in international and comparative law
Established in 1946, this series produces high quality scholarship in the fields
of public and private international law and comparative law. Although these
are distinct legal subdisciplines, developments since 1946 confirm their
interrelations.
Comparative law is increasingly used as a tool in the making of law at
national, regional, and international levels. Private international law is now
often affected by international conventions, and the issues faced by clas-
sical conflict rules are frequently dealt with by substantive harmonization
of law under international auspices. Mixed international arbitrations, espe-
cially those involving state economic activity, raise mixed questions of public
and private international law, while in many fields (such as the protection of
human rights and democratic standards, investment guarantees, and inter-
national criminal law) international and national systems interact. National
constitutional arrangements relating to “foreign affairs,” and to the imple-
mentation of international norms, are a focus of attention.
The series welcomes works of a theoretical or interdisciplinary character,
and those focusing on the new approaches to international or comparative law
or conflicts of law. Studies of particular institutions or problems are equally
welcome, as are translations of the best work published in other languages.

General Editors James Crawford SC FBA Whewell Professor

of International Law, Faculty of Law, University
of Cambridge
John S. Bell FBA Professor of Law, Faculty of Law,
University of Cambridge

A list of books in the series can be found at the end of this volume.
cambridge studies in international and comparative law

Books in the series

Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime

Payam Akhavan

Access to Asylum: International Refugee Law and the Globalisation of Migration

Control
Thomas Gammeltoft-Hansen

Trading Fish, Saving Fish: The Interaction Between Regimes in International Law
Margaret Young

The Individual in the International Legal System: State-Centrism, History and Change
in International Law
Kate Parlett

The Participation of States in International Organisations: The Role of Human Rights

and Democracy
Alison Duxbury

“Armed Attack” and Article 51 of the UN Charter: Evolutions in Customary Law

and Practice
Tom Ruys

Science and Risk Regulation in International Law: The Role of Science, Uncertainty
and Values
Jacqueline Peel

Theatre of the Rule of Law: The Theory, History and Practice of Transnational Legal
Intervention
Stephen Humphreys

The Public International Law Theory of Hans Kelsen: Believing in Universal Law
Jochen von Bernstorff

Vicarious Liability in Tort: A Comparative Perspective

Paula Giliker

Legal Personality in International Law

Roland Portmann

Legitimacy and Legality in International Law: An Interactional Account

Jutta Brunnée and Stephen J. Toope

The Concept of Non-International Armed Conflict in International Humanitarian Law

Anthony Cullen
The Challenge of Child Labour in International Law
Franziska Humbert

Shipping Interdiction and the Law of the Sea

Douglas Guilfoyle

International Courts and Environmental Protection

Tim Stephens

Legal Principles in WTO Disputes

Andrew D. Mitchell

War Crimes in Internal Armed Conflicts

Eve La Haye

Humanitarian Occupation
Gregory H. Fox

The International Law of Environmental Impact Assessment: Process, Substance

and Integration
Neil Craik

The Law and Practice of International Territorial Administration: Versailles, Iraq and
Beyond
Carsten Stahn

Cultural Products and the World Trade Organization

Tania Voon

United Nations Sanctions and the Rule of Law

Jeremy Farrall

National Law in WTO Law: Effectiveness and Good Governance in the World Trading
System
Sharif Bhuiyan

The Threat of Force in International Law

Nikolas Stürchler

Indigenous Rights and United Nations Standards

Alexandra Xanthaki

International Refugee Law and Socio-Economic Rights

Michelle Foster

The Protection of Cultural Property in Armed Conflict

Roger O’Keefe

Interpretation and Revision of International Boundary Decisions

Kaiyan Homi Kaikobad
Multinationals and Corporate Social Responsibility: Limitations and Opportunities
in International Law
Jennifer A. Zerk

Judiciaries Within Europe: A Comparative Review

John Bell

Law in Times of Crisis: Emergency Powers in Theory and Practice

Oren Gross and Fionnuala Ní Aoláin

Vessel-Source Marine Pollution: The Law and Politics of International Regulation

Alan Tan

Enforcing Obligations Erga Omnes in International Law

Christian J. Tams

Non-Governmental Organisations in International Law

Anna-Karin Lindblom

Democracy, Minorities and International Law

Steven Wheatley

Prosecuting International Crimes: Selectivity and the International Law Regime

Robert Cryer

Compensation for Personal Injury in English, German and Italian Law:

A Comparative Outline
Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein

Dispute Settlement in the UN Convention on the Law of the Sea

Natalie Klein

The International Protection of Internally Displaced Persons

Catherine Phuong

Imperialism, Sovereignty and the Making of International Law

Antony Anghie

Necessity, Proportionality and the Use of Force by States

Judith Gardam

International Legal Argument in the Permanent Court of International Justice:

The Rise of the International Judiciary
Ole Spiermann

Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order
Gerry Simpson

Local Remedies in International Law

C. F. Amerasinghe
Reading Humanitarian Intervention: Human Rights and the Use of Force in
International Law
Anne Orford

Conflict of Norms in Public International Law: How WTO Law Relates to

Other Rules of Law
Joost Pauwelyn

Transboundary Damage in International Law

Hanqin Xue

European Criminal Procedures

Edited by Mireille Delmas-Marty and John Spencer

The Accountability of Armed Opposition Groups in International Law

Liesbeth Zegveld

Sharing Transboundary Resources: International Law and Optimal Resource Use

Eyal Benvenisti

International Human Rights and Humanitarian Law

René Provost

Remedies Against International Organisations

Karel Wellens

Diversity and Self-Determination in International Law

Karen Knop

The Law of Internal Armed Conflict

Lindsay Moir

International Commercial Arbitration and African States: Practice, Participation

and Institutional Development
Amazu A. Asouzu

The Enforceability of Promises in European Contract Law

James Gordley

International Law in Antiquity

David J. Bederman

Money Laundering: A New International Law Enforcement Model

Guy Stessens

Good Faith in European Contract Law

Reinhard Zimmermann and Simon Whittaker

On Civil Procedure
J. A. Jolowicz
Trusts: A Comparative Study
Maurizio Lupoi

The Right to Property in Commonwealth Constitutions

Tom Allen

International Organizations Before National Courts

August Reinisch

The Changing International Law of High Seas Fisheries

Francisco Orrego Vicuña

Trade and the Environment: A Comparative Study of EC and US Law

Damien Geradin

Unjust Enrichment: A Study of Private Law and Public Values

Hanoch Dagan

Religious Liberty and International Law in Europe

Malcolm D. Evans

Ethics and Authority in International Law

Alfred P. Rubin

Sovereignty over Natural Resources: Balancing Rights and Duties

Nico Schrijver

The Polar Regions and the Development of International Law

Donald R. Rothwell

Fragmentation and the International Relations of Micro-States: Self-Determination

and Statehood
Jorri Duursma

Principles of the Institutional Law of International Organizations

C. F. Amerasinghe
Reducing Genocide to Law
Definition, Meaning, and the Ultimate Crime

Payam Akhavan
cambridge university press
Cambridge, New York, Melbourne, Madrid, Cape Town,
Singapore, São Paulo, Delhi, Tokyo, Mexico City
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

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Information on this title: www.cambridge.org/9780521824415

© Payam Akhavan 2012

This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.

First published 2012

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Cambridge University Press has no responsibility for the persistence or

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this publication, and does not guarantee that any content on such websites is,
or will remain, accurate or appropriate.
 Contents

Preface page vii

Acknowledgments xi

1 The power of a word 1

2 The taxonomy of crimes 12
3 The core elements of international crimes 27
4 A hierarchy of international crimes? 56
5 Naming the nameless crime 88
6 Who owns “genocide”? 121
7 Contesting “genocide” in jurisprudence 141
8 Silence, empathy, and the potentialities of jurisprudence 169

Index 183

v
 Preface

In July 1995, in the shadow of the shocking mass murder of thousands

of Bosnian Muslims in Srebrenica, I sat around a table with colleagues
from the Prosecutor’s Office of the International Criminal Tribunal
for the former Yugoslavia (ICTY). We were called upon to review a
draft indictment against the notorious Bosnian Serb leaders President
Radovan Karadžić and General Ratko Mladić. Those of us assembled in
The Hague on that day were considering for the first time ever whether
to charge an accused with the crime of genocide. It had just been a few
months since the tribunal had become operational, there was a sense
of urgency as the war in Bosnia was still raging, and there was little jur-
isprudence or academic commentary to guide our deliberations. After
all, the Genocide Convention had been adopted only in 1948, after the
Judgment of the International Military Tribunal at Nuremberg in 1946,
and there had been no international criminal jurisdiction to prosecute
such crimes until the ICTY’s establishment in 1993. As Legal Advisor,
I had prepared an exhaustive Memorandum on the Law of Genocide
that analyzed every conceivable source of authority – from the travaux
préparatoires to UN expert studies – and I was confident I had mastery
of the subject. But on that day, as we attempted to reduce the enormity
of the horrors unfolding in Bosnia to the strictures of legal reasoning,
I felt a profound sense of futility.
For a young international jurist, the excitement of this historic
moment was palpable. This was, after all, a unique opportunity to
shape an obscure and dormant but fundamentally important field of
international law that would go on to revolutionize the discipline in
significant ways. This was no less than the resumption of the post-
Nuremberg project to establish a permanent penal court that the
International Law Commission had been entrusted with, but that had

vii
viii preface

been abandoned in the cynical Cold War era that followed. The “ethnic
cleansing” campaign in the former Yugoslavia had prompted the UN
Security Council to establish a tribunal as an unprecedented enforce-
ment measure under Chapter VII of the Charter. This unanticipated
event, I considered at the time, would surely expedite the establish-
ment of the long-awaited International Criminal Court. My Harvard
LLM thesis had lamented as recently as 1990 the conspicuous absence
of enforcement mechanisms for the crime of genocide. I could have
scarcely imagined then that I would soon have the good fortune of
becoming a pioneer in international criminal law at the very begin-
ning of my career.
Juxtaposed with this glorious intellectual enterprise – the defining
moment in any jurist’s career – were the unspeakable images of human
suffering that I had witnessed a few months earlier while serving with
the UN in Bosnia. My youthful idealism had collided with scenes from
hell. In village after village, I had witnessed wickedness that knew
no limits. I came across women with babes in arms murdered in the
streets as they attempted to flee, entire families burned alive while
sheltering in their basements, the harrowing testimony of children
raped in front of their parents, survivors weeping uncontrollably as
they sifted through mass graves in search of their loved ones. And the
affliction of those unfortunate souls reawakened in my mind the ter-
rible anguish that surrounded my family as we witnessed helplessly
the torture and murder of fellow Bahá’ís in the Islamic Republic of Iran
after the 1979 revolution. While the distant pursuit of global justice
had filled me with a kind of professional hubris, the intimate reality of
victims pointed in a very different direction. Instead of the burgeon-
ing war crimes industry and the endless procession of conferences and
publications and opportunities for professional advancement, it led to
a place where words fail, where legal concepts are found wanting, a
place of grief and silence where we are forced to humbly ponder the
human condition, ever mindful that it cannot be captured in manage-
able doctrines and concepts.
To determine whether we should charge genocide or not, I explained
to my colleagues with a fluent command of the law that a core element
of the crime is a somewhat elusive factor of scale or gravity. Was the
evidence sufficient to prove beyond a reasonable doubt – as required
by the definition of genocide – that Karadžić and Mladić had the inten-
tion to destroy a “substantial part” of the Bosnian Muslim group, or
not? The debate wavered from abstract statistical assertions about the
 preface ix

numerical proportion of civilian deaths to the gravity of particular

incidents in detention camps. Suddenly, amidst this intellectual chaos,
a colleague exclaimed: “But this is not the Holocaust!” There was an
uncomfortable silence as the weight of those words sank in. Absent a
mathematical formula that would determine the threshold of geno-
cide, what exactly qualified the Bosnian atrocities one way or the
other? Was this an exercise in legal reasoning, or a comparative survey
built on the archetypal image of the Holocaust from which the concept
of genocide first emerged? Some colleagues eventually mustered the
courage to disagree with the proposition that only Hitler’s crimes were
worthy of being labeled as the ultimate crime: “This is genocide. The
atrocities are truly heinous, truly shocking. They are the worst of the
worst. What would the victims think if we don’t charge genocide?”
The year before, in 1994, as close to one million Tutsis were exter-
minated in Rwanda, the refusal of United States officials to label the
events genocide had caused a storm of controversy. It was as if there
was a special power in invoking this word, whether to justify or avoid
humanitarian intervention. Most intriguing was the invocation of
the term to give victims a measure of recognition that their suffer-
ing deserved the hierarchical primacy reserved for genocide. I revis-
ited this issue in relation to the International Criminal Tribunal for
Rwanda (ICTR) that had been established in 1994 by the UN Security
Council. What, I wondered, if the Tutsis were actually a “social” group
and not an ethnic or racial group encompassed by the definition of
genocide? Could a charge of genocide fail on such grounds and what
would it mean for the victims and the credibility of global justice? I
would encounter the issue in yet other countries where I served the UN.
In Cambodia in 1997, victims and jurists were full of rage and disbelief
to consider that the mass murder of “political” groups by the Khmer
Rouge might not qualify as genocide in proceedings before the yet to
be established Extraordinary Chamber in the Courts of Cambodia. By
contrast, in Guatemala in 1998, the Mayan victims celebrated when
the UN Historical Clarification Commission recognized their mass
murder as genocide.
Increasingly, I felt something perverse in this discourse, in its privi-
leging of hierarchical abstractions over the far more compelling sto-
ries and scenes that had been seared into my memory. The emotional
connection with those people and events, it seemed, could be captured
only by remaining ineffable, by recognition that taxonomic distinc­
tions and definitions were grossly inadequate in conveying their
x preface

meaning. The triumphant international law narrative quickly gave

way to a more profound reflection on how the legal debate on defining
genocide masked other unexplored sensibilities about how the jurist
comes to grips with intense suffering and overwhelming emotion. It
also implicated my family upbringing – as a child of both eastern and
western civilizations, I was steeped in oriental mysticism and a spir-
itual worldview – with my formal legal education – in the tradition of
occidental rationalism and its place of distinction for objective theo-
retical learning divorced from subjective experience. As I embarked
on a scholarly writing project for my doctoral dissertation in those
years, there was a great temptation to transform my groundbreaking
Memorandum into an authoritative treatise on the law of genocide. The
prevalent sense of futility, however, shifted the focus elsewhere. The
ambitious jurist had succumbed to that search for answers that is born
of existential angst. In straying beyond law, I attempted to convey a
truth that could not be contained in carefully regimented chapters and
sequential paragraphs, offering the reader a dazzling panoply of intel-
lectual prowess and conceptual wonders. The project that emerged was
decidedly not an authoritative treatise, but rather a series of reflections
on the encounter between the rationalist credo of law and the ineffa-
bility of emotions, viewed through the prism of genocide.
This book was written first and foremost as a means of reckoning
with the pursuit of juridical redemption in the face of irredeemable
loss. It grapples with both the potentialities and the limitations inher-
ent in law, in search of the boundary between legal reasoning and that
other realm of experience where structures built on words and argu-
ments collapse. As such, it embraces jurisprudence and literature, the-
ory and storytelling, in a complex multilayered inquiry that attempts
to convey through its medium the message at its core. That the reader
must first read patiently through legal doctrine and theory to arrive at
the more penetrating but unwieldy chapters is a matter of deliberate
choice.
 Acknowledgments

This book is based on a dissertation submitted in 2001 for the Doctor of

Juridical Sciences degree at Harvard Law School. It was completed under
the supervision of Professor Henry Steiner to whom I am indebted for
his years of support and guidance. My exceptional reader and enduring
mentor, Dean Martha Minow, deserves special gratitude for encour-
aging me to venture beyond the familiar but narrow understanding of
academic writing to explore other paths to knowledge and meaning.
The manuscript first began in 1993 as a Memorandum of Law writ-
ten at the request of Professor Antonio Cassese of Florence University,
then president of the ICTY, whose contributions to jurisprudence and
scholarship over the years have been a source of respect and admir-
ation. The streams of thought reflected in the book emerged during
my years as Legal Advisor to the Prosecutor’s Office of the ICTY (1994–
2000), serving under two distinguished jurists, Richard Goldstone and
Louise Arbour, and engaging in countless spirited legal debates with
colleagues such as William Fenrick, Morten Bergsmo, and Rodney
Dixon.
My stint as Visiting Lecturer and Senior Fellow at Yale Law School
during the fall 1998 semester, thanks to the support of Professor Harold
Koh, and the fruitful exchanges with Michael Reisman and other fac-
ulty members were a welcome respite from the intense pressures of
work at the ICTY to begin conceptualizing the manuscript. The ini-
tial dissertation was completed in the winter of 2001 while I was a
Visiting Lecturer and Senior Fellow at the E. M. Meijers Institute of
Legal Studies of Leiden University in the Netherlands with the support
of the Open Society Institute.
The manuscript’s publication was delayed for several years by life
circumstances until it was revisited and substantially revised in the

xi
xii acknowledgments

2009–10 academic year, while I served as professor at McGill University

Faculty of Law, where I found a splendid home thanks to the tremen-
dous support and friendship of Dean Nicholas Kasirer and Professor
Irwin Cotler. Over the years, I have also benefited greatly from those at
the forefront of genocide studies, including especially Professor Frank
Chalk of Concordia University. Among those that provided inspiration
and friendship who are no longer with us, I wish to mention Professor
Thomas Franck of New York University, Professor Erik Marcussen
of Southwestern University, and Alison des Forges of Human Rights
Watch, three extraordinary human beings who left a deep imprint on
all those who had the good fortune of knowing them.
The final revision of the new manuscript would not have been pos-
sible without the invaluable assistance of my editor Stephen Scher and
my research assistant Sam Walker. Both were phenomenal in their
professionalism. The patience of Professor James Crawford and Finola
O’Sullivan of Cambridge University Press, from the first review of the
doctoral dissertation in 2002–03 until submission of the final manu-
script in 2010 after seemingly never-ending revision, also merits spe-
cial mention.
Special gratitude is reserved for all those that inspired a deeper mean-
ing of justice and what it means to survive the unthinkable through
their personal example. They include Professor Thomas Buergenthal
who first introduced me to the United States Holocaust Memorial
Museum, and my sister Esther Mujawayo whose heroic efforts have
given a voice to Rwanda’s forgotten widows and their children. The
courage and sacrifice of another sister, Mona Mahmudnizhad, who on
18 June 1983 was hanged at the age of 16 in Shiraz with nine legendary
Iranian Bahá’í women, I shall never forget for, being of the same age
and community, all that separated us was the arbitrariness of fate. Of
these heroines it can be said that they were truly spiritual giants.
And since this book is about reconciling the distance of our vocation
as jurists and scholars with the intimacy of emotions, it is to my family
that I dedicate this book, because it is their abiding love that has sus-
tained my hope amidst despair and, after years of confronting death,
it was my precious children whose arrival in this world awakened me
to the miracle of life.
1 The power of a word

On 19 January 2007, at about noon, Hrant Dink left his office to walk
through the bustling streets of Istanbul. Dink was chief editor of
Agos, an Armenian weekly newspaper. He was a courageous voice
for Turkey’s dwindling Armenian community, the descendants of
those few that remained after the mass murder and deportations of
1915–17. Dink wrote of the constant threats against him by hateful
nationalists and how he had thought about leaving the country. But,
for him, staying was necessary “out of respect to the thousands of
friends in Turkey [who] struggled for democracy and who supported
us. We were going to stay and we were going to resist.” Alluding to
the recurring trauma of exile, he asked: “If we were forced to leave
one day, however, [what then]? We were going to set out just as in
1915? Like our ancestors? Without knowing where we were going?
Walking the roads they walked? Feeling the ordeal, experiencing
the pain? With such a reproach we were going to leave our home-
land. And we would go where our feet took us, but not our hearts.”
As Dink walked through Istanbul’s streets that day, 17-year-old Ogun
Samast approached him from behind and shot him three times in
the head.1
What motivated this shocking murder?
The culprit was captured shortly afterward with the murder weapon
in hand and confessed.2 He had never met Dink. The unrepentant
youth explained: “I read on the Internet that [Dink] said ‘I am from
Turkey but Turkish blood is dirty’ and I decided to kill him … I do not

1
For an overview, see European Court of Human Rights, Affaire Dink c. Turquie, Arrêt,
Requêtes nos. 2668/07, 6102/08, 30079/08, 7072/09 et 7124/09 (14 September 2010).
2
“Armenian Editor Is Slain in Turkey,” New York Times, 20 January 2007.

1
2 the power of a word

regret this.”3 This misconception was based on Dink’s earlier convic-

tion by a Turkish court for “insulting Turkishness” under Article 301 of
the Turkish Penal Code. His crime? Using the word genocide to describe
the atrocities of 1915.
How could one word have set this chain of events in motion? Taner
Akçam, a Turkish scholar and close friend of Dink, pointed to the irony
that, throughout his career, Dink himself had diligently avoided using
the dreaded g word, preferring to recount the story of his people rather
than dwelling on abstract labels. He understood its power. As Akçam
recounted in an editorial published in Agos prior to the murder:

Just look at [Dink’s] writings, look at his talks. You won’t find one single instance
of the word “genocide,” because he never used it. Anytime he was asked if a
genocide took place or not, he’d crack a smile. He didn’t place a whole lot of
importance on which word was necessary to describe what happened. “You call
it what you want,” he would say. “I know what happened to my people.”
I don’t recall Hrant ever took an interest in the legal label for the events of
1915. That side of the issue didn’t concern him; the human side did. From what
I can remember, he even wrote on the subject. “A nation which once lived
here is no more. It was pulled out by its roots, like a tree. Their lives here were
ended. I can’t put into words this human tragedy, this ending of a life.” It was
words like this that came out of him.
The real question for Hrant, his primary concern, was never about what
happened. It was about how to construct a positive future after all the negativ-
ity we’ve seen. I know from our private conversations that he preferred to stay
away from the word “genocide” because of the tension it created and because
it didn’t do very much to resolve the problem.4

Apparently, Dink’s fatal error occurred when he was pressed in a tele-

vision interview to respond either “yes” or “no” to whether he thought
the events of 1915–17 constituted “genocide.” The usually cautious Dink
reluctantly admitted that he thought they did. Such was his “crime,”
one that culminated in his brutal murder.
Sometime in 2003, President George W. Bush was sent a summary
of Samantha Power’s book, “A Problem from Hell”: America and the Age of
Genocide.5 This stinging condemnation of the United States’ inaction in

3
“Armenian Editor Killed for Insulting Turks – Report,” Reuters, 21 January 2007,
www.reuters.com/article/idUSL21636786.
4
Taner Akçam, “Hrant Dink, 301 and a Criminal Complaint,” Agos, 6 October 2006
[in Turkish].
5
Samantha Power, “A Problem from Hell”: America and the Age of Genocide (New York:
HarperCollins, 2002).
 the power of a word 3

the face of mass murder throughout the twentieth century details in

one chapter the absurd contortions of the administration of President
Bill Clinton to avoid using the word “genocide” to describe the unfold-
ing extermination campaign against the Rwandan Tutsis in 1994. In a
notorious incident the US State Department spokeswoman Christine
Shelly found herself in the ludicrous position of admitting in response
to media questions that “acts of genocide” may have taken place
though she adamantly refused to characterize the overall situation
as a “genocide.”6 A senior administration official explained that this
“semantic squirm” was required because “[g]enocide is a word that car-
ries an enormous amount of responsibility.”7 It has been reported that,
in the margins of Power’s book, Bush penned in large letters “not on
my watch .”8
Some might think that Bush meant he would never again allow the
United States to stand idly by as a genocide unfolded, even in a remote
African nation where Americans had little interest. But early in 2004,
as it became increasingly clear that the events in Darfur, Sudan, con-
stituted a slow-motion annihilation of an entire people, the United
States took no concrete action. The Bush administration did, however,
improve on the Clinton era in one respect: It proved willing early on
to use the word genocide to describe the situation. During a visit to the
region in September 2004, Secretary of State Colin Powell became the
first senior government official of a major power to call the killings
in Darfur “genocide.”9 Three months later, the US Congress passed a
resolution accusing the government of Sudan of an “orchestrated cam-
paign of genocide in Darfur.”10
Little was done, however, to effectively halt the ongoing atrocities in
Darfur. It is difficult to tell whether this newfound taxonomical accur-
acy is an improvement. Is it better to not call a genocide “genocide”
and do nothing, or is it better to call a genocide “genocide” and still
do nothing? As events unfolded, much controversy arose concerning
the use of the g word itself, but not concerning the everyday horrors
confronted by the victims in Sudan.

6
Peter Ronayne, Never Again? The United States and the Prevention and Punishment of
Genocide Since the Holocaust (New York: Rowman & Littlefield, 2001), 74.
7
Ibid., 174.
8
Samantha Power, “Genocide and America,” New York Review of Books, 14 March 2002.
9
“Powell Calls Sudan Killings Genocide,” CNN, 9 September 2004, www.cnn.com/2004/
WORLD/Africa/09/09/sudan.powell/.
10
Comprehensive Peace in Sudan Act of 2004, Pub. L. No. 108-497, 118 Stat. 4012.
4 the power of a word

In December 2004, amidst the diplomatic storm following United

States accusations of genocide, the United Nations Security Council
sent a high-level panel to Darfur in order to ascertain the facts and
determine whether genocide had been committed. The commission of
inquiry, headed by eminent Italian jurist Antonio Cassese, concluded
that the balance of evidence did not point toward a specific genocidal
intent on the part of the Sudanese government.11 The controversy sur-
rounding this finding eclipsed the commission’s other conclusion that,
irrespective of legal classification, “massive atrocities were perpetrated
on a very large scale,”12 including the destruction of entire villages,
mass killings and rape, and widespread forced displacement:

[T]he people of Darfur have suffered enormously during the last few years. Their
ordeal must remain at the centre of international attention. They have been living
a nightmare of violence and abuse that has stripped them of the very little they
had. Thousands were killed, women were raped, villages were burned, homes
destroyed, and belongings looted. About 1,8 million were forcibly displaced and
became refugees or internally-displaced persons. They need protection.13

The commission went to great lengths to stress that its conclusion

on the lack of genocidal intent “should not be taken in any way as
detracting from the gravity of the crimes perpetrated in that region.
International offences such as the crimes against humanity and war
crimes that have been committed in Darfur may be no less serious
and heinous than genocide.”14 All these subtle admonitions and legal
qualifications fell on deaf ears, with newspapers blaring headlines
such as “UN Clears Sudan of Genocide in Darfur” and “UN Confusion
as Sudan Conflict Is No Longer ‘Genocide.’”15 When, in 2009, a pretrial
chamber of the International Criminal Court (ICC) refused to issue
an arrest warrant on charges of genocide against Sudanese president
Omar Al-Bashir,16 the controversy deepened further (although the ICC
Appeals Chamber ultimately reversed that decision).17

11
Report of the International Commission of Inquiry on Darfur to the United Nations
Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004
(25 January 2005), www.un.org/news/dh/sudan/com_inq_darfur.pdf.
12
Ibid., para. 642.   13 Ibid., para. 626.   14 Ibid., 4.
15
David Luban, “Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur, and
the UN Report,” Chicago Journal of International Law 7 (2006): 303, 304.
16
Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application
for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir (Pre-trial Chamber I,
International Criminal Court, 4 March 2009).
17
Prosecutor v. Omar Hassan Ahmad Al Bashir, Judgment on the Appeal of the Prosecutor
Against the “Decision on the Prosecution’s Application for a Warrant of Arrest
 the power of a word 5

And so, as the immense suffering continued unabated in Darfur,

international commissions were established, decisions were rendered,
politicians expounded, and jurists and scholars debated whether the
horrors of Darfur met the technical definition of genocide. Meanwhile,
the “nightmare of violence” continued, unchanged by the word by
which it was (or was not) called.
When Russia invaded Georgia in August 2008, the g word was a
prominent feature of the propaganda war. This conflict was fueled by
a long history of discord – in particular, by Russia’s support of ethnic
separatists in northern Georgia as a means of destabilizing a former
Soviet satellite turned NATO ally. Russia originally justified its inva-
sion by accusing Georgia of “genocide.” It was claimed that, in a brief
military operation against ethnic Ossetian separatists, Georgian forces
had slaughtered over 2,000 civilians in the city of Tskhinvali.18 The
Russian ambassador to the United Nations even compared the situation
to the massacres at Srebrenica.19 Pravda claimed that “Georgian troops”
had locked Ossetian refugees in a house “and set the house on fire,
burning all the people inside alive.”20 Prime Minister Vladimir Putin
himself declared that “in one hour” Georgia “wiped ten Ossetian vil-
lages from the face of the earth” and that Georgia “used tanks to knock
down children and the elderly” and “burnt civilians alive.”21 Russia’s
foreign minister, Sergei Lavrov, invoked the “responsibility to protect”
in justifying the armed attack, claiming that Russia was acting only
to “protect the life and dignity of Russian citizens”22 (most residents
of South Ossetia, the affected region of Georgia, had been granted
Russian citizenship).

against Omar Hassan Ahmad Al Bashir,” Appeals Chamber, International Criminal

Court, 3 February 2010).
18
Sarah E. Mendelson, “An August War in the Caucasus,” Center for Strategic and
International Studies – Critical Questions, 11 August 2008, csis.org/publication/
august-war-caucasus.
19
Ibid.
20
“Georgian Troops Burn South Ossetian Refugees Alive,” Pravda, 10 August 2008 [in
Russian]. Likewise, Russia Today, the pro-Kremlin cable news channel, continuously
ran the headline “Ossetia Genocide.”
21
“Russia Launches Genocide Probe over S. Ossetia Events,” RIA: Novosti, 14 August
2008 [in Russian].
22
Ministry of Foreign Affairs of the Russian Federation, Interview by Minister of Foreign
Affairs of the Russian Federation Sergey Lavrov to BBC, Moscow (9 August 2008), www.
ln.mid.ru/brp_4.nsf/e78a48070f128a7b43256999005bcbb3/f87a3fb7a7f669ebc32574a
100262597?OpenDocument; see also International Crisis Group, Russia vs. Georgia: The
Fallout (Europe Report No. 195, 22 August 2008), 28.
6 the power of a word

These inflammatory accusations turned out to be wholly false.

Indeed, Russia later acknowledged that the number of casualties it had
previously reported was vastly inflated and that there were only 133
combat deaths, as confirmed by Amnesty International.23 Investigations
by Human Rights Watch also found no evidence to substantiate the
alleged atrocities.24
The false accusation of “genocide” was used as the initial cover for a
Russian invasion at a time when few in the international community
knew what was actually happening on the ground. By invoking the
word genocide, Russia incited South Ossetian militants who, relying on
reports of the mass murder of their people, then engaged in a cam-
paign of ethnic cleansing against a population of 138,000 Georgians.25
A Human Rights Watch observer in South Ossetia reported that enraged
Ossetians referred to reports by “Russian federal TV channels” about
“thousands of civilian casualties” to “justif[y] the torching and looting
of the ethnic Georgian enclave villages.”26
These examples reflect the power of the genocide label, which is vari-
ously a pretext for murder (as in the story of Hrant Dink), inaction (as
in Rwanda and Darfur), and war (as in the Russian invasion of Georgia).
Yet it is a label that first emerged in the pursuit of justice and human
betterment following the unprecedented horrors of Nazi Germany.
How is it that an abstract juridical term that entered our vocabulary
only in recent history can wield so much influence, incite so much
emotion, and consume so much energy? What accounts for its percep-
tion as the ultimate crime?
The story begins with Polish jurist Raphaël Lemkin, a man who lost
almost his entire family in the Holocaust. Bewildered by the enormity
of the Nazi death machine, British prime minister Winston Churchill
had referred to the “Final Solution” as “the crime without a name.”27
It was Lemkin who put a name to this nameless crime by coining the
term genocide. In Axis Rule in Occupied Europe, which he completed in 1943
during his exile in the United States, he wrote that “[n]ew conceptions

23
Amnesty International, Civilians in the Line of Fire (2008), 65 (citing “Death Toll in
South Ossetia a Tenth of Initial Russian Claims,” Australian, 22 August 2008).
24
Human Rights Watch, Up in Flames: Humanitarian Law Violations and Civilian Victims in
the Conflict over South Ossetia (2009), 71–73.
25
Amnesty International, Civilians in the Aftermath of War: Georgia–Russia One Year After
(7 August 2009) (based on UNHCR data).
26
Human Rights Watch, Up in Flames, 74.
27
Leo Kuper, Genocide: Its Political Use in the Twentieth Century (London: Penguin, 1981), 12.
 the power of a word 7

require new terms.” He used genocide to refer to “the destruction of

a national or of an ethnic group. This new word … is made from the
ancient Greek word genos (race, tribe) and the Latin cide (killing), thus
corresponding in its formation to such words as tyrannicide, homicide,
infanticide, etc.”28
Lemkin made genocide into a coherent, manageable concept, and the
postwar consensus against Nazi crimes provided the political will to
adopt an international treaty. Thanks largely to Lemkin’s tireless lob-
bying efforts, on 9 December 1948 the UN General Assembly adopted
the Convention on the Prevention and Punishment of the Crime of
Genocide. The assembly president, Herbert Evatt of Australia, trium-
phantly announced that “the supremacy of international law had been
proclaimed and a significant advance had been made in the develop-
ment of international criminal law.”29 But this euphoria was not shared
by the likes of Hartley Shawcross, the illustrious British prosecutor at
Nuremberg, who considered the term genocide superfluous. It was, he
claimed, “already generally recognized as a crime punishable by law
and was simply a new word to describe a particular form of murder …
While making no significant contribution to international law … [the
convention] might delude people into thinking that some great step
forward had been taken whereas in reality nothing at all had been
changed.”30 In 1955, the eminent jurist Hersch Lauterpacht remarked
that, “to a considerable extent, the Convention amounts to a registra-
tion of protest against past misdeeds of individual savagery rather
than to an effective instrument of their prevention or repression.”31
This portentous sentiment proved to be right. Despite the convention’s
forceful condemnation of genocide, it would have little impact on the
sordid Cold War culture of impunity that followed.
The twentieth century, called by some the “Century of Genocide,”32
nearly ended without a single conviction for the “ultimate crime.”

28
Raphaël Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government,
Proposals for Redress (Washington, DC: Carnegie Endowment for International Peace,
1944), 79.
29
UN GAOR, 3rd Sess., 19th plen. mtg. at 852, UN Doc. A/PV.179 (1948).
30
UN GAOR, 3rd Sess., 6th Cmte., 64th mtg., UN Doc. A/C.6/SR.64 (1948); Hirad Abtahi
and Philippa Webb, eds., The Genocide Convention: The Travaux Préparatoires, vol. II
(Leiden and Boston: Martinus Nijhoff, 2008), 1307.
31
Lassa Oppenheim, International Law: A Treatise, vol. I, 8th edn., ed. Hersch Lauterpacht
(London: Longman, 1955), 75.
32
See, for example, Samuel Totten, William Parsons, and Israel Charny, eds., Century of
Genocide: Critical Essays and Eyewitness Accounts (New York: Routledge, 2004).
8 the power of a word

But on 2 September 1998, exactly half a century after the convention

was adopted, the Senegalese judge Laity Kama of the International
Criminal Tribunal for Rwanda (ICTR) issued the following conviction
against a Rwandan mayor who had organized the systematic rape of
Tutsi women: “The accused, Jean-Paul Akayesu, you are declared guilty
of genocide.”33 The decision was hailed by UN secretary-general Kofi
Annan as “a landmark decision in the history of international criminal
law … [that] brings to life, for the first time, the ideals of the Genocide
Convention.”34
Since then, jurisprudence and commentary on genocide have pro-
liferated on the international stage, and this “crime of crimes” has
gripped the imagination of many concerned with the progress of
humankind. At the International Criminal Tribunal for the former
Yugoslavia (ICTY), two men have been found guilty of aiding and abet-
ting genocide,35 and two others for committing genocide,36 all in rela-
tion to the massacre at Srebrenica. Another two men, Radovan Karadžić
and Ratko Mladić, are currently on trial for genocide.37 In addition, the
War Crimes Chamber in Bosnia-Herzegovina, based in Sarajevo, has
found nine individuals guilty of genocide,38 and a further four convic-
tions have been rendered in German courts.39 Beyond criminal law, the
Bosnian genocide has received judicial treatment in civil suits before

33
Power, “A Problem from Hell,” 486; see Akayesu, Trial Judgement (ICTR, 2 September
1998). Shortly thereafter, on 14 December 1999, the International Criminal Tribunal
for the former Yugoslavia rendered its first judgment on the crime of genocide in
the Jelisic´ case, although the accused was acquitted in this instance: Jelisić, Trial
Judgement (ICTY, 14 December 1999).
34
Statement by the UN Secretary-General Kofi Annan on the Occasion of the Announcement of
the First Judgment in a Case of Genocide by the International Criminal Tribunal for Rwanda,
UN Doc. PR/10/98/UNIC (1998).
35
Krstić, Appeals Judgement (ICTY, 19 April 2004). The second individual is Drago
Nikolić, one of the seven accused in the Popovic´ case (see n. 36).
36
Popović, Trial Judgement (ICTY, 10 June 2010).
37
See International Criminal Tribunal for the former Yugoslavia, The Cases, www.icty.
org/action/cases/4.
38
See Court of Bosnia-Herzegovina, Verdicts of Section I, www.sudbih.gov.ba/?opcija=
sve_presude&odjel=1&jezik=e. A number of other trials have taken place in lower
Bosnian courts. See Human Rights Watch, Still Waiting: Bringing Justice for War Crimes,
Crimes Against Humanity, and Genocide in Bosnia and Herzegovina’s Cantonal and District
Courts (July 2008).
39
Nikola Jorgic´, Federal Constitutional Court, 2BvR 1290/99, 12 December 2000; Novislav
Djajic´, Bavarian Appeals Court, 23 May 1997, 3 St 20/96 (both are cited in Krstić, Trial
Judgement [ICTY, 2 August 2001], para. 589). The two others are Maksim Sokolovic´,
Bundesgerichtshof, Third Criminal Senate, 21 February 2001, 3 StR 372/00; Đurad >
Kušljic´, Bundesgerichtshof, 21 February 2001, 3 StR 244/00.
 the power of a word 9

American and Dutch courts,40 as well as the landmark 2007 case of the
International Court of Justice (ICJ) in the Bosnia v. Serbia case (finding
Serbia responsible for failing to prevent genocide in Srebrenica).41 With
respect to the Rwandan genocide, the ICTR has convicted thirty-six
individuals of genocide or incitement to genocide,42 and thousands of
additional cases are the subject of domestic proceedings in Rwanda
before the traditional gacaca courts.43 Rwandan génocidaires have
also been convicted in domestic courts in other countries, including
Canada44 and Belgium.45 The ICC has yet to prosecute anyone for geno-
cide, although it has issued an arrest warrant on such charges against
President Omar Al-Bashir of Sudan. There are also four defendants
accused of genocide in trials before the Extraordinary Chambers of
the Courts of Cambodia.46 Several other lesser-known genocide trials,
of varying success and credibility, have taken place in various domestic
jurisdictions in recent decades.
This prolific jurisprudence has infused the Genocide Convention
with an unprecedented vitality and relevance that would have been
unimaginable until the past decade or so. What was dismissed for
so long as a merely symbolic condemnation of Nazi crimes has been
transformed into the normative foundation for a burgeoning corpus
of international criminal law, arousing the keen interest of academics
and practitioners alike. Scholarship on the legal aspects of genocide,
dormant for many years, has experienced a resurgence as courts con-
tinue to explore the legal complexities of genocide, providing ample
material for academic analysis and debate.47

40
Doe v. Karadžic´, No. 93 Civ. 878 (S.D.N.Y.); Kadic´ v. Karadžic´, No. 93 Civ. 1163 (S.D.N.Y.);
see also Mike Corder, “Dutch Court Upholds UN Immunity in Srebrenica Case,”
Associated Press, 30 March 2010.
41
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) (International Court of Justice,
26 February 2007).
42
See International Criminal Tribunal for Rwanda, Status of Cases, http://69.94.11.53/
ENGLISH/cases/status.htm.
43
Human Rights Watch, Law and Reality: Progress in Judicial Reform in Rwanda (2008).
44
R. v. Munyaneza, 2009 QCCS 2201 (22 May 2009).
45
“Rwandans Sentenced over Genocide,” BBC News, 29 June 2005, news.bbc.co.uk/2/hi/
africa/4635637.stm.
46
See Extraordinary Chambers in the Courts of Cambodia, Case Information, www.
eccc.gov.kh/english/case002.aspx.
47
The leading scholarly works include William Schabas, Genocide in International
Law: The Crime of Crimes, 2nd edn. (Cambridge: Cambridge University Press, 2009);
Larry May, Genocide: A Normative Account (Cambridge: Cambridge University Press,
10 the power of a word

Despite these commendable legal developments and the growing

scholarship on genocide, there is still a sense of chagrin in attempt-
ing to reconcile the rationalist credo of judicial proceedings and aca-
demic commentary with the irrationality and unspeakability of this
heinous crime. As Hannah Arendt remarked after the Nuremberg
Tribunal delivered its judgment, “The Nazi crimes … explode the lim-
its of the law; and that is precisely what constitutes their monstrous-
ness. For these crimes, no punishment is severe enough … This guilt,
in contrast to all criminal guilt, oversteps and shatters any and all
legal systems.”48 The scale and gravity of organized mass murder, the
seeming inscrutability of the perpetrators’ cruelty, and the unimagin-
able suffering of the victims overwhelm our conventional capacity
for dispassionate legal analysis. As George Steiner rightly observes,
transgressions such as the Holocaust “defy the ordering of common
sense. They seem to be just on the other side of reason. They are extra-
territorial to analytic debate.”49 Yet, reducing genocide to law calls for
exactly such an ordering, in which the crime is examined, measured,
analyzed, and evaluated. Judicial encounters with such radical evil
thus provide a valuable glimpse into whether and how something so
irrational and intensely emotional can be translated into the stric-
tures of legal idiom. Understanding this tension and what it says about
our self-conception and ability to deal with moral challenges is the
theme of this book. The crime of genocide provides an especially valu-
able case to study because of its purported preeminence as the ultim-
ate crime.
In the imagination of jurists, there is perhaps no crime that can com-
pare to genocide. The ICTR has designated it as the “crime of crimes,”50
and scholars such as William Schabas have maintained that, in the
hierarchy of crimes, genocide “belongs at the apex of the pyramid.”51
Others have variously called it “the most heinous international

2010); Paola Gaeta, ed., The UN Genocide Convention: A Commentary (Oxford: Oxford
University Press, 2009); and John Quigley, The Genocide Convention: An International
Law Analysis (Aldershot, UK: Ashgate, 2006).
48
“Letter to Karl Jaspers,” in Hannah Arendt/Karl Jaspers: Correspondence 1926–1969, eds.
Lotte Kohler and Hans Saner, trans. Robert Kimber and Rita Kimber (New York:
Harcourt Brace Jovanovich, 1992), 51, 54.
49
George Steiner, No Passion Spent: Essays 1978–1995 (New Haven: Yale University Press,
1996), 346–47.
50
Kambanda, Trial Judgement (ICTR, 4 September 1998), para. 16.
51
Schabas, Genocide in International Law, 10–11.
 the power of a word 11

offense,”52 “the most horrible and atrocious of crimes … the supreme

negation of civilization and solidarity,”53 “the worst of all [crimes],”54
and “the ultimate crime.”55 Perhaps this privileged distinction reflects
our intuitive understanding that genocide represents “the work of
homo sapiens at its worst.”56 But, could it be that the prevailing wisdom
that genocide is the ultimate crime is wrong? Or that this perception
of the crime is a gross oversimplification of a far more complex issue?
And could it be that emphasizing the distinctiveness of genocide may
actually undermine the very progress and justice that international
law intends to achieve? For some, these questions may border on the
international law equivalent of blasphemy. But, as this book attempts
to convey, they are questions essential to a better understanding of our
faith in global justice.
The exploration of this theme must first consider whether geno-
cide is, in fact, the ultimate crime. It cannot simply be presumed that
its taxonomic prominence in moral discourse translates into greater
gravity within the confines of international law. Is it possible, instead,
that this “crime of crimes” is actually on an equal footing with other
serious international offenses such as war crimes and crimes against
humanity? And, even if it is a more serious crime, what are the con-
crete legal consequences of such a distinction? Or is the power of the
word genocide derived from something other than jurisprudence? Even
if we reach the conclusion that it does represent the pinnacle of evil, it
still remains to be considered why a hierarchical abstraction assumes
such importance in our discourse on suffering and injustice. What is
the potential, and limitation, of a mere word in conveying a reality so
overwhelming that it is unspeakable? And why should it matter if one
word is more important than another?
What follows is a series of probing reflections on these important
questions. Let us begin by considering: What is so ultimate about being
the ultimate crime?

52
Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in
International Law: Beyond the Nuremberg Legacy (New York: Oxford University Press,
1997), 43.
53
Yearbook of the International Law Commission 1994, vol. I, 214, para. 21.
54
Ibid., 208, para. 41.
55
Benjamin Whitaker, Revised and Updated Report on the Question of the Prevention and
Punishment of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/1985/6 (1985).
56
Stephen T. Davis, “Genocide, Despair, and Religious Hope: An Essay on Human
Nature,” in John K. Roth, ed., Genocide and Human Rights: A Philosophical Guide
(Basingstoke: Palgrave Macmillan, 2005), 35.
2 The taxonomy of crimes

In 1971, in two separate incidents in the US state of Georgia, Ehrlich

Anthony Coker raped two young women. He stabbed one to death and
left the other, a 16-year-old girl, to die in a wooded area after bludg-
eoning her with a club.1 Coker was sentenced to forty-eight years’
imprisonment,2 but just a year and a half later he managed to escape
from the state prison in Waycross, Georgia. On 2 September 1974, at
approximately 11 p.m., he entered the house of Allen and Elnita Carver
through an unlocked door. He then grabbed a kitchen knife, forced
Mr. Carver into the bathroom, and tied him up. He then turned his
attention to the 16-year-old Mrs. Carver, who had given birth to the
couple’s son only three weeks prior. Brandishing the knife and yell-
ing, “You know what’s going to happen to you if you try anything,
don’t you?,” Coker raped the young Mrs. Carver. Coker then made his
escape in the Carvers’ car, taking Mrs. Carver with him. Eventually,
Mr. Carver was able to free himself and call the police. Soon after,
Coker was found and arrested. Mrs. Carver had survived the ordeal.3
At trial, Ehrlich Coker was found guilty of escape, armed robbery,
motor vehicle theft, kidnapping, and rape. On the count of rape, the
jury returned a sentence of death by electrocution.4 At the time, Georgia
was one of only three US states authorizing the death penalty for rape
in certain aggravating circumstances: where the rape was committed
by an ex-felon, committed in the course of a capital felony, or carried
out in an “outrageously or wantonly vile, horrible or inhuman” man-
ner. Coker’s death sentence derived from the first two criteria. The
jury, it seems, felt that Coker – a serial rapist, murderer, and obvious

1
Coker v. Georgia, 433 U.S. 584 (1987).
2
Ibid.   3 Ibid., 587.   4 Ibid., 588.

12
 proportionality and the purposes of punishment 13

danger to the public – deserved no less than a complete and irrevocable

excision from society.

Proportionality and the purposes of punishment

The point of departure in grasping the distinction of genocide as the
“ultimate crime” is to ask what makes one crime more serious than
another. Is rape as serious as murder? Is genocide worse than crimes
against humanity or war crimes? After all, if genocide first emerged
as a juridical concept, shouldn’t its meaning and potency be derived
from its gravity in international law? Determining a hierarchy of
crimes – even to ordinary crimes such as murder and rape in domestic
law – has left many a jurist perplexed. Comparing the gravity of inter-
national crimes is even more perplexing, given the complexity of their
elements.
The landmark 1977 case of Coker v. Georgia provides a valuable illus-
tration of such an exercise in establishing a hierarchy of crimes, and a
useful point of contrast with the debate concerning the gravity of geno-
cide relative to other international crimes. Upon being convicted and
sentenced to death for the rape of Mrs. Carver, Ehrlich Coker lodged a
number of appeals, and the matter was finally brought before the US
Supreme Court. The justices had to decide whether the application of
the death penalty for rape was constitutional. The Eighth Amendment
of the US Constitution,5 the court said, barred “not only those punish-
ments that are ‘barbaric’ [or ‘cruel and unusual’] but also those that
are ‘excessive’ in relation to the crime committed.” It presented the
following test:

[A] punishment is “excessive” and unconstitutional if it (1) makes no meas-

urable contribution to acceptable goals of punishment and hence is nothing
more than the purposeless and needless imposition of pain and suffering; or
(2) is grossly out of proportion to the severity of the crime. A punishment
might fail the test on either ground.6

More specifically, could Coker’s execution be seen as a means of pro-

moting the goal of deterrence or that of retribution – historically, two
of the most important goals of punishment – and could it also be seen
as proportional to the particular crime that he had committed? In

5
The Eighth Amendment reads: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”
6
Coker v. Georgia, 592.
14 the taxonomy of crimes

particular, the court had to consider whether rape was of comparable

gravity to murder and thus justified imposing the death penalty. The
measure of gravity was thus inextricably linked with the proportion-
ate punishment – the more serious the crime, the more severe the pun-
ishment. This fundamental principle applies with the same force in
international criminal law as it does in domestic law. Understanding
the logic of this principle requires an exploration of the purposes of
punishment – namely, deterrence and retribution.

Deterrence
Deterrence is based on the assumption that the prospective criminal is
a rational calculator who exercises choice. Punishment is intended to
influence his cost–benefit calculus in deciding whether a crime really
will “pay.”7 Deterrence reflects a utilitarian view of criminal justice,
first championed by the influential eighteenth-century English phil-
osopher Jeremy Bentham. Revolted by cruel punishments, including
torture, under the law of retaliation (lex talionis), utilitarian thought
maintained that punishment was an evil that could be justified only
if it contributed to concrete social objectives. As George Fletcher puts
it, Bentham’s “rationale of punishment”8 is one that “finds the justifi-
cation for criminal sanctions in the good that they engender. The pre-
dicted benefits of condemning the particular defendant as a criminal
and depriving him of his liberty outweigh the costs imposed on the
imprisoned convict and his or her family.”9 The deterrence rationale
comprises both “general deterrence” – in that punishing one criminal
is assumed to dissuade others from committing the same crime – as
well as “special deterrence,” which aims at preventing the same crim-
inal from reoffending.10

7
See, for example, Isaac Ehrlich, “Crime, Punishment, and the Market for Offenses,”
Journal of Economic Perspectives 10 (1996): 43 (supporting the mainstream view of
deterrence theory that punishment restrains criminals because they are rational
cost–benefit calculators).
8
Jeremy Bentham, The Rationale of Punishment (London: Robert Heward, 1830).
9
George P. Fletcher, Basic Concepts of Criminal Law (New York: Oxford University Press,
1998), 30.
10
For the sake of expedience, I am leaving aside two other rationales for punishment,
which are typically considered to fall under the deterrence view: rehabilitation (that
is, punishment will “cure” the offender’s criminal impulses) and incapacitation
(that is, confinement prevents the offender from posing a threat to anyone). Broadly
speaking, the individualized nature of rehabilitation and incapacitation implies that
they can be said to fall under special deterrence.
 proportionality and the purposes of punishment 15

A “pure” deterrence rationale allows unlimited discretion in senten-

cing. Any punishment, no matter how severe, is considered appropri-
ate as long as it prevents more harm than it causes. This view, like
all “pure” utilitarian rationales, has been criticized for its disregard
of moral constraints,11 as well as for its dehumanization of the crim-
inal such that he is no longer a moral agent but is “to be made to suf-
fer merely in order to intimidate others from disobeying the law.”12
Fletcher himself was discomfited by this idea, reminding us that “[a]s
the National Socialists well knew in controlling inmates in slave labor
camps, occasionally hanging an innocent person effectively deters
disobedience by other inmates.”13 Some critics have even rejected the
possibility that deterrence is achievable, citing empirical studies to
the effect that varying the severity of punishment has little effect on
recidivism or even on crime rates generally.14
Irrespective of these criticisms, at the very least the deterrence
rationale compels the stratification of crimes based on some notion
of comparable gravity and proportionate sentencing. Richard Posner
observes: “If the maximum punishment for murder is life imprison-
ment, we may not want to make armed robbery also punishable by life
imprisonment, for then armed robbers would have no additional incen-
tive not to murder their victims.”15 In other words, punishment should
be apportioned according to the importance of the social interest that
is threatened, with the aim of establishing effective disincentives for
committing particular crimes. Even if we may not know exactly by
how much sentences should vary, it is at least certain that the penalties
should increase as we ascend the hierarchy of crimes.16
11
H. L. A. Hart, Punishment and Responsibility (Oxford: Clarendon Press, 1968), 8–9.
12
Andrew von Hirsch and Andrew Ashworth, Proportionate Sentencing: Exploring the
Principles (Oxford: Oxford University Press, 2005), 15.
13
George Fletcher, Rethinking Criminal Law (Boston and Toronto: Little, Brown, 1978), 415.
14
See, for example, Andrew von Hirsch, Anthony E. Bottoms, Elizabeth Burney, and
P.-O. Wikstrom, Criminal Deterrence and Sentence Severity: An Analysis of Recent Research
(Oxford, UK: Hart, 1999), and P. Robinson and J. Darley, “Does Criminal Law Deter?
A Behavioural Science Investigation,” Oxford Journal of Legal Studies 24 (2004): 173. In
Britain, the Home Office recently released a report stating: “The almost invariable
conclusion of the large amount of research which has been undertaken … is that it
is hard to show any effect that one type of sentence is more likely than any other
to reduce the likelihood of reoffending, which is high for all” (UK Home Office, The
Sentence of the Court, 5th edn., 1990).
15
Richard Posner, “An Economic Theory of Criminal Law,” Columbia Law Review 85
(1985): 1193, 1210–11.
16
David Dolinko, “Three Mistakes of Retributivism,” UCLA Law Review 39 (1992): 1623
(arguing that, within retributive theory, the principle of proportionality requires
16 the taxonomy of crimes

Retribution
Unlike deterrence, retribution does not look to the social utility of pun-
ishment. It is based, instead, on the moral theory that, in exercising
free will, those who consciously make evil choices are “blameworthy”
and “deserve” punishment. As its foremost proponent, Immanuel Kant,
would say, punishment is a “categorical imperative”17 for wrongdoing,
irrespective of its social utility. Retributive proportionality is historic-
ally rooted in lex talionis, derived from the biblical command that “[i]f
any harm follows, then you shall give life for life, eye for eye, tooth for
tooth, hand for hand, foot for foot, burn for burn, wound for wound,
stripe for stripe.”18 Thus, punishment is atonement or expiation for
crimes, a restoration of the disturbed equilibrium of the moral uni-
verse.19 Rather than focusing on the social utility of prevention, propor-
tionality in this context reflects the degree of moral turpitude or evil
attached to particular conduct. In the past, retributive proportionality
assumed varying forms of corporal punishment to expunge evil, but is
expressed in modern criminal law through graduated sentencing.20
Determining what punishment a criminal intrinsically “deserves”
requires a distinction between two general principles of criminal law.
Fletcher, in a comprehensive comparative survey of such principles,
describes these as wrongdoing and culpability, respectively.21
Wrongdoing, according to Fletcher, is not a “categorical attribute”
but “a matter of degree,” entailing judgment as to “the intrinsic qual-
ity of [the perpetrator’s] deed.”22 It is a somewhat intuitive measure
of the degree of moral opprobrium that a particular act deserves. It
seems obvious that “a greater degree of wrongdoing justifies greater
punishment”; few would disagree, for example, that culpable homicide

only that sentences increase as the gravity of the crime increases, but does not
provide a starting point or quantify the increasing increments of punishment).
17
Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge
University Press, 1991), 141.
18
Exodus 21:23–21:27.
19
G. W. F. Hegel, The Philosophy of Right, trans. T. M. Knox (Oxford, UK: Clarendon Press,
1962), 69 (arguing that punishment negates the wrong and vindicates the right)
[originally published 1820].
20
See, for example, Michel Foucault, Discipline and Punish: The Birth of the Prison, trans.
Alan Sheridan (New York: Pantheon, 1977) (describing the evolution of punishment
from the reenactment of evil on the human body in medieval times to the modern
institution of imprisonment).
21
Fletcher, Rethinking Criminal Law.
22
Ibid., 458.
 a hierarchy of crimes 17

is a greater wrong than petty theft and that greater punishment is

therefore warranted.23 But in complex cases, as Fletcher points out,
“Determining the degree of wrongdoing is obviously a subtle problem
of moral judgment”24 that assumes the possibility of arriving at some
form of “consensus on a scale of relative wrongdoing.”25 Factors to be
taken into consideration include the “importance of the violated or
threatened social interest,” as well as “the proximity or the degree of
danger to that interest”26 – essentially the same idea as was discussed
earlier in relation to Posner’s views on deterrence – about the need
to assign different punishments for murder and robbery.27 Ultimately,
Fletcher notes, determining the degree of wrongdoing is “patently an
evaluative and irreducibly political issue.”28
Determining the “just dessert” of the offender requires consider-
ation of a second factor – namely culpability, or the blameworthiness of
the perpetrator. For Fletcher, culpability refers to “the principle of moral
attribution”: whether a crime can fully be considered to be imputed
upon the accused, even if there is no doubt he caused the offense. For
example, although every homicide shares a similar objective com-
ponent – the killing of a human being – the blame we attach to the
perpetrator will rightly depend on the particular circumstances. The
killer may have pulled the trigger with malice or have acted recklessly,
showing an indifference to the value of human life; the death may
have been a pure accident; or the killer may have been a minor or
someone with a mental disability. Each of these killers deserves a dif-
ferent degree of moral condemnation. For the victim’s family, the end
result is the same, but the perpetrator’s responsibility for the wrong-
doing varies with each case. Thus, the degree of wrongdoing, which
takes into account the act itself and, when appropriate, its larger social
and political context, sets the maximum level of punishment, whereas
the actor’s degree of culpability for that wrongdoing will determine
whether the maximum penalty or something less should be applied.29

A hierarchy of crimes
As set forth above, both deterrence and retributive theories require
a hierarchy, or ordering, of crimes, with corresponding degrees of

23
Ibid., 461.   24 Ibid., 458.
25
Ibid., 461.   26 Ibid.   27 See p. 15
28
Fletcher, Rethinking Criminal Law, 461.   29 Ibid., 462.
18 the taxonomy of crimes

punishment. In the language of deterrence, the level of “wrongdoing”

reflects the importance of the violated or threatened social interest,
and in the language of retribution theory, the “intrinsic gravity” of
the crime – though as Fletcher notes, even retributive theory needs,
in complex cases, to take into account the social or other interests at
stake.
In considering whether murder is more serious than rape, or whether
genocide is more serious than war crimes, there is an important dis-
tinction between a category of wrongdoing, or the gravity of crimes in
abstracto, and the perpetrator’s culpability or individual circumstances.
Whereas the latter requires a case-by-case analysis, consideration of
genocide’s distinction as the ultimate crime implicates the existence
of an abstract, normative hierarchy of crimes. It is, after all, this pre-
sumed privileged status that gives rise to its power as a word. But how
can it be said that one type of wrongdoing is categorically more serious
than another – irrespective of the factual circumstances of each par-
ticular case?
Returning to Coker v. Georgia, what did the US Supreme Court say
about whether Coker could be sent to the electric chair for rape – a
punishment typically reserved for murderers? The court, faced with
deciding whether rape could ever be considered as grave as murder
(and thus as deserving the death penalty), issued a divided judgment,
thereby highlighting the difficulty of constructing an abstract hier-
archy among crimes.
Two of the nine justices – William J. Brennan, Jr., and Thurgood
Marshall – simply restated their already well-known view that the
death penalty should be abolished in all cases. Of the remaining seven
justices, four engaged in an abstract comparison of the two crimes
and arrived at the conclusion that the lesser gravity of rape required
imposition of a less severe punishment than murder. Their analysis
represents the best attempt at a dispassionate, objective ranking of the
crimes:

We do not discount the seriousness of rape as a crime. It is highly reprehen-

sible, both in a moral sense and in its almost total contempt for the personal
integrity and autonomy of the female victim and for the latter’s privilege of
choosing those with whom intimate relationships are to be established. Short
of homicide, it is the “ultimate violation of self.” It is also a violent crime
because it normally involves force, or the threat of force or intimidation, to
overcome the will and the capacity of the victim to resist. Rape is very often
accompanied by physical injury to the female and can also inflict mental and
 a hierarchy of crimes 19

psychological damage. Because it undermines the community’s sense of secur-

ity, there is public injury as well.
Rape is without doubt deserving of serious punishment; but in terms of
moral depravity and of the injury to the person and to the public, it does not
compare with murder, which does involve the unjustified taking of human
life. Although it may be accompanied by another crime, rape by definition
does not include the death of or even the serious injury to another person. The
murderer kills; the rapist, if no more than that, does not. Life is over for the
victim of the murderer; for the rape victim, life may not be nearly so happy
as it was, but it is not over and normally is not beyond repair. We have the
abiding conviction that the death penalty, which “is unique in its severity and
irrevocability,” is an excessive penalty for the rapist who, as such, does not
take human life.30

For the three dissenting justices, the matter was not so straightfor-
ward. In the joint dissent of Chief Justice Warren E. Burger and Justice
William Rehnquist, the analysis focused on deterrence in relation to
the death penalty for rape, which Georgia allowed in certain instances.
The aim of the death penalty was, they argued, to deter “criminal
activity which consistently poses serious danger of death or grave
bodily harm.”31 And as the opinion bluntly stated: “It is, after all, not
irrational – nor constitutionally impermissible – for a legislature to
make the penalty more severe than the criminal act it punishes in the
hope it would deter wrongdoing.”32
Finally, a fourth strand of reasoning was presented in the partial
dissent by Justice Lewis F. Powell, Jr., who rejected what he termed the
“simplistic all-or-nothing views of the plurality.”33 Powell argued that a
hierarchical assumption about the relative gravity of rape versus mur-
der was inappropriate, from the viewpoints of both wrongdoing and
culpability:
[T]he plurality draws a bright line between murder and all rapes – regardless
of the degree of brutality of the rape or the effect upon the victim. I dissent
because I am not persuaded that such a bright line is appropriate … “[There]
is extreme variation in the degree of culpability of rapists.” The deliberate
viciousness of the rapist may be greater than that of the murderer. Rape is
never an act committed accidentally. Rarely can it be said to be unpremedi-
tated. There also is wide variation in the effect on the victim. The plurality
opinion says that “[l]ife is over for the victim of the murderer; for the rape vic-
tim, life may not be nearly so happy as it was, but it is not over and normally

30
Coker v. Georgia, 597–98 (footnotes and citation omitted).
31
Ibid., 620.   32 Ibid., 619.   33 Ibid., 602 note 1.
20 the taxonomy of crimes

is not beyond repair.” But there is indeed “extreme variation” in the crime of
rape. Some victims are so grievously injured physically or psychologically that
life is beyond repair.
Thus, it may be that the death penalty is not disproportionate punishment
for the crime of aggravated rape.34

Powell’s nuanced view is shared by numerous distinguished commen-

tators, including US president Barack Obama, who supports the avail-
ability of the death penalty in cases of child rape.35 Obama’s opinion
was prompted by a case decided two decades after Coker – the 2008
case of Kennedy v. Louisiana, in which the court, in reasoning similar
to Coker, struck down the death penalty for raping a child.36 Although
the application of Coker to the rape of children, and not just to the rape
of adult women, had previously been in question, Kennedy authorita-
tively extended the prohibition against the death penalty for rape to
all cases of rape; from now on, the death penalty would be available
only for intentional homicide and some crimes against the state, such
as treason.
The Kennedy judgment covered much the same ground as Coker, and
its 5–4 split demonstrates, moreover, that the juridical stratification
of evil is no less complicated today than it was in 1977. In particu-
lar, the dissenting justices struggled to comprehend how anyone could
doubt that “in the eyes of ordinary Americans, the very worst child
rapists – predators who seek out and inflict serious physical and emo-
tional injury on defenseless young children – are the epitome of moral
depravity.”37 This viewpoint is forcefully illustrated in the compelling
example set forth by Justice Samuel A. Alito, Jr.:
With respect to the question of moral depravity, is it really true that every
person who is convicted of capital murder and sentenced to death is more
morally depraved than every child rapist? Consider the following two cases.
In the first, a defendant robs a convenience store and watches as his accom-
plice shoots the storeowner. The defendant acts recklessly, but was not the

34
Ibid., 603 (crossreference omitted).
35
“Justices Bar Death Penalty for the Rape of a Child,” New York Times, 26 June 2008.
The article quotes Obama as follows: “I think that the rape of a small child, 6 or 8
years old, is a heinous crime, and if a state makes a decision under narrow, limited,
well-defined circumstances, that the death penalty is at least potentially applicable,
that does not violate our Constitution.” He added that the Supreme Court should
have set conditions for imposing the death penalty for the crime, “but it basically
had a blanket prohibition, and I disagree with the decision.”
36
Kennedy v. Louisiana, 128 S.Ct. 2641 (2008).
37
Ibid., 2676 (Alito, J., dissenting).
 a hierarchy of crimes 21

triggerman and did not intend the killing. In the second case, a previously
convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child
victims. Is it clear that the first defendant is more morally depraved than the
second?38

Alito’s query is all the more compelling when considering the espe-
cially gruesome facts of the Kennedy case itself. As even the majority
was at pains to point out, Kennedy’s “crime was one that cannot be
recounted in these pages in a way sufficient to capture in full the hurt
and horror inflicted on his victim or to convey the revulsion society,
and the jury that represents it, sought to express by sentencing peti-
tioner to death.”39 The judgment recounts in excruciating detail the
horrifying aftermath of the crime:

When police arrived at petitioner’s home between 9:20 and 9:30 a.m., they
found L. H. [Kennedy’s 8-year-old stepdaughter] on her bed, wearing a T-shirt
and wrapped in a bloody blanket. She was bleeding profusely from the vaginal
area …
L. H. was transported to the Children’s Hospital. An expert in pediatric
forensic medicine testified that L. H.’s injuries were the most severe he had
seen from a sexual assault in his four years of practice. A laceration to the left
wall of the vagina had separated her cervix from the back of her vagina, caus-
ing her rectum to protrude into the vaginal structure. Her entire perineum
was torn from the posterior fourchette to the anus. The injuries required
emergency surgery.40

Thus the seemingly simple question – is murder more serious than

rape? – quickly becomes an exceedingly complex inquiry for the jurist,
who must engage in a multilayered analysis. Most important is a choice
of punishment that best serves the purposes of both deterrence and ret-
ribution, based on the metaphysical “gravity” of the deed as determined
both by logic and by societal consensus. A confounding factor, of course,
is that the true horror of some crimes is simply too difficult to quantify,
too odious to categorize, as it overwhelms our senses and our ability for
rational and dispassionate judgment. Although it would seem possible
to create a rough normative hierarchy based on the proportionality
principle, such stratification will sometimes elude us since reasonable
persons can and will disagree about what punishment fits a specific
case. The case is all the more difficult when comparing ­genocide with

38
Ibid. (citation omitted).
39
Ibid., 2645 (opinion of the court).   40 Ibid., 2646.
22 the taxonomy of crimes

other international crimes, given the complex definitions and elements

of those offenses.

Stigma and proportionality in punishment

In constructing a hierarchy among crimes, another important consid-
eration is that focusing exclusively on the severity of punishment – for
example, the length of a prison sentence – disregards the significance
of the opprobrium that society feels toward particular transgressions.
Irrespective of the length of imprisonment, the stigma attached to a
crime may itself constitute a form of punishment. The very term crime
and associated terms such as guilt, innocence, blame, and responsibility
carry far-reaching moral connotations that are unique to the discourse
of criminal law. The shame and condemnation associated with these
terms form an essential distinction between criminal and other forms
of liability. H. L. A. Hart expresses this point by noting that “[w]hat dis-
tinguishes a criminal from a civil sanction and all that distinguishes it,
it is ventured, is the judgment of community condemnation which accom-
panies and justifies its imposition.”41 This idea of “criminal tainting”
reflects, in part, the deeply held view that particular crimes occupy
specific, immovable levels on a scale of gravity.
Similar to criminal tainting, but more recently developed, is the
principle of fair labeling in the criminal law.42 This concept demands
that our criminal justice system record convictions that accurately
describe the nature and magnitude of the wrongdoing. To take the
simplest case, the law should obviously not call a thief a murderer.
It should also differentiate between different kinds of murder, such
as first-degree, second-degree, manslaughter, and so on. Taken to an
extreme, the fair-labeling principle may well require that offenses be
stipulated in more detail, such that someone stealing a loaf of bread
might be convicted of “theft of a loaf of bread,” as opposed to simply

41
H. L. A. Hart, “The Aims of the Criminal Law,” Law and Contemporary Problems 23
(1958): 401, 404 (emphasis added).
42
The concept is said to have been pioneered by Andrew Ashworth (A. Ashworth,
“The Elasticity of Mens Rea,” in Colin Tapper, ed., Crime, Proof, and Punishment: Essays
in Memory of Sir Rupert Cross [London: Butterworths, 1981]), and the term to have
been coined by Glanville Williams (G. Williams, “Convictions and Fair Labelling,”
Cambridge Law Journal 42 (1983); see also James Chalmers and Fiona Leverick, “Fair
Labelling in Criminal Law,” Modern Law Review 71 (2008): 217; Andrew Ashworth,
Principles of Criminal Law, 5th edn. (New York: Oxford University Press, 2006), 88.
 stigma and proportionality in punishment 23

“theft.” Another type of argument draws attention to using the right

vocabulary. For example, it might be contended that the crime of rape
should be called “rape,” not “sexual assault” (as in Canada), because
the term rape carries with it the degree of moral turpitude that the
rapist deserves.43 The point of fair labeling is that it recognizes that the
labels we use have their own communicative power – independent of
the punishment itself – and that, out of fairness both to the criminal
and to the public, the criminal law should accurately describe what it
condemns. An employer reviewing the job application of an ex-felon,
for example, might feel better about hiring him if the charge on his
record is not vague or ominous; and a victim might feel wronged if the
linguistic construction of a crime lets the criminal’s full moral turpi-
tude go unnoticed.
The ICTY case of Prosecutor v. Erdemovic´ provides a good illustration of
how criminal tainting or fair labeling can influence the judges’ percep-
tion. In that case the ICTY Appeals Chamber addressed whether dur-
ess was available as a defense when the underlying offense for a war
crime or crime against humanity was murder.44 The majority opinion
was that, for considerations of policy, duress should merely reduce culp-
ability but not excuse the wrongdoing of murder; that is, duress should
be a factor in mitigating punishment but not a ground for excluding
liability. Nevertheless, in response to the majority’s pragmatic view
that any injustice resulting from the rejection of that defense could be
resolved through mitigation of punishment at the sentencing phase,
the chamber’s president, Antonio Cassese, argued in a vigorous dissent
that even if a “minimum” or “token penalty” were imposed, the taint
of criminality would not thereby be removed (and would potentially
be continued unfairly, despite the duress under which the person was
found to have acted):

[T]he purpose of criminal law … is to punish behavior which is criminal, i.e.,

morally reprehensible or injurious to society, not to condemn behaviour
which is “the product of coercion that is truly irresistible” or the choice of the
lesser of two evils. No matter how much mitigation a court allows an accused,
the fundamental fact remains that if it convicts him, it regards his behavior
as criminal, and considers that he should have behaved differently.45

43
See Chalmers and Leverick, “Fair Labelling in Criminal Law.”
44
Erdemović, Appeals Judgement (ICTY, 7 October 1997).
45
Ibid., para. 48 (separate and dissenting opinion of Cassese, J., footnote omitted).
24 the taxonomy of crimes

This sensibility is also reflected in, for instance, the case of Queen v. Finta,
in which the Supreme Court of Canada placed considerable emphasis
on criminal tainting and fair labeling when considering the relative
gravity of crimes in relation to the requirement of proportionality.
Imre Finta, a commander of the gendarmarie in Szeged, Hungary, dur-
ing World War II, was accused of participating in the deportation of
Jews to Nazi concentration camps. The court held that, in the case of an
accused convicted of murder as a crime against humanity or war crime,
one must consider not only the condemnation that “will result upon
a conviction for the domestic offence” (that is, murder), but also the
“additional stigma and opprobrium that will be suffered by an individ-
ual whose conduct has been held to constitute crimes against human-
ity or war crimes.”46 Upon conviction for an international crime,

the accused will be labeled a war criminal and will suffer the particularly heavy
public opprobrium that is reserved for these offences. Further the sentence
which will follow upon conviction will reflect the high degree of moral out-
rage that society very properly feels toward those convicted of these crimes.47

Thus, beyond sentencing, the label of a war criminal itself was regarded
by the Supreme Court of Canada as a distinct and separate expression
of the proportionality of the punishment in relation to the crime.
The significance of stigma must be appreciated in light of the socio-
pedagogical function of the criminal justice process. For instance,
Martha Minow observes that, irrespective of imprisonment, subjection
to a criminal trial may itself be a form of punishment, especially in the
context of mass atrocities:

A trial in the aftermath of mass atrocity … should mark an effort between

vengeance and forgiveness. It transfers the individuals’ desires for revenge to
the state or official bodies. The transfer cools vengeance into retribution …
The trial itself steers clear of forgiveness, however. It announces a demand
not only for accountability and acknowledgment of harms done, but also for
unflinching punishment. At the end of the trial process, after facts are found
and convictions are secured, there might be forgiveness of a legal sort: a sus-
pended sentence, or executive pardon, or clemency in light of humanitarian
concerns. Even then, the process has exacted time and agony from, and
rendered a kind of punishment for defendants.48

46
The Queen v. Finta, [1994] 1 SCR 701, at 815.
47
Ibid. (emphasis added).
48
Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon, 1998), 26.
 stigma and proportionality in punishment 25

Michel Foucault explains the significance of the criminal justice pro-

cess in light of the shift away from lex talionis in modern legal systems.
He points out that the rejection of public torture and execution in
modern penal systems – or the progressive move from “punishment-
as-spectacle” to “trial-as-spectacle” – has entailed a reapportionment of
emphasis from the execution of punishment to the more constrained
spectacle of legal process:
[I]n punishment-as-spectacle a confused horror spread from the scaffold; it
enveloped both executioner and condemned; and, although it was always
ready to invert the shame inflicted on the victim into pity or glory, it often
turned the legal violence of the executioner into shame. Now the scandal and
the light are to be distributed differently; it is the conviction itself that marks the
offender with the unequivocally negative sign: the publicity has shifted to the trial, and
to the sentence; the execution itself is like an additional shame that justice is
ashamed to impose on the condemned man; so it keeps its distance from the
act, tending always to entrust it to others, under the seal of secrecy … Those
who carry out the penalty tend to become an autonomous section; justice is
relieved of responsibility for it by a bureaucratic concealment of the penalty
itself.49

This shift toward legal process and the concomitant concealment

of physical punishment underscores the significance of stigma and
abstract hierarchies in the apportionment of moral blameworthi-
ness, irrespective of sentencing. Thus, the gravity of the crime and the
attendant moral opprobrium are themselves significant elements of
punishment in the criminal justice process. For instance, the public
views a person convicted as a murderer with greater reprehension than
a person convicted as a mere thief. Similarly, as discussed in Chapter 3,
the conception of genocide as the ultimate crime may entail a unique
stigma, irrespective of differential sentencing in relation to the other
core international crimes.
The historical evolution from corporal punishment to legal process
that Foucault describes also demonstrates the somewhat artificial dis-
tinction between retribution and deterrence. In this regard Johannes
Andenæs’s conception of “general prevention” is especially instruct-
ive insofar as it directly links the flow of “moral propaganda” from
the criminal justice process to the transformation of social values and
behavior.50 This fusion of moral condemnation through the spectacle

49
Foucault, Discipline and Punish, 9–10 (emphasis added).
50
Johannes Andenæs, Punishment and Deterrence (Ann Arbor: University of Michigan
Press, 1974).
26 the taxonomy of crimes

of legal process with objectives of deterrence merges the traditional

divide between retributive and utilitarian theories of punishment.
Andenæs points out that, beyond the cost–benefit calculus associated
with the conscious fear of punishment, there is yet another, more sub-
tle, dimension of general prevention that operates to prevent wrong-
ful conduct by instilling “unconscious inhibitions against crime” or “a
condition of habitual lawfulness.”51 He suggests that the expression of
social disapproval through the legal process may influence moral self-
conceptions such that “illegal actions will not present themselves con-
sciously as a real alternative to conformity, even in situations where the
potential criminal would run no risk whatsoever of being caught.”52
Ranking crimes in a form of hierarchy is a difficult and complex
task, even if considered solely in terms of stigma rather than differ-
ential sentencing. Nonetheless, the principle of proportionality man-
dates such an exercise in the stratification of wrongdoing – however
arbitrary it may seem – given its fundamental importance to coherent
conceptions of justice. If the simple comparison of gravity between
rape and murder in Coker gives rise to such controversy and uncer-
tainty, how does it compare with the far more complex designation of
genocide as the ultimate crime?

51
Ibid., 950. Andenæs distinguishes this broader concept of general prevention from
special and general deterrence as follows:
The effect of the criminal law and its enforcement may be mere deterrence.
Because of the hazards involved, a person who contemplates a punishable
offense might not act. But it is not correct to regard general prevention and
deterrence as one and the same thing. The concept of general prevention also
includes the moral or socio-pedagogical influence of punishment. The “messages”
sent by law and the legal processes contain factual information about what
would be risked by disobedience, but they also contain proclamations
specifying that it is wrong to disobey.
In other words, general prevention consists of both deterrence through
fear of punishment and the moral influence of punishment as an expression
of social disapproval.
52
Ibid., 36.
3 The core elements of international
crimes

On 22 April 1915, German troops stationed on the Ypres Salient in

Belgium made the first concerted use of a new weapon. Its inventor
was to call it a “higher form of killing.”1 The weapon was chlorine
gas.2 At exactly five o’clock in the afternoon, a red flare arced across
the sky, providing the signal to open the cocks on nearly 6,000 poi-
son canisters that had been secretly buried along the front lines. The
prevailing winds carried 168 metric tons of chlorine gas in a massive
white and yellow-green cloud toward the Allied trenches. Panic and
confusion ensued. The front collapsed.3 Chemical warfare had come to
World War I and would soon be used by the Allies as well.
The British poet Wilfred Owen later described the horrific effects
of chemical warfare in his 1917 poem “Dulce et Decorum Est” (which
continues “pro patria mori”: “How sweet and fitting it is to die for one’s
country”):

Gas! Gas! Quick, boys! – An ecstasy of fumbling,

Fitting the clumsy helmets just in time;
But someone still was yelling out and stumbling
And flound’ring like a man in fire or lime …
Dim, through the misty panes and thick green light,
As under a green sea, I saw him drowning.
In all my dreams, before my helpless sight,
He plunges at me, guttering, choking, drowning.

1
“In no future war will the military be able to ignore poison gas. It is a higher form
of killing” (Professor Fritz Haber, 1919, quoted in Tim Cook, No Place to Run: The
Canadian Corps and Gas Warfare in the First World War [Vancouver: UBC Press, 1999], 59.)
2
Jonathan B. Tucker, War of Nerves: Chemical Warfare from World War I to Al-Qaeda (New
York: Pantheon, 2006), 13–15.
3
Ibid.

27
28 the core elements of international crimes

If in some smothering dreams you too could pace

Behind the wagon that we flung him in,
And watch the white eyes writhing in his face,
His hanging face, like a devil’s sick of sin;
If you could hear, at every jolt, the blood
Come gargling from the froth-corrupted lungs,
Obscene as cancer, bitter as the cud
Of vile, incurable sores on innocent tongues, –
My friend, you would not tell with such high zest
To children ardent of some desperate glory
The old Lie: Dulce et decorum est
Pro patria mori.4

By some estimates, the use of poison gas in World War I claimed nearly
a hundred thousand lives in addition to a million casualties.5
Now consider a different crime, this time from Nazi Germany dur-
ing World War II. The accused – a German man and his alleged lover –
conspired to denounce the man’s Jewish wife to the Gestapo. Their
sole motive was to rid themselves of the wife, who had refused to
agree to a divorce. Upon her denunciation, the victim was deported
to Auschwitz, where she died from malnutrition. The perpetrators,
known only as P and Mrs. K, were arrested after the war and brought
before the Supreme Court of the British Zone.6
Which one of these two international crimes is “worse”? The use
of poison gas, deployed on the battlefield, is a war crime. The embit-
tered husband and his accomplice, by contrast, were convicted of
crimes against humanity for contributing, if only in a limited way and
for purely personal motives, to the systemic persecution of Jews. And
both offenses qualify, in the words of the ICC Statute, as the “most ser-
ious crimes of concern to the international community as a whole”7 –
namely, war crimes, crimes against humanity, and genocide.
Notwithstanding the seriousness of all these international crimes,
the ICTY Trial Chamber in the Blaškic´ case opined that a

4
Quoted from Cook, No Place to Run, 7–8.
5
L. F. Haber, The Poisonous Cloud: Chemical Warfare in the First World War (Oxford: Oxford
University Press, 1986), 239–43.
6
Decision of the Supreme Court for the British Zone from 9 November 1948, S. StS 78/48, in
Justiz und NS-Verbrechen, vol. II, 498–99 (cited in Tadić, Appeals Judgement [ICTY, 7
May 1997], para. 257).
7
Under Article 5 of the ICC Statute, the court’s jurisdiction is limited to such
crimes. It should be noted that the ICTY and ICTR Statutes do not contain such
a requirement, although the violations must nevertheless be “serious” (under
Article 1 of both tribunals’ Statutes).
 the core elements of international crimes 29

hierarchy of crimes seems to emerge from the case-law of the ICTR … The fol-
lowing hierarchy of crimes falling under the jurisdiction of the Tribunal may
therefore be compiled:
(1) “The crime of crimes”: genocide
(2) Crimes of an extreme seriousness: crimes against humanity
(3) Crimes of a lesser seriousness: war crimes8

Are we then to believe that our moral outrage should be greater

toward the man who arranges for the racially motivated killing of his
wife rather than toward the widespread use of poison gas resulting in
thousands of horrible, torturous deaths? The two crimes differ dramat­
ically in kind and quantity; nevertheless, international criminal law
places them in different conceptual categories and, if the Blaškic´ Trial
Chamber is correct, even suggests that their evil can be graded and
ranked. As set forth below, however, the jurisprudence on this issue is
considerably more complex and conflicted than it might appear from
Blaškic´.
The previous chapter considered the difficulties of ranking rape ver-
sus murder. The gradation of crimes and assignment of proportion-
ate punishments are even more complicated and controversial with
respect to international crimes. The foregoing example illustrated
that an estranged husband’s decision to eliminate his wife by exploit-
ing a policy of persecution may qualify as a crime against humanity.
Likewise, in appropriate circumstances, and when committed with
the requisite intention, rape can constitute an act of genocide.9 In con-
trast, mass murder of soldiers with poison gas remains “merely” a war
crime. As discussed below, the complex elements of these international
crimes make a determination of comparative gravity far more difficult
than the already contentious comparison between the relatively sim-
ple crimes of rape and murder.
Unlike ordinary crimes under domestic law – for example, murder
or rape – the grading of the core international crimes is a complex
undertaking. These crimes are not “specific offences”10 but rather

8
Blaškić, Trial Judgement (ICTY, 3 March 2000), para. 800 (footnote omitted). The
Trial Chamber is referring here to the hierarchy of the ICTR, while noting that
no such hierarchy has been established at the ICTY and that seriousness must be
assessed based on the “circumstances of the case” (para. 802).
9
See 000–000 for discussion of the Akayesu case (where genocide is found to have
been perpetrated by rape).
10
See, for example, Kupreškić, Trial Judgement (ICTY, 14 January 2000), para. 697.
30 the core elements of international crimes

“sets of crimes.” It is not the underlying crime of murder or rape, for

example, that qualifies particular conduct as an international crime.
Rather, it is the context within which such acts are committed that
transforms them from ordinary crimes into international crimes.
Consequently, it is not possible to compare the proportional gravity
of international crimes in abstracto in the same manner as domestic
crimes – as in Coker v. Georgia, where the Supreme Court discussed the
differences between the crimes of murder versus rape. The exact same
underlying act – for instance, murder or rape – can variously qualify
as a war crime, crime against humanity, or genocide, depending only
on the context within which it was committed. In other words, con-
text may be all that stands between an ordinary, domestic crime and
the “most serious crimes of concern to the international community
as a whole.”11 By the same token, any hierarchy among the core inter-
national crimes would be the product of comparing their different
contextual elements.
In brief, these contextual elements are as follows: armed conflict
as a material element of war crimes; widespread or systematic attack
against a civilian population as a mental and material element of
crimes against humanity; and an intent to destroy a group as a mental
element of genocide.12 What is immediately apparent is that the mens
rea is essential to defining the contextual elements of international
crimes. In particular, in international criminal law the same actus
reus can be categorized quite differently by varying the mens rea. As
a general principle of criminal law, individual liability is determined
by two factors: the objective character or harmfulness of the act itself
(e.g., robbery, rape, or killing) and the intention of the accused. As pre-
viously noted, however, within both retribution and deterrence theor-
ies, it is primarily the subjective or mental elements of crimes, rather
than their objective or material elements, that attach specific degrees
of gravity to conduct, and that consequently determine the degree of
punishment to be imposed. For example, a killing might be accidental,
a crime of opportunity, planned carefully in advance, carried out in
an especially vicious or sadistic way, and so on.13 Broadly similar con-
siderations apply to understanding the differing contexts and thus the

11
ICC Statute, Article 5.
12
The terms material and mental are used to refer, respectively, to the objective and
subjective elements, or the actus reus and mens rea, of a crime.
13
See George P. Fletcher, Rethinking Criminal Law (Boston and Toronto: Little, Brown,
1978), 504–14.
 war crimes 31

relative gravity of the core international crimes. An examination of

these contextual elements demonstrates why the task of constructing
a hierarchy among these offenses is especially challenging.

War crimes
War crimes, the oldest of international crimes, are defined as viola-
tions of the laws and customs of war – which in contemporary times
are most often referred to as international humanitarian law. This
body of law, which regulates armed conflict, consists not just of cus-
tom, but also includes numerous treaties, the most prominent of them
being the 1949 Geneva Conventions. The purpose is to strike a ­balance
between military necessity and humanitarian imperatives, an idea
that found its first notable expression in the 1863 Lieber Code (the
main precursor to the Hague Conventions and later developments),
issued to Union troops by President Abraham Lincoln at the height of
the US Civil War.14

Nexus with armed conflict

Common Article 2 of the Geneva Conventions provides that its humani-
tarian law provisions are applicable to “all cases of declared war or any
other armed conflict between two or more of the High Contracting
Parties … [including] all cases of partial or total occupation of the ter-
ritory of a High Contracting Party.” Common Article 3 simply applies
to any “armed conflict not of an international character occurring in
the territory of one of the High Contracting Parties.” Armed conflict is
a technical term designating, in the words of the ICTY, “a resort to
armed force between States or protracted armed violence between
governmental authorities and organized armed groups or between
such groups within a State.”15 It is the existence of armed conflict that
makes humanitarian law applicable to a particular state or territory,
transforming otherwise ordinary crimes into war crimes. By contrast,
the law does not apply in cases of internal disturbance or other vio-
lence not amounting to armed conflict.
Not every crime committed in a territory affected by armed conflict is
a war crime. As the ICTY Trial Chamber noted in the Tadic´ Jurisdiction

14
Louise Doswald-Beck and Sylvain Vité, “International Humanitarian Law and
Human Rights Law,” International Review of the Red Cross 293 (30 April 1993): 94.
15
Tadić, Jurisdiction Decision (ICTY, 2 October 1995), para. 70.
32 the core elements of international crimes

Decision, a “nexus” must be established between the offense and the

armed conflict itself.16 Beyond that, the physical act of a war crime can
vary considerably, from forcibly displacing civilians to using prohib-
ited weapons against combatants. The requirement of a “nexus” is far
from stringent. It does not require a precise geographic or temporal
link, and also does not require the act to have been taken on behalf of,
or in furtherance of, a plan or policy of one of the belligerent parties:
“The only question … is whether the offences were closely related to
the armed conflict as a whole.”17 Whereas the

armed conflict need not have been causal to the commission of the crime …
the existence of an armed conflict must, at a minimum, have played a sub-
stantial part in the perpetrator’s ability to commit it, his decision to commit
it, the manner in which it was committed or the purpose for which it was
committed.18

Protected person status

In distinguishing between domestic and international crimes, a fur-
ther requirement is that the victim of a war crime must enjoy “pro-
tected” status under humanitarian law. Although humanitarian law
also prohibits the wanton destruction or plunder of civilian property
and the use of prohibited weapons, the international criminal tribu-
nals are primarily concerned with crimes committed against civilians
or other persons hors de combat, defined as “protected persons.”
In the “grave breaches” provisions of the 1949 Geneva Conventions,
the term protected persons is a technical designation referring to those
“in the hands of a Party to the conflict or Occupying Power of which
they are not nationals.”19 This definition reflects the strict application of
the “grave breaches” provisions only to armed conflicts that are inter-
national in character (that is, between two states). ICTY jurisprudence
emphasizes, however, that “this provision is directed to the protection
of civilians to the maximum extent possible” and that “its applicabil-
ity [is not] dependent on formal bonds and purely legal relations.”20

16
Ibid., paras. 67–70; see also Stakić, Appeals Judgement (ICTY, 22 March 2006), para.
342; Kunarac, Appeals Judgement (ICTY, 12 June 2002), para. 55.
17
Tadić, Trial Judgement (ICTY, 7 May 1997), para. 573.
18
Kunarac, Appeals Judgement (ICTY, 12 June 2002), para. 58.
19
See, for example, Article 4(1) of the Geneva Convention [No. IV] Relative to the
Protection of Civilian Persons in Time of War (12 August 1949), 6 UST 3516, 75
UNTS 287 (emphasis added).
20
Tadić, Appeals Judgement (ICTY, 15 July 1999), para. 168.
 war crimes 33

Furthermore, Article 3 Common to the 1949 Geneva Conventions,

which applies to noninternational armed conflicts, broadly confers
protection on all persons who are “taking no active part in the hos-
tilities, including members of armed forces who have laid down their
arms and those placed hors de combat by sickness, wounds, detention, or
any other cause.”21 Consequently, with respect to internal armed con-
flicts, the victim’s nationality is not a relevant consideration in defin-
ing war crimes.

Mens rea
In determining whether a violation of international humanitarian
law has occurred, the ICTY requires that the perpetrator “knew or
should have been aware that the victim was taking no active part
in the hostilities when the crime was committed.”22 A soldier who
knowingly kills a civilian is guilty of a war crime, but if he genu-
inely mistakes that civilian for a soldier, then it is a justified, combat-
related killing. The moral reprehensibility of the conduct stems from
the perpetrator’s awareness of factual circumstances: ones indicating
that the victim does not bear arms and therefore poses no military
threat that would justify killing him, either in self-defense or in order
to weaken enemy forces. The ICTY further requires “awareness of
factual circumstances establishing the armed conflict and its (inter-
national or internal) character.”23 Earlier jurisprudence held that the
definition of armed conflict must “be applied objectively, irrespective
of the subjective views of the parties involved in the conflict.”24 The
1949 Geneva Conventions consider the character of armed conflict
only with regard to the “scope of application” of humanitarian law
rather than mens rea.
There is also no such requirement for war crimes under Article 8
of the ICC Statute. The ICC Elements of Crimes, however, includes
both “the nexus with armed conflict” and “protected person status”
as part of the requisite mens rea. Beyond the objective requirement
that the “conduct took place in the context of and was associated with

21
See, for example, Article 3 of the Fourth Geneva Convention.
22
Boskoški and Tarčulovski, Appeals Judgement (ICTY, 19 May 2010), para. 66.
23
Naletilić, Appeal Judgement (ICTY, 3 May 2006), para. 119.
24
Akayesu, Trial Judgement (ICTR, 2 September 1998), para. 624; see also Semanza,
Trial Judgement (ICTR, 15 May 2003), para. 357; see also, for example Yugoslavia and
Rwanda to the Ongoing Work on Elements of Crimes in the Context of the ICC,”
American Society of International Law, Proceedings of the 94th Annual Meeting (2000), 285.
34 the core elements of international crimes

an international armed conflict” and the objective classification of

victims as persons “protected” under the 1949 Geneva Conventions,
the Elements of Crimes contains a further requirement that the “per-
petrator was aware of the factual circumstances that established that
protected status” and “aware of factual circumstances that established
the existence of an armed conflict.”25 These subjective elements are
qualified: The perpetrator does not need either to conduct a “legal
evaluation” of the existence of an armed conflict or to consciously dis-
tinguish between international and internal armed conflict. He must
simply be aware that the crime “took place in the context of and was
associated with” an armed conflict.26
Under Article 9 of the ICC Statute, the Elements of Crimes is a non-
binding interpretive tool that does not apply in the event of an incon-
sistency with the definition of the crimes as contained in Articles 6
to 8 of the Statute.27 ICC judges therefore still enjoy the discretion to
disregard the Elements of Crimes by deeming it inconsistent with the
1949 Geneva Conventions – and, by extension, with Article 8 of the
ICC Statute – in the form of an expanded mens rea requirement for war
crimes. That said, the ICC has recently indicated that it will not easily
deviate from the stipulations contained in the Elements of Crimes.28
Furthermore, although “[t]he question as to what extent the existence
of an armed conflict and its nature should be reflected in the mens rea

25
ICC Elements of Crimes, Article 8.
26
Ibid. Unlike the ICC Elements of Crimes, Naletilic´ requires awareness of the
character of armed conflict (see n. 23). ICTY jurisprudence is similar, however,
because there is no requirement of a “legal evaluation” of the character of armed
conflict. In Kordic´ and Čerkez, the Appeals Chamber stated:
The nullum crimen sine lege principle does not require that an accused knew the
specific legal definition of each element of a crime he committed. It suffices
that he was aware of the factual circumstances, e.g. that a foreign state was
involved in the armed conflict. It is thus not required that Kordic´ could make
a correct legal evaluation as to the international character of the armed
conflict. (Kordić, Appeals Judgement [ICTY, 17 December 2004], para. 311).
27
Article 9(l) of the ICC Statute provides: “Elements of Crimes shall assist the
Court in the interpretation and application of [its competence ratione materiae].”
Furthermore, Article 21(1)(a) provides that, in terms of applicable law, the court
shall apply in “the first place, this Statute, Elements of Crimes and its Rules of
Procedure and Evidence.” Article 9(3), however, stipulates that the “Elements of
Crimes … shall be consistent with this Statute,” thus reinforcing the implicit
primacy of the latter in the event of inconsistency.
28
See 47, in this respect, for discussion of Prosecutor v. Bashir, Decision on the
Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad Al
Bashir (ICC, 4 March 2009).
 crimes against humanity 35

of the accused proved highly controversial” in the ICC Statute’s travaux

préparatoires, the ICTY has held that “the existence of an armed conflict
or its character has to be regarded, in accordance with the principle of
in dubio pro reo, as ordinary elements of a [war] crime under customary
international law.”29

Crimes against humanity

The contextual element of crimes against humanity revolves around an
indeterminate factor of “scale and gravity.”30 Crimes against humanity,
unlike war crimes, need not be committed in armed conflict: They are
simply crimes that, whether committed in wartime or not, rise to a
level of seriousness requiring the intervention of international law. The
threshold elaborated in the jurisprudence, and now widely accepted, is
that an otherwise ordinary crime becomes a crime against humanity
when it is committed as “part of a widespread and systematic attack
directed against a civilian population.” The practical definition of this
contextual requirement remains elusive, however, because it raises, in
effect, the question whether particular atrocities are of such a scale or
gravity that they “shock the conscience of mankind.”

No armed conflict requirement

Crimes against humanity were originally considered to be limited, like
war crimes, to acts committed in armed conflict. Under Article 6(c) of
the Charter of the International Military Tribunal, often referred to as
the Nuremberg Charter, crimes against humanity had to be committed
“in connection with or in execution of” war crimes or crimes against
peace.31 The “nexus with armed conflict” was a means of restricting
the scope of this relatively novel concept and its unprecedented intru-
sion into the sacrosanct domain of state sovereignty and domestic juris-
diction. This requirement significantly limited the scope of ­protection
provided by international criminal law. In effect, if massive or system-
atic human rights violations were committed outside armed conflict,

29
Naletilić, Appeal Judgement (ICTY, 3 May 2006), para. 120.
30
See, for example, Kupreškić, Trial Judgement (ICTY, 14 January 2000), para. 543
(noting that “the essence of [crimes against humanity] is a systematic policy of a
certain scale and gravity directed against a civilian population”).
31
Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis, annex, 8 August 1945, 59 Stat. 1544, 82 UNTS 280.
36 the core elements of international crimes

they would not fall within the reach of crimes against humanity. At
Nuremberg, as Samantha Power has pointed out, the

court treated aggressive war (“crimes against peace”), or the violation of

another state’s sovereignty, as the cardinal sin and prosecuted only those
crimes against humanity and war crimes committed after Hitler crossed an
internationally recognized border. Nazi defendants were thus tried for atro-
cities they committed during but not before World War II. By inference, if
the Nazis had exterminated the entire German Jewish population but never
invaded Poland, they would not have been liable at Nuremberg.32

This disquieting peculiarity in the early definition of crimes against

humanity no longer holds true, though it still finds expression in the
ICTY Statute. Article 5 (pertaining to crimes against humanity) requires
a nexus with armed conflict, “whether internal or international in
character.” The analogous Article 3 of the ICTR Statute, however, does
not require such an element. This apparent inconsistency was resolved
in the Tadic´ case, where the ICTY Appeals Chamber opined, by way of
obiter dicta, that,

as the Prosecutor points out, customary international law may not require a
connection between crimes against humanity and any conflict at all. Thus,
by requiring that crimes against humanity be committed in either internal
or international armed conflict, the Security Council may have defined the
crime in Article 5 more narrowly than necessary under customary inter-
national law.33

The Appeals Chamber thus concluded that it “is now a settled rule
of customary international law that crimes against humanity do not
require a connection to international armed conflict.”34 Coming on the
eve of negotiations leading to the adoption of the ICC Statute, this pre-
cedent played a significant role in emancipating crimes against human-
ity from a potential legal nexus with armed conflict. The inclusion of
such an element in the ICC Statute was considered but then rejected:
The “precedent of the statute of the ad hoc Tribunal for Rwanda and
the recent decision of the ad hoc Tribunal for the former Yugoslavia
in the Tadic´ case” were post-Nuremberg developments that “militated
in favor of the exclusion of any requirement of an armed conflict.”35

32
Samantha Power, “A Problem from Hell”: America and the Age of Genocide (New York:
HarperCollins, 2002), 49.
33
Tadić, Jurisdiction Decision (ICTY, 2 October 1995), para. 141.
34
Ibid.
35
See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court,
UN GAOR, 50th Sess., Supp. No. 22, UN Doc. A/50/22, para. 79 (1995).
 crimes against humanity 37

Thus, Article 7 of the ICC Statute does not contain any reference to a
nexus with armed conflict in its definition of crimes against humanity,
such that this offense applies to any atrocity that is of sufficient scale
or gravity.

Widespread or systematic attack

A fundamental distinction between ordinary crimes and crimes
against humanity is the requirement of a certain scale and gravity.
Article 7 of the ICC Statute stipulates that the acts underlying crimes
against humanity (for example, murder) must be committed “as part
of a widespread or systematic attack directed against a civilian popula-
tion.” In drafting Article 7, delegates “attributed particular importance
to the general criteria for crimes against humanity to distinguish such
crimes from ordinary crimes under national law and to avoid interfer-
ence with national court jurisdiction with respect to the latter.”36 It is
their large-scale or exceptional gravity – and not the inhumane nature
of isolated or random acts of murder, rape, and so on – that is central to
the legal character of crimes against humanity. The International Law
Commission has remarked that the “hallmarks of such crimes lie in
their large-scale and systematic nature. The particular forms of unlaw-
ful acts (murder, enslavement, deportation, torture, rape, imprison-
ment etc.) are less crucial to the definition [than] factors of scale and
deliberate policy.”37
Both the ICTY and the ICTR have interpreted the phrase “part of a
widespread or systematic attack directed against a civilian popula-
tion” as containing four distinct elements: (1) there must be a “wide-
spread or systematic attack”; (2) the attack must be directed against a
civilian population; (3) the accused’s act must form part of that attack;
and (4) the accused must know that his act formed part of the attack
(mens rea).38

36
See Report of the Preparatory Committee on the Establishment of an International Criminal
Court, UN GAOR, 51st Sess., Supp. No. 22, UN Doc. A/51/22, para. 84 (1996).
37
See Report of the International Law Commission on the Work of Its Forty-third Session,
GAOR, 46th Sess., Supp. No. 10, UN Doc. A/46/10, at 265 (1991).
38
The ICTY’s latest expression of this test can be found in Popović, Trial Judgement
(ICTY, 10 June 2010), paras. 749–58. To much the same effect, see Bagosora, Trial
Judgement (ICTR, 18 December 2008), para. 2165. The jurisprudence of both
tribunals tends to vary in how the elements are grouped and thus whether there
are four or five elements. It should also be noted that by Statute the ICTR requires
additionally that the attack must be committed on “national, political, ethnical,
racial or religious grounds.” It is clear that requirement is a jurisdictional one
unique to the ICTR Statute – similar to the ICTY Statute’s requiring the existence of
38 the core elements of international crimes

An “attack” consists of conduct involving the commission of acts of

violence or mistreatment.39 The phrase widespread or systematic excludes
random or isolated acts. The term widespread has been interpreted as
referring to a multiplicity of victims, although it may comprise either
“the cumulative effect of a series of inhumane acts or the singular
effect of an inhumane act of extraordinary magnitude.”40 Systematic
refers to “the organized nature of the acts of violence and the improb-
ability of their random occurrence.”41
The ICC Statute expressly requires that crimes against humanity con-
stitute “a course of conduct involving the multiple commission” of the
enumerated acts “pursuant to or in furtherance of a State or organiza-
tional policy to commit such attack.”42 ICTY jurisprudence seemingly
contradicts this requirement by stating that “a plan or policy is not a
legal element of a crime against humanity though it may be eviden-
tially relevant in proving that an attack was directed against a civilian
population and that it was widespread or systematic.”43 Although the
existence and scope of this requirement remain controversial,44 it may
be noted that the ICTY Kupreškic´ Trial Judgement held that, despite the
lack of a formal policy requirement,

[t]he need for crimes against humanity to have been at least tolerated by a
State, Government or entity is also stressed in national and international case-
law. The crimes at issue may also be State-sponsored or at any rate may be
part of a governmental policy or of an entity holding de facto authority over a
territory.45

The ICC Elements of Crime in Article 7 similarly stipulates that

the requirement of a policy may, “in exceptional circumstances, be

an armed conflict – and was “not intended to alter the definition of Crimes Against
Humanity in international law”: Kamuhanda, Trial Judgement (ICTR, 22 January
2004), para. 671; see also Akayesu, Appeals Judgement (ICTR, 1 June 2001), para. 469.
39
Kunarac, Appeals Judgement (ICTY, 12 June 2002), paras. 85–86.
40
Blagojević and Jokić, Trial Judgement (ICTY, 17 January 2005), para. 545; Blaškić,
Trial Judgement (ICTY, 3 March 2000), para. 206 (citing with approval from Yearbook
of the International Law Commission 1996, vol. II, pt. 2, at 47 [Report of the Commission to
the General Assembly on the Work of Its Forty-eighth Session]).
41
Kunarac, Appeals Judgement (ICTY, 12 June 2002), para. 94.
42
Article 7(2)(a).
43
Blaškić, Appeals Judgement (ICTY, 29 July 2004), para. 120; Kunarac, Appeals
Judgement (ICTY, 12 June 2002), para. 98.
44
See, for example, William Schabas, “State Policy as an Element of International
Crimes,” Journal of Criminal Law and Criminology 98 (2008): 953 (arguing that the ICTY
should have found a policy requirement in customary international law).
45
Kupreškić, Trial Judgment (ICTY, 14 January 2000), para. 522.
 crimes against humanity 39

implemented by a deliberate failure to take action, which is con-

sciously aimed at encouraging such attack.”46 The divergence between
the ICTY–ICTR and the ICC definition may thus be somewhat artifi-
cial insofar as both require a “deliberate attempt to target a civilian
population.”47

Against a civilian population

The second requirement for crimes against humanity – that the attack
be “directed against a civilian population” – simply means that the
civilian population must be the “primary object of the attack.”48 In
defining a civilian in the context of an armed conflict, recourse may be
had to the laws of war.49

Nexus with the attack

The third requirement – that the accused’s act must form part of the
attack – requires a nexus between the accused’s act and the attack,
thus excluding random or isolated crimes.50

Mens rea
Most importantly, the final requirement of crimes against humanity
concerns mens rea: The accused must have deliberately acted in the con-
text of a widespread or systematic attack. Unlike the required nexus
with armed conflict in the case of war crimes (though note the inde-
terminacy in relation to the ICC Elements of Crimes), this requirement
about acting in the context of a widespread or systematic attack can-
not be analyzed exclusively in objective terms. Article 7 of the ICC
Statute expressly requires that the accused have “knowledge of the
attack,” whereas this requirement is implicit in the ICTY and ICTR
Statutes and is clarified in jurisprudence. The requisite mens rea for
crimes against humanity thus comprises (1) the intent to commit the
underlying offense (for example, murder), coupled with (2) knowledge
of the broader context in which that offense occurred.51 Knowledge of
that broader context does not mean that the accused must individually

46
ICC Elements of Crimes, 5 note 6, www.icc-cpi.int/NR/rdonlyres/9CAEE830–38CF-
41D6-AB0B-68E5F9082543/0/Element_of_Crimes_English.pdf.
47
Tadić, Trial Judgement (ICTY, 7 May 1997), para. 653 (emphasis added).
48
Kunarac, Appeals Judgement (ICTY, 12 June 2002), para. 91.
49
Ibid.; Galić, Trial Judgement (ICTY, 5 December 2003), para. 144.
50
Kunarac, Appeals Judgement (ICTY, 12 June 2002), paras. 99–101.
51
Kordić, Appeals Judgement (ICTY, 17 December 2004), para. 99.
40 the core elements of international crimes

commit multiple or methodical crimes; a single act can potentially be

considered a crime against humanity. All that is required is subjective
awareness that that single act was being committed in the broader
context of a widespread or systematic attack against a civilian popu-
lation.52 In other words, it is the knowledge of the accused that his
acts occur in the broader context of a widespread or systematic attack
that transforms an underlying ordinary crime of murder or rape, for
example, into the more serious category of crimes against humanity.
The ICTY Appeals Chamber has suggested that it is this element of
mens rea that defines crimes against humanity as “crimes of a special
nature to which a greater degree of moral turpitude attaches than to
an ordinary crime.”53
If the above (general) intent and awareness can be established, the
specific motives of the accused in committing the act in question are
irrelevant and may even be purely personal.54 The mens rea of crimes
against humanity does not require that the accused “share the pur-
pose or goal behind the attack.”55 The accused may even seek to target
only the victim and not the civilian population, as long he knows that
his crime occurred as part of the broader attack.56 The ICTY notes
that his knowledge of the broader attack may be quite general and
incomplete, rather than detailed,57 and Article 7 of the ICC Elements
of Crimes reiterates this position while noting that “[i]n the case of
an emerging widespread or systematic attack against a civilian popu-
lation, the intent clause … indicates that this mental element is sat-
isfied if the perpetrator intended to further such an attack.”58 This
intent requirement, so stated, is obviously not precisely defined, leav-
ing it uncertain exactly what level of knowledge is required, and the
ICTY even stresses that the “evidence of knowledge on the part of
the accused depends on the facts of a particular case; as a result, the
­manner in which this legal element may be proved may vary from
case to case.”59

52
See, for example, Tadić, Trial Judgement (ICTY, 7 May 1997), para. 649.
53
Tadić, Appeals Judgement (ICTY, 15 July 1999), para. 271.
54
Kunarac, Appeals Judgement (ICTY, 12 June 2002), para. 103; Kordić, Appeals
Judgement (ICTY, 17 December 2004), para. 99.
55
Kunarac, Appeals Judgement (ICTY, 12 June 2002), para. 103.
56
Kordić, Appeals Judgement (ICTY, 17 December 2004), para. 99.
57
Kunarac, Appeals Judgement (ICTY, 12 June 2002), para. 102.
58
ICC Elements of Crimes, 5.
59
Blaškić, Appeals Judgement (ICTY, 29 July 2004), para. 126.
 crimes against humanity 41

Comment: definitional uncertainties

This indeterminacy is compounded by the elusive nature of the “wide-
spread or systematic” criterion, the first of the four requirements for
crimes against humanity. Although presented as an objective criterion
(as are all but the fourth requirement, which concerns mens rea), the
ICTY has observed that the “quantitative criterion is not objectively
definable as witnessed by the fact that neither international texts nor
international and national case-law set any threshold starting with
which a crime against humanity is constituted.”60 Determining what
scale and gravity are sufficient for crimes against humanity cannot fail
to be subjective. How is it possible, in practice, to determine what con-
stitutes “widespread or systematic”? Does the “multiplicity of victims”
refer to one hundred or one thousand? Does a systematic attack refer
to ten, one hundred, or one thousand incidents of a similar nature?
Does the term course of conduct imply a temporal frame? If so, does it
consist of one day, one week, one month, or one year? Do the responses
to these questions differ depending on the characteristics of the vic-
timization (for example, would there be a lower numerical, methodi-
cal, or temporal threshold if the underlying crime was murder rather
than deportation)?
There are obviously no hard-and-fast answers to these questions.
How one responds to them will ultimately depend upon a moral or
emotional response to the scale and gravity of the crimes in question
and on an intuitive perception of the threshold beyond which ordin-
ary domestic crimes or war crimes become crimes against humanity.
It was, after all, the immense magnitude and systematic character of
the Holocaust that led to the incorporation of crimes against humanity
in the Nuremberg Charter. As Egon Schwelb observed, the “unprece-
dented record of crimes committed by the Nazi régime and the other
Axis Powers, not only against Allied combatants but also against the
civilian populations of the occupied countries and of the Axis countries
themselves, made it necessary to provide that these crimes also should
not go unpunished.”61 Even prior to the adoption of the Nuremberg
Charter, the UN War Crimes Commission made it clear that the under-
lying basis of crimes against humanity was an exceptional degree of

60
Blaškić, Trial Judgement (ICTY, 3 March 2000), para. 207.
61
Egon Schwelb, “Crimes Against Humanity,” British Yearbook of International Law 23
(1946): 178, 185.
42 the core elements of international crimes

moral turpitude, justifying this then-revolutionary intrusion against

state sovereignty:

Only crimes which either by their magnitude and savagery or by their large
number or by the fact that a similar pattern was applied at different times
and places, endangered the international community or shocked the conscience of man-
kind, warranted intervention by States other than that on whose territory the
crimes had been committed, or whose subjects had become their victims.62

Despite the considerable development and elaboration of crimes against

humanity since Nuremberg, the view that this category is based on a
shock factor remains essentially the same in contemporary jurispru-
dence. In the Kambanda case, for instance, the ICTR Trial Chamber noted
that crimes against humanity and genocide “are crimes which particu-
larly shock the collective conscience.”63 The technical term widespread or
systematic attacks against a civilian population is an attempt to give some legal
precision and certainty to the morally potent, but ambiguous, phrase
“shocks the conscience of mankind.” In the words of the Trial Chamber
in the Tadic´ case, “The reason that crimes against humanity so shock the
conscience of mankind and warrant intervention by the international com-
munity is because they are not isolated, random acts of individuals but
rather result from a deliberate attempt to target a civilian population.”64

Genocide
Mens rea
Genocide, as has been repeatedly mentioned, is often described as
unique in its particular brand of evil. The contextual element of the
crime of genocide, however, is closely related to, although distinct
from, the crime against humanity of persecution.65 Persecution is “the
intentional and severe deprivation of fundamental rights contrary to
international law by reason of the identity of the group or collectivity.”66

62
United Nations War Crimes Commission, History of the United Nations War Crimes
Commission and the Development of the Laws of War (London: HMSO, 1948), 179
(emphasis added).
63
Kambanda, Trial Judgement (ICTR, 4 September 1998), para. 14.
64
Tadić, Trial Judgement (ICTY, 7 May 1997), para. 653 (emphasis added).
65
See, for example, United States v. Josef Altstoetter (Justice Case), Trials of War Criminals
Before the Nuremberg Military Tribunals Under Control Council Law No. 10, vol. III (1949),
983 (where the US Military Tribunal held that genocide was “the prime illustration
of a crime against humanity”).
66
ICC Statute, Art. 7(2)(g).
 genocide 43

Unlike other crimes against humanity, persecution requires a discrim-

inatory intent and encompasses a broad range of acts.67 The primary
distinction with genocide is that persecution does not have a require-
ment of special intent, or dolus specialis, to destroy a group. As observed
in the Kupreškic´ case:

Both persecution and genocide are crimes perpetrated against persons that
belong to a particular group and who are targeted because of such belong-
ing … While in the case of persecution the discriminatory intent can take
multifarious inhumane forms and manifest itself in a plurality of actions
including murder, in the case of genocide that intent must be accompan-
ied by the intention to destroy, in whole or in part, the group to which the
victims of the genocide belong. From the viewpoint of mens rea, genocide is
an extreme and most inhuman form of persecution. To put it differently,
when persecution escalates to the extreme form of wilful and deliberate
acts designed to destroy a group or part of a group, it can be held that such
persecution amounts to genocide.68

There are two essential parts to the mental element of genocide. First,
unlike persecution, the crime of genocide requires that the intended
victim be the group “as such,” not just its individual members. In other
words, genocide “differs from the crime of persecution in which the
perpetrator chooses his victims because they belong to a specific com-
munity but does not necessarily seek to destroy the community as
such.”69 Second, whereas under Article 7 of the ICC Statute persecu-
tion may be directed against “any identifiable group or collectivity,”70
the crime of genocide is restricted to “a national, ethnical, racial or
religious group.”71 Thus, political and social groups, for instance, are
excluded from protection under the crime of genocide.

67
Stakić, Appeals Judgement (ICTY, 22 March 2006), para. 327; Kupreškić, Appeals
Judgement (ICTY, 23 October 2001), para. 98.
68
Kupreškić, Trial Judgement (ICTY, 14 January 2000), para. 636; see also Brdjanin,
Trial Judgement (ICTY, 1 September 2004), para. 699.
69
Jelisić, Trial Judgement (ICTY, 14 December 1999), para. 79.
70
In fact, both the ICTY and ICTR Statutes explicitly restrict the crime against humanity
of persecution to “political, racial and religious grounds” (Article 5(h) of the ICTY
Statute; Article 3(h) of the ICTR Statute). Unlike the ICTY and ICTR Statutes, however,
Article 7(1)(h) of the ICC Statute refers to “any identifiable group or collectivity,”
includes new grounds such as “national, ethnic, cultural, … [and] gender,” and contains
the illustrative formulation of “other grounds that are universally recognized as
impermissible under international law,” thus representing a progressive development
of this crime in contrast to prior customary law.
71
Convention on the Prevention and Punishment of the Crime of Genocide, Article II.
44 the core elements of international crimes

The mens rea required for genocide is qualitative and often some-
what confused. There is a subtle, but vital, distinction between the
scope of intent, which requires that one intend to destroy a group as
such, and the degree of intent, which refers to a hierarchy of culpable
mental states such as dolus eventualis, dolus generalis, and dolus specialis.
The centrality of the degree of intent to this crime has been under-
scored in both the ICTR and the ICTY. “Genocide is unique because
of its element of dolus specialis (special intent).”72 It is this mens rea that
“gives genocide its speciality and distinguishes it from an ordinary
crime and other [international crimes]”73 and that makes it the “crime
of crimes.”74
In order to describe this special intent, terms from different legal
systems have been used interchangeably in the jurisprudence of the
ICTR and the ICTY, leading to further confusion. The essential point is
that there must be an “intent to destroy” as distinct from the intent to
carry out the underlying acts that may, in fact, result in such destruc-
tion.75 It is not sufficient that the accused “knows that his acts will,
inevitably or … probably, result in the destruction of the group in ques-
tion”; rather, the accused must “seek the destruction in whole or in part
of a group.” Put another way,

an accused could not be found guilty of genocide if he himself did not share
the goal of destroying in part or in whole a group even if he knew that he was
contributing to or through his acts might be contributing to the partial or
total destruction of a group.76

As long as the accused acts with the requisite intent, his motives are
irrelevant. Even if he wants to destroy the group, in whole or in part,
for personal reasons not shared with the other perpetrators, he may

72
Kambanda, Trial Judgement (ICTR, 4 September 1998), para. 16; see also Akayesu,
Trial Judgement (ICTR, 2 September 1998), para. 498; Krstić, Appeals Judgement
(ICTY, 19 April 2004), para. 20.
73
Jelisić, Trial Judgement (ICTY, 14 December 1999), para. 66.
74
Kambanda, Trial Judgement (ICTR, 4 September 1998), para. 16; see also Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) (International Court of Justice, 26 February
2007), para. 187; Prosecutor v. Bashir, Decision on the Prosecution’s Application for a
Warrant of Arrest Against Omar Hassan Ahmad Al Bashir (International Criminal
Court, 4 March 2009), para. 139.
75
For a useful review of the jurisprudence, along with an attempt to reconcile the
varying expressions of this intent to destroy, see Kai Ambos, “What Does ‘Intent to
Destroy’ in Genocide Mean?,” International Review of the Red Cross 91 (2009): 833.
76
Jelisić, Trial Judgement (ICTY, 14 December 1999), paras. 85–86.
 genocide 45

still be deemed to have the requisite intent.77 In other words, genocide

is a “goal-oriented”78 crime. Awareness that such destruction would
result is not the equivalent of “intent to destroy.”79 In this respect, the
dolus specialis standard is more exacting than the mere “knowledge” of
the context of an attack required for crimes against humanity.
This standard of special intent implies that liability for genocide can
attach even if the destruction of a group is not realized. As the ICTR
Trial Chamber observed in the Akayesu case:

Contrary to popular belief, the crime of genocide does not imply the actual
extermination of a group in its entirety, but is understood as such once any
one of the acts mentioned [that is, “killing members of the group,” “causing
serious bodily or mental harm to members of the group,” and so on] is com-
mitted with the specific intent [to destroy a group].80

Accordingly, the crime of genocide is intent- rather than result-

­oriented in terms of its relationship to harm. Unlike crimes against
humanity and the associated requirements, both objective and subjec-
tive, concerning a widespread or systematic attack, the consummation
of a crime of genocide requires the satisfaction only of a subjective
component together with a single successful act in execution of the
crime.81 Thus, at least in theory, killing a single victim could qualify
as genocide.
This intent-oriented standard caused some concern among delegates
in the negotiations leading to the adoption of the ICC Statute at the
1998 Rome Conference. These delegates succeeded in introducing a
new objective element into the crime – apparently to remove isolated
or trivial acts from the scope of genocide.82 The Elements of Crimes

77
Jelisić, Appeals Judgement (ICTY, 5 July 2001), para. 71; Simba, Appeals Judgement
(ICTR, 27 November 2007), paras. 88, 269.
78
See Ambos, “What Does ‘Intent to Destroy’ in Genocide Mean?,” 835.
79
See Krstić, Appeals Judgement (ICTY, 19 April 2004), para. 134; Blagojević and
Jokić, Trial Judgement (ICTY, 17 January 2005), para. 656; Brdjanin, Trial Judgement
(ICTY, 1 September 2004), para. 695; Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro) (International Court of Justice, 26 February 2007), para. 187.
80
Akayesu, Trial Judgement (ICTR, 2 September 1998), para. 497.
81
Such consummation should not be confused with inchoate crimes such as “attempt
to commit genocide” or “direct and public incitement to commit genocide.” See, for
example, ibid., para. 562.
82
For a critical account of the American draft of the Elements that resulted in the
introduction of this new element, see, for example, William A. Schabas, “Follow
Up to Rome: Preparing for Entry into Force of the International Criminal Court
Statute,” Human Rights Law Journal 20 (1999): 157, 163–64.
46 the core elements of international crimes

for Article 6 of the ICC Statute requires, in addition to the intent to

destroy a group and the mental and material element (see next section)
of the underlying act, 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.”83 In other words, the
ICC Elements of Crimes appears to exclude the possibility of the “lone
génocidaire.” The introduction of an objective requirement of a “mani-
fest pattern of similar conduct” seems to merge genocide more closely
with crimes against humanity insofar as isolated or random acts by
perpetrators need to be linked to a broader “widespread or systematic
attack” against a civilian population.
The ICTY has explicitly departed from the ICC Elements of Crimes
and held that genocide does not require that the perpetrator partici-
pate in a widespread and systematic attack against a civilian popula-
tion.84 It has held, moreover, that “the existence of a plan or policy is
not a legal ingredient of the crime of genocide.”85 The ICTY has based
this position on its review of customary law and, in particular, on the
observation that the drafters of the 1948 Genocide Convention “did not
deem the existence of an organization or a system serving a genocidal
objective as a legal ingredient of the crime. In so doing, they did not
discount the possibility of a lone individual seeking to destroy a group
as such.”86 In this respect the ICC Elements of Crimes thus amends and
restricts the scope of genocide as envisaged in both international con-
ventional and customary law.
The further requirement of the ICC Elements of Crimes that the
“conduct could itself effect such destruction” is somewhat ambiguous,
although it appears to exclude from the ambit of genocide “impossible
attempts” that are not likely to succeed, even if they are committed
with the requisite intent. In its recent decision to issue an arrest war-
rant against Sudanese president Omar Al-Bashir, the ICC attempted to
settle this ongoing “controversy.”87 The court recognized that

83
ICC Elements of Crimes, Art. 6.
84
Krstić, Appeals Judgement (ICTY, 19 April 2004), para. 223.
85
Ibid., para. 225; Jelisić, Appeals Judgement (ICTY, 5 July 2001), para. 48; Simba,
Appeals Judgement (ICTR, 27 November 2007), para. 260; Popović, Trial Judgement
(ICTY, 10 June 2010), paras. 826–30.
86
Jelisić, Trial Judgement (ICTY, 14 December 1999), para. 100.
87
“The Majority is aware that there is certain controversy as to whether this contextual
element should be recognized”: Prosecutor v. Bashir, Decision on the Prosecution’s
Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir
(International Criminal Court, 4 March 2009), para. 125.
 genocide 47

for the case law of the ICTY and the ICTR, the crime of genocide is completed
by, inter alia, killing or causing serious bodily harm to a single individual with
the intent to destroy in whole or in part the group to which such individual
belongs. As a result, according to this case law, for the purpose of complet-
ing the crime of genocide, it is irrelevant whether the conduct in question is
capable of posing any concrete threat to the existence of the targeted group,
or a part thereof.88

In the context of interpreting the ICC Statute, however, the court main-
tained that to consider the Elements of Crimes as “fully discretionary”89
would be inconsistent with both the intent of the drafters90 and the
nullum crimen sine lege principle.91 The court could therefore derogate
from the Elements only in the case of an “irreconcilable contradiction”
between it and the Statute.92 Not finding one with respect to the provi-
sions on genocide, the majority held that

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.93

The conclusion that there was no contradiction between the Elements

and the Statute was informed by the following:

[T]he definition of the crime of genocide, so as to require for its completion an

actual threat to the targeted group, or a part thereof, is (i) not per se contrary
to article 6 of the Statute; (ii) fully respects the requirements of article 22(2) of
the Statute that the definition of the crimes “shall be strictly construed and
shall not be extended by analogy” and “[i]n case of ambiguity, the definition
shall be interpreted in favour of the person being investigated, prosecuted or
convicted”; and (iii) is fully consistent with the traditional consideration of the
crime of genocide as the “crime of the crimes.”94

Thus, as is clear from this explanation, the ICC found that including a
“concrete threat” as part of the crime of genocide was justified prima-
rily by the need to maintain a privileged status for genocide within the

88
Ibid., para. 119 (footnotes omitted) (emphasis added).
89
Ibid., para. 131.   90 Ibid., paras. 129–30.
91
Ibid., para. 131.   92 Ibid., para. 128.
93
Ibid., para. 124 (footnotes omitted).
94
Ibid., para. 133 (footnotes omitted).
48 the core elements of international crimes

hierarchy of crimes. That this interpretation departs from the prec-

edents set by the ICTY and the ICTR does not seem to have unduly
troubled the ICC majority.95
Trivial or limited acts are excluded from the scope of genocide,
however, by the requirement that the intent be to destroy a group “in
whole or in part.” The ICTY Appeals Chamber has held that in view of
the Genocide Convention’s objective “to deal with mass crimes, it is
widely acknowledged that the intention to destroy must target at least
a substantial part of the group,”96 with a substantial part being con-
sidered either “a large majority of the group in question or the most
representative members of the targeted community.”97 As the Appeals
Chamber in Krstic´ explained:

The numeric size of the targeted part of the group is the necessary and impor-
tant starting point, though not in all cases the ending point of the inquiry.
The number of individuals targeted should be evaluated not only in absolute
terms, but also in relation to the overall size of the entire group. In addition to
the numeric size of the targeted portion, its prominence within the group can
be a useful consideration. If a specific part of the group is emblematic of the
overall group, or is essential to its survival, that may support a finding that the
part qualifies as substantial within the meaning of Article 4.98

Accordingly, ICTY jurisprudence includes, in the alternative, both a

quantitative and a qualitative criterion. Of course, the qualitative criter-
ion – with its assumption that a group’s leaders may be central to a
group’s viability – involves implicit and arguably controversial value
judgments as to the relative worth of the group’s “ordinary” members.
Another important qualification in the definition of genocide is that
genocidal intent may be confined to a limited geographic zone or, as
stipulated by the ICJ, it “is not necessary to intend to achieve the
complete annihilation of a group from every corner of the globe.”99

95
This particular issue was not under appeal in the ICC Appeals Chamber’s review
of the Trial Chamber’s decision concerning the prosecutor’s request for an arrest
warrant. See Prosecutor v. Bashir, Judgement on the Appeal of the Prosecutor Against
the “Decision on the Prosecution’s Application for a Warrant of Arrest Against
Omar Hassan Ahmad Al Bashir” (International Criminal Court, 3 February 2010).
96
Jelisić, Trial Judgement (ICTY, 14 December 1999), para. 82; Krstić, Appeals
Judgement (ICTY, 19 April 2004), para. 12.
97
Jelisić, Trial Judgement (ICTY, 14 December 1999), para. 82.
98
Krstić, Appeals Judgement (ICTY, 19 April 2004), para. 12.
99
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) (International Court of Justice,
26 February 2007), para. 199.
 genocide 49

These formulations are useful in attempting to define an essential

ingredient of genocide – the intended destruction of a group “in whole
or in part” – but in practice it is not possible to reliably determine what
constitutes “in part.” As with crimes against humanity, the elements
of scale and gravity are indeterminate, with the consequence that this
threshold matter involves an inherently subjective judgment.
By way of illustration, consider the ICTY’s Popovic´ and Krstic´ cases.
Several individuals were convicted of committing genocide at
Srebrenica, where between 7,000 and 8,000 Bosnian Muslim men and
boys were systematically murdered.100 “Muslims of eastern Bosnia”
were considered a substantial part of “the entire [target] group, Bosnian
Muslims.”101 The Muslim community of Srebrenica was said to number
approximately 40,000,102 and the total Muslim population of Bosnia-
Herzegovina was around 1.4 million.103 The ICTY noted that, even
though the Bosnian Muslims of Srebrenica and the eastern enclaves
comprised only a “small percentage” of the overall Muslim population
of Bosnia, “the import of the community is not appreciated solely by
its size” and that the “Srebrenica enclave was of immense strategic
importance to the Bosnian Serb leadership”:

(1) [T]he ethnically Serb state they sought to create would remain divided and
access to Serbia disrupted without Srebrenica; (2) most Muslim inhabitants of
the region had, at the relevant time, sought refuge in the Srebrenica enclave
and the elimination of the enclave would accomplish the goal of eliminating
the Muslim presence in the entire region; and (3) the enclave’s elimination
despite international assurances of safety would demonstrate to the Bosnian
Muslims their defenselessness and be “emblematic” of the fate of all Bosnian
Muslims.104

This analysis, albeit persuasive, shows just how many complex judg-
ments may have to be made about the social, cultural, political, and
economic aspects of a given situation.

Actus reus
The material element helps frame the mental element by defining the
scope of the term destroy. The definition of genocide requires that acts

100
Krstić, Trial Judgement (ICTY, 2 August 2001), para. 84.
101
Popović, Trial Judgement (ICTY, 10 June 2010), para. 865.
102
Krstić, Appeals Judgement (ICTY, 19 April 2004), para. 15.
103
Ibid., para. 15 note 27.
104
Popović, Trial Judgement (ICTY 10 June 2010), para. 865; Krstić, Appeals Judgement
(ICTY, 19 April 2004), paras. 15–16.
50 the core elements of international crimes

intended to destroy the group be those enumerated under paragraphs

(a) to (e) of Article II of the Genocide Convention.
UN General Assembly Resolution 96(1) of 1946 defined genocide as “a
denial of existence of entire human groups, as homicide is the denial
of the right to live of individual human beings.”105 During prepara-
tory work for the Genocide Convention, the delegates considered but
rejected an expansive definition that, in addition to physical and bio-
logical destruction, encompassed cultural destruction. The definition
was eventually restricted to physical and biological destruction – with
one possible exception106 – cumulatively referred to as “material”
destruction.107
The most unambiguous form of physical destruction is “[k]illing
members of the group” under Article II, paragraph (a), of the con-
vention. In contrast to immediate death through killing, paragraph (c)
essentially refers to slow death: “[d]eliberately inflicting on the group
conditions of life calculated to bring about its physical destruction.”108
In the Akayesu case, the ICTY Trial Chamber construed this category as
involving “methods of destruction by which the perpetrator does not
immediately kill the members of the group, but which, ultimately,
seek their physical destruction.”109 These methods may include “sub-
jecting a group of people to a subsistence diet, systematic expulsion
from homes and the reduction of essential medical services below
minimum requirement.”110 Both immediate and “slow” death clearly
fall within genocide’s category of physical destruction.
Paragraph (b) of the Genocide Convention – “causing serious bodily
or mental harm to members of the group” – is less clear-cut. The ICTR
has adopted a broad interpretation: In addition to “acts of torture,” it
includes a wide range of “inhumane or degrading treatment, and per-
secution without limiting itself thereto.”111 Similarly, the ICC Elements
of Crimes contains an explanatory note to the effect that such harm
“may include, but is not necessarily restricted to, acts of torture, rape,

105
General Assembly Resolution 96 (11 December 1946).
106
See 52 on “transferring children” as “cultural” rather than “biological”
destruction.
107
See, for example, Report of the International Law Commission on the Work of Its Forty-eighth
Session, GAOR, 51st Sess., Supp. No. 10, UN Doc. A/51/10, 90–91 (1996).
108
See Draft Convention on the Crime of Genocide, UN Doc. E/447 (1947), 25, where the
term slow death was used to describe this form of physical destruction.
109
Akayesu, Trial Judgement (ICTR, 2 September 1998), para. 505.
110
Ibid., para. 506.   111 Ibid., para. 504.
 genocide 51

sexual violence or inhuman or degrading treatment.”112 As the ICTR

Trial Chamber remarked in the Muvunyi case: “Trial Chambers at the
Tribunal have tended to interpret the term [destroy] broadly so that
it not only entails acts that are undertaken with the intent to cause
death but also includes acts which may fall short of causing death.”113
Given the open-endedness of this comment from Muvunyi, it is not
surprising that the criminal tribunals have been inconsistent and
unpredictable in determining what constitutes destruction for the pur-
poses of genocide. For instance, in the seminal Akayesu judgment, the
ICTR Trial Chamber considered rape and sexual violence as a means of
inflicting “serious bodily and mental harm” with the intent to destroy
the Tutsis in Rwanda.114 By contrast, in the Popovic´ case, the ICTY Trial
Chamber held that “forcible transfer does not constitute in and of itself
an underlying act of genocide”115 even if “in some circumstances forci-
ble transfer can be an underlying act that causes serious bodily or men-
tal harm, in particular if the forcible transfer operation was attended
by such circumstances as to lead to the death of the whole or part of
the displaced population.”116 In other cases, however, the ICTY Trial
Chamber has stated that “[s]ystematic expulsion from homes” may be a
means of inflicting conditions of life calculated to bring about destruc-
tion under Article 2(c) of the Genocide Convention.117 Moreover, the ICJ
has held that systematic “massive mistreatment, beatings, rape and
torture causing serious bodily and mental harm during the Bosnian
conflict and, in particular, in the detention camps” fulfill the material
element of Article 2(b) of the Genocide Convention.118 The range of acts

112
ICC Elements of Crimes, 2 note 3.
113
Muvunyi, Trial Judgement (ICTR, 12 September 2006), para. 482.
114
Akayesu, Trial Judgement (ICTR, 2 September 1998), paras. 733–34.
115
Popović, Trial Judgement (ICTY, 10 June 2010), para. 843.
116
Ibid., para. 813; see also Krstić, Appeals Judgement (ICTY, 19 April 2004), para. 33;
Blagojević and Jokić, Appeals Judgement (ICTY, 9 May 2007), para. 123; Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) (International Court of Justice, 26 February
2007), para. 190.
117
See, for example, Brdjanin, Trial Judgement (ICTY, 1 September 2004), para. 691;
Stakić, Trial Judgement (ICTY, 31 July 2003), para. 517; Akayesu, Trial Judgement
(ICTR, 2 September 1998), para. 506; Popović, Trial Judgement (ICTY, 10 June 2010),
para. 815.
118
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) (International Court of
Justice, 26 February 2007), para. 319; see also Brdjanin, Trial Judgement (ICTY, 1
September 2004), para. 690 (citing the following as examples of acts that inflict
serious bodily or mental harm for the purpose of genocide: “torture, inhumane
52 the core elements of international crimes

mentioned in the jurisprudence underscores that the legal definition of

genocide is so broad (and indeterminate) that it is difficult to describe –
notwithstanding the archetypal image of the Holocaust – what a
­t ypical genocide actually “looks like.” This is because it is the mens rea
of genocide that makes it unique, not its physical manifestation.
There are two further means of perpetrating genocide under
Article II of the Genocide Convention. Biological destruction through
“[i]mposing measures intended to prevent births within the group” –
paragraph (d) – is construed by the Akayesu case as “sexual mutilation,
the practice of sterilization, forced birth control, separation of the
sexes and prohibition of marriages.”119 Such measures can be mental
as well as physical.120 With respect to “[f]orcibly transferring children
of the group to another group” – paragraph (e) – it should be noted
that, although the International Law Commission characterizes it as
“biological” destruction, it may more appropriately constitute a form
of “cultural destruction.”121

The elusiveness of the categories

It is evident that, unlike crimes such as rape and murder, war crimes,
crimes against humanity, and genocide do not exist in watertight con-
ceptual categories. In many instances, the same conduct can qualify as

or degrading treatment, sexual violence including rape, interrogations combined

with beatings, threats of death, and harm that damages health or causes
disfigurement or serious injury to members of the targeted national, ethnical,
racial or religious group”).
119
Akayesu, Trial Judgement (ICTR, 2 September 1998), para. 507; see also Rutaganda,
Trial Judgement (ICTR, 6 December 1999), para. 53.
120
Rutaganda, Trial Judgement (ICTR, 6 December 1999), para. 53; Akayesu, Trial
Judgement (ICTR, 2 September 1998), para. 508; Popović, Trial Judgement (ICTY, 10
June 2010), para. 818.
121
See, for example, Report of the International Law Commission on the Work of its
Forty-eighth Session, GAOR, 51st Sess., Supp. No. 10, UN Doc. A/51/10, at 91
(1996), for the view that forcible transfer of children constitutes “biological”
destruction. But see Draft Convention on the Crime of Genocide, UN Doc. E/447
(1947), 6–7, where “forced transfer of children to another human group” is
included under the category of “cultural destruction” defined as destroying “the
specific characteristics of the group.” This act was interpreted as representing
the “disappearance of the group as a cultural unit” (at page 27), as distinct
from its physical or biological destruction. During the preparatory work for
the convention, there were differing views as to the nature of destruction
contemplated by paragraph (e) of Article II. See, for example, UN GAOR, 3rd
Sess., 6th Cmte., 82nd mtg., UN Doc. A/C.6/SR.82 (1948).
 the elusiveness of the categories 53

two or more of the core international crimes. A good example is the

Akayesu case, in which the accused was said to have spearheaded a cam-
paign of systematic rape of Tutsi girls and women in the municipality
where he was the bourgmestre.122
Consider the following, harrowing testimony:

According to Witness PP, who then went to Kinihira herself, the three women
were forced by the Interahamwe to undress and told to walk, run and per-
form exercises “so that they could display the thighs of Tutsi women.” All
this took place, she said, in front of approximately two hundred people. After
this, she said the women were raped. She described in particular detail the
rape of Alexia by Interahamwe who threw her to the ground and climbed
on top of her saying “Now, let’s see what the vagina of a Tutsi woman feels
like.” According to Witness PP, Alexia gave the Interahamwe named Pierre
her Bible before he raped her and told him, “Take this Bible because it’s our
memory, because you do not know what you’re doing.” Then one person held
her neck, others took her by the shoulders and others held her thighs apart
as numerous Interahamwe continued to rape her – Bongo after Pierre, and
Habarurena after Bongo. According to the testimony, Alexia was pregnant.
When she became weak she was turned over and lying on her stomach, she
went into premature delivery during the rapes. Witness PP testified that the
Interahamwe then went on to rape Nishimwe, a young girl, and recalled lots
of blood coming from her private parts after several men raped her. Louise
was then raped by several Interahamwe while others held her down, and after
the rapes, according to the testimony, all three women were placed on their
stomachs and hit with sticks and killed.

The brutality of these acts leaves one speechless, without words

to capture either the unbearable cruelty of the perpetrators or the
unimaginable suffering of the victim. And yet that is exactly what is
required of judges whose task it is to channel facts into one or more
categories of wrongdoing by application of legal reasoning.
In connection with the rapes described above and other inhumane
acts, including murder – for which the accused was found liable –
the ICTR Trial Chamber found Akayesu guilty of both crimes against
humanity and genocide. Later, the Appeals Chamber found that his
acquittal on war crimes charges was based upon an error of law.123

122
See Akayesu, Trial Judgement (ICTR, 2 September 1998), paras. 157ff.
123
Akayesu, Appeals Judgement (ICTR, 1 June 2001), paras. 444–45 (holding that the
Trial Chamber incorrectly applied a “public agent or government representative
test” to war crimes).
54 the core elements of international crimes

Therefore, Akayesu was guilty of all three core international crimes on

the same set of facts:

• The war crimes conviction with respect to the rapes would have
been based, in part, upon Article 4(2)(e) of Additional Protocol II to
the Geneva Conventions, which prohibits “outrages upon personal
dignity, in particular humiliating and degrading treatment, rape,
enforced prostitution and any form of indecent assault.”
• The conviction for crimes against humanity was partially entered
on the basis of a widespread and systematic attack comprising acts
of rape under Article 3(g) of the ICTR Statute (which refers to “other
inhumane acts”).
• The rapes constituted genocide under the Genocide Convention’s
prohibition against “causing serious bodily or mental harm to
members of the group,” as reflected in Article 2(b) of the ICTR
Statute.

The Akayesu Trial Chamber explained these multiple convictions

without reference to the comparative gravity of the crimes:

Having regard to its Statute, the Chamber believes that the offences under
the Statute – genocide, crimes against humanity, and violations of Article 3
common to the Geneva Conventions and of Additional Protocol II – have dif-
ferent elements and, moreover, are intended to protect different interests.
The crime of genocide exists to protect certain groups from extermination or
attempted extermination. The concept of crimes against humanity exists to
protect civilian populations from persecution. The idea of violations of article
3 common to the Geneva Conventions and of Additional Protocol II is to pro-
tect non-­combatants from war crimes in civil war. These crimes have different
purposes and are, therefore, never co-extensive. Thus it is legitimate to charge
these crimes in relation to the same set of facts.124

Following this line of reasoning – and rejecting, in effect, the view of

the ICTR Trial Chamber in Kambanda (as cited in Blaškic´) that genocide
is the “crime of crimes” and that it is, by the same token, more “serious”
than the other international crimes125 – the Trial Chamber maintained
that no one type of international crime is inherently “more serious
than another.” In other words, the ICTR Statute does not “establish a
hierarchy of norms, but rather all three offences are presented on an
equal footing.”126

124
Akayesu, Trial Judgement (ICTR, 2 September 1998), para. 469.
125
Kambanda, Trial Judgement (ICTR, 4 September 1998); see 83–84.
126
Akayesu, Trial Judgement (ICTR, 2 September 1998), para. 470.
 the elusiveness of the categories 55

Thus, the comprehensive analysis of the contextual requirements

still leaves unanswered a fundamental question: Is genocide the
“crime of crimes,” or is it just another international crime? What can
be gleaned from further analysis of its stigma and the sentencing
practice of tribunals? And against the absolute horrors described in
Witness PP’s testimony, should we really be concerned with such legal
abstractions and hierarchies at all?
4 A hierarchy of international crimes?

On 12 July 1995, after a campaign of relentless artillery shelling against

civilians, Serb forces captured the Bosnian Muslim enclave of Srebrenica,
where an estimated 40,000 terrified victims of “ethnic cleansing” had
sought refuge. In the days that followed, some 8,000 men were singled
out and summarily executed, and their bodies dumped in mass graves.
On 2 August 2001, the ICTY Trial Chamber in the Krstic´ case concluded
that this mass murder qualified as “genocide.”1 Referring to this
atrocity as “an unspeakable human evil,”2 the judgment described the
tragic fate of the victims:

Almost to a man, the thousands of Bosnian Muslim prisoners captured, follow-

ing the takeover of Srebrenica, were executed. Some were killed individually
or in small groups by the soldiers who captured them and some were killed in
the places where they were temporarily detained. Most, however, were slaugh-
tered in carefully orchestrated mass executions, commencing on 13 July 1995,
in the region just north of Srebrenica. Prisoners not killed on 13 July 1995
were subsequently bussed to execution sites further north of Bratunac, within
the zone of responsibility of the Zvornik Brigade. The large-scale executions in
the north took place between 14 and 17 July 1995.
Most of the mass executions followed a well-established pattern. The men
were first taken to empty schools or warehouses. After being detained there
for some hours, they were loaded onto buses or trucks and taken to another
site for execution. Usually, the execution fields were in isolated locations. The
prisoners were unarmed and, in many cases, steps had been taken to minim-
ise resistance, such as blindfolding them, binding their wrists behind their
backs with ligatures or removing their shoes. Once at the killing fields, the
men were taken off the trucks in small groups, lined up and shot. Those who

1
Krstić, Trial Judgement (ICTY, 2 August 2001), para. 598.
2
Ibid., para. 70.

56
 a hierarchy of international crimes? 57

survived the initial round of gunfire were individually shot with an extra
round, though sometimes only after they had been left to suffer for a time.
Immediately afterwards, and sometimes even during the executions, earth
moving equipment arrived and the bodies were buried, either in the spot
where they were killed or in another nearby location.
At several of the sites, a few wounded people survived by pretending to be
dead and then crawled away. The Trial Chamber heard from some of these sur-
vivors about their ordeals. It also heard from a member of the [Bosnian Serb
Army] who participated in one of the largest executions, which took place on
16 July 1995.3

Among the Army of Republika Srpska soldiers responsible for this

mass execution, the only one to testify for the prosecution was Dražen
Erdemović – a 24-year-old ethnic Croat married to an ethnic Serb. His
earlier 1996 trial was an anomaly. Far from being an enthusiastic géno-
cidaire, his was a case of an unwitting warrior – from a mixed mar-
riage, enmeshed in an ethnic war – who found himself in the wrong
place at the wrong time:

On 16 July 1995, he was sent with other members of his unit to the Branjevo
collective farm near Pilica, north-west of Zvornik. Once there, they were
informed that later that day Muslim men from 17 to 60 years of age would be
brought to the farm in buses. The men were unarmed civilians who had sur-
rendered to the members of the Bosnian Serb army or police after the fall of
the United Nations “safe area” at Srebrenica. Members of the military police
took the civilians off the buses in groups of ten and escorted them to a field
next to the farm buildings, where they were lined up with their backs to a
firing squad. The men were then killed by Drazen Erdemovic and other mem-
bers of his unit with the help of soldiers from another brigade.4

Unlike other defendants, Erdemović had voluntarily confessed to his

crimes and repeatedly expressed remorse. Before the Trial Chamber, he
testified that he had initially disobeyed orders to shoot the victims but
was left with no choice after his commander threatened to kill him:

Your Honour, I had to do this. If I had refused, I would have been killed
together with the victims. When I refused, they told me: “If you’re sorry for
them, stand up, line up with them and we will kill you too.” I am not sorry for
myself but for my family, my wife and son who then had nine months, and I
could not refuse because then they would have killed me.5

3
Ibid., paras. 67–69.
4
Erdemović, Sentencing Judgement (ICTY, 29 November 1996), para. 2.
5
Ibid., para. 10.
58 a hierarchy of international crimes?

At his initial trial, he pleaded guilty to both crimes against humanity

and war crimes, but the Trial Chamber decided to sentence him solely
for crimes against humanity because war crimes had been charged
only in the alternative.6 This decision would inadvertently lead to
the ICTY’s first consideration of whether one crime should result in a
higher sentence than the other on account of its greater gravity.
On appeal, it emerged that Erdemović may not have properly under-
stood the difference between pleading guilty to crimes against human-
ity rather than solely to war crimes. In its first full proceeding, the ICTY
Appeals Chamber considered proprio motu (that is, on its own initiative)
whether the defendant had entered an “informed” plea of guilty and
whether he had, in particular, appreciated “the distinction between
the alternative charges [of war crimes and crimes against humanity]
and the consequences of pleading guilty to one rather than the other.”7
The Appeals Chamber went on to hold that if he had “been properly
apprised of the less serious charge and his entitlement to plead to it, we
have grave doubts that he would have continued to plead guilty to the
more serious charge.”8 The case was remitted to a new trial chamber,
and Erdemović entered a new plea of guilty, but this time only to war
crimes. Consequently, his initial sentence was reduced from ten to five
years9 – not because the facts had changed, but merely because of the
different categorization of the crime.
Coming as it did in the earliest days of ICTY jurisprudence, the
Erdemovic´ case raised for the first time the question of whether crimes
against humanity are more serious than war crimes, and more gener-
ally whether the most serious international crimes are on an equal foot-
ing or not. Beyond stigma, the most determinate expression of relative
gravity between such crimes is differentiation in sentencing. It follows
that, if one crime is more serious than the other, it should result in
greater punishment, proportionate to the added moral blameworthi-
ness. Absent sentencing tariffs in international law, however, and con-
sidering the substantive overlap between the crimes, what followed in

6
Ibid., para. 3.
7
Erdemović, Appeals Judgement, Joint Separate Opinion of Judge McDonald and Judge
Vohrah (ICTY, 7 October 1999), para. 19. On this particular point, the joint separate
opinion takes the same position as the majority opinion; only one of the five judges
(Judge Li) dissented on this point. See Erdemović, Appeals Judgement (ICTY, 7
October 1999), para. 20.
8
Erdemović, Appeals Judgement, Joint Separate Opinion of Judge McDonald and Judge
Vohrah (ICTY, 7 October 1999), para. 26.
9
Erdemović, Sentencing Judgement (ICTY, 5 March 1998).
 principles of sentencing 59

subsequent decisions was a complex, conflicted, and at times confused

debate as to the existence and character of a normative hierarchy. The
principles that emerged would have a lasting impact on how we ascer-
tain and compare the gravity of different types of atrocities. They indi-
cate that, despite its conception as the “crime of crimes,” genocide is
not so clearly the most serious crime. Despite some contrary views, the
weight of judicial opinion does not deem genocide to be categorically
more serious than either war crimes or crimes against humanity. At
best, sentencing practice indicates that, where the facts are exactly the
same, genocide results in higher punishment than other crimes, on
account of its gravity. Viewed from this perspective, genocide does not
seem to merit the great distinction that is often attributed to it.

Principles of sentencing
Gravity of crime and individual circumstances
as factors in sentencing
Can greater punishment indicate the relative heinousness of a crime?
Making such a determination is complicated by the fact that, unlike
sentencing tariffs in national penal codes, the statutes of the ICTY,
ICTR, and ICC do not generally stipulate differing minimum or max-
imum penalties corresponding to different crimes. The ICTY and ICTR
Statutes simply provide that the penalty imposed “shall be limited to
imprisonment”10 (thereby excluding the death penalty, forced labor,
and similar punishments). Although the “general practice regarding
prison sentences” in former Yugoslavia and Rwanda respectively shall
be considered,11 the jurisprudence clarifies that “a Trial Chamber’s
discretion in imposing sentence is not bound by any maximum term
of imprisonment applied in a national system.”12 Article 77(1) of the
ICC Statute provides some further guidance but does not differentiate
between crimes. It simply states that the court may impose

(a) Imprisonment for a specified number of years, which may not

exceed a maximum of 30 years; or
(b) A term of life imprisonment when justified by the extreme gravity
of the crime and the individual circumstances of the convicted
person.

10
ICTY Statute, Art. 24(1); ICTR Statute, Art. 23(1).
11
ICTY Statute, Art. 24(1); ICTR Statute, Art. 23(1).
12
Tadić, Judgement in Sentencing Appeals (ICTY, 26 January 2000), para. 21.
60 a hierarchy of international crimes?

Article 77(2) further provides that, in addition to imprisonment, the

court may order the payment of a fine or the “forfeiture of proceeds,
property and assets derived directly or indirectly from that crime.”
Although the courts’ statutes do not, in the context of penalties, spe-
cifically differentiate among crimes, the statutes do all provide that
the courts should “take into account such factors as the gravity of the
crime and the individual circumstances of the convicted person.”13
These provisions resemble the two-step approach to sentencing by
national courts for ordinary crimes discussed in Chapter 2 – namely, a
combination of the gravity of the crime defined by a specific category
of wrongdoing, and culpability defined by the perpetrator’s individual
circumstances.14 Nevertheless, since the statutes, unlike their national
counterparts, establish no mandatory sentences, it is difficult to ascer-
tain the weight given to the gravity of the crime versus the individual
circumstances of the convicted person in relation to any particular
sentence. In short, the courts have very broad judicial discretion in
sentencing,15 which gives rise to less quantifiable and less predictable
results.
The Rules of Procedure and Evidence of all three tribunals pro-
vide further guidance on the factors to be considered in sentencing.
These factors include the degree of participation and culpability of
the accused, the particular means employed to execute the crime, and
even, inter alia, the “age, education, social and economic condition of
the convicted person.”16 These factors do not relate to the gravity of the
crime as defined by specific categories of wrongdoing, however, and in
any event they are neither exhaustive nor obligatory.17 The sentencing
practices of tribunals indicate that certain factors are applied with
greater consistency than others. In particular, the rank or authority of

13
ICTY Statute, Art. 24(2); ICTR Statute, Art. 23(2); ICC Statute, Art. 78(1).
14
See 17–22; Andrea Carcano, “Sentencing and the Gravity of the Offence in
International Criminal Law,” International and Comparative Law Quarterly 51
(2002): 583.
15
Akayesu, Appeals Judgement (ICTR, 1 June 2001), para. 416; see also Krstić, Appeals
Judgement (ICTY, 19 April 2004), para. 242: “The jurisprudence of the ICTY and
ICTR has … generated a body of relevant factors to consider during sentencing.
The Appeals Chamber has emphasised, however, that it is ‘inappropriate to set
down a definitive list of sentencing guidelines for future reference,’ given that the
imposition of a sentence is a discretionary decision.”
16
ICC Rules on Procedure and Evidence, Rule 145; see also the ICTY and ICTR Rules of
Procedure and Evidence, Rule 101.
17
See generally William A. Schabas, “Sentencing by International Tribunals: A Human
Rights Approach,” Duke Journal of Comparative & International Law 7 (1997): 461.
 principles of sentencing 61

a convicted person within the relevant political or military ­hierarchy

is almost always considered, pointing to a “fairly strong and positive
relationship between power and punishment.”18 Another factor is
whether the accused has cooperated with the prosecution or entered a
guilty plea, either of which usually results in a lighter sentence.19 But,
once again, these factors do not correspond to the gravity of the crime
as such.
In addition to these listed factors, numerous others have been
identified in jurisprudential literature. Scholars James Meernik and
Kimi King, in an empirical study of ICTY cases, found the following
aggravating factors cited by judges: magnitude of crimes, zeal, hein-
ousness, duration of crimes, discriminatory intent, vulnerability of
victims, youth of victims, abuse of trust or personal authority, fail-
ure to punish those committing crimes, intimidation of witnesses/
courtroom demeanor, and personal gain. By contrast, mitigating fac-
tors mentioned in judgments include “guilty pleas,” “co-operation,”
“remorse,” “surrendered,” “no prior criminal record,” “assisted vic-
tims,” “not active participant,” “family,” “youth,” “old age,” “not a pre-
sent threat,” “redeemable,” “subordinate rank,” “prison would be far
away,” “context of actions,” “co-operation with defense counsel,” and
“post-­conflict conduct.”20 Again, these factors do not seem to corres-
pond to the gravity of crimes in abstracto.
There is some question as to whether these aggravating and miti-
gating factors are a third type of measurement to be used during
sentencing, or if they are already encompassed in the “individual cir-
cumstances of the convicted person.” Robert Sloane, in reference to
the ICTR, explains that individual circumstances
effectively [mean], or [overlap] almost entirely with, aggravating and miti-
gating circumstances under Rule 101. At times, the Tribunal describes cer-
tain sentencing facts under the heading “individual circumstances,” but
these serve no independent function in the determination of sentence

18
James Meernik and Kimi King, “The Sentencing Determinants of the International
Criminal Tribunal for the Former Yugoslavia: An Empirical and Doctrinal Analysis,”
Leiden Journal of International Law 16 (2003): 717, 739.
19
Ibid. Rule 101(B)(ii) of the Rules of Procedure and Evidence in both tribunals
specifically provides for these as mitigating factors. See also Nikolić, Appeals
Judgement (ICTY, 4 February 2005), para. 89 (noting the “special context of a plea
agreement”).
20
Meernik and King, “The Sentencing Determinants of the International Criminal
Tribunal for the Former Yugoslavia: An Empirical and Doctrinal Analysis.”
62 a hierarchy of international crimes?

except insofar as the Tribunal finds them to be aggravating or mitigating.

“Gravity,” by contrast, does – at least in theory.21

In view of broad judicial discretion and myriad factors considered, the

categorization of sentencing factors can prove to be an elusive task.
For example, the gravity of a crime and individual circumstances may
overlap. In such instances, the ICTY Appeals Chamber “considers that
factors which a Trial Chamber takes into account as aspects of the
gravity of the crime cannot additionally be taken into account as sep-
arate aggravating circumstances, and vice versa … [D]ouble-counting for
sentencing purposes is impermissible.”22 Judges may assess gravity and
aggravating circumstances together,23 however, and they may assess a
factor “which normally would be taken into account in … gravity … as
an aggravating factor.”24
At most, it can be said that “in the vast majority of cases,” gravity
“establish[es] a high baseline” for sentencing, whereas “adjustments to
and individualization of the sentence virtually all take place at the level
of ‘individual circumstances.’”25 That is, although individual circum-
stances are always taken into account in sentencing, the gravity of the
crime is a more significant factor. This central importance of gravity
is reflected by its characterization as the “sentencing lodestar,”26 “lit-
mus test for the appropriate sentence,”27 “deciding factor,”28 “primary
consideration,”29 and “cardinal feature”30 in sentencing. Nonetheless,
the gravity of crimes corresponds to the factual circumstances in
which specific crimes are actually committed by the convicted person
and not to a category of wrongdoing in abstracto.

The purposes of punishment in international criminal law

Sentencing in international criminal justice is determined not only
by the gravity of crimes and individual circumstances, but also by

21
Robert D. Sloane, “Sentencing for the ‘Crime of Crimes’: The Evolving ‘Common
Law’ of Sentencing of the International Criminal Tribunal for Rwanda,” Journal of
International Criminal Justice 5 (2007): 713, 722.
22
Deronjić, Appeals Judgement (ICTY, 20 July 2005), paras. 106–07.
23
Ibid., para. 107.
24
Vasiljević, Appeals Judgement (ICTY, 25 February 2004), para. 157.
25
Sloane, “Sentencing for the ‘Crime of Crimes,’” 722.
26
Ibid.
27
Akayesu, Appeals Judgement (ICTR, 1 June 2001), para. 413.
28
Nahimana, Appeals Judgement (ICTR, 28 November 2007), para. 1060.
29
Čelebići, Appeals Judgement (ICTY, 20 February 2001), para. 731.
30
Plavšić, Sentencing Judgement (ICTY, 27 February 2003), para. 25.
 principles of sentencing 63

retribution and deterrence31 – the two primary purposes of punish-

ment in domestic law.32 These factors add a further element of com-
plexity in determining the comparative seriousness of international
crimes. As discussed in Chapter 2, imposing punishment in proportion
to the degree of wrongdoing has a central place both in retributive
theories based on moral blameworthiness and in utilitarian theories
based on objectives such as deterrence. If one crime is more serious
than another, it should receive greater punishment, whether to jus-
tify the additional moral stigma or to create a disincentive for greater
wrongdoing. The tribunals have given great weight to deterrence
in that putting an end to impunity is the leitmotif of international
­criminal law. However, while deterrence is a primary justification for
punishing international crimes, it seems to have little influence on the
determination of individual sentences.
With respect to special deterrence (that is, preventing an individual
from reoffending), tribunals have expressed doubt as to its relevance
in the context of prosecuting mass atrocities before international crim-
inal tribunals. The ICTY Trial Chamber in Kunarac explained that

special deterrence, as a general sentencing factor, is generally of little sig-

nificance before this jurisdiction. The main reason is that the likelihood of
persons convicted here ever again being faced with an opportunity to commit
war crimes, crimes against humanity, genocide or grave breaches is so remote
as to render its consideration in this way unreasonable and unfair.33

With respect to general deterrence, it is virtually impossible for judges

to decide how best to deter future international crimes in determin-
ing a sentence, especially given the lack of empirical research on the
subject.34 Would prolonging the sentence of a convict by ten years
better prevent genocide from recurring in a particular country in

31
Tadić, Sentencing Judgement (ICTY, 11 November 1999), para. 9 (“retribution and
deterrence serv[e] as the primary purposes of sentence”); see also Furundižja, Trial
Judgement (ICTY, 10 December 1998), para. 288; Deronjić, Sentencing Judgement
(ICTY, 30 March 2004), para. 142; Rutaganda, Trial Judgement (ICTR, 6 December
1999), para. 456; Serushago, Sentencing Judgement (ICTR, 5 February 1999), para. 20.
32
See 13–17.
33
Kunarac, Trial Judgement (ICTY, 26 February 2001), para. 840.
34
Shahram Dana, “Genocide, Reconciliation and Sentencing in the Jurisprudence of
the ICTY,” in Ralph Henham and Paul Behrens, eds., The Criminal Law of Genocide:
International, Comparative and Contextual Aspects (Aldershot, UK: Ashgate, 2007),
259 (noting that the “most significant [challenge to determining ‘the role of
sentencing’] is lack or insufficiency of empirical data linking punishment to the
prevention of genocide”).
64 a hierarchy of international crimes?

the future? Or, perhaps, would a lesser sentence better contribute to

national reconciliation? These complex questions may be beyond the
competence of the trial judge within the confines of a judicial proceed-
ing. Consequently, general deterrence remains an important purpose
of international criminal punishment but carries little weight in the
determination of individual sentences.35
In ICTY jurisprudence, for instance, “judgments simply cite deterrence
as a sentencing principle but draw no particular connection between
deterrence and the sentence imposed.”36 As the Appeals Chamber in
Nikolic´ stated:

While it is undisputed that [deterrence] plays “an important role in the

­f unctioning of the Tribunal,” the Trial Chamber’s duty remains to tailor the
penalty to fit the individual circumstances of the accused and the gravity of
the crime. By doing so, Trial Chambers contribute to the promotion of the
rule of law and respond to the call from the international community to end
impunity, while ensuring that the accused are punished solely on the basis of
their wrongdoings and receive a fair trial.37

It has also been argued that there is a special place in international

criminal law for Johannes Andenæs’s theory of “general prevention,”38
or what the ICTY has called “affirmative prevention.”39 That inter-
national criminals are seen to be punished is of “communicative” or
“expressive” significance40 for members of society, given the special
moral stigma attached to such crimes. As explained by the Appeals
Chamber in Kordic´, “the sentence seeks to internalise these rules and

35
The Kunarac Trial Chamber curiously implied that general deterrence was a kind
of aggravating factor increasing all sentences, but that, “in the circumstances
of the present case, the Trial Chamber considers that increasing the terms of
imprisonment because of general deterrence is unnecessary in light of the length
of the sentences dictated by the inherent gravity of the offences”: Kunarac, Trial
Judgement (ICTY, 26 February 2001), para. 857.
36
Allison Danner, “Constructing a Hierarchy of Crimes in International Criminal Law
Sentencing,” Virginia Law Review 87 (2001): 415, 448.
37
Nikolić, Appeals Judgement (ICTY, 4 February 2005), para. 45.
38
See 25–26.
39
Kordić, Appeals Judgement (ICTY, 17 December 2004), paras. 1073, 1080–88 (“[T]he
sentence seeks to internalise these rules [of humanitarian international law] and
the moral demands they are based on in the minds of the public. The reprobation
or stigmatisation associated with a sentence is closely related to the purpose of
affirmative prevention. Similarly, putting an end to impunity for the commission
of serious violations of international humanitarian law refers to affirmative
prevention”).
40
Danner, “Constructing a Hierarchy of Crimes,” 489.
 principles of sentencing 65

the moral demands they are based on in the minds of the public.”41
This dynamic is distinct from general deterrence in that it is not fear
of punishment that prevents further atrocities, but rather a kind of
pervasive moral suasion that leads to habitual lawfulness by instilling
subliminal inhibitions against international crimes.
Other, less persuasive factors have also influenced sentencing in
the international context. The jurisprudence of the ICTY identifies,
for example, individual rehabilitation and national reconciliation.
Rehabilitation is distinct from, but related to, special deterrence in
that it is aimed at transforming a criminal into a law-abiding per-
son.42 Reconciliation might also be a factor in sentencing – by way of
mitigation, in order to promote healing and the restoration of social
normalcy. In Plavšic´, for example, the former president of Republika
Srpska pleaded guilty to the crime against humanity of persecution.
According to the ICTY, the guilty plea had a crucial role in “establish-
ing the truth” – which, “together with acceptance of responsibility for
the committed wrongs, will promote reconciliation … in Bosnia and
Herzegovina and the region as a whole.”43 Thus, Plavšić was sentenced
to a mere eleven years’ imprisonment in Sweden despite the gravity of
the crimes.44
Yet other purposes of international criminal law include establish-
ing a historical record, meeting the demands of victim communities,
delegitimizing nationalist regimes and racist ideologies, and maintain-
ing a lasting peace.45 These myriad justifications have led one scholar
to point to “an identity crisis in international punishment” and an ever
shifting list of factors that both complicates the task of international
judges and “undermines the principle of equal treatment.”46
The diversity and complexity of factors relevant to sentencing in
international criminal law – including the gravity of a crime based
on factual circumstances, the individual circumstances of a convicted
person, and consideration of the multiple objectives of punishment –
lead to uncertain and potentially inconsistent sentencing, render-
ing the task of comparing the relative seriousness of international
crimes especially difficult. In particular, absent sentencing tariffs, the

41
Kordić, Appeals Judgement (ICTY, 17 December 2004), para. 1080; Nikolić,
Sentencing Judgement (ICTY, 18 December 2003), para. 139.
42
Dana, “Genocide, Reconciliation and Sentencing,” 261.
43
Plavšić, Sentencing Judgement (ICTY, 27 February 2003), para. 80.
44
Dana, “Genocide, Reconciliation and Sentencing,” 267.
45
Ibid., 262–64.   46 Ibid., 264.
66 a hierarchy of international crimes?

practice of a “global sentence” for multiple crimes obscures the rela-

tive weight of the factors considered. As William Schabas has noted,
sentencing in international criminal law is often little more than an
“afterthought.”47
Bearing these difficulties in mind, what can be gleaned from the
actual sentencing practices of the tribunals in our effort to determine
the relative gravity of different international crimes?

Sentencing practice at the international criminal tribunals

The principle of proportionality shapes punishment as much in inter-
national law as it does in domestic law, and in both contexts it is the
gravity of the crime that is the most significant criterion for senten-
cing. ICTY and ICTR judgments have consistently held that “the over-
riding obligation in determining sentence is that of fitting the penalty
to the gravity of the criminal conduct.”48 ICTY–ICTR jurisprudence rec-
ognizes that

although there is no pre-established hierarchy between crimes within the jur-

isdiction of the Tribunal, and international criminal law does not formally
identify categories of offences, it is obvious that, in concrete terms, some crim-
inal behaviours are more serious than others … [T]he effective gravity of the
offences committed is the deciding factor in the determination of the sen-
tence: the principle of gradation or hierarchy in sentencing requires that the
longest sentences be reserved for the most serious offences.49

A comprehensive 2003 study found that the average sentence meted

out at the ICTY for genocide was forty-six years; for crimes against
humanity, sixteen years; and for war crimes, eleven years.50 In a 2010
judgment against seven individuals accused of participating in the

47
William A. Schabas, “International Sentencing: From Leipzig (1923) to Arusha
(1996),” in M. C. Bassiouni, ed., International Criminal Law, 2nd edn. (New York:
Transnational, 1999), 171.
48
Banović, Sentencing Judgement (ICTY, 28 October 2003), para. 36; see also
Ćesić, Sentencing Judgement (ICTY, 11 March 2004), para. 31; Kamuhanda, Trial
Judgement (ICTR, 22 January 2004), para. 765 (“the penalty must first and foremost
be commensurate to the gravity of the offense”); Kajelijeli, Trial Judgement (ICTR, 1
December 2003), para. 963 (same).
49
Nahimana, Appeals Judgement (ICTR, 28 November 2007), para. 1060.
50
Meernik and King, “The Sentencing Determinants of the International Criminal
Tribunal for the Former Yugoslavia: An Empirical and Doctrinal Analysis,” 736.
As of the time that the study was conducted, however, there had been only one
conviction for genocide (Krstić).
 sentencing practice at the international criminal tribunals 67

Srebrenica massacre, two men found guilty of genocide were sentenced

to life imprisonment; one man found guilty of aiding and abetting
genocide was sentenced to thirty-five years; three men found guilty
of crimes against humanity (including murder) were given sentences
ranging from thirteen to nineteen years; and the man found guilty of
crimes against humanity (not including murder) was sentenced to only
five years.51
The rough hierarchy that emerges from ICTY sentencing practice
contradicts the assertion in the tribunal’s jurisprudence that there
is no such ranking of crimes.52 While in theory judges have rejected
graduated sentencing based on the gravity of differing crimes, that is
exactly how they have determined the appropriate punishment, not-
withstanding the complexities in sentencing discussed above.
If, in practice, there is differential treatment of these crimes in sen-
tencing, can it be explained by reference to the comparative gravity of
the respective crimes?

War crimes vs. crimes against humanity

The Erdemović Appeals Judgement
As discussed above, it was the Erdemovic´ case that first addressed the
existence of a hierarchy among international crimes. The majority
of the Appeals Chamber held that “all things being equal, a punishable
offence, if charged and proven as a crime against humanity, is more
serious and should ordinarily entail a heavier penalty than if it were
proceeded upon on the basis that it were a war crime.”53 In other words,
even if one crime is not categorically more serious than the other, a
crime against humanity is more serious and should result in a higher
sentence if there is a conviction for both crimes based on the exact
same facts.

51
Popović, Trial Judgement (ICTY, 12 June 2010), 832–38.
52
See, for example, Kunarac, Appeals Judgement (ICTY, 12 June 2002), para. 171.
53
Erdemović, Appeals Judgement, Joint Separate Opinion of Judge McDonald
and Judge Vohrah (ICTY, 7 October 1999), para. 20. This analysis, presented in
paragraphs 20 to 27 of the separate opinion, is adopted in paragraph 20 of the
Appeals Chamber’s judgment:
[T]he Appeals Chamber, for the reasons set out in the Joint Separate
Opinion of Judge McDonald and Judge Vohrah, finds that the guilty plea of
the Appellant was not informed and accordingly remits the case to a Trial
Chamber other than the one which sentenced the Appellant in order that he
be given an opportunity to replead.
68 a hierarchy of international crimes?

In support of this proposition, the Appeals Chamber first examined

the elements of each crime, noting that, whereas war crimes “address
the criminal conduct of a perpetrator toward an immediate protected
object,” crimes against humanity “address the perpetrator’s conduct
not only toward the immediate victim but also toward the whole of
humankind.”54 The chamber further remarked:
Crimes against humanity are especially odious forms of misbehavior and in
addition form part of a widespread and systematic practice or policy. Because
of their heinousness and magnitude they constitute egregious attacks on
human dignity, on the very notion of humaneness. They consequently affect,
or should affect, each and every member of mankind, whatever his or her
nationality, ethnic group and location.55

Beyond this nebulous concept of “heinousness and magnitude,” the

Appeals Chamber explained how the specific elements of crimes
against humanity justify its greater moral blameworthiness in com-
parison to war crimes. In particular, the tribunal reasoned that, unlike
war crimes, crimes against humanity require the following additional
elements:
[C]rime[s] against humanity: (a) must have been committed as part of the
widespread or systematic perpetration of such acts, not necessarily by the
accused himself; but certainly (b) in the knowledge that the acts are being
or have been committed in pursuance of an organized policy or as part of a
widespread or systematic practice against a certain civilian group.56

The Appeals Chamber thus concluded that, in terms of proportionality,

[t]he gravity of crimes against humanity when compared with that of war
crimes is enhanced by these facets. They indicate that crimes against human-
ity are not isolated and random acts but acts which will, and which the per-
petrator knows will, have far graver consequences because of their additional
contribution to a broader scheme of violence against a particular systematic-
ally targeted civilian group.57

It bears emphasizing that this question was considered in view of

Erdemović having been charged with two crimes for the same under-
lying act (that is, the mass murder at Srebrenica). Because crimes
against humanity require that the prosecutor prove additional elem-
ents – namely, that the massacre was part of a widespread or systematic
attack, and that the accused was aware of that context – the Appeals
Chamber concluded that it was an inherently more serious crime.

54
Ibid., para. 21.   55 Ibid.
56
Ibid.   57 Ibid., para. 22.
 sentencing practice at the international criminal tribunals 69

Since the Appeals Chamber attributed a lower gravity to war crimes,

it remitted the case to a new Trial Chamber. Erdemović entered a new
guilty plea only for war crimes, and his initial sentence of ten years’
imprisonment was reduced to five years’.

The Tadić Sentencing Appeal

The Tadic´ case, the second appeals proceeding at the ICTY, reversed
Erdemovic´ by rejecting a hierarchy on which war crimes and crimes
against humanity were positioned. Tadic´ remains the controlling opin-
ion in ICTY jurisprudence on this matter.58 Its application of the prin-
ciple of proportionality in the context of international criminal law,
however, gives rise to misgivings.
Dusko Tadić was convicted of multiple counts of war crimes and
crimes against humanity for his involvement in the infamous deten-
tion camps set up in the Prijedor region of northern Bosnia. The Trial
Chamber imposed a higher sentence for his convictions for crimes
against humanity than for war crimes, relying upon the Erdemovic´
precedent, in addition to authorities in ICTR jurisprudence.59
In the appeal on sentencing, Tadić argued that “the sentence imposed
on a defendant should reflect the seriousness of the actual acts com-
mitted and the defendant’s level of culpability for them, and that he
should not be exposed to a higher sentence for the same acts sim-
ply because of the legal description attached to them.”60 The Appeals
Chamber agreed, ruling that

there is in law no distinction between the seriousness of a crime against

humanity and that of a war crime. The Appeals Chamber finds no basis for
such a distinction in the Statute or the Rules of the International Tribunal
construed in accordance with customary international law; the authorized
penalties are also the same, the level in any particular case being fixed by ref-
erence to the circumstances of the case.61

The separate opinion of Judge Mohamed Shahabuddeen elaborated

on the reasoning underlying the majority opinion’s ruling in three
respects.62 First, Judge Shahabuddeen drew a distinction “at the level

58
See Popović, Trial Judgement (ICTY, 10 June 2010), para. 2134 (citing Kunarac,
Appeals Judgement [ICTY, 12 June 2002], para. 171; Tadić, Judgement in Sentencing
Appeals [ICTY, 26 January 2000], para. 69); see also Stakić, Appeals Judgement (ICTY,
22 March 2006), para. 375.
59
Tadić, Sentencing Judgement (ICTY, 11 November 1999), para. 28.
60
Tadić, Judgement in Sentencing Appeals (ICTY, 26 January 2000), paras. 65–66.
61
Ibid., para. 69.
62
Ibid., Separate Opinion of Judge Shahabuddeen.
70 a hierarchy of international crimes?

of principle” between the “material seriousness” and the “juridical ser-

iousness” of a crime. Second, he claimed that crimes against human-
ity were originally conceptualized not to create a more serious crime,
but rather simply to fill a lacuna in international criminal law with
respect to victims of atrocities not covered by war crimes. Third, he
observed that the relevant legal sources provide no support for a hier-
archy between war crimes and crimes against humanity.
Regarding the first point concerning material and judicial serious-
ness, Judge Shahabuddeen set forth an explanation that recalls the
earlier discussion in Chapter 2 regarding the relative gravity of murder
and rape:63

As to material seriousness, looking at the character of the acts proscribed by a

crime, it is generally possible to say that one crime is more serious than another.
But that does not always translate into the proposition that the former is legally
more serious than the latter. It may be that in some systems the penalty for
murder is the same as that for rape; if so, there could be difficulty in saying that
one offence is legally more serious than the other, even though there could be a
view (varying from society to society) that, from a material standpoint, there is
a difference in seriousness. Unless some other method of juridical ranking is prescribed,
what is significant is the scale of penalties provided. A crime against humanity may be
viewed as the most heinous of all crimes; but, as between it and a war crime, the law of the
Tribunal stipulates no ranking and provides for a common penalty.64

In other words, Judge Shahabuddeen argued that it is possible for one

crime to be more serious than another in the abstract, but to never-
theless result in the same penalty. He thus drew a distinction between
stigma and sentencing, suggesting that greater moral opprobrium does
not necessarily require greater punishment.
Regarding the second point and the lacuna in international criminal
law, Judge Shahabuddeen distinguished between the “use of specified
grounds to criminalize an act not otherwise within the pale of crimin-
ality” and the “use of the grounds of criminalization to define the ser-
iousness of the newly created crime in relation to other crimes.”65 He
contended that crimes against humanity first emerged in order to fill
in a normative gap in international criminal law rather than to create a
category of offenses more serious than war crimes. It was because war
crimes did not apply where perpetrators and victims were nationals

63
See 17–22.
64
Tadić, Judgement in Sentencing Appeals, Separate Opinion of Judge Shahabuddeen
(ICTY, 26 January 2000), 37–38 (emphasis added).
65
Ibid., 38.
 sentencing practice at the international criminal tribunals 71

of the same or of allied states that the Charter of the International

Military Tribunal required a new category to prosecute certain atroci-
ties. Thus “the concept of crimes against humanity went to the crimin-
alization of the act on the international plane; it did not go to establish
that the crime, once created, was ipso facto more serious than a war
crime in relation to the same act.”66 For Judge Shahabuddeen, even the
requirement of a widespread or systematic attack did not make crimes
against humanity

intrinsically more serious than a war crime: what follows from there being no
proof that the act was committed in pursuance of such an organized policy or as
part of such a widespread or systematic practice is that there is simply no crime
cognisable at international law unless the act happens to be a war crime.67

Finally, regarding the legal foundation for a hierarchy of ­international

crimes, Judge Shahabuddeen noted that “no suggestion appears in
the penal regime of the Tribunal that, as compared with a war crime,
a crime against humanity is intrinsically meritorious of severer
punishment.”68 He pointed out that neither the ICTY Statute nor the
general practice regarding prison sentences in the courts of the former
Yugoslavia lends support to the idea that crimes against humanity
should be punished more severely.69
Upon closer examination, the foregoing arguments are not entirely
convincing. With respect to the last argument, the mere fact that
there is no sentencing tariff or other formal hierarchy of crimes does
not lead to a conclusion that one crime is not more serious than the
other, given that such a distinction may be recognized by the exercise
of judicial discretion in sentencing. As noted in Judge Cassese’s separ-
ate opinion in the Tadic´ Sentencing Appeal, the majority mistakenly
assumed that the principle of nulla poena sine praevia lege poenali – “no
crime [can be committed], no punishment [can be imposed], without a
previous penal law” – applies in international criminal law in the same
way that it does in domestic systems. Judge Cassese pointed out that
in “international criminal law the determination of penalties has for
long been left to the courts. Only recently have international instru-
ments provided some broad guidelines (but no sentencing tariff).”70
Thus, the nulla poena sine praevia principle is not only “inapplicable in

66
Ibid., 38–40.   67 Ibid., 42.
68
Ibid., 46–47.   69 Ibid., 47.
70
Tadić, Judgement in Sentencing Appeals, Separate Opinion of Judge Cassese (ICTY,
26 January 2000), para. 4.
72 a hierarchy of international crimes?

international criminal law,” but it is also an error to infer anything at

all from the silence of the law on this matter.71 In taking the absence
of an explicit sentencing tariff as implying that no alternative method
of judicial ranking is available, the majority was, in Cassese’s view,
engaged in excessive formalism.
With respect to the Appeals Chamber’s view that the ICC Statute
does not consider war crimes as less serious than other crimes,72
Article 8(1) of the ICC Statute does indicate that war crimes are less
grave than crimes against humanity; it provides that the “Court shall
have jurisdiction in respect of war crimes in particular when commit-
ted as a part of a plan or policy or as part of a large-scale commission
of such crimes.” As previously discussed, plan, policy, and scale “are
not elements of war crimes.”73 Nonetheless, this provision clearly sug-
gests “that individual war crimes which are not committed as part of
a plan or policy shall be prosecuted only if they are of such a gravity as to
indeed be of concern to the international community as a whole.”74 In other
71
Ibid.
72
See Tadić, Judgement in Sentencing Appeals, Separate Opinion of Judge
Shahabuddeen (ICTY, 26 January 2000), 41:
Nor does any difference in seriousness appear in the Statute of the
International Criminal Court. Article 8(1) of the Statute states that the
“Court shall have jurisdiction in respect of war crimes in particular when
committed as part of a plan or policy or as part of a large-scale commission
of such crimes.” … [T]hat does not say that a war crime cannot be
committed in other circumstances; nor does it require proof of the specified
circumstances as a necessary ingredient of a war crime. It does however
show that a war crime can in fact be committed in the same circumstances
as a crime against humanity. The provision does not bear on the relative
position of war crimes as a class on any scale of criminality relating to
breaches of international humanitarian law generally.
73
See William J. Fenrick, “Article 8, War Crimes, Paragraph 1,” in Otto Triffterer,
ed., Commentary on the Rome Statute of the International Criminal Court (Baden-Baden,
Germany: Nomos, 1999), 181.
74
See Andreas Zimmermann, “Article 5, Crimes Within the Jurisdiction of the Court,”
in Otto Triffterer, ed., Commentary on the Rome Statute of the International Criminal
Court, 2nd edn. (Oxford, UK: Beck/Hart, 2008), 129, 133 (emphasis added) (referring
to Article 1 of the ICC Statute, which restricts the Court’s jurisdiction to “the most
serious crimes of concern to the international community as a whole”). By way of
example, situations of such exceptional gravity could include prosecution of an
isolated, but especially serious case involving use of poisonous weapons – primarily
in order to deter others from committing similar acts – even if the scale and gravity
do not amount to a crime against humanity. The undeterred use of such weapons,
even if it is not part of a plan or policy and even if it does not actually result in
human casualties, could be “of concern to the international community as a whole”
because of the implications of a precedent of impunity on future prevention. The
same considerations may not necessarily apply to more “routine” war crimes such
 sentencing practice at the international criminal tribunals 73

words, although war crimes are international crimes falling within

the ICC’s jurisdiction, as a general rule they are deemed worthy of
international prosecution only if there is a further element of scale or
gravity accompanying their commission. As Judge Cassese wrote in the
Tadic´ Sentencing Appeal:

The drafters of the Statute intended to spell out the notion that in principle the
ICC should concentrate on the most egregious instances of war crimes, while
lesser categories of such crimes should be prosecuted and tried by national
courts to the greatest extent possible. This appeared to them to be warranted
by the need for the ICC not to be inundated with war crimes cases that could
be easily tried by national courts.75

Apparently, the same considerations do not apply to crimes against

humanity, presumably because, absent the requirement of a nexus
with armed conflict, what distinguishes these crimes from ordinary
domestic crimes such as murder or rape is their intrinsic gravity. In
other words, crimes against humanity are considered to be so serious
that the qualification used for war crimes is not required.76
With respect to the normative function of crimes against human-
ity, Judge Shahabuddeen correctly observed that this new offense was
reluctantly incorporated into the Nuremberg Charter in order to avoid
jurisdictional lacunae in relation to atrocities that did not fall within
the ambit of war crimes. The US Military Tribunal noted in the Justice
case that “the prohibitions on crimes against humanity [in Control
Council Law No. 10] are not surplusage, but are intended to supple-
ment the preceding sections on war crimes by including acts absent
from the preceding sections.”77 Beyond this function of supplementing

as isolated murder or rape, when not committed as part of a large-scale attack

against a civilian population.
75
Tadić, Judgement in Sentencing Appeals, Separate Opinion of Judge Cassese (ICTY,
26 January 2000), para. 13.
76
See Richard May and Marieke Wierda, “Is There a Hierarchy of Crimes in
International Law?,” in Lal Chand Vohrah, Fausto Pocar, Yvonne Featherstone,
Olivier Fourmy, Christine Graham, John Hocking, and Nicholas Robson, eds., Man’s
Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (The Hague:
Kluwer Law International, 2003), 511, 522 (“[T]his requirement … reflects the fact
that all crimes tried by international courts have to meet a minimum jurisdictional
threshold of seriousness to qualify as international crimes”).
77
United States v. Josef Altstoetter (Justice case), Trials of War Criminals Before the Nuremberg
Military Tribunals Under Control Council Law No. 10, vol. III (1949), 972. It should be
noted that, unlike the International Military Tribunal, the US Military Tribunal
was not applying the Nuremberg Charter as such. Rather, it was “an international
tribunal established by the International Control Council, the high legislative
74 a hierarchy of international crimes?

war crimes, however, the relationship between the two crimes was
ambiguous. In its Kupreškic´ judgment the ICTY Trial Chamber noted
that

at that time the class of “crimes against humanity” had just emerged and there
were concerns about whether by convicting defendants of such crimes the
courts would be applying ex post facto law … [A]s a consequence, the relevant
criminal provisions at the time did not draw a clear-cut distinction between
the two classes of crimes.78

Based on this historical matrix, the ICTY Appeals Chamber in Tadic´

came to the conclusion that, instead of a hierarchical relationship, the
two crimes simply protect different interests. That is, the view was
that crimes against humanity were intended as an “alternative” to war
crimes when the latter were inapplicable. In this context Bing Bing Jia
writes that, although crimes against humanity are

offences which may be committed in armed conflict or time of peace[,] …

[w]hat makes them a distinct type of international crime is, first of all, the fact
that they are committed for non-military purposes, in the sense that the aims
are not closely related to a military campaign or battle and that they are not
part of a military operation plan.79

As noted earlier, war crimes and crimes against humanity share the
core interest of protecting human dignity. In addition, the underlying
acts for both crimes (that is, murder, rape, and so on) relate to funda-
mental violations of physical integrity. Furthermore, both the ICTY
and the ICTR have interpreted the term civilian population as a core
element of crimes against humanity in light of humanitarian law:
“To the extent that the alleged crimes against humanity were com-
mitted in the course of an armed conflict, the laws of war provide

branch of the four Allied Powers … controlling Germany (Control Council Law
No. 10, 20 Dec. 1945)” (see Trial of Frederick Flick and Five Others (Flick case), Trials of
War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10,
vol. VI [1949], 1188). Its provisions with respect to war crimes and crimes against
humanity, however, were virtually identical to those contained in the Nuremberg
Charter.
78
Kupreškić, Trial Judgement (ICTY, 14 January 2000), para. 676.
79
See Bing Bing Jia, “The Differing Concepts of War Crimes and Crimes Against
Humanity in International Criminal Law,” in Guy S. Goodwin-Gill and Stefan
Tahuon, eds., The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford,
UK: Oxford University Press, 1999), 27. This article is quoted because it seems to
have influenced the ICTY judges. See, for example, Tadić, Judgement in Sentencing
Appeals, Separate Opinion of Judge Shahabuddeen (ICTY, 26 January 2000), 36 note 7.
 sentencing practice at the international criminal tribunals 75

a benchmark against which the Chamber may assess the nature of

the attack and the legality of the acts committed in its midst.”80 In
substance, therefore, war crimes committed on a widespread or sys-
tematic scale amount to crimes against humanity. Although a war
crime is not formally a “lesser included offence,”81 it is reasonable to
conclude that, in situations of armed conflict involving fundamen-
tal violations of the physical integrity of civilians, the widespread or
systematic occurrence of war crimes is subsumed by crimes against
humanity.82 The implication is that the category of crimes against
humanity was not intended merely to fill a gap in international law or
to supplement war crimes, but also to create a new, broader, and more
serious “umbrella” crime.
Finally, notwithstanding Judge Shahabuddeen’s argument that
“material seriousness” can be distinguished from “juridical serious-
ness,” the legal elements of crimes against humanity suggest that, all
things being equal, it is the more serious offense juridically. It may
be true that, either in abstracto or if a war crime and crime against
humanity charge are totally factually unrelated, a comparison of rela-
tive gravity may be a difficult task. For example, the use of poison gas
to kill thousands of soldiers in combat qualifies only as a war crime
because there is no attack against a civilian population, but it may
be more serious than a single opportunistic killing that qualifies as

80
Kunarac, Appeals Judgement (ICTY, 12 June 2002), para. 91; see also Martić, Appeals
Judgement (ICTY, 8 October 2008), paras. 299, 302 (“the Appeals Chamber finds that
the definition of civilian contained in Article 50 of Additional Protocol I reflects
the definition of civilian for the purpose of applying Article 5 of the Statute and
that the Trial Chamber did not err in finding that the term civilian in that context
did not include persons hors de combat”). The ICTR has also sought to define civilian
by reference to the laws of war, but unlike the ICTY (which excludes soldiers hors
de combat from the notion of civilian), civilian is defined in the controlling Akayesu
judgment as “people who are not taking any active part in the hostilities, including
members of the armed forces who laid down their arms and those persons placed
hors de combat by sickness, wounds, detention or any other cause.” The Akayesu
Trial Chamber noted that “this definition assimilates the definition of ‘civilian’ to
the categories of person protected by Common Article 3 of the Geneva Conventions;
an assimilation which would not appear to be problematic”: Akayesu, Trial
Judgement (ICTR, 2 September 1998), para. 582 note 146; see also Bisengimana, Trial
Judgement (ICTR, 13 April 2006), para. 48 (noting that the Akayesu definition has
been consistently followed in the jurisprudence).
81
Kunarac, Appeals Judgement (ICTY, 12 June 2002), paras. 171–72; Jelisić, Appeals
Judgement (ICTY, 5 July 2001), para. 82; see also Akayesu, Trial Judgement (ICTR, 2
September 1998), para. 470.
82
See, for example, Kupreškić, Trial Judgement (ICTY, 14 January 2000), paras.
698–704.
76 a hierarchy of international crimes?

a crime against humanity because it is linked to widespread or sys-

tematic persecutory violence against an ethnic group. However, if
we are to move beyond the formalism embraced by the ICTY Appeals
Chamber in Tadic´, the relative gravity of the respective crimes may be
assessed based on a substantive comparison of their elements. Indeed,
the general principles of criminal law relating to proportionality may
require such an analysis. Even if sentencing is disregarded, the mere
stigma attached to particular types of conduct is itself part of the
punishment and thus implicates normative ranking or “juridical ser-
iousness.” At the very least, it may be concluded based even on Judge
Shahabuddeen’s analysis that, if the facts are identical with respect to
a charge of war crimes and crimes against humanity, the latter is the
more serious offense.
In comparing the two categories, it may be contended that, insofar as
crimes against humanity apply outside the context of armed ­conflict,
war crimes should be considered more serious because the “code of
chivalry” among combatants83 requires of them a higher degree of
valor than is required of civilians.84 In the Corfu Channel case, however,
the International Court of Justice referred to “certain general and well
recognized principles, namely: elementary considerations of human-
ity, even more exacting in peace than in war.”85 Indeed, excesses committed
in the intrinsically inhumane context of war may be regarded as less
reprehensible than those committed in peacetime, with its greater pos-
sibilities for deliberation and self-restraint. What is most important,
however, is the mental element distinguishing these two categories.
The view that war crimes and crimes against humanity are object-
ively different, but not different in terms of gravity, overlooks the basic
assumptions underlying the principle of proportionality in criminal
law. The degree of blameworthiness that retributive theory attaches to
each of the two categories hinges primarily on the subjective or men-
tal element of crimes. As discussed in Chapter 2, the retributive theory

83
See generally, Robert C. Stacey, “The Age of Chivalry,” in Michael Howard, George J.
Andropoulos, and Mark R. Shulman, eds., The Laws of War: Constraints of Warfare in the
Western World (New Haven: Yale University Press, 1994), 27.
84
See, for example, Erdemović, Appeals Judgement, Joint Separate Opinion of Judge
McDonald and Judge Vohrah (ICTY, 7 October 1997), para. 84 (expressing the view
that “soldiers or combatants are expected to exercise fortitude and a greater degree
of resistance to a threat than civilians … Soldiers, by the very nature of their
occupation, must have envisaged the possibility of violent death in pursuance of
the cause for which they fight”).
85
1949 ICJ Rep. 4, 22 (emphasis added).
 sentencing practice at the international criminal tribunals 77

of punishment posits that, in exercising free moral choice, those who

willingly make evil choices are “blameworthy” and “deserve” punish-
ment, and that punishment should be proportionate to the degree of
blameworthiness, or moral turpitude, attached to particular conduct.
In comparing two crimes, if one contains an additional element of
mens rea or requires proof that the accused intended a greater harm,
it follows that a greater degree of blameworthiness is attached to that
crime.
Deterrence, in turn, posits that the prospective criminal is a rational
calculator exercising choice, such that the prospective punishment
deters the potential criminal by counterbalancing and outweighing
the benefits of the criminal act in question. In terms of “wrongdoing”
under the deterrence principle, punishment is apportioned according
to the importance of the social interest that is threatened, in order to
differentiate the incentives for avoiding particular categories of crime.
If the punishment and stigma attached to two crimes are identical,
even though one of the crimes requires an additional element of mens
rea or a further dimension of dangerous criminality, the capacity to
deter the greater harm is undermined because there is no incentive
not to commit the more serious offense.
The importance of the mental element in determining the gravity
of an offense cannot be overemphasized. Stephen Schulhofer points
out that an emphasis on actual harm, rather than intention to cause
harm, is contrary to the purposes of punishment, such as deterrence
and retribution:

If, for example, a person attacks his wife and tries to kill her, he will be guilty
of assault and attempted murder even if she escapes unharmed. He will also
commit a battery if she is injured, mayhem if the injury is of certain espe-
cially serious types, and murder if she dies. The applicable penalties generally
increase accordingly.86

He points out, however, that

both the defendant’s state of mind and his actions may have been identical
in all four of the cases supposed. The precise location of a knife or gunshot
wound, the speed of intervention by neighbors or the police, these and many
other factors wholly outside the knowledge or control of the defendant may
determine the ultimate result. Accordingly, the differences in legal treatment

86
Stephen J. Schulhofer, “Harm and Punishment: A Critique of Emphasis on the
Results of Conduct in the Criminal Law,” University of Pennsylvania Law Review 122
(1974): 1498.
78 a hierarchy of international crimes?

would seem at first blush inconsistent with such purposes of the criminal
law as deterrence, rehabilitation, isolation of the dangerous, and even retribu-
tion – in the sense of punishment in accordance with moral blame.87

Schulhofer thus maintains that the unsuccessful or partial execution

of a crime should be treated exactly the same as its successful or com-
plete execution:

[S]anctions are assumed to influence people at the point at which they embark
on a given course of anti-social conduct, with certain perceptions as to its
potential consequences … [T]here is … some reason at least to begin with the
assumption that where conduct and the actor’s perceptions as to its conse-
quences are the same, the penalty should be the same, regardless of the actual
outcome.88

Although Schulhofer’s position is powerfully presented and persuasive

up to a point, it needs to be noted that there are cogent arguments for
treating inchoate or attempted crimes as less serious; for example, if
the penalty will be the same anyway, then the attempted murderer
might be tempted to “finish off” his victim. The aim of the present
discussion, however, is not to provide a comprehensive analysis of
inchoate crimes, but rather to emphasize the primacy of intention, as
opposed to actual harm, in modern theories of criminal law.
Indeed, an intention- rather than a results-oriented approach to pun-
ishment appears consistent with the overall evolution of the contem-
porary criminal law. It is increasingly apparent that the focus of social
protection should be the mind of the actor, and not the act itself. As
George Fletcher notes in relation to criminal attempts:
In [the twentieth] century, a subtle shift has occurred in the danger perceived
in criminal attempts. For many who favor earlier stages of liability, the ques-
tion is not whether the act is dangerous to a specific potential victim, but
whether the actor is dangerous to society as a whole. As those who worked on the
[US] Model Penal Code expressed their philosophy of criminalization: “The basic premise
here is that the actor’s mind is the best proving ground of his dangerousness.” The shift
from act to mind, then, coincides with a shift from focusing on the threats
posed by dangerous actions to the danger posed by dangerous people.89

When viewed from the perspective of retribution, the perpetrator’s

degree of blameworthiness should be based on the intention behind

87
Ibid., 1498.   88 Ibid., 1602.
89
George P. Fletcher, Basic Concepts of Criminal Law (Oxford, UK: Oxford University
Press, 1998), 177 (emphasis added).
 sentencing practice at the international criminal tribunals 79

the conduct rather than its actual result. As Schulhofer observes,

“Moral culpability may turn on the nature of the acts committed, the
offender’s motives and intent, extenuating circumstances, and so on,
but the occurrence of harm has no apparent bearing on the degree of
moral blameworthiness.”90
It would seem, then, that, as a general principle, it is the mental
element that determines the degrees of blameworthiness or gravity of
a crime. For example, a perpetrator may bring about the material or
objective element of killing through the infliction of grievous bodily
harm resulting in the death of a victim, but various mental or subject-
ive states, including premeditation, intention, or recklessness, result in
different legal classifications of the crime. In each case, the objective or
material element is identical – namely, the death of the victim through
the infliction of grievous bodily harm. But the gravity of the conduct
depends primarily on the mental element required for each particular
category of crime.91 Similarly, even if the material element of murder-
ing a civilian is identical, the category of war crimes requires a lesser
mental element than that pertaining to crimes against humanity.
This difference in the mental element explains why crimes against
humanity may not be more serious than war crimes in abstracto, but
more serious when applied to the same material facts. In his separ-
ate opinion in the Tadic´ Appeals Judgement, Judge Cassese recognized
that

some categories of crimes which, in theory, might be considered as less serious

than other categories, may in practice instead prove inherently much graver:
suffice it to mention war crimes such as the bombardment of an undefended
town or the killing of hundreds of enemy combatants through the use of pro-
hibited weapons. It goes without saying that these instances of war crimes may
in practice turn out to be more inhumane and devastating than some instances
of crimes against humanity such as the deportation or imprisonment of civil-
ians … [O]ne cannot say that a certain class of international crimes encom-
passes facts that are more serious than those prohibited under a different
criminal provision. In abstracto all international crimes are serious offences
and no hierarchy of gravity may a priori be established between them.92

But that is not to say that there is no hierarchy whatsoever among

the core international crimes. Judge Cassese noted that, in assessing

90
Ibid.   91 Ibid., 76.
92
Tadić, Judgement in Sentencing Appeals, Separate Opinion of Judge Cassese (ICTY,
26 January 2000), paras. 6–7.
80 a hierarchy of international crimes?

the degree of wrongdoing, it must be determined “whether the very

same fact imputed to an accused, if characterized as a war crime, may
be regarded as more or less serious than if it is instead defined as a
crime against humanity.”93 In order for murder to be classified as a
war crime, “it is sufficient for the actus reus to consist of the death of
the victim as a result of the acts or omissions of the perpetrator, while
the requisite mental element must be the intent to kill or to inflict
serious injury in reckless disregard of human life.”94 For murder to be
classified as a crime against humanity, however, the act must “be part
of a widespread or systematic practice,” and “the murderer must have
acted in the knowledge that his or her conduct formed part of this
overall context.”95 Based on these differing mental elements,

[i]t follows that the murder at issue forms part of a whole pattern of crimin-
ality, and may amount to … “system criminality” (encompassing large-scale
crimes perpetrated to advance the war effort, at the request of, or with the
encouragement or toleration of government authorities), as opposed to “indi-
vidual criminality” (embracing crimes committed by combatants on their
own initiative and often for reasons known only to themselves). In addition,
the requisite intent of the perpetrator is more serious than in murder as a
“war crime”: the perpetrator must not only intend to cause the death of one
or more persons, but must have done so while being aware that this conduct
was a common practice.96

Judge Cassese thus maintained that, in the case of a crime against

humanity, “the murder possesses an objectively greater magnitude
and reveals in the perpetrator a subjective frame of mind which may
imperil fundamental values of the international community to a
greater extent than in the case where that offence should instead be
labeled as a war crime.” In such circumstances, the “international com-
munity and the judicial bodies responsible for ensuring international
criminal justice therefore have a strong societal interest in imposing
a heavier penalty upon the author of such a crime against humanity,
thereby also deterring similar crimes.”97 He concluded:

93
Ibid., para. 10.   94 Ibid., para. 12.   95 Ibid., para. 14.
96
Ibid., paras. 12, 14. It should be noted that references in this excerpt to “large-
scale crimes perpetrated to advance the war effort, at the request of, or with
the encouragement or toleration of government authorities” form a contentious
definition of an element of crimes against humanity and do not necessarily
reflect the current state of ICTY jurisprudence (see 37–39).
97
Tadić, Judgement in Sentencing Appeals, Separate Opinion of Judge Cassese (ICTY,
26 January 2000), para. 15.
 sentencing practice at the international criminal tribunals 81

If the above considerations are accepted, it follows that whenever an offence

committed by an accused is deemed to be a “crime against humanity,” it must
be regarded as inherently of greater gravity, all else being equal (ceteris pari-
bus), than if it is instead characterised as a “war crime.” Consequently, it must
entail a heavier penalty (of course, the possible impact of extenuating or aggra-
vating circumstances is a different matter which may in practice nevertheless
have a significant bearing upon the eventual sentence).98

In summary, notwithstanding the absence of sentencing tariffs, the

complexities of combining “gravity of crime” with “individual cir-
cumstances” and broader social objectives, and the difficulties associ-
ated with categorizing crimes against humanity as inherently more
serious than war crimes in abstracto, the principle of ­proportionality
justifies and indeed requires a hierarchy, at least where such charges
have an identical factual basis. Moreover, despite the rejection of a
formal hierarchy, the sentencing practices of the ICTY and the ICTR
have, in fact, differentiated between war crimes and crimes against
humanity. As set forth below, the hierarchical relationship between
crimes against humanity and genocide is even more apparent.
However, genocide remains far from achieving the exalted status of
a “crime of crimes” that is an inherently more serious category of
wrongdoing.

Genocide vs. crimes against humanity

In contrast to the comparison between war crimes and crimes against
humanity, there is somewhat greater authority suggesting that gen-
ocide is more serious than crimes against humanity. This differ-
ence reflects the fact that, unlike war crimes, genocide specifically
emerged as a particular species of the broader category of crimes
against humanity. From its very inception in treaty law, the greater
gravity of the crime of genocide was reflected by the resolve of the
international community to adopt the Genocide Convention, while
leaving crimes against humanity to the less urgent Formulation of the
Nuremberg Principles and the Draft Code of Offences Against Peace
and Security. As the UN secretary-general noted in the travaux prépara-
toires, in adopting the convention, the “General Assembly wished to
give special treatment to the crime of genocide because of the particular
gravity of that crime, which aims at the systematic extermination of

98
Ibid., para. 16.
82 a hierarchy of international crimes?

human groups.”99 In contrasting the general category of crimes against

humanity with genocide, it was pointed out that

the treatment of certain criminal acts falling within the same category as dis-
tinct offences is not innovation. Examples exist in state penal systems. Thus
homicide which is the denial of an individual human being’s right to live
is divided into several different categories: manslaughter, homicide, murder,
and even parricide or regicide.100

Thus, although all crimes against humanity “shock the conscience of

humankind,” genocide was considered to occupy a more specific niche
as the ultimate international crime, thus warranting the prompt adop-
tion of an international treaty. Soon after the adoption of the conven-
tion, the privileged status of genocide was confirmed in jurisprudence,
including the Justice case, in which the US Military Tribunal held that
genocide was “the prime illustration of a crime against humanity.”101
Similarly, in the Eichmann case, the District Court of Jerusalem affirmed
that genocide was “the gravest type of ‘crime against humanity.’”102
The particular gravity of genocide was also reflected in the delib-
erations leading to the adoption of the ICC Statute. In particular, the
initial Draft Statute for an International Criminal Court submitted by
the International Law Commission to the General Assembly in 1994103
proposed “inherent jurisdiction” solely over the crime of genocide,
whereas states parties could opt in or out of other crimes. In support-
ing this proposal, the commission was of the view that

the prohibition of genocide is of such fundamental significance, and the occa-

sions for legitimate doubt or dispute over whether a given situation amounts to
genocide are so limited, that the Court ought, exceptionally, to have inherent
jurisdiction over it by virtue solely of States participating in the draft Statute,
without any further requirement of consent or acceptance by any particular
State.104

99
Ad Hoc Committee on Genocide, Relations Between the Convention on Genocide
on the One Hand and the Formulation of the Nuremberg Principles and the
Preparation of a Draft Code of Offences Against Peace and Security on the Other,
UN Doc. E/AC.25/3 (1948), 6 (emphasis added).
100
Ibid.
101
United States v. Josef Altstoetter (Justice case), Trials of War Criminals Before the Nuremberg
Military Tribunals Under Control Council Law No. 10, vol. III (1949), 983.
102
Attorney General of Israel v. Eichmann, 36 I.L.R. 18, 41 (District Court of Jerusalem,
1961).
103
See Report of the International Law Commission on the Work of its Forty-sixth Session, UN
GAOR, 49th Sess., Supp. No. 10, at 29, UN Doc. A/49/10 (1994).
104
Ibid., 67–68.
 sentencing practice at the international criminal tribunals 83

In response to the view of some commission members that favored

inherent jurisdiction over a broader range of crimes, Christian
Tomuschat maintained: “Genocide was undeniably the most horrible
and atrocious of crimes under general international law and he found
it incomprehensible that anyone could be reproached for placing too
much emphasis on it.”105 Similarly, James Crawford pointed out: “Among
what were described as the ‘crime of crimes,’ genocide was the worst of
all.”106 Although inherent jurisdiction was eventually applied to all the
core international crimes under the ICC Statute, Schabas observed that
the International Law Commission’s initial ­proposal “confirmed geno-
cide’s position at the apex of the pyramid of international crimes.”107
As noted at the end of Chapter 3, the jurisprudence of the ICTR has
been ambiguous as to the status of genocide and the question of a hier-
archy of international crimes. The Akayesu and Kambanda judgments of
1998 were at odds with one another, with the former rejecting and the
latter embracing a hierarchy of crimes. That said, however, the ICTR
seems largely to have accepted the Kambanda Trial Chamber’s position
that war crimes are of lesser gravity than crimes against humanity and
genocide:

The Chamber has no doubt that despite the gravity of the violations of Article 3
common to the Geneva Conventions and of the Additional Protocol II thereto,
they are considered as lesser crimes than genocide or crimes against humanity.
On the other hand, it seems more difficult for the Chamber to rank genocide
and crimes against humanity in terms of their respective gravity. The Chamber
holds that crimes against humanity, already punished by the Nuremberg and
Tokyo Tribunals, and genocide, a concept defined later, are crimes which par-
ticularly shock the collective conscience. The Chamber notes in this regard
that the crimes prosecuted by the Nuremberg Tribunal, namely the holocaust
of the Jews or the “Final Solution,” were very much constitutive of genocide,
but they could not be defined as such because the crime of genocide was not
defined until later.108

Although the Trial Chamber recognized the difficulty of distinguish-

ing the gravity of crimes against humanity and that of genocide, it
went on to note:

105
Yearbook of the International Law Commission 1994, vol. I, 214, para. 21.
106
Ibid., 208, para. 41.
107
William A. Schabas, Genocide in International Law (Cambridge, UK : Cambridge
University Press, 2000), 91.
108
Kambanda, Trial Judgement (ICTR, 4 September 1998), para. 14.
84 a hierarchy of international crimes?

The crime of genocide is unique because of its element of dolus specialis (special
intent) which requires that the crime be committed with the intent to destroy
in whole or in part, “a national, ethnic, racial or religious group as such”;
hence the Chamber is of the opinion that genocide constitutes the crime of
crimes, which must be taken into account when deciding the sentence.109

This hierarchy among the core international crimes was followed in

subsequent ICTR decisions in which genocide was referred to as “the
gravest crime”110 and systematically resulted in a higher sentence.111
Later decisions, however, tended to equivocate on this point, perhaps
influenced by the ICTY’s jurisprudence that there was no hierarchy of
international crimes.112 In the 1999 Kayishema case, the Trial Chamber
cited the Kambanda dictum that genocide was the “crime of crimes” in
determining the accused’s sentence for genocide,113 but upon review
the Appeals Chamber held that

there is no hierarchy of crimes under the Statute, and all of the crimes speci-
fied therein are “serious violations of international humanitarian law,” cap-
able of attracting the same sentence … The Appeals Chamber finds that the
Trial Chamber’s description of genocide as the “crime of crimes” was at the
level of general appreciation, and did not impact on the sentence it imposed.
Furthermore, upon examining the statements of the Trial Chamber, it is evi-
dent that the primary thrust of its finding as to the gravity of the offences
relates to the fact that genocide in itself is a crime that is extremely grave.
Such an observation is correct, and for these reasons, there was no error in its
finding on this point.114

Although this reasoning has been followed in some later cases,115

the crime of crimes nomenclature has subsequently been used by the

109
Ibid., para. 16 (emphasis added).
110
Akayesu, Trial Judgement (ICTR, 2 September 1998), para. 470.
111
See, for example, summary of ICTR jurisprudence on this point in Blaškić, Trial
Judgement (ICTY, 3 March 2000), para. 800 (noting that convictions for genocide at
the ICTR all resulted in life imprisonment, with one exception).
112
It may be observed that at least one judge from the Tadic´ Judgement in Sentencing
Appeals (which, as discussed above, denied a hierarchy of crimes), Mohamed
Shahabuddeen, became a member of the ICTR Appeals Chamber and sat on the
Kayishema Appeals Chamber. Generally, several other Appeals Chamber judges
from the ICTY also came to sit on the ICTR Appeals Chamber, which may explain
the subsequent confluence of jurisprudence on this point.
113
Kayishema, Trial Judgement, Sentence (ICTR, 21 May 1999), para. 9.
114
Kayishema, Appeals Judgement (ICTR, 1 June 2001), para. 367.
115
Rutganda, Appeals Judgement (ICTR, 26 May 2003), para. 590; Seromba, Trial
Judgement (ICTR, 13 December 2006), para. 381; Nahimana, Appeals Judgement
(ICTR, 28 November 2007), para. 1060.
 sentencing practice at the international criminal tribunals 85

Appeals Chamber,116 and it seems, as the Kayishema Appeals Judgement

itself states, that in practice – at the “level of general appreciation” –
genocide is considered to be the most serious crime.117 This assessment
apparently relates to the additional stigma of this particular crime
rather than to a requirement of higher sentencing.
As in the case of comparing war crimes to crimes against human-
ity, the mental element of genocide merits further consideration. As
discussed earlier, genocide requires an additional mental element, a
further dimension of moral turpitude, compared to the crime against
humanity of persecution.118 A perpetrator of persecution chooses his
victim because of that individual’s membership in a particular group;
the génocidaire does the same but goes a step further in intending to
destroy the group as such. In other words, the category of persecu-
tion seeks to protect a group from discriminatory acts, whereas that
of genocide seeks to protect the group’s very physical existence. As the
ICTY recognized in the Kupreškic´ Trial Judgement:

From the viewpoint of mens rea, genocide is an extreme and most inhuman
form of persecution. To put it differently, when persecution escalates to the
extreme form of wilful and deliberate acts designed to destroy a group or part
of a group, it can be held that such persecution amounts to genocide.119

A complicating factor in asserting that genocide is categorically more

serious than crimes against humanity is the exclusion of political,
social, and other “identifiable” groups from the scope of protection
of the Genocide Convention. In effect, the effort to destroy a political
or social group qualifies only as the crime against humanity of exter-
mination or persecution. It is unclear why mass murder against such
groups “as such” is lesser in gravity than similar acts against members
of “national, ethnic, racial, or religious” groups.
In defense of the exclusion of certain groups under the Genocide
Convention, Schabas maintains:
Attacks on groups defined on the basis of race, nationality, ethnicity and reli-
gion have been elevated, by the Genocide Convention, to the apex of human

116
Niyitegeka, Appeals Judgement (ICTR, 9 July 2004), para. 53.
117
See also Rutaganda, Appeals Judgement (ICTR, 26 May 2003), para. 590 (similarly
holding that there is no hierarchy but declining to overturn a trial judgment that
had referred to genocide as the “crime of crimes”).
118
See 42–43.
119
Kupreškić, Trial Judgement (ICTY, 14 January 2000), para. 636; see also Brdjanin,
Trial Judgement (ICTY, 1 September 2004), para. 699.
86 a hierarchy of international crimes?

rights atrocities, and with good reason. The definition is a narrow one, it is
true, but recent history has disproven the claim that it was too restrictive to
be of any practical application. For society to define a crime so heinous that
it will occur only rarely is testimony to the value of such a precise formula-
tion. Diluting the definition, either by formal amendment of its terms or by
extravagant interpretation of the existing text, risks trivializing the horror of
the real crime when it is committed.120

Although Schabas’s view has merit, there is no obvious difference

between mass murder in Bosnia or Rwanda, for example, and the
mass murder of millions in the Stalinist Soviet Union or in Cambodia
under the Khmer Rouge, solely because of their belonging to particu-
lar political or social groups. It is difficult to see how the inclusion of
such groups or the characterization of such events as genocide risks
“trivializing the horror” represented by this crime. Indeed, the travaux
préparatoires of the Genocide Convention indicate that exclusion of
such groups was the result of questionable political motives rather
than “good reason,” as suggested by Schabas. This issue is considered
at greater length in Chapter 5. For present purposes, it is sufficient to
observe that, notwithstanding the exclusion of certain groups under
the definition of genocide, the crime against humanity of extermin-
ation or persecution still requires a lower mental element compared
to the dolus specialis of genocide, whether in terms of degree or scope.
Extermination subsumes the elements of murder and merely requires
that, in addition, the killings occur on a mass scale.121 Unlike persecu-
tion, it does not require discriminatory intention and, unlike genocide,
it does not require an intention to destroy a protected group “as such.”
In other words, although these crimes against humanity encompass
the destruction of political, social, or other groups not falling within
the ambit of genocide, they do not require the dolus specialis that is the
distinguishing element of genocide.
The same mental element that distinguishes genocide, however,
raises other questions as to whether it is categorically more serious
than crimes against humanity. In particular, as previously discussed,
it is sufficient ex hypothesi for a conviction of genocide that the per-
petrator committed a single killing with the requisite dolus specialis to
destroy a group, irrespective of the objective existence of a broader

120
William A. Schabas, Genocide in International Law: The Crime of Crimes, 2nd edn.
(Cambridge: Cambridge University Press, 2009), 133.
121
Ntakirutimana and Ntakirutimana Appeals Judgement (ICTR, 13 December 2004),
paras. 522, 542; Stakić, Appeals Judgement (ICTY, 22 March 2006), para. 260.
 sentencing practice at the international criminal tribunals 87

context. It may be recalled that, with crimes against humanity, a single

killing may be sufficient provided that the perpetrator has knowledge
that his or her act is linked to the broader context of a widespread or
systematic attack, implying the objective existence of such an attack.
A crime against humanity is committed in a context where there will
necessarily be a multiplicity of victims, whereas a genocide may, in
theory, have only a single victim. This theoretical possibility may lead
some to conclude that genocide is not necessarily more serious than
crimes against humanity.122
From a legal viewpoint, it may be concluded that genocide is the
ultimate crime only in a limited and qualified sense. As with the com-
parison between war crimes and crimes against humanity, genocide
is not more serious categorically, but carries a higher stigma and
sentence where, all else being equal, the same conduct is charged vari-
ously under war crimes, crimes against humanity, and genocide. This
result may be a disappointing one insofar as genocide is considered
to be the pinnacle of evil. It is paradoxical that the logic of the same
international law within which this supernorm first emerged fails to
confer on genocide anything but a limited and qualified hierarchical
distinction. Where, then, does this word derive its power? The answer
is found not in the dispassionate realm of legal reasoning, but rather,
as we shall see, in the unspeakable anguish of a man for whom words
became expressions of mourning in search of an elusive closure.

122
See, for example, M. Cherif Bassiouni, Crimes Against Humanity in International Law
(New York: Knopf, 1992), 473–74. In discussing the pre-Rome Statute lacunae in
the law of crimes against humanity, he questioned “if it is logical to have a legal
scheme whereby the intentional killing of a single person can be genocide and
the killing of millions of persons without intent to destroy the protected group in
whole or in part is not an international crime.”
5 Naming the nameless crime

On 9 December 1948, after a protracted drafting process that lasted

nearly two years,1 the Genocide Convention was adopted by the UN
General Assembly, one day before the adoption of the Universal
Declaration of Human Rights.2 The convention was the United Nations’
first international human rights instrument, but it was more than just
a legal instrument. The Nuremberg Tribunal had initiated a purifica-
tion process within the international community, and the convention
was its endpoint – the final legal ritual in condemning Nazi crimes.
The convention’s preamble solemnly declared that genocide is “con-
trary to the spirit and aims of the United Nations and condemned by
the civilized world,” and expressed the conviction that international
cooperation is required “in order to liberate mankind from such an
odious scourge.” To that end, pursuant to Article I of the convention,
“Contracting Parties confirm that genocide, whether committed in
time of peace or in time of war, is a crime under international law
which they undertake to prevent and to punish.”
On that day, in “the grand Palais de Chaillot in Paris where the UN
Assembly had been meeting, the excitement was palpable.” When the
55–0 vote was announced, a “storm of applause rocked the hall. It came
from the delegates and from the gallery filled with observers, lobbyists,
and ordinary citizens.”3 Herbert Evatt, the Australian president of the
UN General Assembly, triumphantly announced that “the supremacy

1
For a comprehensive overview of the drafting process, which began in early 1947,
see William A. Schabas, Genocide in International Law: The Crime of Crimes, 2nd edn.
(Cambridge: Cambridge University Press, 2009), 59–116.
2
General Assembly Resolution 260A (III) (9 December 1948).
3
William Korey, An Epitaph for Raphael Lemkin (New York: Jacon Blaustein Institute for
the Advancement of Human Rights, 2001), 1.

88
 naming the nameless crime 89

of international law had been proclaimed and a significant advance

had been made in the development of international criminal law.”4 All
knew that the historic convention was largely the product of a single
man, Polish jurist and philologist Raphaël Lemkin. As John Humphrey
noted in his diaries, “Never in the history of the United Nations has
one private individual conducted such a lobby.”5 Steven Jacobs explains
that Lemkin was

the man primarily responsible for the United Nations’ passage of the Genocide
Convention by virtue of his own untiring efforts in calling upon UN delegates
daily and writing literally hundreds upon hundreds of letters worldwide to
the great, near-great, and ordinary in all walks of life to enlist their support
for its passage.6

As the applause echoed through the General Assembly, President Evatt

descended from the podium to congratulate Lemkin. The foreign min-
ister of Pakistan joked that the United Nations’ first human rights
treaty should be called the “Lemkin Convention.”7
Seizing on the importance of this unprecedented development in
international law, a group of journalists rushed from the hall to file
their stories but soon returned to get a quote from the man who had
made it all happen. John Hohenberg, a writer for the New York Post,
recalled:

Through session after session and hearing after hearing, the lonely crusader
steered his precious Convention through the intricacies of United Nations pro-
cedures. And finally, on December 9, 1948, he sat in the General Assembly
session at the Palais de Chaillot in Paris and witnessed the adoption by a
unanimous vote of what has come to be known formally as the United Nations
Convention on the Prevention and Punishment of the Crime of Genocide.
Now, he was a story in every sense of the word and worthy of a cabled inter-
view. But after we had filed our pieces on the Genocide Convention, we looked
everywhere and found not a trace of him. Had he been in character, he should
have been strutting proudly in the corridors, proclaiming his own merit and
the virtues of the protocol that had been his dream. But in this, his finest
hour, he was gone.

4
See UN GAOR, 3rd Sess., 179th plen. mtg., 852, UN Doc. A/PV.179 (1948).
5
John P. Humphrey, Human Rights and the United Nations: A Great Adventure (New York:
Transnational, 1984), 54.
6
Steven L. Jacobs, “Lemkin, Raphael,” in Israel W. Charney, ed., Encyclopedia of
Genocide, vol. II (Santa Barbara, CA: ABC-CL10, 1999), 403–04.
7
Korey, An Epitaph for Raphael Lemkin, 1.
90 naming the nameless crime

It was A. M. Rosenthal of The New York Times, I think, who finally guessed
what had happened and led some of us into the darkened Assembly chamber
in the Palais de Chaillot. The session had long since adjourned. On the stage
where the President of the Assembly had proclaimed the unanimous adoption
of the Genocide Convention, a cleaning woman was moving back and forth
in the eerie light of a single electric bulb. And below, in the same seat he had
occupied that day, was Raphael Lemkin.
When we went to him and said we wanted an interview, he begged off. “Let
me stay here alone,” he muttered, and the tears rolled down his cheeks. And
this was a man we had thought to be a clown, a publicity hound, a self-seeking
fanatic.8

Ever since he coined the word genocide in his book Axis Rule in Occupied
Europe, published in 1944,9 Lemkin had worked tirelessly for the day
that international law would finally prohibit this heinous crime. But
the adoption of the convention was not merely a great accomplishment
for a learned jurist and passionate advocate of international law. It was
also deeply personal. Lemkin, a Polish Jew, had lost forty-nine mem-
bers of his family in the Holocaust, including all of his uncles, aunts,
and cousins save two. Most crushing of all was the death of his parents,
particularly his mother.10 He had once called the convention “an epi-
taph on my mother’s grave,”11 and in his autobiography described it
as the transformation of his anguish into a “moral striking force.”12
Behind this apparent success was a man deep in mourning, attempt-
ing to render the enormity of his suffering manageable within the
confines of legal abstractions and treaty drafting. Lemkin’s juridical
and linguistic accomplishment was extraordinary, a singular contri-
bution to international law that exhausted both his abilities and his
resources. He died in 1959, penniless and alone, from a massive heart
attack in a shabby one-room apartment in Manhattan.13
8
John Hohenberg, “The Crusade That Changed the UN,” Saturday Review, 9 November
1968.
9
Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government,
Proposals for Redress (Washington, DC: Carnegie Endowment for International Peace,
1944).
10
John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (New York:
Palgrave Macmillan, 2008), 72.
11
Mary Harrington, “Save Lives, Cultures, Souls,” New York Post Home News Magazine,
17 June 1948 (as cited in Korey, An Epitaph for Raphael Lemkin, 2).
12
Raphael Lemkin, Totally Unofficial: The Autobiography of Dr. Raphael Lemkin, 3
(unpublished, undated manuscript, in New York Public Library, Manuscript and
Archives Division, Raphael Lemkin Papers, Box 2: Bio- and Autobiographical
Sketches of Lemkin).
13
Jacobs, “Lemkin, Raphael,” 403.
 raphaël lemkin: a biographical sketch 91

Raphaël Lemkin: a biographical sketch

Lemkin’s story says much about the deeper meaning underlying the
word genocide – that is, beyond its legal definition. As a young Jewish
boy growing up in Poland in the early 1900s, Lemkin had tasted the
bitter fruit of anti-Semitism. But in his memoirs, he downplayed the
significance of this trauma in provoking his interest in group-based
discrimination.14 He attributed his initial curiosity in the subject to
the novel Quo Vadis by the Polish writer Henryk Sienkiewicz, which he
read in 1912. Sienkiewicz describes a massacre of early Christians by
the Romans, with the mob eagerly cheering as lions tore the Christians
to pieces. William Korey describes young Lemkin’s reaction:

Running to his mother for comfort, the anguished eleven-year-old cried: “They
applauded! Why did they not call the police?” Raphael’s wise mother, who was
largely responsible for the boy’s education, was said to have replied: “That is
a most important question, but it is more than I can answer. You must study
more and think more and find the answer for yourself.” The episode pricked a
profound concern in the sensitive youngster. He wanted to be certain that the
killing of the early Christians “was a bad thing.” His mother responded that it
was “very bad.” On a further exchange, Raphael wanted to know whether kill-
ing is nowadays immune from punishment: “When people kill people today,
they get put in jail, don’t they?” The mother with some hesitation answered:
“Yes, they get put in jail.”
For Lemkin, Quo Vadis and the discussion about its meaning with his mother
engendered a life-long concern, and he gave the episode prominence in his
autobiography. He told an interviewer: “That was the day I began to crusade
[against genocide] because I started looking for the answer.”15

This search would instill in Lemkin a voracious appetite for histor-

ical literature on massacres throughout the ages: the deaths of the
Carthaginians at the hands of the Romans, the millions slaughtered
by Genghis Khan, the Huguenots murdered in France, the persecu-
tion of Catholics in Japan.16 His research would later form the basis for
his planned tome, History of Genocide, a monumental work that he was
never able to complete.17
The Ottoman Turks’ massacre of more than a million Armenians
in 1915 left an especially strong impression on the young Lemkin. Six
years later, after he learned that an Armenian activist named Teilerian
had assassinated Talaat Pasha, head of Turkey’s police forces, in 1915,
14
Cooper, Raphael Lemkin and the Struggle, 12.
15
Korey, An Epitaph for Raphael Lemkin, 5 (citations omitted).
16
Ibid.   17 See Cooper, Raphael Lemkin and the Struggle, 230–42.
92 naming the nameless crime

Lemkin had a memorable exchange with one of his professors at Lvov

University.18 Korey describes the encounter as follows:

Lemkin asked whether it would have been more appropriate to have the Turk
arrested for the massacre [rather than to arrest Teilerian]. The professor’s com-
ments stunned him: “There wasn’t any law under which he could be arrested.”
The naïve Lemkin shot back: “Not even though he had had a part in killing so
many people?” The response of his teacher set Lemkin back on his heels. “Let
us take the case of a man who owns some chickens. He kills them. Why not?
It is not our business. If you interfere, it is trespass.” Lemkin reacted with irri-
tation: “The Armenians were not chickens.”
The professor overlooked Lemkin’s sardonic reply. He sought to drive home
his argument: “When you interfere with the internal affairs of a country, you
infringe upon that country’s sovereignty.” It was the traditional argument that
prevented and precluded action by the international community to restrain
regimes guilty of mass murder or those that engage in torture as well as other
gross human rights violations. Lemkin offered an angry response rooted in
logic, though not in international law: “So it’s a crime for Teilerian to strike
down one man, but it is not a crime for that man to have struck down one mil-
lion men.” The professor was both condescending and contemptuous: “You are
young and excited … If you knew something about international law …” The
sentence was not completed. But it posed the core question for Lemkin. Could
not an international law be established designed to deal with mass murder?
The query quickly led to a shift in Lemkin’s academic goal. From philology he
moved on to the study of law, specifically international law.19

In his early thirties Lemkin presented his first concrete legal pro-
posal on genocide (a word he had yet to coin) to the Fifth International
Conference for the Unification of Penal Law, held in Madrid in 1933
under the auspices of the League of Nations. Lemkin’s report was
accompanied by draft articles “to the effect that actions aiming at the
destruction and oppression of populations should be penalized.”20 In
particular, he proposed that two new international crimes of barbar-
ity and vandalism be declared delicta juris gentium through conclusion
of an international treaty. The “crime of barbarity” was conceived as
“oppressive and destructive actions directed against individuals as
members of a national, religious, or racial group,” and the “crime
of vandalism” as “malicious destruction of works of art and culture
because they represent the specific creations of the genius of such

18
In a way that was eerily reminiscent of Lemkin’s later proclamation that the
Genocide Convention had been “an epitaph on my mother’s grave,” the assassin
had proclaimed “That is for my mother” before quickly giving himself up.
19
Korey, An Epitaph for Raphael Lemkin, 8.
20
Lemkin, Axis Rule in Occupied Europe, 91.
 raphaël lemkin: a biographical sketch 93

groups.”21 His proposal was ultimately unsuccessful, yet in this early

episode it is apparent that the philologist Lemkin was “seeking to
break free of the fetters of ordinary language” in order to capture the
horrors of what he would later call genocide.22
Lemkin’s proposal was motivated at least in part by the rise of Adolf
Hitler in Germany,23 and in the coming years Lemkin did actually pre-
sent some speeches at international conferences on his proposal for the
“crime of barbarity.”24 Nevertheless, in this interwar period Lemkin did
not give “his original proposals too much attention,”25 busy as he was
“with his own plans for reinvigorating the collective security system of
the League of Nations and writing his book on exchange control.”26
The onset of World War II steered Lemkin back onto the path of his
earlier initiative. After a dramatic flight from Warsaw following the
German Blitzkrieg of September 1939, he found refuge in Sweden.27 It
was there, in 1940–41, that Lemkin appears to have stumbled upon a
trove of German occupation laws. He had the idea of undertaking a
legal analysis of Nazi occupation decrees throughout Europe, and to
that end he persuaded the Swedish Foreign Ministry to instruct its
consular officials to send him as much documentation on the subject
as possible.28 This research eventually resulted in his seminal work
Axis Rule in Occupied Europe, published in 1944. It was in that book that
Lemkin coined the word genocide. He later told an interviewer that
he had been inspired to invent the term after listening to Winston
Churchill’s 1941 radio broadcast referring to Nazi atrocities as “a crime
without a name.”29 In his book Lemkin noted that
genocide does not necessarily mean the immediate destruction of a nation,
except when accomplished by mass killings of all members of a nation. It is
intended rather to signify a coordinated plan of different actions aiming at
the destruction of essential foundations of the life of national groups, with

21
Ibid.; see also Raphael Lemkin, Les actes créant un danger général (interétatique) considérés
comme délits de droit des gens (Paris: A. Pedone, 1933).
22
Korey, An Epitaph for Raphael Lemkin, 9.
23
Lemkin was remarkably prescient here. He would later heroically claim that he was
present at the Madrid conference and that, when he began speaking, the German
delegation had walked out of the chamber in protest, implying that his proposals
had been directed squarely at them. This “incident” was later revealed to be an
exaggeration. Lemkin had, in fact, been forbidden by Warsaw to attend the conference
and had sent only his written report. See Korey, An Epitaph for Raphael Lemkin, 12.
24
Ibid.   25 Cooper, Raphael Lemkin and the Struggle, 76.
26
Ibid., 30.   27 Lemkin’s flight is described ibid., 26–39.
28
Ibid., 30; Korey, An Epitaph for Raphael Lemkin, 15.
29
Korey, An Epitaph for Raphael Lemkin, 14.
94 naming the nameless crime

the aim of annihilating the groups themselves. The objectives of such a plan
would be disintegration of the political and social institutions, of culture,
language, national feelings, religion, and the economic existence of national
groups, and the destruction of the personal security, liberty, health, dignity,
and even the lives of the individuals belonging to such groups. Genocide is
directed against the national group as an entity, and the actions involved are
directed against individuals, not in their individual capacity, but as members
of the national group.30

In addition to providing a new term and concept to describe the

destruction of national groups, Lemkin advocated the conclusion of an
international treaty to outlaw genocide. In view of the unprecedented
gravity of Nazi crimes, he pointed to the inadequacy of international
law in protecting national groups from annihilation:

The [Nazi] techniques of genocide represent an elaborate, almost scientific,

system developed to an extent never before achieved by any nation. Hence the
significance of genocide and the need to review international law in the light
of the German practices of the present war. These practices have surpassed
in their unscrupulous character any procedures or methods imagined a few
decades ago by the framers of the Hague Regulations. Nobody at that time
could conceive that an occupant would resort to the destruction of nations by
barbarous practices reminiscent of the darkest pages of history.31

In making the case for an international treaty to prohibit genocide,

Lemkin referred to the evolution of international law as expressed in the
growing “interest in national groups as distinguished from states and
individuals.”32 He remarked that such a trend was “quite natural, when we
conceive that nations are essential elements of the world community.”33

30
Lemkin, Axis Rule in Occupied Europe, 79.
31
Ibid., 90.   32 Ibid.
33
Ibid., 91. He continues:
The world represents only so much culture and intellectual vigor as are
created by its component national groups. Essentially the idea of a nation
signifies constructive cooperation and original contributions, based
upon genuine traditions, genuine culture, and a well-developed national
psychology. The destruction of a nation, therefore, results in the loss of its
future contributions to the world. Moreover, such destruction offends our
feelings of morality and justice in much the same way as does the criminal
killing of a human being: the crime in the one case as in the other is
murder, though on a vastly greater scale. Among the basic features which
have marked progress in civilization are the respect for and appreciation of
the national characteristics and qualities contributed to world culture by
the different nations – characteristics and qualities which, as illustrated in
the contributions made by nations weak in defense and poor in economic
resources, are not to be measured in terms of national power and wealth.
 raphaël lemkin: a biographical sketch 95

Lemkin’s Axis Rule reads as the dispassionate academic work of a

jurist – an intriguing contrast to the emotional advocacy that would
characterize his later lobbying efforts for adoption of the Genocide
Convention. Even though the full scale of the Holocaust was yet to be
revealed, Axis Rule pointed presciently to the ominous fate of European
Jews. Referring to passages from Mein Kampf, he warned that “[s]ome
groups – such as the Jews – are to be destroyed completely,”34 and cited
the American Jewish Congress’s estimation that approximately 1.7
million had already been “killed by organized murder”: “The Jews for
the most part are liquidated within the ghettos, or in special trains in
which they are transported to a so-called ‘unknown’ destination.”35
Despite Lemkin’s own missing family, Axis Rule did not see the Nazi
regime as a threat only to Jews. As Cooper notes, “Although he was
right when he stated that the aim of the Nazis was the annihilation
of the Jews, he did not appreciate the scale on which they had suc-
ceeded by the time his book was published at the end of 1944, and
for this reason he tended to underplay the uniqueness of the Jewish
situation.”36 Instead of emphasizing the situation of the Jews, the chap-
ter entitled “Genocide” analyzes the persecution of the many national
groups then under German domination, such as Lemkin’s fellow citi-
zens in Poland.37 In fact, Lemkin’s national group is mentioned more
than his religious one.38 Although there is an entire section devoted
to the “Legal Status of the Jews,” it is mentioned that Jews are only “one
of the main objects of German genocide policy.”39 Axis Rule casts a broad
net, grouping under genocide not only physical destruction, but also
the political, social, cultural, and economic measures that had been
imposed upon virtually all nationalities and minorities under Nazi
occupation. Lemkin’s chief concern seemed to be with the overarching
aim of the Nazi regime – the Germanization of Europe – rather than
the plight of any specific group.
After the end of the war, Lemkin’s soaring reputation in the bur-
geoning field of international criminal law secured him a position as

34
Ibid., 81.   35 Ibid., 89.
36
Cooper, Raphael Lemkin and the Struggle, 58.
37
See Lemkin, Axis Rule in Occupied Europe, 79–95.
38
William Korey noted that Lemkin “shared the universalistic approach to society
and history that characterized the great German philosophers of history of the
nineteenth century. Though conscious of his Jewish heritage, Lemkin, like his
parents, was indifferent to Orthodox Judaism and was not attracted to Zionism”:
Korey, An Epitaph for Raphael Lemkin, 6.
39
Lemkin, Axis Rule in Occupied Europe, 78 (emphasis added).
96 naming the nameless crime

advisor, beginning in the summer of 1945, to Justice Robert Jackson

at the Nuremberg Trials.40 This position enabled him to influence the
preparation of the indictment and the presentation of arguments
before the tribunal. Thus, within the rubric of crimes against humanity
under Article 6(c) of the Charter of the International Military Tribunal,
the indictment charged the accused with

deliberate and systematic genocide, viz., the extermination of racial and

national groups, against the civilian populations of certain occupied territor-
ies in order to destroy particular races and classes of people, and national,
racial or religious groups, particularly Jews, Poles, and Gypsies.41

This became the first reference to the crime of genocide in legal

proceedings.42
It was only in the summer of 1946 that the tragic fate of Lemkin’s
family became known to him. Distraught at being unable to locate any
family members, and suffering from high blood pressure, Lemkin was
hospitalized for a week toward the end of July 1946.43 Upon his release,
he discovered that his brother Elias, sister-in-law, and their two sons
were alive and in Berlin, but that forty-nine other family members had
perished, including his parents: “They had died in the Warsaw ghetto,
in concentration camps, on death marches, and in the gas chambers.”44
In his autobiography Lemkin explained his reaction after learning of
the deaths:

40
Cooper, Raphael Lemkin and the Struggle, 63. Cooper also observes that, “[a]ccording
to Paul Rassinier, Axis Rule in Occupied Europe ‘was the most talked-about work in the
corridors of the Nuremberg Court in late 1945–early 1946 time’”: ibid., 70. Jackson, a
justice on the US Supreme Court, was chief US prosecutor at the trials.
41
Trial of the Major War Criminals Before the International Military Tribunal, 14 November–1
October 1946 (1947), vol. I, 43–44.
42
There were also other references, such as the concluding speech of the British
prosecutor Hartley Shawcross (Trial of the Major War Criminals Before the International
Military Tribunal, Nuremberg, 14 November 1945–1 October 1946 [1947], vol. XIX, 497–98),
where he remarked:
Genocide was not restricted to extermination of the Jewish people or of the
Gypsies. It was applied in different forms to Yugoslavia, to the non-German
inhabitants of Alsace-Lorraine, people of the Low countries and of Norway.
The techniques varied from nation to nation, from people to people. The long-
term aim was the same in all cases … to achieve genocide. They deliberately
decreased the birth rate in the occupied countries by sterilization, castration
and abortion, by separating husband from wife and men from women and
obstructing marriage.
43
Cooper, Raphael Lemkin and the Struggle, 72.
44
Korey, An Epitaph for Raphael Lemkin, 26.
 raphaël lemkin: a biographical sketch 97

I felt that the earth was receding from under my feet and the sense of living
was disappearing. But soon I transformed my personal disaster into a moral
striking force. Was I not under a moral duty to repay my mother for having
stimulated in me the interest in Genocide? Was it not the best form of grati-
tude to make a “Genocide pact” as an epitaph on her symbolic grave and as a
common recognition that she and many millions did not die in vain?45

As Korey suggests, this “vast personal loss transformed Lemkin. The

crusader now became a zealot, a driven personality, determined more
than ever to inscribe in international law the crime of genocide and
also its punishment.”46
In September 1946, Lemkin traveled to Paris in an attempt to intro-
duce the concept of criminalizing genocide into the peace treaties then
being negotiated. His proposal was unsuccessful, dismissed by delegates
as a tangential issue. According to Cooper, “Lemkin became so despond-
ent that on the third day of his stay in Paris, he once again fell ill and
was taken to an American military hospital in the French capital.”47
Soon after, on 1 October 1946, the judgment of the Nuremberg Tribunal
was delivered. When Lemkin realized that the term genocide had not
been included, he was devastated, despite the judgment’s recogni-
tion that the “mass murders and cruelties ‘were a part’ of a plan to
get rid of whole native populations, by expulsion and annihilation, in
order that their territory could be used for colonization by Germans.”48
Nevertheless, Lemkin would, remarkably, later call learning of the judg-
ment “the blackest day” of his life.49 Lemkin could no longer divorce his

45
Lemkin, Totally Unofficial, 3.   46 Ibid.
47
Cooper, Raphael Lemkin and the Struggle, 73.
48
Judgement of the International Military Tribunal for the Trial of German Major War Criminals
(1950), 52.
49
Korey, An Epitaph for Raphael Lemkin, 25. Lemkin believed that the “evidence
produced at the Nuremberg trial gave full support to the concept of genocide”:
Raphael Lemkin, “Genocide as a Crime in International Law,” American Journal of
International Law 41 (1947): 145, 147. This view was affirmed many years later in the
Kambanda case (Prosecutor v. Kambanda, Judgement and Sentence [ICTR, 4 September
1998], para. 16), in which the ICTR Trial Chamber noted, as quoted earlier, that “the
crimes prosecuted by the Nuremberg Tribunal, namely the holocaust of the Jews
or the ‘Final Solution,’ were very much constitutive of genocide, but they could
not be defined as such because the crime of genocide was not defined until later.”
The secondary Nazi trials under Control Council Law No. 10 were more willing
to incorporate the crime of genocide in their judgments. See, for example, United
States v. Greifelt et al. (RuSHA Case), 13 Law Reports of Trials of War Criminals 1, 2 (1948),
before the United States Military Tribunal, in which the accused were charged
with participating in a “systematic program of genocide, aimed at the destruction
of foreign nations and ethnic groups, in part by murderous extermination, and
98 naming the nameless crime

academic interests from his deeply emotional condition, and it was this
fusion that propelled him on his historic campaign for the adoption of
the Genocide Convention:

Disillusioned and heart-broken by news of the death of his parents, the lack of
response from the delegates at the Paris conference and the judgement of the
Nuremberg Tribunal, all following rapidly on each other, Lemkin remained
ill. One day while still confined to his bed in the military hospital in Paris
Lemkin happened to hear on the radio about the forthcoming meeting of the
General Assembly of the United Nations in New York. Lemkin was electrified
by the news, believing that here at last was a forum which would listen to
him. He spent several days devising his plan and persuaded his doctors to dis-
charge him from the hospital, which they were willing to do provided he trav-
elled back to the United States on a ship and not by aeroplane. Lemkin already
possessed a medical report from a Dr. Savage which stated that he was “hyper-
tensive, mildly exhausted, and apprehensive of flight.” Through his contacts,
Lemkin wangled a passage on a troop transport.50

And so began Lemkin’s remarkable lobby at the United Nations. His

“crusade” came at considerable cost to his health and private life. His
manic work schedule and, no doubt, internal psychic turmoil resulted
in continuous ailments and occasional hospitalizations. He eschewed
any serious romantic attachment and any semblance of a social
life.51 On 28 November 1948, he drafted a letter to Ernest Gross, the
American delegate to the Paris Assembly, laying bare his raw motiv-
ation: “Genocide has taken the lives of my dear ones; the fight against
genocide takes my health. I am ready to give my life for this cause.”52

in part by elimination and suppression of national characteristics.” The tribunal

described genocide as a “master scheme … devised by the top ranking Nazi leaders
in pursuance of their racial policy of establishing the German nation as a master
race and to this end exterminate or otherwise uproot the population of other
nations.” The increasing references to genocide were the result of the UN General
Assembly’s adoption of Resolution 96(I) in 1946, which first declared genocide to
be an international crime and expressed the United Nations’ intention to adopt a
treaty. See, for example, United States v. Alstötter et al. (Justice Trial), (1948) 3 Trials of
War Criminals 1, 983:
The General Assembly is not an international legislature, but it is the most
authoritative organ in existence for the interpretation of world opinion.
Its recognition of genocide as an international crime [in Resolution 96(I)]
is persuasive evidence of the fact. We approve and adopt its conclusions …
[and] find no injustice to persons tried for such crimes.
50
Cooper, Raphael Lemkin and the Struggle, 74–75.
51
Lemkin’s personal troubles during this period are described ibid., 111–18.
52
Cited ibid., 169. Apparently, Lemkin excised this passage from the final draft of the
letter that was sent.
 raphaël lemkin: a biographical sketch 99

Lemkin’s crusade did not end with the adoption of the convention
on 9 December 1948. The mission to have the convention adopted was
soon replaced with one to have it ratified. With the sufficient num-
ber of ratifications, the convention entered into force on 12 January
1951 – a day that Lemkin later referred to as one “of triumph for man-
kind and the most beautiful day of my life.” In his autobiography he
asked himself, “Is this the moment for which I was hoping and work-
ing so many years?” He answered: “My joy was mixed with anxiety
and fear.”53 After ratification, the crusade continued: In an attempt to
persuade nonsignatory countries to become parties to the convention,
he “expend[ed] selfless and almost super-human effort, reaching out to
individuals all over the globe.”54 The failure of his adopted country, the
United States, to ratify the convention caused him particular anguish.
With unflagging energy, he mounted a vigorous lobby in the US Senate
in the late 1940s and early 1950s. But Lemkin could not persuade US
policymakers to sign his beloved convention. He became pigeonholed
as “a ‘loner,’ a man obsessed with a single idea,” and in his frustra-
tion began quarreling even with his most loyal supporters.55 By 1954,
Cooper notes, an appointment to the International Court of Justice was
potentially available to him if he would have “toned down his vocifer-
ous campaigning for the Genocide Convention. But he was unwilling
to do this. Cut off from many former friends, Lemkin grew increas-
ingly isolated, despondent and paranoid.”56
In his last years, Lemkin moved toward a certain “withdrawal from
life.” Troubled by ill health and diminished energy, he started looking
inward and found “expression in poetry as the circle of my friends
decreases. I become conscious of aging and try to adjust myself.”57 In
March 1957 he penned the following poem:

Oh heart don’t stop beating

in a fleeing to end it all
I wish to see my roses
bloom in my garden again
stop this cutting pain
Delay eternity’s call.58

53
Korey, An Epitaph for Raphael Lemkin, 54.
54
Cooper, Raphael Lemkin and the Struggle, 188.
55
Ibid., 207. Lemkin’s struggle with the United States Senate is described at pages 189–208.
56
Ibid., 268.   57 Ibid.
58
Tanya Elder, “What You See Before Your Eyes: Documenting Raphael Lemkin’s Life by
Exploring His Archival Papers, 1900–1959,” Journal of Genocide Research 7 (2005): 469, 491.
100 naming the nameless crime

When Lemkin died in 1959, his name had faded from public con-
sciousness, and he remained almost completely unknown to history
until scholars began to pay attention to his legacy at the time of the
American ratification of the convention in 1988.59
Lemkin had once boasted, as World War II raged on, that if his pro-
posals for the “crime of barbarity” had been adopted by the League of
Nations at the Madrid conference of 1933 they would “prove useful
now by providing an effective instrument for the punishment of war
criminals of the present world conflict.”60 He told an audience at the
North Carolina Bar Association in May 1942 that the rejection of his
proposal was “one of the thousand reasons why I am now here before
you and why your boys are fighting and dying in different parts of the
world at this very moment.”61 Such was Lemkin’s faith in the effect-
iveness of international law. He realized that “[w]hether a Convention
on Genocide will stop the crime [of genocide,] we do not believe that
such a question is fair. Does a penal code stop all crime in society?
The significance of a penal law lies mostly in its preventative nature.”62
Nevertheless, Lemkin would surely have been surprised and disap-
pointed by how little influence his convention would have on the world
stage; witness the genocides of the late twentieth century in Cambodia,
Bosnia, and Rwanda.
Lemkin was no doubt a devoted apostle of international law, but it
seems more likely that the loss of virtually his entire family in the
Holocaust, not to mention the horrors inflicted on the Jewish people
and his native country of Poland, were the main influences in his pas-
sion for international criminal law.63 Driving him ever forward, he
once said, was “a mixture of blood and tears of millions of innocent

59
See Korey, An Epitaph for Raphael Lemkin, preface.
60
Lemkin, Axis Rule in Occupied Europe, 92.
61
Korey, An Epitaph for Raphael Lemkin, 11.
62
Ibid., 55 (citing an undated, unpublished paper found in Lemkin’s archives).
63
Cooper, Raphael Lemkin and the Struggle, 272, 276. Cooper notes:
Raphael Lemkin liked to present himself as a universal man, an
interpretation which has been followed by most historians. His roots,
however, were in the quagmire of ethnic conflict in pre-War Eastern Europe
and were authentically Jewish … As Lemkin’s friend the historian Philip
Friedman acknowledged, “there can be no doubt that the fundamental
stimulus that induced its originator to develop this theory [of genocide]
and to fight for its adoption on the international stage for many years in
a heroic struggle of one against the many, was the great Jewish tragedy
during Nazi rule in Europe.”
 raphaël lemkin: a biographical sketch 101

people throughout the ages and of the last few years. Among them
were also the tears of my parents and friends.”64 Evidently, the force
propelling his advocacy was, in great part, unbearable grief. Beyond
the idealistic pursuit of justice and the intellectual curiosity of the jur-
ist, the adoption of an international treaty against genocide became
for him an elaborate tribute to those close relations who had perished
in the Holocaust. Equally important was the desire to redeem his over-
whelming loss, to work through the violent disintegration of his per-
sonal world, and to avoid succumbing to unspeakable anguish. As a
result of the Holocaust, Lemkin’s relatively abstract commitment to
international justice was radically internalized, and his commitment
to the conceptualization and prohibition of genocide in international
law assumed an added dimension of restoring balance in a trauma-
tized personal universe. Perhaps these factors help to explain the
apparently dispassionate and numbing academic analysis reflected in
his work, coupled with the intense emotions expressed in his relent-
less pursuit of an international treaty against genocide. Unfortunately,
it seems, the “epitaph” on his mother’s grave that Lemkin sought to
erect through the Genocide Convention was never quite complete. The
rationalist credo of law could not provide the catharsis he so desper-
ately sought.
Lemkin’s story highlights the inherent tension in reducing genocide
to law. What is at once deeply personal, tragic, and somehow beyond
comprehension in the enormity of its evil is sterilized in the confines
of legal terminology, construed as universally accessible through a
rational exercise of categorizing, naming, and attributing responsibil-
ity to specific perpetrators. The desire to bring overwhelming events
into orderly control is a prominent theme in the emergence of geno-
cide as a legal concept. His struggle, his work of mourning, reflects a
broader narrative of how the world attempted to grapple with evil so
radical that it profoundly challenged our assumptions about human-
kind and historical progress. In the developments that followed,
from the Nuremberg Judgment, to the Genocide Convention, to the
Eichmann trial, the paradigmatic conception of the Holocaust, its par-
ticularity and uniqueness, had to contend with its legal representation
and the universality of its meaning.

64
Lemkin, Totally Unofficial, 21 (as cited in Cooper, Raphael Lemkin and the Struggle, 87).
102 naming the nameless crime

Confronting the Holocaust through legal ritual

In his concluding speech before the International Military Tribunal at
Nuremberg, the French prosecutor Auguste Champetier de Ribes was
moved to explain that “the conception of the gigantic plan of world
domination and the attempt to realize it by every possible means,”
including the “scientific and systematic extermination of millions
of human beings and more especially of certain national or religious
groups whose existence hampered the hegemony of the German race,”
were crimes “so monstrous, so undreamt of in history throughout the
Christian era up to the birth of Hitlerism, that the term ‘genocide’ has
had to be coined to define it.”65
The devastating gravity and convulsive scale of the Holocaust shook
the blind confidence in modernity’s promise of progress and the pre-
sumed superiority of western civilization. It radically challenged con-
ceptions of human nature, and even the presence of a divine being.
The Endlösung, conceived by the Nazis as the “Final Solution” to the
“contamination of Aryan blood” by racially “inferior” Jews and Gypsies,
consumed millions of lives and marked a radical departure from the
past through the manifestation of hitherto unimaginable barbarity.
Jürgen Habermas captured this post-histoire sentiment by observing:

There [in Auschwitz] something happened, that up to now nobody considered

as even possible. There one touched on something which represents the deep
layer of solidarity among all that wears a human face; notwithstanding all the
usual acts of beastliness of human history, the integrity of this common layer
had been taken for granted … Auschwitz has changed the basis for the con-
tinuity of the conditions of life within history.66

The catastrophic seduction of a universe built on rational certainty,

the loss of innocence and total disillusionment with past conceptions,
was so pervasive that for Theodor Adorno, “[a]fter Auschwitz, there
is no word … not even a theological one, that has any right unless it
underwent a transformation.”67
But it was precisely the rational process of “naming” and labeling
that became the dominant theme in reckoning with the enormity of

65
Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg,
14 November 1945–1 October 1946 (1947), vol. XIX, 531.
66
Jürgen Habermas, The New Conservatism: Cultural Criticism and the Historians’ Debate
(Cambridge, MA: MIT Press, 1989).
67
Theodor W. Adorno, Negative Dialectics (New York: Continuum, 1983), 367 [originally
published 1973].
 confronting the holocaust through legal ritual 103

the Holocaust. Despite its ancient origins, genocide first emerged in

the modern era, as a paradigmatic crime built on the legacy of the
Holocaust. Translating its historical specificity into universally applic-
able legal concepts and reconciling its ineffability with the require-
ments of legal certainty raise far-reaching questions about the
boundaries between legal and meta-legal discourse. To the extent that
adopting the Genocide Convention was part of the “work of mourn-
ing” or a reflection upon, and response to, the excesses of modern civ-
ilization, it could be considered as part of a progressive transformative
process that encourages critical self-examination, awakens empathy,
and seeks to improve upon the past. To the extent that adopting the
convention was a ritual of closure, it could be seen as an effort to situ-
ate the trauma of a shattered self-conception externally, to create the
illusion of progress so as to avoid a deeper, more challenging encoun-
ter with the unprecedented violence of the modern age.
More generally, the subjection of the Holocaust to the certainty and
finality of law – whether through trials, drafting treaties, or discourse
shaped by abstractions – inevitably threatens to banalize its enormity.
Its reduction to a manageable narrative through the attribution of
liability within the confines of legal process may have been necessary
to demystify the seemingly insurmountable gravity of Nazi crimes,
and it was also a means of reckoning with the past and perhaps even
of acting to prevent similar occurrences in the future. Underneath the
façade of progress and international law, we may have defined and con-
demned the “ultimate crime,” but to what extent has this legal process
facilitated expedient and self-deceptive disengagement?
Martti Koskenniemi has questioned

our need to deal with genocide, nuclear weapons, or massive suffering in

terms of a universalising language of human rights, treaty obligation, legal
rules and principles. To formalise such experiences in a legal language
and “method” involves a banalisation that makes available all the routine
defences, excuses and exceptions and triggers a technical debate which may
end up by paralysing our ability to act and undermining our intuitive capabil-
ity to empathise and thus also the condition for entering into a rudimentary
communal relation with others.68

The interplay between the distancing evinced by reducing the Holocaust

to a legal abstraction, on the one hand, and the need to connect

68
Martti Koskenniemi, “International Law in a Post-realist Era,” Australian Yearbook of
International Law 16 (1995): 1, 14.
104 naming the nameless crime

emotionally with the intimate reality of the suffering it entailed, on

the other – the tension between the universal and the particular – was
exemplified in the elaborate legal rituals undertaken in the postwar
years in order to reckon with the Nazi crimes: namely, the Nuremberg
Trials, the adoption of the Genocide Convention, and the Eichmann
trial in Israel.

Nuremberg Trials
The inadequacy of legal process and formalism as a response to geno-
cide appears to have been at the forefront of Hannah Arendt’s mind
in the immediate aftermath of the Nuremberg Trials. In an exchange
of letters with her mentor, Karl Jaspers, in 1946, she conveyed serious
misgivings as to the representation of the Holocaust’s enormity within
the strictures of legal process:
The Nazi crimes, it seems to me, explode the limits of the law, and that is pre-
cisely what constitutes their monstrousness. For these crimes, no punishment is
severe enough. It may be essential to hang Goering, but it is totally inadequate.
That is, the guilt, in contrast to all criminal guilt, oversteps and shatters any and
all legal systems. That is the reason why the Nazis in Nuremberg are so smug.69

She later wrote in The Origins of Totalitarianism that the radical dehu-
manization of “alien races” culminating in the “Final Solution” was
such an “outrage to common sense” that it led to the surfacing of a new
guilt that could not be vindicated by any conception of moral culpabil-
ity. The Nazis, she concluded,
have discovered without knowing it that there are crimes which men can nei-
ther punish nor forgive. When the impossible was made possible it became
the unpunishable, unforgivable absolute evil which could no longer be under-
stood and explained by the evil motives of self-interest, greed, covetousness,
resentment, lust for power, and cowardice; and which therefore anger could
not revenge, love could not endure, friendship could not forgive. Just as the
victims in the death factories or the holes of oblivion are no longer “human”
in the eyes of their executioners, so this newest species of criminals is beyond
the pale even of solidarity in human sinfulness.70

A legal response to Nazi crimes was by no means an inevitable out-

come of the postwar political configuration. To the contrary, there had

69
“Letter to Karl Jaspers,” in Hannah Arendt/Karl Jaspers: Correspondence 1926–1969, eds.
Lotte Kohler and Hans Saner, trans. Robert Kimber and Rita Kimber (New York:
Harcourt Brace Jovanovich, 1992), 51, 54.
70
Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace, 1979), 459.
 confronting the holocaust through legal ritual 105

been a “half serious” recommendation by Josef Stalin to dispense just-

ice by simply shooting 50,000 Nazi General Staff officers. Even Winston
Churchill could not resist this temptation, as reflected in his insist-
ence that the major Nazi war criminals be summarily executed rather
than allowing them to benefit from the propaganda effects of a public
trial.71 The legendary American publisher Joseph Pulitzer went so far
as to urge the shooting of 1.5 million Nazis.72 It was American pressure
that eventually resulted in the decision to establish an International
Military Tribunal; ironically, though victims’ cries for justice were
heard worldwide, the Nuremberg Tribunal materialized because of the
legal imagination of a handful of influential New York lawyers, all of
whom were far removed from the actual horrors of the war.73 This
noblesse oblige arose from an impulse to subject the disruptive events
of World War II, along with its atrocities, to the disciplined control of
law.74 Henry Stimson, the US secretary of war and the primary propon-
ent of the tribunal, expressed the structuring premises underlying this
resort to legal process. In opposing the proposal of the US secretary of
treasury, Henry Morgenthau, Jr., for summary execution of Nazi lead-
ers, Stimson emphasized that such trials “afford the most effective way
of making a record of the Nazi system of terrorism and of the effort of
the Allies to terminate the system and prevent its recurrence.”75 The
courtroom thus became a controlled space within which the Allied
victory and the triumph of liberal values were consecrated through
the cleansing ritual of moral condemnation founded on legal object-
ivity. What was rectified on the battlefield by force was legitimized in
history through a conclusive judgment of Nazi culpability and Allied
moral superiority.
Hans Kellner has suggested that Arendt’s unease with this ritual of
closure was that
no available conclusion to the drama was adequate to the events. The stage
of representation offered by the Nuremberg courtroom and its noose was
absurdly disproportionate to the acts represented. In wishing to employ the

71
See István Deák, “Misjudgment at Nuremberg,” New York Review of Books, 7 October
1993, 48.
72
Ibid.
73
See Telford Taylor, The Anatomy of the Nuremberg Trials (New York: Knopf, 1992), 41.
74
See, for example, Kenneth Anderson, “Nuremberg Sensibility: Telford Taylor’s
Memoir of the Nuremberg Trials,” Harvard Human Rights Journal 7 (1994): 281, 290.
75
Henry L. Stimson, “Memorandum Opposing the Morgenthau Plan, 9 September
1944,” in US Department of State, Foreign Relations of the United States: The Conference at
Quebec, 1944 (Washington, DC: Government Printing Office, 1972), 125.
106 naming the nameless crime

events of the Holocaust as beyond emplotment, she dreamed of an imaginary

mode of representation that would place the characters and their deeds in a
proper relation to reality.76

The response of Jaspers in a letter to his former student Arendt is as

instructive as it is intriguing. Aware that no mode of representation
was entirely sufficient, and proceeding with a “prudent wisdom [that
considered Arendt’s concern] within the bounds and psychological
necessities of audience expectations,”77 Jaspers drew her attention
to the perils and pitfalls of imbuing the “Final Solution” with the
inscrutable quality of a transcendent evil. Reducing it to the mundane
confines of legal process, he argued, may be the best response to the
megalomaniac self-depiction of the Nazi leadership as possessing evil
“genius.” Such a response would, in effect, deny them the stature that
they coveted:

[A] guilt that goes beyond all criminal guilt inevitably takes on a streak of
“greatness” – of satanic greatness – which is, for me, as inappropriate for the
Nazis as all the talk about the “demonic” element in Hitler and so forth …
It seems to me that we have to see these things in their total banality, in
their prosaic triviality, because that’s what truly characterizes them. Bacteria
can cause epidemics that wipe out nations, but they remain merely bacteria.
I regard any hint of myth and legend with horror.78

Jaspers’s response sheds light on Arendt’s later depiction of the

trial of Adolf Eichmann as “the banality of evil.”79 The demystifica-
tion of Nazi crimes through legal process was achieved, in part,
through the depiction of the accused as common criminals. As Hartley
Shawcross declared in the British prosecution’s opening statement at
the Nuremberg Trials: “If murder, raping, and robbery are indictable
under the ordinary municipal laws of our countries, shall those who
differ from the common criminal only by the extent and systematic
nature of their offenses escape accusation?”80 The imagery of “gang-
sters” engaged in “an inexhaustible round of triumph and revenge,

76
Hans Kellner, “‘Never Again’ Is Now,” in Keith Jenkins, ed., The Postmodern History
Reader (London: Routledge, 1997), 397, 398.
77
Ibid.
78
Hannah Arendt/Karl Jaspers, eds. Kohler and Saner (as cited in Gordon A. Craig, “Letters
on Dark Times,” New York Review of Books, 13 May 1993, 12).
79
See Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York:
Viking, 1964).
80
Trial of the Major War Criminals Before the International Military Tribunal (1947), vol. III, 92.
 confronting the holocaust through legal ritual 107

defeat and resentment,” was invoked.81 The major war criminals were
reduced to psychopaths at the helm of a modem state, to a mere “array
of Mafia chieftains.”82 This denigration was combined with the ped-
antry of rules and procedures – described by an observer of the trial as
“a citadel of boredom”83 – to complete the banalization process. But this
reductive process was as much about the culpability of the perpetrators
as it was about distancing the triumphant values of “rational moder-
nity” from the “irrational barbarity” that had arisen in its midst. The
narrative constructed an image of Nazis as an aberration, as a radical
deviation from modernity and western liberal values, thus displacing
their crimes in an external and alien dimension belonging elsewhere.
In an elaborate ritual of exorcism, the grand Nazi conspirators were
portrayed as illiberal strangers, barbarian intruders in the otherwise
civilized world of those who stood in judgment, as the diabolical “alter”
who had to be cast away from the temple of humanity to restore the
equilibrium of a radically disturbed moral self-conception.84
The banal image of the major Nazi war criminals as mere gangsters
still had to be reconciled with the unprecedented historical character
of their crimes. A grand narrative was required in order to capture
the magnitude of these monstrous crimes. In a report submitted to US
president Harry Truman in 1945, Justice Robert H. Jackson wrote that
“[w]e must establish incredible events by credible evidence.”85 The case
against the Nazi leadership, he claimed, had to be “factually authentic
and constitute a well-documented history of what we are convinced
was a grand, concerted pattern to incite and commit the aggressions
and barbarities which have shocked the world.”86 Nazi crimes had to
be recorded “with clarity and precision”; otherwise, “we cannot blame

81
See Albert Camus, The Rebel, trans. Anthony Bower (London: Hamish Hamilton,
1954), 150.
82
Robert Conot, Justice at Nuremberg (New York: Harper & Row, 1983), 146.
83
See Rebecca West, A Train of Powder (New York: Viking, 1955), 3. In chronicling the
trial, her account is replete with expressions of frustration at the monotony of
the proceedings. The trial, she insisted, “was boredom on a huge historic scale”
(p. 7), and even painful: “All these people wanted to leave Nuremberg as urgently
as a dental patient enduring the drill wants to up and leave the chair” (p. 11). She
described her work as “the water-torture, boredom falling drop by drop on the
same spot on the soul” (p. 17).
84
See, for example, Anderson, “Nuremberg Sensibility,” 281, 288–89.
85
Robert H. Jackson, The Nürnberg Case (New York: Cooper Square, 1971), 10.
86
Report of Robert H. Jackson, United States Representative to the International Conference on
Military Trials, London 1945 (Washington, DC: Government Printing Office, 1949), 48,
avalon.law.yale.edu/subject_menus/jackson.asp.
108 naming the nameless crime

the future if in days of peace it finds incredible the accusatory gen-

eralities uttered during the war.”87 Without doubt, this impulse was
meritorious and made the task of denial or revisionism more diffi-
cult. Primo Levi, for instance, recalls how guards at the concentration
camps would taunt inmates by saying that, even if they survived, their
stories of Nazi monstrosities would never be believed.88 In this respect
the trials served an important role in what one might call the psycho-
logical reconstruction of Germany following the war.
What emerged from the trials was not merely a factual record, but
an official, interpretive narrative, or meta-narrative, of the Nazi war
effort – including, but not limited to, the Holocaust. The tribunal held
that aggressive war was the “supreme international crime, differ-
ing only from other war crimes in that it contains within itself the
accumulated evil of the whole.”89 This view was driven by a prosecu-
tion strategy that focused on a theory of a Nazi grand conspiracy in
which belligerent militarism figured most prominently. The Holocaust
was represented “essentially as the horrific consequence of a war of
aggression.”90 As discussed in Chapter 3, this approach was partially
shaped by the reluctance to rely too heavily on the disputed concept of
crimes against humanity. But the construction of a narrative centered
on aggressive war – in addition to reflecting the political interest of
the Allied powers in reasserting the inviolable sovereignty of states
in the postwar international order – meant that the narrative would
inescapably fail to reflect the particular character and purpose of the
Nazi persecution of Jews.
Largely because the evidentiary base for the prosecution at
Nuremberg drew so heavily upon German documents captured at
the conclusion of the war, the first generation of Holocaust historians
subscribed to what Christopher Browning has called the “Nuremberg
view” that the Holocaust was the product of “criminal minds, infected
with racism and antisemitism, carrying out criminal policies through
criminal organizations.”91 Despite the limited perspective of this

87
Ibid.
88
See Primo Levi, The Drowned and the Saved, trans. Raymond Rosenthal (New York:
Vintage, 1989), 11–12 (referring to Simon Wiesenthal, Joseph Wechsberg, ed., The
Murderers Among Us [New York: McGraw Hill, 1967]).
89
Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14
November 1945–1 October 1946 (1947), vol. I, 186.
90
Lawrence Douglas, “The Memory of Judgment: The Law, the Holocaust, and Denial,”
History and Memory 7 (1996): 100, 105.
91
Christopher Browning, “German Memory, Judicial Interrogation, and Historical
Reconstruction: Writing Perpetrator History from Postwar Testimony,” in Saul
 confronting the holocaust through legal ritual 109

scholarship – developed within the confines of official records and the

legal processes at Nuremberg – the resulting elements of detachment
and temporal distance created an intellectual space for exploring other
dimensions of the Holocaust. The initial scholarly emphasis on “ideo-
logical history, focusing on antisemitism and racism among the perpe-
trators, or institutional history focusing on the implementation of Nazi
racial policy”92 was displaced in 1961 by Raul Hilberg’s monumental
work The Destruction of the European Jews.93 The “Nuremberg view” was
superseded by the representation of the Holocaust as “a vast and com-
plex administrative process carried out by a multitude of often face-
less bureaucrats who were infused with an ‘elation’ or ‘hubris’ because
they were making history.”94 Since that time, successive generations of
Holocaust scholarship have each presented a fresh perspective, with
some drawing on records of perpetrators, others on those of victims or
bystanders. The surfacing of new evidence, consideration of different
or broader perspectives, and new questions reflecting the concerns of
new generations all work to influence historical scholarship, under-
scoring that judicial decisions are fixed and immutable, whereas his-
toriography is relentlessly moving in new directions. These evolving
viewpoints illustrate why history as captured in legal judgments and
their immediate aftermath is final only for legal purposes – and is
anything but definitive.95
Although Nazi atrocities against Jews were conveyed at the Nuremberg
Trials in terms of political control and military strategy, the unpre-
cedented totalizing dimensions of the Holocaust were not altogether
lost at the Nuremberg Trials. Jackson recognized the all-encompassing
nature of European Jewry’s destruction when he declared at trial: “It is
my purpose to show a plan and design, to which all Nazis were fanat-
ically committed, to annihilate all Jewish people.”96 He thus conceded
the concept of ideological extermination as an end in itself, without
invoking the neologism genocide. This conception of the Nazi crimes
was diluted, however, by the continuing emphasis on the persecution

Friedlander, ed., Probing the Limits of Representation (Cambridge, MA: Harvard

University Press, 1992), 22, 26.
92
Ibid.
93
Raul Hilberg, The Destruction of the European Jews (London: W. H. Allen, 1961).
94
Browning, “German Memory, Judicial Interrogation, and Historical Reconstruction,”
26.
95
See, for example, Mark Osiel, “Ever Again: Legal Remembrance of Administrative
Massacre,” University of Pennsylvania Law Review 144 (1995): 463, 631–32.
96
Trial of the Major War Criminals Before the International Military Tribunal, vol. II (1947), 118.
110 naming the nameless crime

of Jews as a means of eliminating barriers to the greater end of waging

aggressive war:

Nor was [the policy of starvation and extermination] directed against individ-
ual Jews for personal bad citizenship or unpopularity. The avowed purpose
was the destruction of the Jewish people as a whole, as an end in itself, as a
measure of preparation for war, and as a discipline of conquered peoples.97

The deliberate avoidance of the Holocaust at the center of the trial

reflected, in part, the unease with which the new concept of crimes
against humanity was perceived, including the requirement of a nexus
with crimes against peace or war crimes. But more important for our
purposes was the implicit recognition that aggressive war was far more
determinate and familiar, and that it did not require that the tribu-
nal, at the outset, understand or cope with the Nazis’ unprecedented,
ideologically based effort to exterminate an entire race. As Lawrence
Douglas has observed:

By treating crimes against humanity as ancillary to the principal crime of

military aggression, Jackson’s approach shifted attention away from those
atrocities that presented, in Arendt’s mind, the greatest challenge to the con-
cept of ordered legality. While criminalizing military belligerence can be
dismissed as an exercise in futility, the acts that Jackson sought to punish
can be seen as less disruptive of jurisprudential assumptions than genocide.
Genocide, as Arendt suggests, undermines confidence in all jurisprudential
understandings, be they inspired by natural or positive law traditions. The
criminalization of aggressive warfare, unusual as this may be, represents no
more than the extension of legal principles that control domestic conduct into
relations between nations.98

The Nuremberg Judgment was a means of reckoning with both the

past and the future. In emphasizing the transcendent importance of
punishing the major Nazi war criminals, Jackson remarked, “What
makes this inquest significant is that these prisoners represent sinis-
ter influences that will lurk in the world long after their bodies have
returned to dust.” His goal as prosecutor was to “show them to be living
symbols of racial hatreds, of terrorism and violence, and of the arro-
gance and cruelty of power. They are symbols of fierce nationalisms
and of militarism, of intrigue and war-making which have embroiled
Europe generation after generation.” In Jackson’s view, there could be

97
Ibid., 119 (emphasis added).
98
Lawrence Douglas, “Film as Witness: Screening Nazi Concentration Camps Before
the Nuremberg Tribunal,” Yale Law Journal 105 (1995): 449, 462.
 confronting the holocaust through legal ritual 111

no compromise with evil forces that “would gain renewed strength

if we deal ambiguously or indecisively with the men in whom those
forces now precariously survive.”99 The men in the dock at Nuremberg
were thus regarded as mere transient repositories of greater currents,
ones that had been devastating in the past and that were bound to
resurface in the future – absent the preventative effect of international
justice. “Successor justice is both retrospective and prospective,” Otto
Kirchheimer has observed. “In laying bare the roots of iniquity in the
previous regime’s conduct, it simultaneously seizes the opportunity to
convert the trial into a cornerstone of the new order.”100 In delegit-
imizing the Nazi past, the tribunal contributed to the transformation
of postwar German identity and helped to prevent the resurgence of
Nazi barbarity. It also served to legitimize the postwar order revolving
around the United Nations, founded on the prohibition of war and on
the emerging acceptance of universal human rights as a foundation for
international peace and security.

The Genocide Convention

Although the Nuremberg Tribunal was oriented, in part, toward the
future, it had constructed the narrative of Nazi crimes within the
confines of legal precedent and existing concepts that were access-
ible and adaptable to credible judicial proceedings. Against that back-
ground, the crime of genocide emerged in order to fill a perceived
void both in the legal idiom and in historical understanding. By the
same token, whereas the primary work of the Nuremberg Tribunal
was to pass judgment against particular Nazi criminals, the Genocide
Convention was conceived more as an abstract conceptualization and
universal representation of the Holocaust’s paradigmatic crimes. It was
an attempt to supersede the specificity of the Nuremberg Tribunal by
establishing new legal norms that would not only bind, but also pre-
vent and, if necessary, punish future acts of genocide.
The American delegation had urged that the convention “be adopted
as soon as possible, before the memory of the barbarous crimes which
had been committed faded from the minds of men.”101 In order to

99
Trial of the Major War Criminals Before the International Military Tribunal, vol. II (1947), 99.
100
Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton:
Princeton University Press, 1961), 336.
101
UN GAOR, 3rd Sess., 6th Cmte., 64th mtg., UN Doc. A/C.6/SR.63 at 4–5 (1948); Hirad
Abtahi and Philippa Webb, eds., The Genocide Convention: The Travaux Préparatoires,
vol. II (Leiden and Boston: Martinus Nijhoff, 2008), 1290.
112 naming the nameless crime

underscore the historical specificity of the crime of genocide, some

delegates sought to amend the preamble to contain an express con-
demnation of Nazi and fascist racial theories “in order to affirm the
existence of the organic relationship between genocide and the nazi–­
fascist ideology.”102 The amendment, proposed by the Soviet Union,
would have added a preambular paragraph indicating “that the crime
of genocide is organically bound with Fascism–Nazism and other simi-
lar race ‘theories’ which propagated racial and national hatred, the
domination of the so-called ‘higher’ and the extermination of the
so-called ‘lower’ races.”103 Reflecting the tension between the unprec-
edented character of the Holocaust and its perception as an “ancient”
crime, other delegates countered that “it was wrong to consider gen-
ocide as being an exclusive product of fascism–nazism” since “his-
tory revealed many previous cases of genocide.”104 Others outside the
European theater were more directly concerned that the Holocaust
should not be privileged in relation to their own plights. The Chinese
delegate, for example, asserted that references to “past events” such as
the Nuremberg trials should be deleted from the preamble, for “oth-
erwise it would be necessary to cite all parallel cases and, in particu-
lar, those which involved Japan.”105 In order to avoid reduction of the
convention to a mere denunciation of the Holocaust, other delegates
emphasized that it was “dangerous to create the idea that genocide
should only be punished if it were a product of fascism–nazism” or to
suggest that “the Convention was concerned only with that historical
accident.”106 The deliberations, it was asserted, should consider “only
the legal aspect of the convention” as an abstract norm “and leave aside
everything that might be inspired by a desire for propaganda.”107
Some delegates hardly masked their skepticism about what they per-
ceived as a thinly veiled attempt to achieve a self-deceptive closure –
and to put in place an effective means of prevention – through the
Genocide Convention. No less of an eminent personage than Hartley

102
See Abtahi and Webb, eds., The Genocide Convention, 36 (emphasis added).
103
See Report of the Committee and Draft Convention Drawn Up by the Committee, UN Doc.
E/794, at 10 (1948).
104
Ibid., 8.
105
UN GAOR, 3rd Sess., 6th Cmte., 65th mtg., UN Doc. A/C.6/SR.65 (1948); Abtahi and
Webb, eds., The Genocide Convention, 1316.
106
See Report of the Committee and Draft Convention Drawn Up by the Committee, UN Doc.
E/794, 8.
107
UN GAOR, 3rd Sess., 6th Cmte., 66th mtg., UN Doc. A/C.6/SR.66 (1948); Abtahi and
Webb, eds., The Genocide Convention, 1331.
 confronting the holocaust through legal ritual 113

Shawcross, the British prosecutor at Nuremberg, noted that he “did not

feel particularly enthusiastic about the [convention].” “It was a com-
plete delusion,” he stated,

to suppose that the adoption of a convention of the type proposed, even if

generally adhered to, would give people a greater sense of security or would
diminish existing dangers of persecution on racial, religious, or national
grounds …
Recalling the Nürnberg trials, [he] pointed out that nobody believed that
the existence of a convention … would have deterred the nazis or fascists
from committing the atrocious crimes of which they had been guilty. Those
crimes were largely the crimes of totalitarian States, which would not change
their methods because of the existence of a convention to which a number of
nations had adhered.108

Contrary to the euphoria of Herbert Evatt that “the supremacy of

international law had been proclaimed”109 by adopting the conven-
tion, Shawcross considered the novel crime of genocide superfluous.
It was, he claimed, “already generally recognized as a crime punish-
able by law and was simply a new word to describe a particular form
or murder” – an apparent reference to the broader category of crimes
against humanity.110 He explained that genocide “was a crime commit-
ted not by individuals but by States. No one believed, however, that a
State committing those crimes would be restrained by the existence
of a convention, or would surrender itself for trial to an international
tribunal.”111 Rejecting a liberal reconstruction of unpleasant realities
through the rule of law, he soberly portrayed “victor’s justice” as the
only effective means of prevention and punishment. He pointed to the
“obvious truth” that “individual genocide was already punishable by
the laws of all countries, whereas genocide committed by States was
punishable only by war.”112 In a final assault on the structuring ritual
of international treaty making, he suggested:

While making no significant contribution to international law, the conven-

tion might set forth more clearly the detestation with which genocide should
be regarded … [The delegates] should not take measures which might delude

108
Abtahi and Webb, eds., The Genocide Convention, 1306.
109
UN GAOR, 3rd Sess., 179th plen. mtg., 852, UN Doc. A/PV.179 (1948).
110
UN GAOR, 3rd Sess., 6th Cmte., 64th mtg., UN Doc. A/C.6/SR.64 (1948); Abtahi and
Webb, The Genocide Convention, 1307.
111
Abtahi and Webb, eds., The Genocide Convention, 1307.
112
Ibid.
114 naming the nameless crime

people into thinking that some great step forward had been taken whereas in
reality nothing at all had been changed.113

Shawcross was not alone in his skepticism of international law’s post-

war euphoria. Eminent jurists such as Hersch Lauterpacht were also
keenly aware that the Nuremberg moment represented a very differ-
ent enterprise than that contemplated under the Genocide Convention.
He remarked in 1955 that, “to a considerable extent, the Convention
amounts to a registration of protest against past misdeeds of individ-
ual savagery rather than to an effective instrument of their prevention
or repression.”114
It does not take much imagination to see the truth in Lauterpacht’s
prognosis. Since the adoption of the Genocide Convention, there have
been numerous instances of genocide, with correspondingly few
instances of prevention or punishment. In the post-Cold War context
that witnessed the “end of history” and the supposed triumph of lib-
eral values,115 David Scheffer went so far as to claim that “genocide has
become a growth industry.”116 Far from being an effective instrument
for preventing and punishing genocide, and far from representing a
genuine resolve to vindicate the legacy of the Holocaust, the postwar
record reveals blatant indifference to the convention’s objectives, if not
outright endorsement of massive atrocities in selective instances.
The emphasis on recourse to national courts,117 the rejection of uni-
versal jurisdiction,118 interstate enforcement through the International
Court of Justice,119 and the reference to a nonexistent international

113
Ibid.
114
Lassa Oppenheim, International Law: A Treatise, vol. I, 8th edn., ed. Hersch Lauterpacht
(London: Longman, 1955), 75.
115
Francis Fukuyama, “The End of History?,” National Interest (Summer 1989): 3.
116
David J. Scheffer, “International Judicial Intervention,” Foreign Policy (Spring 1996): 34.
117
Article VI of the convention provides, in relevant part, that persons charged with
genocide “shall be tried by a competent tribunal of the state in the territory of which
the act was committed.” However, since the vast scale of genocide makes it unlikely
to be committed without the participation of a state, it is unrealistic to assume that
the same state will bring the perpetrators to trial. See, for example, Payam Akhavan,
“Enforcement of the Genocide Convention: A Challenge to Civilization,” Harvard
Human Rights Journal 8 (1995): 229, 232–33.
118
See ibid., 233–34.
119
Article IX of the convention provides: “Disputes between the Contracting Parties
relating to the interpretation, application, or fulfillment of the present Convention,
including those relating to the responsibility of a State for genocide … shall be
submitted to the International Court of Justice at the request of any of the parties to
the dispute.” See ibid., 246–47.
 confronting the holocaust through legal ritual 115

criminal jurisdiction120 betrayed, from the outset, a lack of genuine

resolve to enforce the Genocide Convention. Indeed, it would be half a
century before the first international criminal prosecution for geno-
cide – in the 1998 Akayesu case before the ICTR.121 But what is even
more significant in gauging the commitment of the international
community is the ongoing, gross failure to prevent genocide and other
instances of mass killing, even where ample opportunity existed. The
issue here is not whether the scope of the duty to prevent genocide
under the convention is sufficiently rigorous, since it is doubtful that
even the most stringently worded text would have had much effect
on world history since 1948.122 Rather, the issue is a more probing
query as to the relationship between a discourse centered on rational
legal concepts and hierarchical abstractions, on the one hand, and
the potential to experience empathy for, or to engage with the reality
of, those slated for destruction, on the other. Of course, the point is
not that there is somehow a mechanical “cause and effect” relation-
ship between legal conceptualization and moral paralysis. Rather,
the nature of the ­d iscourse surrounding such events can reflect a
sensibility as to how evil and suffering are understood and appreci-
ated (and then acted upon, or ignored) – especially among bystanders
with the capacity to intervene. This issue will be explored further in
Chapter 8.

The Eichmann trial

In May 1960 in Buenos Aires, Israeli Mossad agents secretly captured
Adolf Eichmann, a former SS Obersturmbannführer who had been in
charge of managing the logistics of the mass deportation of Jews to
extermination camps in eastern Europe. Brought to Jerusalem and put
on trial before Israeli courts, Eichmann was eventually found guilty

120
Article VI of the convention includes as a means of enforcement “such
international penal tribunal as may have jurisdiction with respect to those
Contracting Parties which shall have accepted its jurisdiction.” No such tribunal
existed at the time, however; it would be many decades before there was such a
tribunal, the International Criminal Court.
121
See Akayesu, Trial Judgement (ICTR, 2 September 1998).
122
Despite much uncertainty, the duty to prevent genocide where there is a “serious
danger” that it will occur and where a state party has the necessary “influence”
to avert it has been affirmed by the International Court of Justice. See Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro) (International Court of Justice, 26 February
2007).
116 naming the nameless crime

of his crimes and executed by hanging in 1962.123 The Eichmann trial

represented a departure from the legal rituals of Nuremberg and
the Genocide Convention. This justice – meted out by victims and not
­v ictors – was an attempt by Israel to appropriate the particularity of
the Holocaust rather than surrender it to the normative empire of
international jurists.
Indeed, the Eichmann trial is one of the most telling examples of how
profoundly the appropriation of past injustice shapes and reconstitutes
collective identity, while exposing at the same time the tension – legal,
moral, experiential – between particularity and universality. As dis-
cussed previously, the Nuremberg Trials relegated the Holocaust to a
mere consequence of aggressive war, thus belittling its magnitude and
distorting its underlying causes. Through the Eichmann trial, this mis-
representation of the survivors’ experience was rectified by placing
the Holocaust at the center of the narrative about Nazi crimes. One
important aspect of “ownership” was the actual presence of Eichmann
before the courts of the people whom he had sought to eradicate, and
another was the empowerment of reappropriating justice after centur-
ies of persecution and helplessness.
Beyond these considerations, the naming of the crime itself was a
vital element of constructing a narrative of ownership. The accused
was charged with “crimes against the Jewish people” under section 1
of the Nazis and Nazi Collaborators (Punishment) Act of 1950. Although
this crime replicated the genocide definition contained in Article II
of the Genocide Convention, it substituted the term Jewish people for
the protected groups and the term Jews for “members of the group”
under the enumerated acts.124 In place of the broader term genocide,

123
See Neil Bascomb, Hunting Eichmann: How a Band of Survivors and a Young Spy Agency
Chased Down the World’s Most Notorious Nazi (New York: Houghton Mifflin Harcourt,
2009).
124
See Prosecutor v. Akayesu, Case No. ICTR-96-4-T (1998), para. 503 (referring to these
“crimes against the Jewish people” as “genocide under another legal definition”).
It should be noted, however, that Israel has specific enabling legislation for the
purpose of implementing the Genocide Convention (see The Crime of Genocide
(Prevention and Punishment) Law of 1950, reprinted in Laws of the State of Israel,
Vol. IV, 5710–1949/50, 101). Furthermore, the Nazis and Nazi Collaborators
(Punishment) Act is broader than the Genocide Convention’s Article II definition;
the former includes acts of cultural destruction such as “destroying or desecrating
Jewish religious cultural assets or values.” Section 1(b) of the Israeli act provides, in
relevant part, as follows:
“crime against the Jewish people” means any of the following acts,
committed with intent to destroy the Jewish people in whole or in part:
 confronting the holocaust through legal ritual 117

the particularized “crimes against Jewish people” came to symbol-

ize the Jews’ reappropriation of the juridical narrative of Nazi crimes.
As Pnina Lahav observed in her biography of Justice Simon Agranat,
deputy-president of the Israeli Supreme Court during the Eichmann
trial, labeling the Holocaust as a distinct crime against the Jews was
far-reaching in the existential construction of a postsurvival national
identity and political consciousness:

The Law against the Nazis and Nazi Collaborators created a new category of
crimes: crimes against the Jewish people … The crime was specific to Jews and
created a category hitherto unknown in any legal system. It was precisely for
this reason that the crime formed a coherent part of Zionism … Zionism por-
trayed the Holocaust less as the vile fruit of totalitarianism and more as the
culmination of two millennia of anti-Semitism. The Jews had been defenseless
because they did not possess political power. Even in Nuremberg the Allies
refused to recognize that the Jews as a nation were especially targeted by the
Nazis. The offense, “crimes against the Jewish people,” was designed to cor-
rect that myopia and to assert, ex post facto and forever, the Jewish point of
view.125

This legal categorization was ostensibly intended to empower the

Jewish national consciousness and to reinforce the official Zionist his-
torical narrative. But the depiction of the Holocaust as the mere con-
summation of two millennia of anti-Semitism replaced Nuremberg’s
myopia with a different kind of distortion. Arendt maintained that
exclusive emphasis on “crimes against the Jewish people” failed to cap-
ture the unprecedented magnitude and essence of a crime that could
be adequately represented only by the term genocide. The Eichmann
trial, she suggested,
[d]emonstrate[d] how little Israel, like the Jewish people in general, was pre-
pared to recognize, in the crimes that Eichmann was accused of, an unprece-
dented crime, and precisely how difficult such a recognition must have been
for the Jewish people. In the eyes of the Jews, thinking exclusively in terms

killing Jews;
causing serious bodily or mental harm to Jews;
placing Jews in living conditions calculated to bring about their physical
destruction;
imposing measures intended to prevent births among Jews;
forcibly transferring Jewish children to another national or religious group;
destroying or desecrating Jewish religious or cultural assets or values;
inciting hatred of Jews.
125
Pnina Lahav, Judgment in Jerusalem (Berkeley and Los Angeles: University of
California Press, 1997), 150.
118 naming the nameless crime

of their own history, the catastrophe that had befallen them under Hitler,
in which a third of the people perished, appeared not as the most recent of
crimes, the unprecedented crime of genocide, but, on the contrary, as the oldest
crime they knew and remembered. This misunderstanding, almost inevit-
able if we consider not only the facts of Jewish history but also, and more
important, the current Jewish historical self-understanding, is actually at the
root of all the failures and shortcomings of the Jerusalem trial. None of the
participants ever arrived at a clear understanding of the actual horror of Auschwitz,
which is of a different nature from all the atrocities of the past, because it appeared to
prosecution and judges alike as not much more than the most horrible pogrom in Jewish
history. They therefore believed that a direct line existed from the early anti-
Semitism of the Nazi Party to the Nuremberg Laws and from there to the
expulsion of Jews from the Reich and, finally, to the gas chambers. Politically
and legally, however, these were “crimes” different not only in degree of seriousness but
in essence.126

The particularization of genocide in the guise of “crimes against Jewish

people” had important consequences on the juridical narrative con-
structed by the Eichmann trial. At issue was reconciling the particu-
larity of the Jewish Holocaust with the transcendent universality that
made it assume the dimensions of a crime against “humanity” as a
whole. Indeed, if these were merely crimes against discrete national
groups, they did not possess a broader historical relevance or transcend-
ent importance. It is in this context that we can understand Arendt’s
lament that at “no point … did the Jerusalem trial ever mention even
the possibility that exterminating an entire ethnic group” – whether
Jews, Poles, or Gypsies, for example – “might be more than a crime
against the Jewish or the Polish or the Gypsy people,” and that it might,
instead, be a crime against “the international order, and mankind in its
entirely, [which] might have been grievously hurt and endangered.”127
The tension between the particular and universal was at the core
of the jurisprudence emanating from the Eichmann trial. As Lahav
noted, Justice Agranat understood the full import of asserting the
primacy of Israeli law while maintaining the credibility and rele-
vance deriving from compliance with international norms of justice
and ­fairness.128 In response to the defense submission that the 1950
Israeli Law against the Nazis and Nazi Collaborators constituted ex
post facto law in violation of the nullum crimen sine lege principle, the
Jerusalem district court had

126
Arendt, Eichmann in Jerusalem, 267 (emphasis added).
127
Ibid., 275–76.   128 See Lahav, Judgment in Jerusalem, 150.
 confronting the holocaust through legal ritual 119

stressed the superiority of Israeli law in the sovereign state of Israel. The Law
against the Nazis and Nazi Collaborators, the district court held, was a part
of Israeli positive law and, as such, was binding on the courts of the land. It
did hold that the law agreed with international norms, but emphasized the
impact of the Holocaust on the evolution of the law of nations. This holding
contained a symbolic message: Jewish national pride and self-assertion ruled
the day. There was poetic justice in this interpretation. If the Final Solution
was about the lawless murder of Jews, the Eichmann case was about the subjec-
tion of the perpetrators to Jewish justice, conceived and applied by the very
heirs of those murdered.129

Although Justice Agranat endorsed the district court’s analysis, he was

ambivalent about its approach and thus, upon appeal from the first
instance, steered the jurisprudence of the Supreme Court in a different
direction. In particular, his concern was to establish that “the valid-
ity of the Law against the Nazis and Nazi Collaborators stemmed not
from its superiority to the law of nations but from its compatibility
with international law. Jewish justice was thereby not different from
or superior to the law of nations; rather, it was a part of it.”130 After
reviewing

the four categories of the indictment … he concluded that they had a com-
mon denominator, a “special universal characteristic.” About “crimes against
the Jewish people” he had this to say: “Thus, the category of ‘crimes against
the Jewish people’ is nothing but … ‘the gravest crime against humanity.’ It is
true that there are certain differences between them … but these are not dif-
ferences material to our case.” Therefore, he concluded, in order to determine
whether international law recognized Israeli jurisdiction stemming from
this ex post facto statute, the Court could simply collapse the entire indict-
ment into “the inclusive category of ‘crimes against humanity.’” This “simple”
technique enabled Agranat to devote the bulk of his opinion to the universal
aspects of the Eichmann case.131

Invoking this symbolic argumentation, the particularity of “crimes

against the Jewish people” was reconciled with international law, bring-
ing the legislation under which Eichmann was prosecuted within the
realm of historical legitimacy and transcendent relevance reserved for
universal norms. Through rooting the Israeli law in the “gravest type of
crimes against humanity,” the Holocaust was brought back into main-
stream consciousness, and in such a way that Jewish ownership did not

129
Ibid.   130 Ibid.   131 Ibid.
120 naming the nameless crime

negate the broader “shared meanings, perceptions, and reassurances”132

that wider public discourse and engagement required.
Taken in its entirety, the Eichmann jurisprudence recalls the con-
comitant universality and particularity of genocide – at its inception –
as a paradigmatic crime representing the Holocaust. As with “crimes
against the Jewish people,” the concept of genocide emerged from the
factual matrix of the “Final Solution.” This viewpoint was reflected in
Lemkin’s work, the Nuremberg Trials, and the adoption of the Genocide
Convention, but its translation into an abstraction – the crime of geno-
cide – imbued the paradigm with a shared meaning and broader rele-
vance. By entering the public domain of legal idiom as a crime that was
universally prohibited, the crime of genocide and its historical legacy
became capable of appropriation by others.

132
Murray Edelman, Politics as Symbolic Action (Chicago: Markham, 1971), 65.
6 Who owns “genocide”?

On 24 October 1997, in the city of Vancouver, Irene Starr told her life
story to Reverend Kevin Annett, an Aboriginal rights advocate and
former minister of the United Church of Canada:

I was born in Bella Bella [in British Columbia, Canada] in 1945, and lived there
until the Indian Agent told my mother “If your children don’t go to the resi-
dential school, they’ll all be put up for adoption.” So they scared her into send-
ing me away when I was seven or eight. My heart was broken. It ruined my
entire way of thinking and living.
The Alberni school was a terrible, awful place. I wet my bed constantly, I
was so lonely and afraid. Whenever I wet my sheets, the staff made me stomp
on the sheets in a tub of cold water, up to my waist. I stood in ice water for an
hour often, and three women on staff laughed at me as I froze. They’d bang me
with a mop whenever I stopped, and tell me to hurry up. Then, I’d have to go
to school, frozen, ice cold. I had permanent bladder problems because of that.
I was just a little girl of seven, and I wanted to kill myself. What makes a
child want to commit suicide? I was so mistreated. All I heard from the teach-
ers was “You dumb Indian,” “You’ll never amount to anything.” They were con-
stantly smacking me on the head. So I grew up thinking I was ugly and stupid.
I was ashamed of myself, and my people, and I wished I was white.
I was always freezing. All I had each night was one little blanket over my
cot. I was never warm. All of us were hungry. The food was rotten, the oatmeal
and milk was bad. Kids were always getting sick from the food, and many of
them refused to eat it. They starved. That’s why I thought of killing myself,
I was starving there.
A lot of girls got pregnant after they got to the Alberni school. The fathers
were the men who worked there. We never knew what happened to the babies.
The pregnant girls would be taken to the Alberni Hospital and then come back
without their babies. I’d hear them crying all the time: “Where’s my baby?
What have they done with my baby?”

121
122 who owns “genocide”?

The staff at the school probably killed most of those babies because they
were the fathers. They were not only sadists but murderers. And they got paid
to be so.
I’ve been a loner ever since that school. It still hurts so bad to think of that
place. Like the big lady in black, who was always beating me and my sister
Donna with a wooden brush, and dragging Donna into a closet to sexually
abuse her.
I was hit either with a wooden scrubbing brush or a mop, always on the
head. I also got strapped with a leather strap in class, whenever I dozed off,
from staying awake all night taking care of the babies. The strap was two
inches thick. I had welts on my arms, up to my shoulders.
So many of our people are dying, every day, because of the residential
schools. I only got to grade eight. Eventually, beer calmed my nerves. I became
an alcoholic, and eventually, a heroin addict.
The church spokesmen, the officials, they don’t mean what they say when
they speak. I can’t understand how those people in the school learned to be
so cruel.1

This is but one of the many tragic tales to emerge over the past few
decades from the public scrutiny of the Canadian Indian residential
school system (1879–1986). The Canadian government established the
schools, in cooperation with various church institutions across the
country; after forcibly removing Canadian Aboriginal children from
their families, the goal was to “civilize” them by eradicating their
native identity. The brutal treatment in the schools is said to have
resulted in the deaths of some 50,000 native children, with countless
others becoming victims of serious physical and sexual abuse.2 Some
children were also subjected to medical and scientific experiments,
like Jasper Joseph, now a 69-year-old man from Port Hardy, British
Columbia:
I was just eight, and they’d shipped us down from the Anglican residential
school in Alert Bay to the Nainamo Indian Hospital, the one run by the United
Church. They kept me in a tiny room there for more than three years, like

1
Kevin Daniel Annett, “Statement of Irene Starr (Nee Wilson), Student at Alberni
Residential School, Given to (Rev.) Kevin Annett on October 24, 1997, in Vancouver,
BC,” in Annett Hidden from History: The Canadian Holocaust. The Untold Story of
the Genocide of Aboriginal Peoples by Church and State in Canada (Vancouver: Truth
Commission into Genocide in Canada, 2005), 178ff. Many other testimonies can be
found in books such as Agnes S. Jack, Behind Closed Doors: Stories from the Kamloops
Indian Residential School (Kamloops, British Columbia: Secwepemc Cultural Education
Society, 2000).
2
See, for example, John S. Milloy, A National Crime: The Canadian Government and the
Residential School System, 1879 to 1986 (Winnipeg: University of Manitoba Press, 1999).
 who owns “genocide”? 123

I was a lab rat, feeding me these pills, giving me shots that made me sick.
Two of my cousins made a big fuss, screaming and fighting back all the time,
so the nurses gave them shots, and they both died right away. It was done to
silence them.3

In 2005, a group calling itself the Truth Commission into Genocide

in Canada issued a report Hidden from History: The Canadian Holocaust.
The Untold Story of the Genocide of Aboriginal Peoples by Church and State
in Canada.4 The report alleges a “planned and deliberate genocide,”
its “primary vehicle” being the “Indian Residential School System.”5
The report argues that the various crimes perpetrated in the schools –
including murder, torture, rape, the forcible transfer of children, and
forced abortion and sterilization – fall under Articles II(a)–(e) of the
Genocide Convention.6 These crimes were intended to “systematic[ally]
eradicat[e] … all indigenous populations that would not leave their
lands and resources, abolish their own cultures and languages, and
become Christians.”7
Whatever the merits of these legal claims, the evident aim of the
report’s authors was to situate the stories of those like Irene Starr and
Jasper Joseph not within a particular, localized narrative of suffering
and oppression, but within the broader history of the Holocaust – the
recounted experiences being, apparently, the stuff of genocide. The
rhetoric began with the report’s title, “the Canadian Holocaust,” and
was followed by an explicit effort to compare it to the Nazi genocide:
“The architect of this massacre, which claimed millions of lives, was
that two-headed hydra of Church and State that operated out of a geno-
cidal philosophy of racial superiority indistinguishable from Nazism.”8
It even appropriated the Holocaust’s distinctive terminology: “The
expression ‘Final Solution’ was not coined by the Nazis, but by Indian
Affairs Superintendent Duncan Campbell Scott in April 1910, when he
referred to how he envisioned the so-called ‘Indian Problem’ in Canada
being resolved.”9 Such language recalls the gas chambers of Auschwitz
and claims for the Aboriginal victims the same significance and recog-
nition extended to history’s “ultimate crime.”

3
Annett, Hidden from History, 12.   4 Ibid.
5
Ibid., 128. A similar argument is made in Ward Churchill, Kill the Indian, Save the Man:
The Genocidal Impact of American Indian Residential Schools (San Francisco: City Light,
2004).
6
Annett, Hidden from History, 43–140.
7
Ibid., 44.   8 Ibid., 10.   9 Ibid., 15.
124 who owns “genocide”?

Some would vigorously dispute this equivalence and claim that “the
Nazi attack on the Jews was the only true genocide in history”10 and
brush aside any effort at comparison. Reflecting on the significance
of the Holocaust and the importance of remembrance, Charles Maier
observes that, between Germans and Jews, “[n]o matter what material
or other public debts are paid, confessional memory is demanded as the
only valid reparation. And as a claim upon official memory, the victim’s
anguish comes to be seen as a valuable possession.” But he also points
to the obvious fact that “[o]ther people also want the [valuable] status of
victimhood.” The sordid contest over the singularity of the Holocaust and
the appropriation of the “genocide” label must be understood as the prod-
uct of a political culture of recognition in which ownership of anguish is
not merely a means of working through trauma or an intermediate step
in the sharing of transcendent suffering, but also a means of achieving
a form of celebrity. Maier describes the climate of proliferating and con-
tending claims for recognition in contemporary American politics as “a
competition for enshrining grievances. Every group claims its share of
public honor and public funds by pressing disabilities and injustices.”11
In this context, the “ultimate crime” has become a much-coveted
trophy in a consumer culture of grievance and suffering, alleged or
real. In this bazaar of slogans, the utilitarian appeal of privileged labels
and emotional self-indulgence is an expedient substitute for the more
laborious work of nurturing empathy with the “other.” The appropri-
ation of genocide is thus regarded by some as a depreciation of a valu-
able currency and by others as the supreme sign that public recognition
is both deserved and owed. These seemingly opposed, but interrelated,
deflationary and inflationary pressures in the “language game”12 of
suffering are manifested both in the claim of the Holocaust’s unique-
ness and implicit moral superiority and in the abusive or inflammatory
application of genocide to manifold grievances, however trivial.

The “uniqueness” of the Holocaust?

To understand the contest over appropriating the label of genocide, we
must begin with the emotionally charged debate over the “uniqueness”

10
Steven Katz, The Holocaust in Historical Context, vol. I, The Holocaust and Mass Death
Before the Modern Age (New York: Oxford University Press, 1994).
11
Charles Maier, “A Surfeit of Memory? Reflections on History, Melancholy and
Denial,” History and Memory 5 (1993): 136, 147.
12
See Ludwig Wittgenstein, Philosophical Investigations (Malden, MA: Blackwell 1953).
 the “uniqueness” of the holocaust? 125

of the Holocaust. The problems of attributing to the Holocaust such

distinction and radical incomprehensibility are manifested in the
implicit denial of recognition to others that a discourse of uniqueness
arguably entails. Although the proponents of uniqueness are quick to
claim that such distinction should not be taken as an indication of
moral superiority, they go on to emphasize the Holocaust’s “radical”
factual differences from other historical events, such as the historical
plight of indigenous peoples in the Americas.13 This effort to factually
distinguish the Holocaust is regarded by some as an attempt to estab-
lish, under the guise of objective “description,” the Holocaust’s moral
ascendancy. It is contended that the suffering of others is thereby dis-
paraged or denied, which contributes to the continued marginalization
of the groups in question.14 The Romani Holocaust, or Porrajmos, is a
relevant example. The case is made that Gypsies, likewise slated by the
Nazis for total destruction,15 have been grossly neglected in accounts of
Jewish uniqueness: They have been reduced to a mere historical foot-
note, with far-reaching consequences for the contemporary plight of
this persecuted people.16
Given the intimate association between genocide and the paradigm
of the (Jewish) Holocaust, claims of uniqueness invariably lead to asser-
tions that only the Nazi extermination of Jews qualifies as the “ultimate

13
See, for example, Steven T. Katz, “The Uniqueness of the Holocaust: The Historical
Dimension,” in Alan S. Rosenbaum, ed., Is the Holocaust Unique? (Boulder: Westview,
1996), 19–20. Katz posits that, in “arguing for the uniqueness of the Holocaust, I am
not making a moral claim, in other words, that the Holocaust was more evil than
other events … I know of no method or technique that would allow one to weigh
up, to quantify and compare, such massive evil and suffering.” Katz therefore
decides to “avoid altogether this sort of counterproductive argument about what
one might describe as comparative suffering.” Yet Katz also argues that, although
“Native American people(s) have been the subject of exploitation, despoliation,
rape, violence, and murder since the arrival of Columbus,” and however much this
“centuries-long record of subjugation and abuse is incontrovertible and tragic,” it
“differs radically from that represented by the Holocaust for several fundamental
reasons, the most basic of which is the role that disease has played in this history”
of Native Americans.
14
See, for example, David E. Stannard, “Uniqueness as Denial: The Politics of Genocide
Scholarship,” in Rosenbaum, ed., Is the Holocaust Unique?, 163, 198–99.
15
See, for example, Emil Fackenheim, To Mend the World (New York: Schocken, 1982),
12 (“With the possible exception of the Gypsies, Jews were the only people killed for
the ‘crime’ of existing”).
16
See, for example, Erika Thurner, Nazi Policy Against the Gypsies, presentation to US
Holocaust Memorial Council conference, “The Other Victims,” Washington, DC,
22–25 February, 1987, 7 (as cited in Ian Hancock, “Responses to the Porrajmos: The
Romani Holocaust,” in Rosenbaum, ed., Is the Holocaust Unique?, 58).
126 who owns “genocide”?

crime.” Steven Katz, for one, bluntly claims that “the Nazi attack on the
Jews was the only true genocide in history.”17 Yehuda Bauer emphasizes
that “it is essential to differentiate between different types of evil,” and
places genocide and the Holocaust at different points in a “continuum
of mass brutalization,” with the Holocaust being the “extreme case” or
the “farthest point of the continuum.”18 Nonetheless, he concedes that,
other than the destruction of European Jewry, the Holocaust should be
“a generic name of an ideologically motivated planned total murder of
a whole people”; he includes the 1915 massacres of Armenians under
the category of “Holocaust-related events.”19
Leaving aside considerations of historical interpretation, what is the
underlying significance of “uniqueness”? Or, as Peter Haidu queries, “is
uniqueness a unique quality?”20 The underlying premise of historiog-
raphy, he notes, is that all events are unique – a claim that can be fully
appreciated only in a comparative context.21 But uniqueness does not
assume superiority, and comparison does not necessarily imply hier-
archy. There is a subtle, but profound, difference between comparative
analysis based on intersubjective understanding and that based on an
objectifying discourse of moral dominance that alienates and subordi-
nates the “other.” Israel Charny notes that assertions of “uniqueness”
(in relation to genocide) reflect
[p]ressures to define genocide so that a given event of mass murder emerges as
more “important” than another, including especially pressures to claim for a
given genocide the crown of “ultimate importance.” A closely related argument
has to do with the assignment of relative degrees of evil to different events of
mass murder, so that a given event is taken to represent the greater, incarnate
evil in comparison to other events of genocide, which are treated somewhat as
more usual events of massacre and slaughter in human history.22

Charny acknowledges that a people’s privileged conception of its

own suffering is understandable: He “never fault[s] or argue[s] with a

17
Katz, The Holocaust in Historical Context.
18
Yehuda Bauer, A History of the Holocaust (New York: Franklin Watts, 1982), 332.
19
Ibid.
20
Peter Haidu, “The Dialectics of Unspeakability: Language, Silence, and the
Narratives of Desubjectification,” in Saul Friedlander, ed., Probing the Limits of
Representation: Nazism and the “Final Solution” (Cambridge, MA: Harvard University
Press, 1992), 277, 295.
21
See ibid., 295–96.
22
Israel W. Charny, “Toward a Generic Definition of Genocide,” in George J.
Andreopoulous, ed., Genocide: Conceptual and Historical Dimensions (Philadelphia:
University of Pennsylvania Press, 1994), 64, 68.
 the “uniqueness” of the holocaust? 127

survivor’s claim that a given genocide was the ultimate evil of all,” and
also finds no “fault with collective expressions of such demands for
uniqueness of a given genocide when they spring from the same nat-
ural folk-outpouring of grief, disbelief, horror, and rage at the tragedy
and infamy done to one’s people.”23 But beyond such rituals of remem-
brance, he strongly rejects assigning “objective credence” to “efforts
to name the genocide of any one people as the single, ultimate event,
or as the most important event against which all other tragedies of
genocidal mass deaths are to be tested and found wanting,” including
what he refers to as “the Holocaust of my people.”24 Charny points out
that creating an order of importance between events consigns some
victims to historical oblivion:

For me, the passion to exclude this or that mass killing from the universe of
genocide, as well as the intense competition to establish the exclusive “super-
iority” or unique form of any one genocide, ends up creating a fetishistic
atmosphere in which the masses of bodies that are not to be qualified for the
definition of genocide are dumped into a conceptual black hole, where they
are forgotten.25

Charny sees this tendency as an objectifying “definitionalism.” This

“damaging style of intellectual inquiry” represents “a perverse, fetish-
istic involvement with definitions” in which “the reality of the sub-
ject under discussion is ‘lost’” – by which he means that the subject
is “no longer experienced emotionally by the scholars conducting the
inquiry, to the point that the real enormity of the subject no longer
guides or impacts on the deliberations.”26
Abstract assertions of moral superiority not only alienate and deny
the “other,” but also undermine the moral standing of those making
such claims. Moreover, by suggesting that the Holocaust can be conclu-
sively ranked and measured as the “ultimate crime,” the enormity of
the Holocaust itself is banalized. One is reminded of sterile, statistical
debates over the exact number of Holocaust victims, as if such quanti-
fication can adequately convey the Holocaust’s heinousness.27

23
Ibid., 72.   24 Ibid.   25 Ibid., 91–92.   26 Ibid., 91.
27
See, for example, Eric Hobsbawm, The Age of Extremes (New York: Vintage, 1994), 43:
In any case, what does statistical exactitude mean, where the orders of
magnitude are so astronomic? Would the horror of the Holocaust be any less
if historians concluded that it exterminated not six million (the rough and
almost certainly exaggerated estimate) but five or even four? … Indeed, can
we really grasp figures beyond the reality open to physical intuition?
128 who owns “genocide”?

Reducing genocide to a rare commodity in a market of competitive

suffering does little to promote the intersubjective understanding and
empathy with the “other” that ultimately result in genuine appreci-
ation of historical “lessons” and the transformation of self-conceptions,
whether among victims, perpetrators, or bystanders. Fetishistic calls
to remembrance and empty incantations of “never again” may actually
undermine an authentic emotional connection by reifying a falsely
righteous self-conception, thus distracting attention away from a real-
ity of cynical indifference or simple cowardice. There is evidently a dis-
connection between the “lessons” of the Holocaust and contemporary
events. The imperative recognition of the “other” through dialogical
mediation of truth and transcendence of artificial boundaries is aban-
doned in the objectifying discourse of genocide’s exclusivity. The ethic
of recognition, Haidu maintains, is not intended “to argue a moral
condemnation addressed to the past … that at the same time disre-
gards the present visage of the other.” An ethic that functions only to
“satisf[y] moral superiority vis-à-vis the monsters of the past, without
accepting concrete responsibility for the other who is present at our
doorstep,” lacks both genuine concern and humanity.28
The critique of objectifying discourses is equally, if not more, force-
fully applicable to those at the inflationary end of the spectrum, who
indiscriminately appropriate genocide and Holocaust imagery to focus
attention on their cause. On the positive side, this effort requires
the translation of particularized experience into the idiom of shared
meanings, thereby making possible both public recognition and
wider engagement. But there is also the potential for abuse. Elizabeth
Spelman notes that,

once rendered intelligible through its articulation in language or its repre-

sentability in art, suffering becomes ready for use and thus also for possible
abuse by others. The expression of our pain or suffering that makes it avail-
able to others opens up the possibility that they will understand what it means
to us, but also the possibility that others will mangle our account, especially
if they stretch, tuck, or hem our experience in an attempt to tailor it to make
sense of their own.29

This process is quintessentially characterized by what Lucy

Dawidowicz describes as “the glib equation of the destruction of the

28
Haidu, “The Dialectics of Unspeakability,” 283.
29
Elizabeth V. Spelman, Fruits of Sorrow: Framing Our Attention to Suffering (Boston: Beacon,
1997), 4.
 the “uniqueness” of the holocaust? 129

European Jews with any disaster or atrocity, with any state of affairs
one abhors or even merely dislikes.”30 Spelman points out that invok-
ing the powerful symbolism of the Holocaust

appears to offer at least partial redemption for that suffering: what I or what
we went through might turn out to be of help to others; if so, my experiences
are not anomalous or at the margins of human existence, but representative
of or paradigmatic for the rest of humankind. To the degree that those inflict-
ing suffering try to justify their acts on the grounds that the sufferers are not
fully human, the honor apparently paid to such suffering by its being treated
as exemplary may signal an important acknowledgement of shared human
status.31

Thus, the conception of genocide as a “paradigmatic” crime built on

the legacy of the Holocaust transforms the particularity or uniqueness
of the Jewish or Gypsy experience into the relevance reserved for uni-
versal norms, into a mainstream historical event, a recognition of its
profound hortatory value for all of humankind. Spelman also cautions,
however, that

the very articulation of this [comparative] possibility invites close scrutiny:

what if the borrowers are in fact more like scavengers, interested in the suffer-
ing of others not as a way of marking deep and pervasive similarities among
suffering humanity, and making a case for mutual care, but mainly as a way of
trying to garner concern simply for themselves? When are they honoring the
suffering of others, when simply compounding it by expropriating yet another
product of the horrific labors of the sufferers – their now “exemplary” experi-
ences of suffering?32

Appropriation of genocide as a form of moral scavenging unfortu-

nately is an all-too-familiar occurrence. As Michael Ignatieff points
out, in the meta-legal discourse of suffering:

“[g]enocide” is a worn and debased term, casually hurled at every outrage,

every violence, even applied to events where no death, only shame or abuse,
occurs. But it is a word that does mean something: the project to extermin-
ate a people for no other reason than because they are that people. Before
the experience of genocide, they may believe it a matter of personal choice
whether they belong or believe. After genocide, it becomes their fate.33

30
Lucy S. Dawidowicz, “Thinking About the Six Million: Facts, Figures, Perspectives,”
in John K. Roth and Michael Berenbaum, eds., Holocaust: Religious and Philosophical
Implications (St. Paul, MN: Paragon House, 1989), 51, 63.
31
Spelman, Fruits of Sorrow, 9–10.   32 Ibid., 10.
33
Michael Ignatieff, Blood and Belonging: Journeys into the New Nationalism (London: BBC,
1993), 194–95.
130 who owns “genocide”?

There is, after all, a certain historical reality to the crime of genocide,
in addition to a legacy and assumption of extreme suffering, or at least
a descriptive typology of a particular evil. The call for intersubjective
understanding and inclusive recognition does not somehow ­collapse
all distinctions and boundaries. Rather, it questions the weight and
significance attached to such descriptions and to the associated, hier-
archical conceptualization of ineffable human experience. There are
obvious differences between killing someone solely because of their
belonging to an ethnic or racial group and killing a prisoner-of-war to
avenge the death of fallen comrades; between the permanent and irre-
deemable loss of death and the more transient loss caused by depor-
tation of hapless civilians from their homes; and between suffering
arising from human agency and that from natural causes, even if fam-
ine and disease can often be traced to oppression or other human acts.
In the realm of law and social consensus, it may actually be necessary
to attribute particular moral value to, or to engage in an invidious
ranking of, these different forms of conduct, generating, in turn, a
hierarchical ranking of crimes and punishments. But it is an entirely
different matter to suggest that such definition and ranking should
determine the anguish of the victim and the deeper meaning attrib-
uted to intense suffering. What perverse sort of language game would
tell a child who has lost his mother to AIDS that his loss is morally infe-
rior to that of the concentration camp victim, and that she is therefore
less worthy of empathy and recognition? But why should we even seek
to compare or equate the suffering of the AIDS patient and that of the
concentration camp victim? The pain and agony of each stand on their
own. And how could a scheme of comparisons lead to anything but
contentious discourse in which the meaning of pain is lost in decontex-
tualized definitions and hierarchical abstractions?
The view that unrestrained appropriation of symbols is an effect-
ive strategy for communicating moral legitimacy and political urgency
leads to the same desolation that assertions of uniqueness often
represent. Jack Porter, for instance, observes that genocide has been
applied to “‘race-mixing’ (integration of blacks and nonblacks); drug
distribution; methadone programs; and the practice of birth control
and abortions among Third World people; sterilization and ‘Mississippi
appendectomies’ (tubal ligations and hysterectomies); medical treat-
ment of Catholics; and the closing of synagogues in the Soviet Union.”34

34
Jack Nusan Porter, “Introduction,” in Jack Nusan Porter, ed., Genocide and Human
Rights: A Global Anthology (Lanham, MD: University Press of America, 1982), 2, 9–10.
 the “uniqueness” of the holocaust? 131

Helen Fein similarly notes that “[s]ince genocide is widely conceived

of as the most reprehensible of crimes, many people use genocide-
labeling both to vent outrage and to describe situations in which they
perceive themselves as threatened, regardless of how these situations
have come about, the source of threat, the truth of accusation against
the putative perpetrator, and so on.”35 She points to a “wave of misuse
and rhetorical abuse” of genocide, noting that at times “such labeling
verges on the paranoid and incendiary, as when Westerners or Jews are
accused of genocide by giving Africans or African-Americans AIDS.”36
In this light, how does the manifestly incongruent and abusive appro-
priation of the term to these otherwise worthy causes and legitimate
concerns communicate the reality of the subject or allow for a closer
emotional connection with the plight of the oppressed?
Although they might appear to be diametrically opposed, assertions
of uniqueness and indiscriminate, unfounded efforts to appropriate
genocide and the historical imagery of the Holocaust both reflect a
similar banalization of suffering. What also may result is a compe-
tition between the two viewpoints, where claims and counterclaims
escalate into rhetorical and ideological assertions about the grievances
and suffering of each group, so exaggerated that all empathy is lost.
In faulting such claims, however, we must not lose sight of their
actual context. Leo Kuper observes that “disadvantaged groups [have]
sought to gain a sympathetic hearing by dramatic denunciation”
because of “[e]xperiencing the indifference of the outside world to
their suffering.”37 The case of Rwanda demonstrates that the unam-
biguous horrors of wholesale extermination – open for the world to
witness live on television – were largely greeted with indifference, as if
the victims were objects in a mindless entertainment spectacle depict-
ing graphic violence. Under such circumstances of alienation and emo-
tional numbness, can desperate resort to the most effective weapons
in the rhetorical arsenal of public discourse be blamed? It is true, as
Kuper points out, that abusive invocation of genocide has “proved
counterproductive in the United Nations, which [has] turned a deaf ear
to these extravagant charges.” He notes that “the avoidance of extreme
charges and rhetoric might contribute to a favorable response”38 in

35
Helen Fein, “Genocide, Terror, Life Integrity, and War Crimes: The Case for
Discrimination,” in Andreopoulos, ed., Genocide: Conceptual and Historical Dimensions, 95.
36
Ibid.
37
Leo Kuper, “Theoretical Issues Relating to Genocide: Uses and Abuses,” in
Andreopoulos, ed., Genocide: Conceptual and Historical Dimensions, 31, 35.
38
Ibid., 36.
132 who owns “genocide”?

some situations. Thus, for instance, “the representatives of the Baha’is,

threatened with the violent eradication of their religion in Iran and
subjected to systematic discrimination reminiscent of the persecution
of Jews by the Nazis in the 1930s, were advised to avoid the charge
of genocide, a strategy they successfully followed,”39 notwithstanding
a UN report that described the killings as genocide.40 But, as he con-
cedes, set against the cynical deference to power and entrenchment of
the status quo, resistance “to charges of genocide [in the UN system] is
not simply a reaction to the trivializing abuse of the concept.”41

Invoking genocide
It is instructive to consider some significant instances in which geno-
cide has been invoked in popular discourse to draw attention to a
cause. These examples help illustrate the interrelationship between
legal definition and meta-legal meaning. They also demonstrate the
contrast between the emotional experiencing of such events and their
description through distant labels and abstractions.

Vietnam
The “Russell Tribunal,” also known as the International War Crimes
Tribunal, was established in 1966 at the prompting of British philoso-
pher Bertrand Russell to “pass serious and impartial judgment” on
the Vietnam war.42 In holding that American policy in Vietnam con-
stituted genocide,43 the tribunal unanimously adopted the written
opinion prepared by its president, the French philosopher and play-
wright Jean-Paul Sartre.44 The symbolic power of the term genocide was
not lost on Sartre, who drew parallels between the Holocaust and the
American “imperialist genocide”45 against the Vietnamese. The “truth
of the Vietnam war,” he contended, was that “it meets all of Hitler’s
specifications. Hitler killed the Jews because they were Jews. The
armed forces of the United States torture and kill men, women and
children in Vietnam merely because they are Vietnamese.”46 Thus, in the

39
Ibid.
40
Benjamin Whitaker, Revised and Updated Report on the Question of the Prevention and
Punishment of the Crime of Genocide, UN Doc. E/CN.4/Sub.2/1985/6 (1985), para. 24.
41
Kuper, “Theoretical Issues Relating to Genocide,” 31, 36.
42
Jean-Paul Sartre, On Genocide (Boston: Beacon, 1968), 3.
43
Ibid., 50–53.   44 Ibid., 53, 57–85.   45 Ibid., 85.
46
Ibid., 82. In support of this conclusion, Sartre refers, inter alia, to the example of an
American general who “boasted of hunting ‘VCs’ from his helicopter and gunning
 invoking genocide 133

tribunal’s polemic against the Vietnam war, genocide and the echoes
of the Holocaust figured prominently. Only by situating American atro-
cities against the Vietnamese within the domain of genocide could the
war’s “reality” be reliably described or the tribunal’s abhorrence of the
war be fully expressed.
Independent of the merits concerning this charge of genocide, the
tribunal obviously took the view that the horrors of saturation bomb-
ing and the associated, indiscriminate killing of civilians could be
conveyed by invoking the moral gravitas of the “ultimate crime.”

Cambodia
During the short reign of Pol Pot’s Khmer Rouge from 1975 to 1979,
up to two million of a total population of eight million were executed,
tortured, or starved to death in the infamous “killing fields” and death
camps of Cambodia.47 The crimes of the Khmer Rouge, committed in
the pursuit of an agrarian, classless utopia, were at the time called “the
most serious that had occurred anywhere in the world since Nazism.”48
This horrendous mass murder was understood to be the “ultim-
ate crime” and enshrined in popular discourse as “the Cambodian
genocide.”
Yet scholarly dispute persists as to whether the majority of the kill-
ings legally constitute genocide. Although the Khmer Rouge’s effort to
exterminate the Buddhist, Vietnamese, and Cham Muslim minorities
may qualify as genocide, the vast majority of victims – the intellectu-
als, bourgeoisie, and other political or social class “enemies” of the
Khmer Rouge – belonged to the Khmer majority groups. A UN rappor-
teur maintained at the time that this amounted to an “auto-genocide”
of the Cambodian national group (since Khmers killed other Khmers).49
But such an argument is juridically untenable. It reflects a creative and

them down in the rice paddies. Obviously, the victims were not National Liberation
Front soldiers who knew how to defend themselves; they were peasants tending
their rice. Sartre adds (at p. 81) that in the
confused minds of the American soldiers “Vietcong” and “Vietnamese” tend
increasingly to blend into one another. They often say themselves, “The only
good Vietnamese is a dead Vietnamese,” or what amounts to the same thing,
“A dead Vietnamese is a Vietcong.” From the “neo colonialists’” [point of view]
in a people’s war, civilians are the only visible enemies.
47
See Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia Under the
Khmer Rouge, 1975–1979 (New Haven: Yale University Press, 1996), for extensive
discussion of the death toll and nature of the genocide.
48
UN Doc. E/C.4/SR.1510, at 7 (1979).   49 Ibid.
134 who owns “genocide”?

seemingly desperate attempt to invoke the term genocide to convey the

enormity of the crimes, as if any other categorization would trivial-
ize their magnitude. As Steven Ratner and Jason Abrams observe, the
Khmer Rouge “did not target their non-minority victims as members
of the Khmer nation”; instead, they either were targeted as “economic,
social or political elements whom the Khmer Rouge sought to eradi-
cate” or were “victims of arbitrary violence and harsh conditions that
the government imposed on virtually the entire country.”50 A Group of
Experts commissioned by the UN General Assembly concluded that the
“evidence suggests the need for prosecutors to investigate the commis-
sion of genocide against the Cham, Vietnamese, and other minority
groups, and the Buddhist monkhood.” With regard to the “atrocities
committed against the general Cambodian population,” the group
did not “take a position” on whether the Khmer people “constitute[d]
a national group within the meaning of the [Genocide] Convention,”
though the group did note that “any tribunal will have to address
the question should Khmer Rouge officials be charged with genocide
against the Khmer national group.”51
The indictments recently proposed by the prosecutor for the
Extraordinary Chambers in the Courts of Cambodia have now
answered that question. Four codefendants – Nuon Chea, Ieng Sary,
Ieng Thirith, and Khieu Samphan – have all been charged with geno-
cide, crimes against humanity, and war crimes, but the genocide
charge relates only to the attempted extermination of the Cham
Muslim and Vietnamese minorities. The prosecutor appears to have
concluded that the majority of the Khmer Rouge crimes did not qual-
ify as genocide on account of the exclusion of political and social
groups from the legal definition.52
If the gravity of the Cambodian crimes were determined by refer-
ence to hierarchical abstractions and comparative suffering, one of
modern history’s worst abominations would be relegated to the “second-
best” category of crimes against humanity. Yet the monstrous scale of
victimization and suffering renders such a conclusion, some would say,
manifestly absurd. Beyond the narrow confines of judicial proceedings,

50
Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities in International
Law: Beyond the Nuremberg Legacy (New York: Oxford University Press, 1997), 246.
51
Report of the Group of Experts for Cambodia Pursuant to General Assembly Resolution 52/135,
UN Doc. A/53/850, paras. 64–65 (1999).
52
See www.eccc.gov.kh/english/news.view.aspx?doc_id=364.
 invoking genocide 135

the post hoc application of legal labels to such events and experiences
is hardly constitutive of their meaning.

Darfur
The ongoing debate over whether atrocities committed by the Sudanese
government in Sudan constitute genocide offers a similar example. As
noted in Chapter 1, in late 2004, the United Nations sent a high-level
panel to Darfur in order to determine whether criminal charges should
be referred to the ICC.53 The commission’s crucial finding on this score
was as follows:

Generally speaking the policy of attacking, killing and forcibly displacing

members of some tribes does not evince a specific intent to annihilate, in
whole or in part, a group distinguished on racial, ethnic, national or religious
grounds. Rather, it would seem that those who planned and organized attacks
on villages pursued the intent to drive the victims from their homes, primar-
ily for purposes of counter-insurgency warfare.54

Some legal scholars praised the commission’s judicial restraint –

­notably William Schabas, who even took the occasion to criticize the
Krstic´ judgment of the ICTY for not reaching the same conclusion as the
commission despite similar facts in Srebrenica. In particular, Schabas
accused the Krstic´ Trial Chamber of engaging in “patronizing specula-
tion” because it considered that targeting and killing only men of mili-
tary age was tantamount to genocide.55 Others, however, echoed the
mainstream media’s shock, with Nsongura Udombana attacking the
commission’s “convoluted and contrived” report, accusing it of facili-
tating the “criminal ambivalence” of the international community.
In addition to “hid[ing] the political motive underpinning its Report,”
the commission’s legal reasoning “reflect[ed] the mindset of an inter-
national community that, hitherto, has been reluctant to characterize
genocide in situations similar to Darfur, to avoid triggering obligations
entailed under the Genocide Convention – the obligation to prevent,
suppress, and punish genocide.”56 NGOs, among others, also voiced

53
See p. 4.
54
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-
General Pursuant to Security Council Resolution 1564 of 18 September 2004, para. 640 (25
January 2005), www.un.org/news/dh/sudan/com_inq_darfur.pdf.
55
William A. Schabas, “Darfur and the ‘Odious Scourge’: The Commission of Inquiry’s
Findings on Genocide,” Leiden Journal of International Law 18 (2005): 871, 881.
56
Nsongura J. Udombana, “An Escape from Reason: Genocide and the International
Commission of Inquiry on Darfur,” International Lawyer 40 (2006): 41–42.
136 who owns “genocide”?

frustration. For example, Salih Booker, executive director of Africa

Action, declared: “Where we disagree [with the commission] is that
this is a genocide and it has been going on for two years now. We’re just
dismayed that this commission could not discover the government’s
intent.”57 Schabas recounts how,

[a]t a recent conference in New York City to commemorate the Nuremberg judg-
ment, I was given the impression that some consider the Darfur Commission’s
rejection of the term “genocide” as tantamount to Holocaust denial. How
quickly people forget that the term “crimes against humanity” was itself
coined to describe the massacres of the Armenians, in May 1915, and was sub-
sequently codified as international law’s nomenclature for the perverse acts
of the Nazi regime.58

The controversy deepened when a pretrial chamber of the ICC sub-

sequently refused to issue an arrest warrant for genocide against
Sudanese president Omar Al-Bashir.59 The ICC Appeals Chamber, how-
ever, forced reconsideration of that decision because, in its view, the
pretrial chamber had applied an erroneously stringent standard of
proof.60 Soon thereafter, the pretrial chamber confirmed an arrest
warrant for Al-Bashir on three counts of genocide.61
It is astonishing to consider the amount of attention devoted to this
prolonged judicial wrangling. Changing the category of the crimes (or
adding another category of crime) would change virtually none of the
salient facts: An arrest warrant for exceptionally serious international
crimes would still have been issued against Al-Bashir, and the “night-
mare of violence” endured by the inhabitants of Darfur would remain
no less haunting.

57
Newshour with Jim Lehrer: Darfur Report (PBS television broadcast, 2 February 2005),
www.pbs.org/newshour/bb/africa/jan-june05/sudan_2–02.html.
58
Schabas, “Darfur and the ‘Odious Scourge,’” 883 (footnotes omitted).
59
Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution’s Application
for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir (Pre-trial Chamber I,
International Criminal Court, 4 March 2009).
60
Prosecutor v. Omar Hassan Ahmad Al Bashir, Judgement on the Appeal of the Prosecutor
Against the “Decision on the Prosecution’s Application for a Warrant of Arrest
Against Omar Hassan Ahmad Al Bashir” (Appeals Chamber, International Criminal
Court, 3 February 2010).
61
Prosecutor v. Omar Hassan Ahmad Al Bashir, Second Decision on the Prosecution’s
Application for a Warrant of Arrest (Pre-trial Chamber I, International Criminal
Court, 12 July 2010).
 invoking genocide 137

Bosnia
In 2007, the International Court of Justice issued a historic decision in
the case of Bosnia v. Serbia. For the first time, a state was found to be
in violation of the Genocide Convention.62 The court ruled that Serbia
had not, in fact, committed genocide but had failed in its duty to pre-
vent genocide in Srebrenica. In other words, the official state organs
of Serbia were found not to be complicit in perpetrating the massacre
itself, but to have failed to exercise their influence over Bosnian Serb
forces in neighboring eastern Bosnia to prevent the genocide from tak-
ing place.
Disappointed reaction from victims was swift. Hedija Krdžić, a
34-year-old woman who had lost her husband, father, and grand-
father at Srebrenica, said, “A ruling that Serbia committed genocide
in Bosnia means everything to me … Without such a ruling I fear that
one day the massacre will be forgotten.”63 Fatija Šuljić, who lost her
husband and three sons at Srebrenica, was dismayed: “This makes me
cry. This is no verdict, no solution. This is disaster for our people.”64
Bosnian leaders echoed the victims, with Haris Silajdžić, the Bosnian
Presidency’s Muslim member, expressing “deep disappointment” and
Željko Komšić, its Croatian member, also condemning the judgment:
“We who were in Bosnia know what happened here right from the
beginning of the war and I know what I will teach my kids.”65
The terminological debate spilled over into the Serbian Parliament’s
deliberations on passing a resolution to condemn the Srebrenica mas-
sacre – an effort spearheaded by the Serbian president Boris Tadić.
In March 2010, the Parliament approved the symbolic resolution but
stopped short of calling it genocide – although it condemned “the
crime as it is described” in a 2009 European parliamentary resolution,
which does actually use the term genocide. Janja Beć, a human rights
activist, insisted that the failure to use the word genocide in the reso-
lution was “so insulting that it could badly influence the relations in

62
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) (International Court of Justice,
26 February 2007).
63
“We Know What Happened, Serbians,” Sydney Morning Herald, 27 February 2007.
64
David Byers, “Court Clears Serbia of Srebrenica Genocide,” Sunday Times (UK),
26 February 2007.
65
Ibid.
138 who owns “genocide”?

the region … Not only now, but for the next several generations. A
crime like this deserves the recognition that it really took place.”66
Evidently, the court’s analysis of the legal subtleties concerning Serbia’s
state responsibility were lost on the victims. For them, Serbia had commit-
ted genocide, and only this characterization of events could adequately
capture the heinousness of the crimes that the Bosnians had suffered.

Rwanda
Rwanda did not escape this terminological debate either; western
diplomats, seeking to avoid intervention in the ongoing massacres,
engaged in a policy of obfuscation and denial. The US government
went so far as to instruct its representatives “not to describe the deaths
[in Rwanda] as genocide, even though some senior officials believe that
is exactly what they represent.”67 Rather, deploying subtle linguistic
nuances, the officials were instructed to merely admit that “acts of
genocide may have occurred”; the concern was that a label as stark as
genocide would “inflame public calls for action the Administration is
unwilling to take.”68 Philip Gourevitch characterized the surreal, eva-
sive language game of US State Department spokesperson Christine
Shelly – described in Chapter 169 – as a “semantic squirm.”70
Of course, this evasive tactic was not without precedent, as the
administration had earlier engaged in similar “semantics to avoid tak-
ing difficult or unpopular military action” against “ethnic cleansing” in
Bosnia-Herzegovina.71 Nor was the United States by any means alone in
this policy of evasion. To give but one example, when the UN Security
Council was considering whether to use genocide in a resolution about
Rwanda, the British ambassador to the United Nations, David Hannay,
suggested that the use of the term would potentially turn the council
into a “laughing stock.”72 The twisted, all too cynical logic was that the

66
Ron Synovitz, “Serbian Lawmakers Condemn Srebrenica Massacre,” Radio Free
Europe/Radio Liberty, 30 March 2010, www.rferl.org/content/Serbian_Parliament_
Begins_Debate_On_Srebrenica_Apology/1997497.html.
67
Dougal Jehl, “Officials Told to Avoid Calling Rwanda Killings Genocide,” New York
Times, 10 June 1994.
68
Ibid.   69 See p. 3.
70
Philip Gourevitch, We Wish to Inform You That Tomorrow We Will Be Killed with Our
Families: Stories from Rwanda (New York: Picador, 1998), 152.
71
“US Sidesteps ‘Genocide’ in Rwanda; Clinton Qualifies Term, but UN General Says
‘Horror Show Continues,’” Star Tribune (Minneapolis), 11 June 1994.
72
See Linda Melvern, A People Betrayed: The Role of the West in Rwanda’s Genocide (London:
Zed, 2000), 180.
 invoking genocide 139

council would lose face if it labeled the massacres as genocide and then
did not intervene (which seemed the likely outcome). The proponents
of intervention, such as human rights NGOs, unwittingly engaged in
the same discourse of hierarchical abstractions, countering that the
events in Rwanda did constitute genocide, thereby triggering an obli-
gation to act under the Genocide Convention.73 Both opponents and
proponents of intervention, however, shared a mistaken assumption
that distorted the debate and also obfuscated the true substantive –
and not linguistic – question: Should we intervene? In particular, both
sides mistakenly assumed that the duty to “prevent and punish” under
Article I of the Genocide Convention created a legal obligation for states
to intervene in any and all genocidal situations and that the crucial,
threshold question was whether the situation was one of genocide.74
Warren Christopher, President Clinton’s secretary of state, ended up
deflating this rhetorical debate by simply declaring: “If there’s any
particular magic in calling it a genocide, I have no hesitancy in say-
ing that.”75 This remark, coming toward the very end of the killings,
was much too little, much too late. And it took another four years for
President Clinton, during his visit to Kigali in March 1998, to express
official contrition to the people of Rwanda – albeit with the by now
familiar, and obviously ineffective, incantation of “never again.”76
It is striking that both proponents and opponents of intervention
continually focused the debate on whether the events in Rwanda
amounted to “genocide.” This emphasis gave such a privileged place to
hierarchical abstractions and formal reasoning that the horrors unfold-
ing before the eyes of the world were overshadowed. René Caravielhe,
a staff member of Médecins sans frontières, describes in simple terms
what he witnessed in those unspeakably dark days:

Jean de Dieu, eleven, was curled up, a ball of flesh and blood, the look in his
eyes was a glance from nowhere … without vision; Marie-Ange, aged nine,
was propped up against a tree trunk her legs apart, and she was covered in

73
Ibid., 169.
74
This viewpoint was especially prevalent among members of the press. See, for
example, Thomas W. Lippman, “Administration Sidesteps Genocide Label in
Rwanda,” Washington Post, 11 June 1994: “The Clinton administration said yesterday
that ‘acts of genocide’ have occurred in Rwanda but deliberately stopped short of
saying the tribal slaughter there is itself genocide – a declaration that would require US
and other foreign intervention under a 1948 international convention” (emphasis added).
75
Gourevitch, We Wish to Inform You, 153.
76
See speech of President Clinton, cited in Melvern, A People Betrayed, 230.
140 who owns “genocide”?

excrement, sperm and blood, … in her mouth was a penis, cut with a machete,
that of her father … [nearby] in a ditch with stinking water were four bodies,
cut up, piled up, their parents and older brothers.

As Caravielhe then notes, one day “another word will have to be coined
more terrible than the word horror, in order to describe this sort of
thing.”77
These scenes from hell were lost as they became entangled in an
obfuscating and sterile discourse of legal labeling. The rituals of formal
legal reasoning and the strictures of institutional procedure brought
the overwhelming enormity of Rwanda’s horrors under orderly con-
trol. And any pangs of bystander guilt after the fact were dealt with
through formal expressions of regret. This surreal moral landscape
of evasion and indifference masked in the language of concern illus-
trates just how removed this self-contained universe of the powerful
was from the reality of the subjects. It calls to mind Roland Barthes’s
The Eiffel Tower and Other Mythologies, which contains an especially use-
ful metaphor for the disconnect between the rarified world of inter-
national diplomacy, gazing upon the world from great heights of power
and privilege, and the horrors transpiring “elsewhere” – in the arena
of suffering:

[B]y affording its visitor a whole polyphony of pleasures, from technological

wonder to haute cuisine, including the panorama, the Tower ultimately reu-
nites with the essential function of all major human sites: autarchy; the Tower
can live on itself: one can dream there, eat there, observe there, understand
there, marvel there, shop there; as on an ocean liner (another mythic object
that sets children dreaming), one can feel oneself cut off from the world and yet the
owner of a world.78

77
As quoted ibid., 186.
78
Roland Barthes, The Eiffel Tower and Other Mythologies, trans. Richard Howard (Berkeley
and Los Angeles: University of California Press, 1997), 17 (emphasis added).
7 Contesting “genocide” in
jurisprudence

On 6 June 1939, Chief Justice John Latham delivered the judgment of

the High Court of Australia in Chester v. Waverley Municipal Council.1 The
plaintiff Chester was the mother of a seven-year-old boy, Maxie. On a
Saturday afternoon in August 1937, Maxie had gone to play on a public
street with other children after eating his lunch. They played beside a
seven-foot-deep open trench excavated by the municipal council that
was not properly fenced off. The trench was filled with water, and the
irresistible combination of water and the excavated sand brought the
neighborhood children to play at the edge of the pool. Maxie acciden-
tally fell in and drowned. When he did not return home after some time,
his distressed mother searched for him, but to no avail. Several hours
later, she watched as Maxie’s lifeless body was found in the trench. As
the court’s judgment stated, “There was evidence that [Mrs. Chester]
thereupon received a severe nervous shock – more than a fright – more
than temporary mental disturbance and distress. She sued the council
for damages for negligence.”2 The trial judge dismissed the case, and a
motion for a new trial was also rejected. The plaintiff then appealed to
the High Court.
Justice Latham concluded that the Municipal Council “was guilty
of actionable negligence in relation to the child in leaving the trench
in the condition in which in fact it was left. If so, the child, if he had
been injured and not drowned, would have had a right of action for
damages.”3 But, since the mother was the plaintiff, he held that she
needed to “establish a duty owed by the defendant to herself and a
breach of that duty,” which the court then described as “a duty not to

1
Chester v Waverley Municipal Council, [1939] HCA 25, (1939) 62 CLR 1 (6 June 1939).
2
Ibid., 2.   3 Ibid., 3.

141
142 contesting “genocide” in jurisprudence

injure her child so as to cause her a nervous shock when she saw, not
the happening of the injury, but the result of the injury, namely, the
dead body of the child.”4 The court thus considered whether such dam-
age (that is, nervous shock) was “within the reasonable anticipation of
the defendant.” The majority concluded that it was not:

“A reasonable person would not foresee” that the negligence of the defendant
towards the child would “so affect” a mother … Death is not an infrequent
event, and even violent and distressing deaths are not uncommon. It is, how-
ever, not a common experience of mankind that the spectacle, even of the sud-
den and distressing death of a child, produces any consequence of more than
a temporary nature in the case of bystanders or even of close relatives who see
the body after death has taken place.5

The appeal was dismissed.

Justice Herbert Evatt wrote the sole dissenting opinion. This bril-
liant jurist, whose minority opinions would be adopted by the High
Court decades later, took exception to the majority’s callous disregard
of the plaintiff’s emotional state:

It is abundantly clear that until the recovery of the body she did not know that
her child had been drowned in the trench. Like most mothers placed in a simi-
lar situation, she was tortured between the fear that he had been drowned
and the hope that either he was not in the trench at all, or that, if he was, a
quick recovery of his body and the immediate application of artificial respir-
ation might still save him from death. In this agonized and distracted state of
mind and body she remained for about half an hour, when the police arrived
and the child’s body was discovered and removed.6

In a passage demonstrating remarkable empathy, he wrote that:

During this crucial period the plaintiff’s condition of mind and nerve can
be completely understood only by parents who have been placed in a similar
agony of hope and fear with hope gradually decreasing. In the present case
the half hour of waiting was the culmination of a long and almost frantic
searching which had already reduced her to a state of nerve exhaustion. Even
after the finding of the body, an attempt at artificial respiration was made
and abandoned only after expert lifesavers had worked on the child’s body for
some time.7

His audacity in challenging the sterile rationalism of the majority went

further, as his dissent wandered into the realm of literature:

4
Ibid., 3–4.   5 Ibid., 6–7.   6 Ibid., 15.   7 Ibid.
 contesting “genocide” in jurisprudence 143

The Australian novelist, Tom Collins, in Such Is Life, has also described the
agony of fearfulness caused by the search for a lost child: –
Longest night I ever passed, though it was one of the shortest in the year.
Eyes burning for want of sleep, and couldn’t bear to lie down for a minute.
Wandering about for miles; listening; hearing something in the scrub, and
finding it was only one of the other chaps, or some sheep. Thunder and
lightning, on and off, all night; even two or three drops of rain, towards
morning. Once I heard the howl of a dingo, and I thought of the little girl;
lying worn-out, half-asleep and half-fainting – far more helpless than a
sheep.

At a later point, in the same novel: –

There was a pause, broken by Stevenson, in a voice which brought constraint
on us all. Bad enough to lose a youngster for a day or two, and find him alive
and well; worse, beyond comparison, when he’s found dead; but the most
fearful thing of all is for a youngster to be lost in the bush, and never found,
alive or dead.8

The sharp contrast between the rationalism of Justice Latham and the
poetic plea of Justice Evatt displays a perennial question about human
emotion and the boundaries of legal reasoning. How can the rationalist
credo of the law be reconciled with intense emotion? And if the judge’s
display of emotion in this instance arises from a mother’s grief for a
child lost in a tragic accident, what are the emotions of a judge pre-
siding over a genocide trial? Perhaps it is not a mere coincidence that
Justice Evatt was the same Herbert Evatt who, a decade later (as men-
tioned in Chapter 1), became president of the UN General Assembly
and, upon adoption of the Genocide Convention in 1948, celebrated
that “the supremacy of international law had been proclaimed.”9
The gravity of genocide can easily overwhelm our capacity for
­dispassionate legal reasoning. As much as transgressions such as the
Holocaust “defy the ordering of common sense” and seem “extra-
­territorial to analytic debate,”10 reducing genocide to law calls for
exactly such an ordering and analysis. Indeed, with the establishment
of the international criminal tribunals, one might be tempted to think
that meta-legal closure through appropriation of genocide has been
­rendered irrelevant; on this view, the methodological rigors and object-
ive discipline of jurisprudence enable courts to determine conclusively

8
Ibid., 16.
9
UN GAOR, 3rd Sess., 19th plen. mtg., 852, UN Doc. A/PV.179 (1948).
10
George Steiner, No Passion Spent: Essays 1978–1995 (New Haven: Yale University Press,
1996), 346–47.
144 contesting “genocide” in jurisprudence

whether the “ethnic cleansing” in Bosnia-Herzegovina, extermination

in Rwanda, or other such situations amount to genocide – independ-
ent of the wider, contested meanings of that term. But as important
aspects of the ICTY and ICTR jurisprudence demonstrate, the situation
is not so simple. As the tribunals confront the facts of certain cases
and attempt to determine how those facts fit into the available legal
categories, the tribunals display a discernible angst that their juridical
conclusions – was it genocide, or not? – either will provide the victims
with meaningful recognition of their suffering or will be interpreted
as trivializing the magnitude of the crime and its historical legacy.
Thus, notwithstanding that “positive” law’s rationality and objectiv-
ity may be contrived, such judicial ambitions inflate the law’s narrow
role – attribution of liability for specific crimes – to that of determin-
ing conclusive meaning and closure. This burden is, alas, one that the
law cannot bear.

Rwanda and the Akayesu case

Even proponents of the Holocaust’s uniqueness find it hard not to
acknowledge the distinctiveness of the 1994 mass murder that took
place in Rwanda11 – a high-speed, yet low-tech, annihilation of 800,000
Tutsis, with a death rate that was approximately five times that of the
Nazis’ “Final Solution.”12 Mass murder on such an unimaginable scale
naturally attracts the typology of genocide in popular discourse. Indeed,
in the context of appropriating genocide as a form of meta-legal recog-
nition, it would be difficult to argue that this extermination of the Tutsi
minority did not constitute the “ultimate crime.” But here, again, the
situation is not as simple as it would appear on the surface. Rigorous
legal analysis casts doubt on whether the juridical categorization of
the events in Rwanda in 1994 as genocide is as straightforward as it
may appear at first glance; the central question raised in this context
is whether the Tutsis can be considered an “ethnic” group protected by
the Genocide Convention. But, on occasion, the jurisprudence of the
ICTR glosses over such difficulties in favor of a seemingly teleological

11
See, for example, Alain Destexhe, “The Third Genocide,” Foreign Policy (Winter 1995):
3, 4 (arguing that “only three instances of mass slaughter this century can correctly
be called genocide”: the slaughter of Armenians in 1915–16, the Holocaust, and the
Rwandan massacres of 1994).
12
Linda Melvern, A People Betrayed: The Role of the West in Rwanda’s Genocide (London:
Zed, 2000), 4.
 rwanda and the akayesu case 145

approach in which finer points of legal interpretation are cast aside in

an uncompromising effort to apply the genocide label.
By way of background, a brief summary of the controversy regard-
ing the scope of the protected groups under the Genocide Convention
is necessary. The definition of genocide is restricted to the destruction
of “national, ethnical, racial or religious” groups. There is no men-
tion of other types of groups. This listing is exhaustive: The definition
is straightforward and nonillustrative,13 requiring a strict construc-
tion, and the ejusdem generis rule does not apply, with the consequence
that such crimes cannot be expanded or interpreted by analogy.14
Furthermore, the crime’s legislative history indicates a deliberate
intention not to include any groups beyond those expressly enumer-
ated. Initial drafts of the convention included a wider range of pro-
tected groups, although there was considerable opposition to such a
broad scope of protection.15 In particular, during the final deliberations
of the General Assembly’s Sixth (Legal) Committee, several delegates –
primarily from the Soviet bloc – argued that inclusion of “political”
groups was inconsistent with the “scientific” or “objective” meaning
of genocide.16 Others argued for exclusion on the grounds that only
“permanent” or “stable” groups could be defined with sufficient accu-
racy for legal purposes17 and that the destruction of groups whose
members have no choice but to belong to them, versus political groups
where membership may be voluntary, represented greater moral tur-
pitude, with the consequence that special protection was justified.18
Some even pointed out that the inclusion of political groups would
curtail the power of states to repress subversive elements engaged in
violent political struggle.19 Those in favor of inclusion countered that
genocide was not an immutable concept with a definite etymological
meaning,20 that political groups could be adequately defined in legal
terms,21 that “national” or “religious” groups were no more permanent
or stable than political groups,22 that destruction of political groups
with “voluntary” rather than “unavoidable” membership was equally

13
For instance, an illustrative definition would have used terms such as “including”
or “not limited to” as an indication that other groups may also be covered even if
they are not expressly listed.
14
See, for example, Article 22(2) of the ICC Statute.
15
See generally William A. Schabas, Genocide in International Law: The Crime of Crimes,
2nd edn. (Cambridge: Cambridge University Press, 2009), 117ff.
16
UN GAOR, 3rd Sess., 6th Cmte., 74th mtg., UN Doc. A/C.6/SR.74.
17
Ibid., 61.   18 Ibid., 111.   19 Ibid., 58.
20
Ibid., 107–08, 114.   21 Ibid., 102.   22 Ibid., 99.
146 contesting “genocide” in jurisprudence

reprehensible,23 and that legitimate suppression of revolt against state

authority could not be equated with the mass killing of political oppo-
nents.24 The eventual exclusion of political groups reflected a desire
to remove a potential impediment to the widespread ratification of
the convention.25 The decision was therefore primarily a practical one
and not necessarily based on theoretical or moral imperatives. It also
does not take much imagination to see why the Soviets were so insist-
ent on excluding political and social groups from the definition of
genocide.
Jurists and social scientists have extensively criticized this normative
gap in the definition of genocide, with many arguing that a consistent
concept of genocide should protect any group slated for destruction
based on an “integral element of human identity.”26 This approach
seems to be reflected in the definition of the crime against humanity
of “persecution” under Article 7(1)(h) of the ICC Statute, which applies
to attacks against “any identifiable group or collectivity” on any ground
that is “universally recognized as impermissible under international
law.” Nevertheless, some scholars have argued that the existing defini-
tion of genocide should be retained, despite its shortcomings, in order
to maintain normative stability,27 and others have even argued that
the exclusion of political and other groups is morally desirable because
broadening the scope of genocide would trivialize its magnitude.28 The
international lawmaking process also favors retention of the existing
definition, as is apparent from the rejection of efforts to amend the
definition – to include “political” and “social” groups – under the ICC
Statute.29 The availability of crimes against humanity as an acceptable
23
Ibid., 60.   24 Ibid., 101.
25
The impasse between the Soviet bloc and western states had become a serious
issue; see, for example, the records of the 75th and 128th meetings of the Sixth
Committee in Hirad Abtahi and Philippa Webb, eds., The Genocide Convention: The
Travaux Préparatoires, vol. II (Leiden and Boston: Martinus Nijhoff, 2008), 1405, 1864.
26
See, for example, Steven R. Ratner and Jason S. Abrams, Accountability for Human
Rights Atrocities in International Law: Beyond the Nuremberg Legacy (New York: Oxford
University Press, 1997), 43: “only when the legal definition of genocide expands
to encompass the mass destruction of any human collective based on any integral
element of human identity will it fully address the most heinous international
offense.”
27
See, for example, Leo Kuper, “Theoretical Issues Relating to Genocide: Uses and
Abuses,” in George J. Andreopoulos, ed., Genocide: Conceptual and Historical Dimensions
(Philadelphia: University of Pennsylvania Press, 1994), 31.
28
See, for example, Schabas, Genocide in International Law, 2nd edn., 114.
29
The drafting process of the ICC Statute provided a unique opportunity to amend
the definition of genocide in order to compensate for its perceived deficiencies and
 rwanda and the akayesu case 147

“fall-back” option appears to have undercut the view that changing

the definition was a matter of normative urgency.30
For present purposes, the question is not whether the definition of
genocide should or should not be expanded to include more groups
beyond those enumerated. Rather, the significance of this termino-
logical query concerns its potential impact on those who seek to
achieve meta-legal closure through appropriations of genocide, and
how far the law can be stretched to accommodate such demands with-
out a complete departure from the strictures of legal interpretation
and reasoning. Given that the law’s exclusion of certain identifiable
groups raises questions of moral or descriptive consistency, there is
an obvious temptation to use expansive or activist interpretations at
least in ambiguous situations that fall near the boundaries of existing
jurisprudence.31
Since the ICC Statute has incorporated a broad definition of crimes
against humanity, and since offenders can also be prosecuted for war
crimes, some have suggested that efforts to expand the reach of cur-
rent genocide law represent a “passing phase” in international criminal
law.32 But this suggestion misses a crucial point. As previously noted,
efforts to appropriate genocide are actuated not just by legal substance,
as it were, but also by a desire to obtain meta-legal recognition, includ-
ing enlistment of its moral potency for the purpose of publicity or even
propaganda. Despite the availability of alternative norms for impos-
ing either individual or state responsibility, the lingering perception
(by some, at least) is that crimes against humanity or other violations
of international law are merely “second best” to the “ultimate crime”
in the construction of narratives.33 International criminal law juris-
prudence continues to be influenced by the hierarchical abstraction of
genocide as the “ultimate crime.”

incongruities; see, for example, Report of the Ad Hoc Committee on the Establishment of
an International Criminal Court, UN GAOR, 50th Sess., Supp. No. 22, UN Doc. A/50/22
(1995). There was tremendous resistance (see para. 60) to tampering with this
“authoritative definition … which was widely accepted by States and had been
characterized as reflecting customary law by the International Court of Justice.”
30
Ibid., paras. 61, 87.
31
See, for example, Beth Van Schaack, “The Crime of Political Genocide: Repairing
the Genocide Convention’s Blind Spot,” Yale Law Journal 106 (1997): 2259, 2261–62,
arguing that the exclusion of political groups from the Genocide Convention is a
“blind spot” that “[n]o legal principle can justify.”
32
Schabas, Genocide in International Law, 2nd edn., 103–04.
33
See, for example, ibid., 10 (referring to “crimes against humanity” as the “second
tier of the pyramid [of international crimes]”).
148 contesting “genocide” in jurisprudence

A salient case in point is the questionable methodology adopted by

the ICTR in defining the Tutsis as a protected group in the Akayesu case,
the celebrated first genocide judgment by an international criminal
tribunal.34 The concern here is not whether classifying the Tutsis as
an “ethnic” or other protected group under the Genocide Convention
was legally correct or not. Instead, the question is whether the relevant
jurisprudence reveals a determination to label the killings in Rwanda
as genocide no matter what – that is, even if it does not comport with
the minimal strictures of legal reasoning – and whether this determin-
ation can be interpreted as actuated by the view that it is somehow
vitally important to categorize those events as the “ultimate crime.”
What makes the actual legal issue so difficult is that the enormous
gravity of the Rwandese cataclysm is combined with the intractable
question of whether the Tutsi victims belong to a group protected
under the definition of genocide.
Gérard Prunier observes that the Hutus and Tutsis have “often and
inappropriately been called the ‘tribes’ of Rwanda. They had none of
the characteristics of tribes, which are micronations. They shared
the same Bantu language, lived side by side with each other with-
out any ‘Hutuland’ or ‘Tutsiland’ and often intermarried.”35 There
were physical differences between the two groups, however, and the
Tutsis dominated the Hutus in social terms through institutions of
the monarchy. Because of the colonial period’s obsession with racial
differences and civilizational superiority, these distinctions assumed
grossly exaggerated proportions. There emerged pseudoscientific the-
ories about racially superior “pastoral invaders” from Ethiopia “bring-
ing with them the kingship institution.” The invaders were, of course,
the Tutsis, “who had skillfully subjugated the ‘inferior’ Hutu peasant
masses.”36 Thus, in the minds of the European colonizers, the socially
heterogeneous – but otherwise racially mixed and ethnically homoge-
neous – Rwandese kingdom was divided into a Tutsi–Hutu dichotomy,
based on an invidious stratification. In this way, myth and reality
became blurred and helped generate the alienation and profound ani-
mosity that eventually exploded into the 1994 extermination of the
Tutsis.37

34
Akayesu, Trial Judgement (ICTR, 2 September 1998).
35
Gérard Prunier, The Rwanda Crisis: History of a Genocide (New York: Columbia University
Press, 1995), 5.
36
Ibid., 11.   37 See generally ibid., 5–11.
 rwanda and the akayesu case 149

In its narrative of the historical context within which the events of

1994 transpired, the Akayesu case emphatically recognized the dubi-
ous and illusory construction of the Tutsi “ethnic” identity. Affirming
the social, rather than ethnic, origins of the Hutu–Tutsi dichotomy,
the Trial Chamber noted that “[p]rior to and during colonial rule …
Rwanda was a complex and an advanced monarchy … that ruled
the country through … official representatives drawn from the Tutsi
nobility.”38 Rwanda was composed of some “eighteen clans defined pri-
marily along lines of kinship,” and the terms Hutu and Tutsi “referred to
individuals rather than to groups. In those days, the distinction between
the Hutu and Tutsi was based on lineage rather than ethnicity. Indeed, the
demarcation line was blurred: one could move from one status to another, as one
became rich or poor, or even through marriage.”39 The Trial Chamber went on
to explain how the privileged social status of the Tutsi nobility became
transformed to an “ethnic” identity. Both the German (between 1897
and 1917) and Belgian colonial authorities (between 1917 and 1962)

relied on an elite essentially composed of people who referred to themselves

as Tutsi, a choice which … was born of racial or even racist considerations. In
the minds of the colonizers, the Tutsi looked more like them, because of their
height and colour, and were, therefore, more intelligent and better equipped
to govern.40

It was only in the 1930s that Belgian authorities “introduced a per-

manent distinction by dividing the population into … groups which
they called ethnic groups. In line with this division, it became man-
datory for every Rwandan to carry an identity card mentioning his
or her ethnicity.”41 Such reference to “ethnic” affiliation on identity
cards “was maintained, even after Rwanda’s independence and was, at
last, abolished only after the tragic events the country experienced in
1994.”42
Based on this historical account, the Trial Chamber appeared to con-
clude that the Tutsis do not properly fall within the scope of the groups
expressly enumerated in the definition of genocide. But it arrived at
the conclusion that it did by departing, it seems, from the confines of
reasonable legal interpretation. In determining whether the 1994 mas-
sacres satisfied the dolus specialis requirement insofar as being targeted

38
Akayesu, Trial Judgement (ICTR, 2 September 1998), para. 80 (emphasis added).
39
Ibid., para. 81 (emphasis added).   40 Ibid., para. 82.
41
Ibid., para. 83 (emphasis added).   42 Ibid.
150 contesting “genocide” in jurisprudence

“against a particular group as such,” the chamber referred to the Tutsis

as an “ethnic group,” but with the following qualifications:

The term ethnic group is, in general, used to refer to a group whose members
speak the same language and/or have the same culture. Therefore, one can
hardly talk of ethnic groups as regards Hutu and Tutsi, given that they share
the same language and culture. However, in the context of the [present case],
they were, in consonance with a distinction made by the colonizers, consid-
ered both by the authorities and themselves as belonging to two distinct ethnic
groups; as such, their identity cards mentioned each holder’s ethnic group.43

At first sight, this statement suggests that the chamber found the
Tutsis to be an “ethnic” group and that this finding is based on the col-
onizers’ arbitrary imposition of that identity upon certain segments of
the people living in Rwanda – a distinction subsequently consolidated
in the embracing of this myth by the Tutsis and Hutus themselves.
This conclusion would comport, for instance, with the approach of the
Trial Chamber in Kayishema, where an ethnic group was defined as
“one whose members share a common language and culture; or, a group
which distinguishes itself as such (self identification); or, a group identified as
such by others, including perpetrators of the crimes (identification by others).”44
It should be noted that this reasoning is unpersuasive. Although the
term ethnic was included in the convention to “extend protection to
doubtful cases,”45 ethnic groups cannot be identified exclusively on the
basis of subjective elements; according to current established case law
of both the ICTY and the ICTR, some sort of corresponding objective
element is also required.46
Upon closer examination, however, it is apparent that, unlike
Kayishema, the Akayesu case did not find that the Tutsis were an “ethnic”
group. Rather, in overcoming the problem of situating them within the
definition of genocide, the Trial Chamber simply expanded the range

43
Ibid., para. 122 note 56.
44
Kayishema, Trial Judgement (ICTR, 21 May 1999), para. 98 (emphasis added).
45
UN GAOR, 3rd Sess., 6th Cmte., 75th mtg., UN Doc. A/C.6/SR.75; Abtahi and Webb,
The Genocide Convention, 1412.
46
See, for example, Stakić, Appeals Judgement (ICTY, 22 March 2006), para. 25;
Brdjanin, Trial Judgement (ICTY, 1 September 2004), para. 684; Semanza, Trial
Judgment (ICTR, 15 May 2003), para. 317; Kajelijeli, Trial Judgement (ICTR, 1
December 2003), para. 811; see generally Schabas, Genocide in International Law,
2nd edn., 125–29. Schabas notes (p. 28) that “[i]n practice, however, the subjective
approach seems to function effectively virtually all the time. Trying to find an
objective basis for racist crimes suggests that the perpetrators act rationally, and
this is more credit than they deserve.”
 rwanda and the akayesu case 151

of protected groups through an audacious application of the ejusdem

generis principle that it justified by an unsupported reference to the
Genocide Convention’s legislative history, or travaux préparatoires. In its
findings on law, the reasoning began with recognition of the obvious
fact that the relevant provision (Article 2) of the ICTR Statute, like the
Genocide Convention, “stipulates four types of victim groups, namely
national, ethnical, racial or religious groups.”47 The chamber then sug-
gested that these groups share the common characteristic of “stability”
and “permanence” as distinct from “the more ‘mobile’ groups which
one joins through individual voluntary commitment, such as polit-
ical and economic groups.”48 The judgment then leaped to the conclu-
sion that “it is particularly important to respect the intention of the
drafters of the Genocide Convention – which, according to the travaux
préparatoires, was to ensure the protection of any stable or permanent
group.”49 As such, the chamber found that “at the time of the alleged
events, the Tutsi did indeed constitute a stable and permanent group and
were identified as such by all.”50
In invoking the legislative history of the convention to justify the
extension of the protected groups by analogy, the Trial Chamber
made no reference whatsoever to specific statements in the travaux
préparatoires. Nor did it address the considerable controversy and dis-
agreement – both in the travaux préparatoires and contemporary dis-
course – concerning the concept of groups with “immutable” versus
ephemeral characteristics. By any standard, the Trial Chamber’s legal
methodology in Akayesu was highly problematic. First, its reasoning bla-
tantly violated the nullum crimen sine lege principle (requiring strict inter-
pretation of crimes), both because the chamber failed to adopt a “strict
construction” of the crime that resolved ambiguities in favor of the
accused and because it applied the ejusdem generis principle (expanding
crimes by analogy) to define an essential element of the crime, contrary
to the dictates of international criminal law. Furthermore, the cham-
ber resorted to the travaux préparatoires of the Genocide Convention
as “supplementary means of interpretation” without first establishing
that the “ordinary meaning” of the terms under the “general rule of
interpretation” gave rise to an “ambiguous or obscure” meaning or led
“to a result which is manifestly absurd or unreasonable.”51 In any event,

47
Akayesu, Trial Judgement (ICTR, 2 September 1998), para. 510.
48
Ibid., para. 511.   49 Ibid., para. 516.   50 Ibid., para. 702.
51
See Articles 31(1) and 32 of the Vienna Convention on the Law of Treaties.
152 contesting “genocide” in jurisprudence

the suggestion that the list of protected groups is illustrative and not
exhaustive, or that it includes only permanent or stable groups, indi-
cates at best a highly selective or erroneous reading of the convention,
and at worst a deliberate disregard or distortion of its legislative his-
tory. Indeed, as noted above, despite the chamber’s explicit reliance
on the travaux préparatoires to justify its position, it made no reference
to any statements made by delegates during the drafting process of
the convention. Also noteworthy is that the situation was not one in
which a passionate teleological interpretation was embraced to “pro-
gressively develop” the ambiguous content and ambit of humanitarian
law, unless such interpretation is taken to mean disregard even for the
pretension of legal reasoning. Nor was there a jurisdictional impera-
tive for such expansive interpretation (given the availability of crimes
against humanity and war crimes under the ICTR Statute) or, based on
the Trial Chamber’s own finding that the Tutsis did not constitute an
“ethnic” group within the definition of genocide, a reasonable ambigu-
ity as to whether the Tutsis were a protected group.
The question then arises: What was the underlying intention of the
judges in this rather unusual ruling? It is not unreasonable to infer
that the judges’ main concern was to ensure that the Tutsis fell within
the definition of genocide, even at the cost of disregarding the min-
imal strictures of legal reasoning. After all, it may have been incon-
ceivable for them not to categorize this horrendous mass murder as
the pinnacle of evil. In the competitive marketplace of comparative
suffering, such hierarchical abstractions and invidious stratifica-
tion are indispensable forms of recognition. In ascribing the crown
of ultimate importance to the Tutsi victims, the bystanders register
their outrage and empathy, and bring the overwhelming dimensions
of this monstrosity to closure. Of course, for the Trial Chamber in
Akayesu or other cases, it did not help matters much that, in establish-
ing the ICTR, a repentant Security Council had apparently overcom-
pensated for its earlier denial by adopting a resolution that expressly
recognized that genocide had occurred in Rwanda.52 Thus, through
incorporating genocide into the council’s resolution, the extreme evil
and our complicity therein were surmounted and cast away, and the
burden of contemplating our actions and self-conception in the wake
of the Rwandan cataclysm was replaced by facile abstractions and self-
congratulatory platitudes.

52
Security Council Resolution 955 (8 November 1994).
 bosnia and the jelisić case 153

The issue here is not whether the mass killing of Rwandan Tutsis
constituted genocide or not, but how far the tribunal was willing to
go in order to arrive at the conclusion that it did. In the face of public
pressures to label the horrors as the ultimate crime, it would have been
catastrophic for the judgment to hold that, because the Tutsis were not
an “ethnic group,” the definition of genocide did not apply. Unlike the
Trial Chamber in Akayesu, later ICTR cases, in arriving at the conclu-
sion that genocide was applicable, actually found ways to reach that
conclusion within the reasonable bounds of legal interpretation.
Ultimately, the question is whether, without the label of genocide,
the horrors would somehow fail to speak for themselves. Are the voices
of the survivors not sufficient to reflect the immense gravity of what
transpired? Does it matter so much if the Rwandese cataclysm was
“merely” a crime against humanity and not genocide?

Bosnia and the Jelisić case

In contrast to the Akayesu case at the ICTR, the Jelisic´ case at the ICTY is
an example of judges departing from the strictures of the law in order
to avoid applying the genocide label – so that the crown of ultimate
importance would not be awarded to a deranged, small-time homicidal
thug, Goran Jelisić. In that case, the legal element subject to teleological
manipulation was the mens rea or dolus specialis to destroy a group in
whole or in part, which is another significant limiting element in the
definition of genocide. The pliability and often misunderstood nature
of this concept53 make it susceptible to judicial maneuvering – for
example, in responding to inflationary or deflationary pressures con-
cerning the labeling of crimes.
As the Jelisic´ case points out, “It is in fact the mens rea which gives
genocide its speciality and distinguishes it from an ordinary crime and
other crimes against international humanitarian law.”54 Without this
special intent, an act of mass killing or other destruction of a group, no
matter how extreme and odious, does not qualify as genocide. The two
elements of this intent requirement are “that the victims belonged
to an identified group” and “that the alleged perpetrator must have
committed his crimes as part of a wider plan to destroy the group as

53
See discussion of dolus specialis in Chapter 3.
54
Jelisić, Trial Judgement (ICTY, 14 December 1999), para. 66.
154 contesting “genocide” in jurisprudence

such.”55 Thus, the victims are selected because of their membership in a

national, ethnic, racial, or religious group56 and “for the realisation of
an ulterior motive, which is to destroy, in whole or in part, the group of
which the individual is just one element.”57 Although motive is irrele-
vant in attributing liability,58 the “degree” of intent required by the
dolus specialis standard is that, beyond mere “knowledge,” the perpetra-
tor must consciously desire to destroy, or “shares the goal” of destroy-
ing, the target group.59
In the Jelisic´ case, this dolus specialis requirement plays out against two
background questions: Do low-ranking perpetrators have the capacity
to commit genocide and, if so, should they be prosecuted for it? As the
International Law Commission observed, crimes such as genocide “are
of such magnitude that they often require some type of involvement
on the part of high level government officials or military commanders
as well as their subordinates.”60 Nevertheless, it is clear that individual
criminal liability attaches equally to all perpetrators, irrespective of
their status in the relevant chain of command. As the Eichmann case
observed, “even a small cog, even an insignificant operator, is under
[the] criminal law liable to be regarded as an accomplice in the com-
mission of an offence.”61
Questions of liability aside, there may be sound reasons for focus-
ing limited investigative and prosecutorial resources (especially before
international criminal tribunals) on the high-ranking political leaders
and military commanders who are invariably implicated in creating

55
Ibid.   56 See, for example, ibid., para. 67.
57
Akayesu, Trial Judgement (ICTR, 2 September 1998), para. 522 (emphasis added); as
discussed below, the term ulterior motive should not be taken to refer to the reasons
underlying the acts of the perpetrator as distinct from the special intent to achieve
a particular result.
58
The motive of a crime is usually understood as referring to the reasons underlying
the perpetrator’s actions, as distinct from his or her intent. Thus, for example,
a person may intend to murder another person, but that killing may be done
for various different motives including vengeance, pecuniary gain, and so on.
On the distinction between intent and motive generally, see George Fletcher,
Rethinking Criminal Law (Boston and Toronto: Little, Brown, 1978), 452. With
respect to international criminal law, see Tadić, Sentencing Judgement (ICTY,
11 November 1999), para. 269; Schabas, Genocide in International Law, 2nd edn.,
294–306.
59
See previous discussion on the mens rea of genocide in Chapter 3 on this point.
60
Report of the International Law Commission on the Work of Its Forty-eighth Session, GAOR,
51st Sess., Supp. No. 10, UN Doc. A/51/10, at 90 (1996).
61
Attorney General of Israel v. Eichmann, 36 I.L.R. 277, 323 (Supreme Court of Israel,
1962), 323.
 bosnia and the jelisić case 155

the aberrant settings of systematic mass violence within which

lower-­ranking perpetrators commit atrocities. For instance, the ICC
Prosecutor’s strategy is to “focus its investigative and prosecutorial efforts
and resources on those who bear the greatest responsibility, such as the leaders of
the State or organisation allegedly responsible for those crimes.”62 Nonetheless,
it is also clear that the judicial account of massive atrocities cannot
remain wholly oblivious to the multitude of “small fish” – the will-
ing executioners without whose participation the diabolical schemes
of the grand conspirators cannot be realized.63 In terms of construct-
ing engaging narratives of atrocities, the prosecution of low-ranking
perpetrators may actually be more likely to “bring home” the intimate
reality of otherwise abstract genocidal crimes; such prosecutions pro-
vide occasions “for graphically depicting the way in which the geno-
cide unfolded on a daily basis.”64
Even so, the expenditure of scarce judicial resources on prosecuting
“insignificant thugs” at the lowest echelons of state authority may be
considered by some as unworthy of what they see as a monumental,
systematic crime masterminded by powerful, diabolical architects in
the highest echelons of power. The abstract conception of genocide
as a unique instrument of totalitarian systems – conditioned by the
Holocaust’s paradigm – may thus privilege the prosecution and pun-
ishment of the elites who have designed and sanctioned genocidal
plans, as against their low-level associates whose grim reality it is to
do the actual killing. Pressures to exclude such supposedly “trivial”
cases from the ambit of genocide may operate to exclude particular
prosecutions despite their legal viability. Likewise, judicial efforts to
justify such exclusions – that is, to privilege abstract conceptions of
the “ultimate crime” rather than the concrete, less sensational deeds
of the actual killers – may result in distorted legal reasoning and in
confused and confusing precedents.

62
ICC Office of the Prosecutor, Paper on Some Policy Issues Before the Office of the
Prosecutor (7 September 2003), www.icc-cpi.int/NR/rdonlyres/1FA7C4C6-DE5F-
42B7–8B25–60AA962ED8B6/143594/030905_Policy_Paper.pdf.
63
See, for example, Payam Akhavan, “Justice in The Hague, Peace in the Former
Yugoslavia? A Commentary on the United Nations War Crimes Tribunal,” Human
Rights Quarterly 20 (1998): 737, 779. For an argument that even the mens rea of
genocide should be redefined in order to more readily encompass low-level
perpetrators, see Kai Ambos, “What Does ‘Intent to Destroy’ in Genocide Mean?,”
International Review of the Red Cross 91 (2009): 833, 876.
64
See Edward M. Morgan, “Retributory Theater,” American University Journal of
International Law and Policy 3 (1988): 1, 57.
156 contesting “genocide” in jurisprudence

Based on both serious procedural irregularities and manifestly

unreasonable factual findings, the foregoing meta-legal considerations
appear to have played a central role in the ICTY Trial Chamber’s judg-
ment in the Jelisic´ case.65 The accused, Goran Jelisić – who introduced
himself as the “Serbian Adolf’ at his initial hearing66 – had pleaded
guilty to charges of war crimes and crimes against humanity for mul-
tiple killings, torture, and other inhumane treatment of Bosnian
Muslim and Croat detainees at the Luka camp (where he was com-
mander), but he had contested a single count of genocide.67 Despite
the plea of guilty, the prosecutor decided to proceed with a trial on
the sole count. Presumably, this course of action was pursued in order
to maintain consistency with similar charges in other cases; it also fit
into the overall prosecutorial theory of how genocide was committed
in the wider “ethnic cleansing” campaign in Bosnia-Herzegovina; and,
as a matter of principle, it may have been seen as a way of imposing
liability on, and attaching stigma to, the accused for the particular
category of crime that most closely corresponded to the extreme grav-
ity of his acts, irrespective of his rank. Having heard the prosecution’s
case-in-chief, however, the Trial Chamber took the extraordinary step
of concluding, proprio motu, that, “without even needing to hear the
arguments of the Defence, the accused could not be found guilty of the
crime of genocide.”68
Leaving aside the substantive merit of the acquittal, there were ser-
ious procedural irregularities that betrayed the Trial Chamber’s desire
to get rid of the case. Rule 98bis of the ICTY Rules of Procedure and
Evidence allows for a trial chamber to preempt a full trial through a
“judgment of acquittal.” This procedure is an exceptional one, how-
ever, that should be invoked only if the prosecution’s evidence fails
to satisfy even the minimum level of proof – for example, the presen-
tation of “a serious prima facie case”69 – without which a prosecution
has no chance whatsoever of succeeding. In any event, the evidentiary
standard at the “halfway stage” of a trial is lower than that required
for conviction (“proof beyond all reasonable doubt”) upon conclusion of
a trial.70 Unless the prosecution case has “completely broken down,” it
is only at the trial’s conclusion that the evidence receives final scrutiny

65
Jelisić, Trial Judgement (ICTY, 14 December 1999).
66
Ibid., para. 102.   67 Ibid., para. 11.   68 Ibid., para. 15.
69
See Blaškić, Decision on the Defence Motion to Dismiss (ICTY, 3 September 1998).
70
Kordić and Čerkez, Decision on the Defence Motions for Judgement of Acquittal
(ICTY, 6 April 2000), para. 11.
 bosnia and the jelisić case 157

as to its reliability and credibility.71 Such exceptional circumstances,

however, did not apply to the Jelisic´ trial.
Near the conclusion of the prosecution’s case-in-chief, the Trial
Chamber asked the defense whether it planned to submit a motion
for a judgment of acquittal pursuant to Rule 98bis. Although the
defense had indicated that it would not file such a motion,72 the Trial
Chamber – in a blatant demonstration of its eagerness to dispose of the
case – subsequently issued a notice that it would render a judgment of
acquittal proprio motu.73 In response to this exceptional measure, the
prosecutor made an application to be heard74 prior to the summary
termination of the proceedings. But this request was rebuffed on the
unexplained ground that the motion to be heard was inextricably
connected with the merits of the decision.75 And, despite promises
to the contrary, the prosecution was then denied the opportunity
even to make remarks upon delivery of the oral judgment.76 Not only
was the Trial Chamber’s judgment of acquittal factually at odds with
the case presented by the prosecution, but the Trial Chamber, in its
apparent haste to dismiss the case, even applied the wrong test –
“proof beyond all reasonable doubt,” the standard for actual convic-
tion – in determining whether a Rule 98bis judgment of acquittal was
justified.77 What is striking, even alarming, is that this standard of
proof (applied at this stage) was manifestly at variance both with all
other ICTY jurisprudence78 and with the standard (namely, present-
ing a prima facie case) that two of the three Trial Chamber judges had
applied in an earlier case.79

71
See ibid., paras. 25–28.
72
See telefax from Michael Greaves to Olivier Fourmy dated 1 October 1999, cited
in Jelisić, Prosecution’s Appeal Brief (Public Redacted Version) (ICTY, 14 July 2000),
para. 2.2 note 10.
73
Jelisić, Notice of a Judgement (ICTY, 10 December 1999).
74
See Jelisić, Prosecution’s Motion to Be Heard (ICTY, 1999).
75
See Jelisić, Oral Judgement, Transcript (ICTY, 19 October 1999), 2329–30.
76
See ibid., 2322, where Presiding Judge Claude Jorda indicated that he would hear the
prosecution after the Trial Chamber rendered its decision.
77
See Jelisić, Trial Judgement (ICTY, 14 December 1999), paras. 93, 95, 98, 108, where
reference is made to proof “beyond all reasonable doubt.”
78
See, for example, Kunarac et al., Decision on Motion for Acquittal (ICTY, 3 July
2000), paras. 3–4, noting that the Jelisic´ case is an “exception” to all other ICTY
jurisprudence and would not be followed.
79
See Blaškić, Decision on the Defence Motion to Dismiss (ICTY, 3 September 1998),
where Judges Claude Jorda and Fouad Riad – both also in the Jelisic´ case – applied a
much more lenient standard of proof in interpreting Rule 98bis.
158 contesting “genocide” in jurisprudence

In addition to these procedural irregularities, the Trial Chamber’s

interpretation of facts leading to its judgment of acquittal is found
seriously wanting, even if the prosecution needed to satisfy the high-
est standard of proof (beyond a reasonable doubt) in order to proceed
with its case. An examination of the prosecution evidence suggests
that the judges either seriously misapprehended the facts as presented
by the prosecution or that they deliberately dismissed the case prema-
turely for reasons extraneous to the legal viability of the case against
the accused. Even admitting a wide margin of judicial discretion in
interpreting evidence, the undisputed facts of the case are sufficient to
demonstrate that the Trial Chamber’s assessment of the evidence was
“unreasonable.”80 In particular, as noted in Chapter 3,81 in determining
whether the evidence is sufficient to support an inference of genocidal
intent, such intent can be inferred either from the “words and deeds” of
the accused or from a “pattern of purposeful action.”82 In other words,
given the difficulty of eliciting direct proof of an accused’s mental
intent, genocidal mens rea may be inferred, at least in part, from a pat-
tern of violent or discriminatory behavior targeting a specific group,
such as “the physical targeting of the group or their property; the use
of derogatory language towards members of the targeted group; the
weapons employed and the extent of bodily injury; [and] the method-
ical way of planning the systematic manner of killing.”83
As the following discussion demonstrates, in presenting its case-
in-chief, the prosecution persuasively and unambiguously presented
an overwhelming factual basis for inferring genocidal intent, with
regard to both “words and deeds” and the “pattern of purposeful
action.” Eager to dismiss the case, however, the Trial Chamber arti-
ficially compartmentalized the evidence, with the consequence that
the chamber downplayed and dismissed, and arguably distorted or
entirely disregarded, the crucial linkages between the words and
deeds of the accused in the detention camp and the broader campaign
of “ethnic cleansing” in the region.
The Trial Chamber did not dispute that the material element of the
crime of genocide had been satisfied. The chamber acknowledged that

80
See Tadić, Appeals Judgement (ICTY, 15 July 1999), para. 64 (establishing the
“unreasonableness” standard in reviewing a trial chamber’s evaluation of the
evidence).
81
See 44–45.
82
See Kayishema, Trial Judgement (ICTR, 21 May 1999), para. 93.
83
Ibid.
 bosnia and the jelisić case 159

“hundreds of Muslim and Croat detainees” were killed by the Serbian

authorities at the Luka camp84 and that the accused “regularly exe-
cuted detainees” there:

According to one witness, Goran Jelisić declared that he had to execute twenty
to thirty persons before being able to drink his coffee each morning. The
testimony heard by the Trial Chamber revealed that Goran Jelisić frequently
informed the detainees of the number of Muslims that he had killed. Thus, on
8 May 1992 he reputedly said to one witness that it was his sixty-eighth victim,
on 11 May that he had killed one hundred and fifty persons and finally on 15
May to another witness following an execution that it was his “eighty-third
case.”85

In addition to the killings directly perpetrated by the accused, the Trial

Chamber noted – albeit in a mere footnote relating to discriminatory
intent – that according to testimony approximately 2,000 to 3,000 of
the Muslims in Brčko (that is, the municipality where the Luka camp
was situated) disappeared or were killed.86
With respect to the mens rea or mental element, the Trial Chamber
first considered the discriminatory intent of the accused against the
Muslim population of Brčko. It found ample evidence that Jelisić acted
with such intent:

The testimony heard during the trial shows that the offensive against the
civilian population of Brčko, of which the acts of Goran Jelisić formed part,
was directed mainly against the Muslim population. A great majority of the
persons detained in the collection centres and at Luka camp were Muslim.
During interrogations, the Muslims were questioned about their possible
involvement in resistance movements or political groups. Most of the victims
who were killed during the conflict in Brčko were Muslims.
The words and deeds of the accused demonstrate that he was not only
perfectly aware of the discriminatory nature of the operation but also that
he fully supported it. It appears from the evidence submitted to the Trial
Chamber that a large majority of the persons whom Goran Jelisić admitted
having beaten and executed were Muslim. Additionally, many of the elements
showed how Goran Jelisić made scornful and discriminatory remarks about
the Muslim population. Often, Goran Jelisić insulted the Muslims by calling
them “balijas” or “Turks.” Of one detainee whom he had just hit, Goran Jelisić
allegedly said that he must be [sic] have been mad to dirty his hands with a
“balija” before then executing him.87

84
Jelisić, Trial Judgement (ICTY, 14 December 1999), para. 64.
85
Ibid., para. 103.   86 Ibid., para. 74 note 101.
87
Ibid., paras. 74–75.
160 contesting “genocide” in jurisprudence

It is with respect to the crucial “intent to destroy, in whole or in part,

the group as such” that the Trial Chamber found the evidence insuffi-
cient even for sustaining a prima facie case. In arriving at this conclu-
sion, the chamber considered both the intent of the accused to aid and
abet a broader, “all-inclusive” crime of genocide in Brčko municipal-
ity and his intent to commit genocide in Luka camp in isolation from
events transpiring elsewhere. In assessing Jelisić’s status as an accom-
plice to a broader plan to commit genocide, the chamber recognized
that the “operation launched by the Serbian forces against the Muslim
population of Brčko was organised.”88 But it queried whether “this
organisation [was] meant to destroy in whole or in part the Muslim
group.”89 The chamber’s judgment referred, inter alia, to the testimony
of a witness who “during an interrogation at the mosque [was told]
that 5% of the Muslims and Croats would be allowed to live.”90 But the
evidence of mass killings was overwhelming. Other witnesses declared
that “on several occasions during their time at Luka they had carried
up to twenty bodies,”91 and exhumations revealed four mass graves
containing approximately sixty-six bodies.92 Although not mentioned
in the judgment itself, an additional mass grave contained 216 bodies,
and it seems likely that many more bodies were removed to conceal
evidence of the mass killings.93
Additional evidence was ignored or distorted in the judgment. For
example, the prosecution evidence included execution lists contain-
ing names of Muslims in leadership positions;94 a witness “described
how the police detectives who interrogated the detainees at Luka camp
appeared to decide which detainees were to be executed upon the basis
of a document”; and others similarly claimed that lists were relied
upon in the execution of Muslims.95 The Trial Chamber found that it
had not been established “that the accused relied on such a list in car-
rying out the execution.”96 It therefore held that it was impossible “to
conclude beyond all reasonable doubt that the choice of victims arose
from a precise logic to destroy the most representative figures of the
Muslim community in Brčko to the point of threatening the survival

88
Ibid., para. 88.
89
Ibid.   90 Ibid., para. 89.
91
Ibid.   92 Ibid., para. 90.
93
See, for example, Jelisić, Prosecution’s Appeal Brief (Public Redacted Version) (ICTY,
14 July 2000), paras. 4.57–4.58.
94
Jelisić, Trial Judgement (ICTY, 14 December 1999), para. 91.
95
Ibid., para. 92.   96 Ibid., para. 93.
 bosnia and the jelisić case 161

of that community”97 – an apparent reference to the theory, mentioned

earlier in the judgment, that the intent to destroy a group “in part”
could take in “either a major part of the group or a representative fraction
thereof such as its leaders.”98 In arriving at its conclusion that there was
no demonstrable connection between the lists and Jelisić’s action, how-
ever, the Trial Chamber disregarded the accused’s own confession that
his superiors had given him an execution list containing the names of
prominent Muslims, the testimony of several witnesses that such per-
sons were regularly singled out for execution, and the fact that many
victims exhumed from the mass graves had been included on Jelisić’s
execution list.99
In considering the question of whether “a major part” of the
group, rather than its leadership, was slated for destruction, the Trial
Chamber noted that “eighty to a hundred persons out of a total of six
to seven hundred detainees … had a laissez-passer” and that some
detainees were exchanged.100 Despite the implicit suggestion that such
releases were inconsistent with an intent to destroy the group, only a
small fraction of detainees were thus spared, and no mention is made
of testimony that some prisoners were kept alive for exchange pur-
poses and that, more generally, the decision to spare some prisoners
was influenced by concerns about international public opinion after
the detention camps were exposed.101
The Trial Chamber also distorted the available evidence in finding
that, although the accused undoubtedly “exercised a de facto author-
ity over the staff and detainees at the camp,” the prosecution had
failed to establish beyond all reasonable doubt “whether the accused
killed at Luka camp under orders.”102 The chamber claimed that “no
element establishing the chain of command within which he oper-
ated has been presented” and that, in particular, “no information has
been provided concerning the authority to which he answered.”103
Furthermore, in view of the significant decrease in cruel treatment
and murders after Jelisić’s departure from the camp,104 the Trial
Chamber considered it “possible” that the accused “acted beyond the
97
Ibid.   98 Ibid., para. 81 (emphasis added).
99
See, for example, Jelisić, Prosecution’s Appeal Brief (Public Redacted Version) (ICTY,
14 July 2000), paras. 4.59–4.64.
100
Jelisić, Trial Judgement (ICTY, 14 December 1999), para. 94.
101
See, for example, Jelisić, Prosecution’s Appeal Brief (Public Redacted Version) (ICTY,
14 July 2000), para. 4.67.
102
Jelisić, Trial Judgement (ICTY, 14 December 1999), para. 95.
103
Ibid., para. 96.   104 Ibid.
162 contesting “genocide” in jurisprudence

scope of the powers entrusted to him.”105 Thus, the Trial Chamber

found that “the Prosecutor has not provided sufficient evidence allow-
ing it to be established beyond all reasonable doubt that there existed
a plan to destroy the Muslim group in Brčko or elsewhere within
which the murders committed by the accused would allegedly fit.”106
It is remarkable, however, that in making such compartmentalized
factual findings that tend to isolate the killings as an aberration, the
Trial Chamber disregarded the confession of the accused himself,
who provided a detailed account of the command structure both in
Luka camp and the Brčko municipality. Nor does the chamber make
any mention of corroborating testimony by several witnesses that the
execution of Muslim detainees was carried out pursuant to superior
orders.107 Also omitted in the chamber’s judgment is any mention of
the use of refrigerator trucks to carry off hundreds of bodies from
Luka camp – which seems to suggest a systematic, methodical plan,
rather than a haphazard effort.108
There are yet other shortcomings in the Trial Chamber’s assess-
ment of the evidence, especially in relation to the chamber’s utter
refusal to draw, or even to consider the possibility of drawing, rea-
sonable inferences from the facts before it. It refused to consider the
possibility of a link between the killings in Luka camp and the wider
campaign of “ethnic cleansing” in Brčko, and it refused to consider
the question of whether the destruction of a large proportion (at least
2,000 of 3,000) of the Muslims remaining in Brčko might constitute
genocide. This latter refusal is especially puzzling in relation to the
question of genocidal intent since a significant number of these kill-
ings were in Luka camp itself, where “hundreds” of detainees out of
a total camp population of 600 to 700 were killed, with only a small
fraction spared and the accused having admitted to have personally
killed as many as 150 detainees.
The Trial Chamber’s determination to avoid drawing even the most
obvious inferences is apparent in its failure to probe the implica-
tions of Jelisić’s guilty plea to crimes against humanity. In the con-
text of that plea, the chamber had observed that the accused was
an “active participant” in the “widespread and systematic [attack]”

105
Ibid., para. 97.   106 Ibid., para. 98.
107
See, for example, Jelisić, Prosecution’s Appeal Brief (Public Redacted Version) (ICTY,
14 July 2000), paras. 4.65–4.70.
108
Ibid., para. 4.73.
 bosnia and the jelisić case 163

“by the Serbian forces against the non-Serbian population of Brčko.”109

To be sure, knowledge of an attack against a civilian population
cannot be equated with the intent to destroy a group. But the Trial
Chamber did not even raise the question of whether, and how, the
mass killings in the camp and in the wider municipality related to
the overall policy of “ethnic cleansing” against non-Serbs in Brčko.
What is most remarkable about the Trial Chamber’s judgment is its
explicit treatment of the question of Jelisić’s genocidal intent. On the
one hand, the chamber recognized that the

murders committed by the accused are sufficient to establish the material

element of the crime of genocide and it is a priori possible to conceive that
the accused harboured the plan to exterminate an entire group without this
intent having been supported by any organisation in which other individuals
participated … [T]he drafters of the [Genocide] Convention did not deem the
existence of an organisation or a system serving a genocidal objective as a
legal ingredient of the crime. In so doing, they did not discount the possibility
of a lone individual seeking to destroy a group as such.110

On the other hand, however, the Trial Chamber noted that “it will be
very difficult in practice to provide proof of the genocidal intent of
an individual if the crimes committed are not widespread and if the
crime charged is not backed by an organisation or a system.”111 And
the chamber then proceeded to sidestep the question of whether there
was any such organization or system, and to characterize the killings
in Luka camp as having occurred independent of any larger, genocidal
plan in Brčko.
In this context, the Trial Chamber painted a picture of Jelisić as a lone,
opportunistic psychopath, with absolute power over the detainees at
Luka camp: He “presented himself as the ‘Serbian Adolf’”;112 claimed to
have gone to Brčko “to kill Muslims”; remarked to one witness that “he
hated the Muslims and wanted to kill them all, whilst the surviving
Muslims could be slaves for cleaning the toilets”; asserted that Muslims
“had proliferated too much and that he had to rid the world of them”;113
and bragged about killing 150 persons himself.114 The chamber quoted,
with approval, the testimony of witnesses that

Goran Jelisić seemed to take pleasure from his position, one which gave him a
feeling of power, of holding the power of life or death over the detainees and

109
Jelisić, Trial Judgement (ICTY, 14 December 1999), para. 57.
110
Ibid., para. 100.   111 Ibid., para. 101.
112
Ibid., para. 102.   113 Ibid.   114 Ibid., para. 104.
164 contesting “genocide” in jurisprudence

that he took a certain pride in the number of victims that he had allegedly
executed. According to another testimony, Goran Jelisić spoke in a blood-
thirsty manner, he treated them like animals or beasts and spittle formed on
his lips because of his shouts and the hatred he was expressing. He wanted to
terrorise them.115

Although Jelisić’s words and deeds would appear to present a paradig-

matic example of genocidal intent, the Trial Chamber questioned the
existence of the requisite dolus specialis. It concluded, instead, that he
merely had a “disturbed personality”:116

Goran Jelisić led an ordinary life before the conflict. This personality, which
presents borderline, anti-social and narcissistic characteristics and which is
marked simultaneously by immaturity, a hunger to fill a “void” and a concern
to please superiors, contributed to his finally committing crimes. Goran Jelisić
suddenly found himself in an apparent position of authority for which noth-
ing had prepared him. It matters little whether this authority was real. What
does matter is that this authority made it even easier for an opportunistic and
inconsistent behaviour to express itself.117

Picking up this theme of inconsistency, the Trial Chamber noted that

Jelisić “performed the executions randomly” and issued “laissez-passer
to several detainees at the camp … on his own initiative and against
all logic”118 – from which the chamber inferred that his acts were “not
the physical expression of an affirmed resolve to destroy in whole or
in part a group as such.”119 That is, not only were Jelisić’s actions the
product of pathology rather than well-formed genocidal intent, “the
behaviour of the accused appears to indicate that, although he obvi-
ously singled out Muslims, he killed arbitrarily rather than with the
clear intention to destroy a group.”120
The Trial Chamber’s reasoning as expressed in its judgment is
opaque. Neither the defense nor even the chamber itself acting proprio
motu had suggested at any previous point that Jelisić’s “mental incap-
acity” was at issue. No question had been raised concerning whether
the accused was capable of forming genocidal intent or of appreciat-
ing the consequences of his conduct. Indeed, it was recognized that
despite his “disturbed personality,” the accused “led an ordinary life
before the conflict.”121 It is also significant that, despite the weight
that the Trial Chamber attached to Jelisić’s “disturbed personality” in

115
Ibid.   116 Ibid., para. 105.   117 Ibid.
118
Ibid., para. 106.   119 Ibid., para. 107.
120
Ibid., para. 108.   121 Ibid., para. 105.
 bosnia and the jelisić case 165

acquitting him, the chamber did not even consider it as a mitigating

circumstance at the sentencing phase.122 This inconsistency simply
makes no sense.
Equally puzzling is the relevance of Jelisić’s psychological status
to the question of intent. It is fair to interpret the Trial Chamber’s
judgment as implying that, despite overwhelming evidence that the
“Serbian Adolf” acted to exterminate Muslims, a “disturbed person-
ality” somehow negates genocidal intent. If so, the crime of genocide
is effectively eviscerated. The crime would apply only to genocidal
killers – whether “big fish,” “medium fish,” or “small fish” – who are
somehow “normal” and mentally balanced, and who are not at some
profound level actuated by a pathological lust for arbitrary power. The
chamber does not – and arguably cannot – explain how deriving great
pleasure from “a feeling of power” through total dehumanization and
eradication of a victim group is in any way inconsistent with the con-
scious desire to destroy that group. Indeed, that is precisely the context
in which genocides have occurred.
On the matter of Jelisić’s supposed inconsistency and how that
affected the characterization of his behavior, it is unclear how his
“disturbed personality” would prevent him from acting consciously
and consistently against Muslims. And, within the facts of the case,
there is no adequate explanation as to how Jelisić’s singling out
Muslims for extermination – his discriminatory intent, explicitly rec-
ognized by the Trial Chamber – can be distinguished from his inten-
tion to target a group “as such.” Since his discriminatory intent was
expressed essentially through mass killings, and since he “was not
only perfectly aware of the discriminatory nature of the operation [in
Brčko, mainly against the Muslim population] but also … fully sup-
ported it,”123 it is beyond reckoning how the Trial Chamber could have
concluded that Jelisić did not intend to destroy Muslims as a group.
Nevertheless, the Trial Chamber seemingly reasons that Jelisić indi-
vidually killed or oversaw the killing of hundreds of Muslims at Luka
camp simply because they were Muslims, but, because the killings were
“random” and actuated by a desire for power, there was no intent
to destroy Muslims as a group, either in whole or in part. Although
discriminatory intent and intent to destroy the group are technically
distinct, separating them in this factual context amounts to evidentiary

122
Ibid., para. 125.   123 Ibid., para. 75.
166 contesting “genocide” in jurisprudence

hairsplitting – and makes the acquittal for genocide stand not on the
facts, but on the equivalent of semantic metaphysics.
The Trial Chamber’s findings might appear at least marginally rea-
sonable if it had been responding to a vigorous case by the defense –
consisting of plausible counterarguments that raised a reasonable
doubt as to guilt. But that was not the case. In view of the prosecution’s
strong case-in-chief against Jelisić, preempting a full trial through a
judgment of acquittal was manifestly unreasonable in substance, even
inscrutable. So how can this judgment be understood? Since Jelisić had
already pleaded guilty to war crimes and crimes against humanity, it
is fair to assume that the judges may have been irritated by the pros-
ecutor’s insistence on going to trial on the single count of genocide. In
view of the ICTY’s overwhelming court docket, the availability of a lim-
ited number of trial chambers and courtrooms, the time-consuming
and resource-intensive nature of trials before international criminal
tribunals, and the consequent prolonged pretrial detention of accused,
the Trial Chamber may have considered it frivolous to go to trial on
a single count where a conviction was already secured. This concern
may have been especially acute in the Jelisic´ case because the presiding
judge was Claude Jorda, the newly elected ICTY president, whose pri-
mary platform was “to improve the Tribunal’s operation and, in par-
ticular, to shorten trial length and time spent in detention.”124
This consideration appears to have also been on the minds of the
judges of the Appeals Chamber, who were later called upon to review
the Jelisic´ case, notwithstanding their reversal of the Trial Chamber’s
ruling. In its judgment, the Appeals Chamber first chastised the Trial
Chamber for applying an erroneously stringent standard of proof.125 It
then went on to criticize the Trial Chamber’s two principal arguments
in dismissing the genocide charge. As to the assertion that Jelisić’s “dis-
turbed personality” prevented him from forming the requisite dolus
specialis, the Appeals Chamber rightly held that

there is no per se inconsistency between a diagnosis of the kind of immature,

narcissistic, disturbed personality on which the Trial Chamber relied and the
ability to form an intent to destroy a particular protected group. Indeed, as
the prosecution points out, it is the borderline unbalanced personality who is

124
See, for example, Report on the Operation of the International Criminal Tribunal for the
Former Yugoslavia, 33 (presented by Judge Claude Jorda, President, on behalf of the
judges of the tribunal, The Hague, May 2000).
125
Jelisić, Appeals Judgement (ICTY, 5 July 2001), para. 68.
 bosnia and the jelisić case 167

more likely to be drawn to extreme racial and ethnical hatred than the more
balanced modulated individual without personality defects. The Rules visual-
ise, as a defence, a certain degree of mental incapacity and in any event, no
such imbalance was found in this case.126

Regarding the apparent randomness of Jelisić’s violent compulsions,

the Appeals Chamber contended:

A reasonable trier of fact could have discounted the few incidents where he
showed mercy as aberrations in an otherwise relentless campaign against the
protected group. Similarly, the fact that he took “pleasure” from the killings
does not detract in any way from his intent to perform such killings; as has
been mentioned above, the Tribunal has declared in the Tadić appeal judge-
ment the irrelevance and “inscrutability of motives in criminal law” insofar
as liability is concerned, where an intent – including a specific intent – is
clear.127

However, despite these apparently glaring flaws by the Trial Chamber,

the Appeals Chamber declined to remand the case for retrial on the
charge of genocide. The chamber noted that Jelisić had already been
sentenced to a forty-year term of imprisonment and that the “ad hoc
nature of the International Tribunal …, unlike a national legal system,
means resources are limited in terms of man-power and the uncertain
longevity of the Tribunal.” Given these factors, the chamber decided
“that it is not in the interests of justice” to retry the accused.128
But, even here, it appears that additional, unarticulated consider-
ations are implicated. The explanation would be different, and the case
would potentially have been remanded, if the accused had been higher
in rank or authority. It may be queried, for instance, whether the same
considerations of judicial expedience would have applied if the accused
was the former Bosnian Serb president Radovan Karadžić or another
comparable “big fish.” Would an opportunity to ascertain the occur-
rence of genocide – with its implications for the judicially rendered
historical account of “ethnic cleansing” in Bosnia-Herzegovina – have
been so readily declined as an onerous burden on the ICTY’s busy docket
if the accused had been a “big Adolf” rather than a “little Adolf”? As
Judge Patricia M. Wald of the Appeals Chamber acknowledged in her
partially dissenting opinion,
the resources of the Tribunal are stretched thin and there may well be reason
to prioritise cases involving allegations of State-planned and executed crimes,

126
Ibid., para. 70.   127 Ibid., para. 71.   128 Ibid., para. 77.
168 contesting “genocide” in jurisprudence

rather than individualistic or opportunistic crimes. Some learned commenta-

tors on genocide stress that the currency of this “crime of all crimes” should
not be diminished by use in other than large scale state-sponsored campaigns
to destroy minority groups, even if the detailed definition of genocide in
our Statute would allow broader coverage. In this case, the erratic pattern of
Jelisić’s killings and his personality disturbances, make the precedential value
of a genocide charge problematic.129

Judge Wald’s opinion must be praised at least for its transparency – its
blunt admission that the prosecution of a mere camp commander may
dilute the moral value of genocide. What is significant here is that
the legal viability of the charge becomes inapposite. The fundamental
question of the criminal liability of the accused, the daily reality of
ruthless camp guards doing the “dirty work” of genocide, and the bru-
tal victimization of innocent human beings are all casually dismissed
in favor of a more abstract conception of genocide as a state-sponsored
crime for which only the highest officials should be punished. Even
within the confines of judicial proceedings, the legal definition of geno-
cide has thus been supplanted by some larger moral conception of the
crime as one requiring a special sort of atrocity, beyond the capacity of
mere underlings.
Although Lemkin reduced genocide to the cage of legal terminology,
the crime seemingly escapes its taxonomy; the power of the word geno-
cide overwhelms legal reasoning. Yet one is left asking whether this
disregard of “positive” law is a cause for celebration or a corruption of
jurisprudence for purposes that should remain extraneous to the law.
Put differently, how does either conferring (as in Akayesu) or withhold-
ing (as in Jelisic´) the potent symbolism of genocide make a difference in
confronting this evil?

129
Jelisić, Appeals Judgement, Partial Dissenting Opinion of Judge Wald (ICTY, 5 July
2001), paras. 2, 64.
8 Silence, empathy, and the
potentialities of jurisprudence

On 13 June 1983, Farkhundih Mahmudnizhad was released from

Adelabad prison in the Iranian city of Shiraz. She recounted her con-
versation with Mona Mahmudnizhad, her still imprisoned 17-year-old
daughter, as they said good-bye:

I went along with her. The corridor was so narrow that the two of us could
hardly walk side by side. We walked a little way and then she stopped.
I stopped beside her, and waited for her to speak. She looked into my eyes and
said, “Mama, do you know that they are going to execute me?”
Suddenly my whole being seemed to be on fire. I didn’t want to believe her. I
said, “No, my dear daughter, they are going to let you go. You will get married
and have children. My greatest wish is to see your children. No, don’t even
think that.”1

Farkhundih Mahmudnizhad, her daughter Mona, and many others

imprisoned in Shiraz and across the country were members of the
persecuted Bahá’í religious minority, declared to be a “heresy” by the
Islamic Republic of Iran. On the day prior to Farkhundih’s release, the
prosecutor-general had visited the prisoners to conduct the fourth and
final part of a legal procedure known as Istitabih: “According to the
Iranian Government’s interpretation of Islamic law, a prisoner hold-
ing heretical beliefs was given four opportunities to recant and repent
prior to execution and thus save his or her life.”2 They had been admon-
ished and warned: “You have to pass through four stages of guidance

1
Olya Roohizadegan, Olya’s Story: A Survivor’s Dramatic Account of the Persecution of Baha’is
in Revolutionary Iran (Oxford, UK: Oneworld, 1993), 220.
2
Iran Human Rights Documentation Centre, Community Under Siege: The Ordeal of
the Baha’is of Shiraz (New Haven: IHRDC, 2007), 37, www.scribd.com/doc/17774491
/-Community-Under-Siege-The-Ordeal-of-the-Bahais-of-Shiraz.

169
170 silence, empathy, and the potentialities of jurisprudence

to become Muslims, otherwise you will be executed. From tomorrow,

two hours of silence will be announced every day. The prison will
become your university, and you all have to study.”3 Despite the stark
choice between “Islam or execution” (Islam ya idam), they had refused
to recant their faith. On the evening of 18 June, Mona and nine other
women were loaded into a bus, driven to Chawgan Square in Shiraz,
and hanged one by one.
Among those few that were spared, there was a sense of urgency to
ensure that the world knew what had come to pass within the confines
of the prison. As one of them wrote: “there was a purpose in my going.
I had often sworn to them – as they had to me – that if I was ever to get
out of Adelabad Prison I would tell the world their story, our story.”4
Telling stories, putting into words emotions that defy rational explan-
ation, are essential to the process of healing. This compulsion exists
because “[t]raumas cause victims to question fundamental assump-
tions about their own merit, and about the orderliness of the world.
This upheaval of emotional bedrock leaves victims yearning to regain
a sense of stability and meaning about themselves and the world
around them.”5 By telling their stories instead of suppressing them,
victims temper this disabling bewilderment by “translating the cha-
otic swirl of traumatic ideation and feelings into coherent language”6 –
they take ownership and “experience themselves as authors, rather
than as objects, of past traumas.”7 Indeed, some speak of “narrative
therapy” in which, through storytelling, a victim is encouraged to
“externalize” the trauma, transforming it into something outside that
can be examined and evaluated, rather than leaving it inside, for it to
burrow into one’s psyche, one’s soul.8 As Elaine Scarry observed in her
seminal work The Body in Pain, the importance of telling one’s story
and having it heard is that it allows survivors to become “subjects”
again.9

3
Ibid., 38.   4 Roohizadegan, Olya’s Story, xii.
5
Kent D. Harber and James W. Pennebaker, “Overcoming Traumatic Memories,” in
Sven-Ake Christianson, ed., The Handbook of Emotion and Memory: Research and Theory
(Hillsdale, NJ: Lawrence Erlbaum, 1992), 359.
6
Ibid., 360.   7 Ibid., 383.
8
See generally Michael White and David Epston, Narrative Means to Therapeutic Ends
(New York: W. W. Norton, 1990); Alice Morgan, What Is Narrative Therapy? An Easy to
Read Introduction (Adelaide, Australia: Dulwich Centre, 2000).
9
Elaine Scarry, The Body in Pain (Oxford, UK: Oxford University Press, 1985) (as cited in
Lyn S. Graybill, Truth and Reconciliation in South Africa: Miracle or Model? [Boulder: Lynne
Rienner, 2002], 82–83).
 silence, empathy, and the potentialities of jurisprudence 171

A psychologist who worked with Holocaust survivors explains that

“[t]elling stories helped release tension, elicit warm support from other
members, and reconstruct a more genuine discourse.”10 Similarly, an
observer of the South African Truth and Reconciliation Commission
remarks on the importance of storytelling as a healing process:

Previously, victims had been tormented with self-blame, the sense that some-
how they had deserved what happened to them, or guilt for the fact that their
political activity had caused suffering for their families. It is important that
victims be allowed to tell their stories, because survivors often feel misunder-
stood and ignored, their sacrifice unacknowledged, their pain unrecognized,
and their identity lost. Theologian Robert Shreiter writes that individuals
cannot survive without a narrative of identity. Through torture and coercion,
oppressors attempt to substitute another narrative so that people will acqui-
esce in their subjugation. If the original narrative is suppressed, the lie will
be accepted as truth. Victims can only overcome suffering by overcoming the
narrative of the lie and embracing a redeeming narrative.11

But the telling of stories is not just an experience for the individual
victim. It is also central to the catharsis of a society reckoning with
a history of mass violence. And telling stories is not about legal cat-
egorization, historical theories, or other distant abstractions and uni-
versalizing narratives. It is, above all, about regaining subjectivity by
inspiring healing and empathy – the recognition of another human
being’s suffering. As three authors of the South African Truth and
Reconciliation Commission Report observed:

The reality is that the testimony of a single victim relayed to the country
by the media will ultimately have had more of an impact upon the national
consciousness than any number of volumes of the report. The enduring mem-
ory of the Commission will be the images of pain, grief and regret conveyed
relentlessly … to a public that generally remained spellbound by what it was
witnessing.12

10
Dan Bar-On, “Attempting to Overcome the Intergenerational Transmission of
Trauma,” in J. Apfel and B. Simon, eds., Minefields in Their Hearts: The Mental Health
of Children in War and Communal Violence (New Haven: Yale University Press, 1996),
165, 185.
11
See, for example, Lyn S. Graybill, “Storytelling,” in Graybill, Truth and Reconciliation
in South Africa, 82 (footnotes omitted).
12
Janet Cherry, John Daniel, and Madeleine Fullard, “Researching the ‘Truth’: A View
from Inside the Truth and Reconciliation Commission,” in Deborah Posel and Graeme
Simpson, eds., Commissioning the Past: Understanding South Africa’s Truth and Reconciliation
Commission (Johannesburg: Witwatersrand University Press, 2002), 17, 35.
172 silence, empathy, and the potentialities of jurisprudence

A groundbreaking study by Paul Slovic illustrates this point force-

fully.13 The article presenting the study borrows its title, “‘If I Look
at the Mass I Will Never Act’: Psychic Numbing and Genocide,” from
Mother Teresa’s confession, “If I look at the mass I will never act. If I
look at the one, I will.”14 In one experiment, Slovic and his colleagues
asked people to donate $5 to the humanitarian organization Save the
Children in order to “alleviate the severe food crisis in Southern Africa
and Ethiopia.” In one of the experimental scenarios, the donors were
given broad statistical information – for example, that three million
children in Malawi are affected by food shortages, that eleven million
people in Ethiopia need immediate food assistance, and that the crisis
has caused four million Angolans to leave their homes. In a second
scenario, the subjects were told only the story of “Rokia,” a 7-year-old
girl from Mali, who is “desperately poor and faces a threat of severe
hunger or even starvation.” Additional details of Rokia’s life were pro-
vided, accompanied by a color photograph. Slovic and colleagues found
that subjects donated almost twice as much to Rokia as they did when
faced with statistics describing the suffering millions.
What is even more illuminating, however, is the response to a third
experimental scenario, in which subjects were provided with both the
story of Rokia and the broad statistical information. Surprisingly, in
this scenario donations were not much greater than in response to the
statistics alone and were significantly less than the decontextualized
story of Rokia alone.15 Nicholas Kristof writes in a similar vein:

Even the right animal evokes a similar sympathy [to that of an identifiable
human victim]. A dog stranded on a ship aroused so much pity that $48,000
in private money was spent trying to rescue it – and that was before the Coast
Guard stepped in. And after I began visiting Darfur in 2004, I was flummoxed
by the public’s passion to save a red-tailed hawk, Pale Male, that had been
evicted from his nest on Fifth Avenue in New York City. A single homeless
hawk aroused more indignation than two million homeless Sudanese.16

As Slovic observes, “[o]ur capacity to feel is limited.”17 Primed to

respond to the suffering of identifiable individuals, we become numb
to the abstract suffering of millions: “the statistics of mass murder or

13
Paul Slovic, “‘If I Look at the Mass I Will Never Act’: Psychic Numbing and Genocide,”
Judgment and Decision Making 2 (2007): 79.
14
Ibid., 80.   15 Ibid., 88–89.
16
Nicholas Kristof, “Save the Darfur Puppy,” New York Times, 10 May 2007.
17
Slovic, “‘If I Look at the Mass I Will Never Act,’” 90.
 silence, empathy, and the potentialities of jurisprudence 173

genocide, no matter how large the numbers, fail to convey the true
meaning of such atrocities. The numbers fail to spark emotion or feel-
ing and thus fail to motivate action. Genocide in Darfur is real, but we
do not ‘feel’ that reality.”18 Attempting to wrap our minds around the
enormity of a situation leads not to greater empathy, but rather to “psy-
chic numbing” or “compassion fatigue.”
The philosopher Richard Rorty, in discussing the idea of “sentimen-
tal education,”19 observed that rhetoric about universal human rights
can do little to prevent atrocities since violators “do not think of them-
selves as violating human rights. For they are not doing these things
to fellow human beings … They are not being inhuman, but rather are
discriminating between the true humans and the pseudohumans”:20
To get whites to be nicer to blacks, males to females, Serbs to Muslims, or
straights to gays, to help our species link up into what Rabossi calls a “planet-
ary community” dominated by a culture of human rights, it is of no use what-
ever to say, with Kant: Notice that what you have in common, your humanity,
is more important than these trivial differences. For the people we are trying
to convince will rejoin that they notice nothing of the sort.21

The transformation of society cannot be based on “convergence toward

an already existing Truth.” Truth is simply a construct of language, and
language is created rather than found.22 Instead, we need to engage in a
“sentimental education” whereby we attempt to acquire – for instance,
through storytelling, poetry, and the testimony of survivors – “an
increasing ability to see the similarities between ourselves and people
very unlike us as outweighing the differences.” On this view, the “rele­
vant similarities are not a matter of sharing a deep true self which
instantiates true humanity, but are such little, superficial, similari-
ties as cherishing our parents and our children – similarities that do
not interestingly distinguish us from many nonhuman animals.”23 In
other words, moral progress “is a matter of wider and wider sympathy”
rather than of “rising above the sentimental to the rational.”24
18
Ibid., 80.
19
See also Stephen Ryan, The Transformation of Violent Intercommunal Conflict (Aldershot,
UK: Ashgate, 2007), 131.
20
Richard Rorty, “Human Rights, Rationality, and Sentimentality,” in Rorty, Truth and
Progress: Philosophical Papers (New York: Cambridge University Press, 1998), 167.
21
Ibid., 178.
22
Richard Rorty, Contingency, Irony and Solidarity (New York: Cambridge University
Press, 1989), xvi.
23
Rorty, “Human Rights, Rationality, and Sentimentality,” 181.
24
Richard Rorty, Philosophy and Social Hope (New York: Penguin, 1999), 82.
174 silence, empathy, and the potentialities of jurisprudence

What I have proposed in this book is that, beyond the inescapably

narrow, rule-oriented context of determining liability through a judi-
cial process, the preoccupation with, and disputes over, the label of
genocide inescapably result in a distancing from human experience
and emotion. As happens with other efforts to approach experience
through rational, hierarchical categories, this process of abstraction
draws one away from the world and, in the case of genocide, from
the horrible and intimate reality of that crime. The result is psychic
numbing and moral paralysis, much like what happens with statistics
about mass starvation in contrast to the story of 7-year-old Rokia’s
starvation. Kristof observes that “human rationality or international
law” cannot be a sufficient response to genocide unless there is also
a public outcry – and an outcry motivated not by platitudes about the
“ultimate crime,” but by empathy with victims: “One experiment
underscored the limits of rationality. People prepared to donate to
the needy were first asked either to talk about babies (to prime the
emotions) or to perform math calculations (to prime their rational
side). Those who did math donated less.” He concludes that “maybe
what we need isn’t better laws but more troubled consciences.”25 But
perhaps better and more effective than troubled consciences would be
empathy, the ability to feel the pain of others, to embrace the oneness
of humankind.
Empathy is, above all, an emotional connection, a shared realm of
experience. A study about narrative therapy for trauma victims notes
that “it is by the forming of connections – between past and present,
ideals and reality, self and others – that people achieve serenity in
a difficult and disruptive world. For trauma victims, the business of
connections seems to be of vital importance.”26 Crimes such as geno-
cide victimize the individual as well as the community. For both, con-
nections must be built, empathy restored. But in attempting to bring
the rationalist credo of law to bear, in replacing inner meaning with
legal definition, we do little service to this “business” of reconnecting.
Abstract labeling, statistics about the dying millions, and grand histor-
ical narratives numb us to true suffering. More dangerously, they allow
us to proclaim moral triumph, an illusory closure, that actually inhib-
its transformation rather than inspiring empathy. Perhaps what we
need beyond our narrow vocation as jurists, politicians, and activists

25
Kristof, “Save the Darfur Puppy.”
26
Harber and Pennebaker, “Overcoming Traumatic Memories,” 383.
 silence, empathy, and the potentialities of jurisprudence 175

is not more explanation, analysis, and rationality, but contemplative

silence – the ability to listen to the stories of victims and to feel them.
There may be valid reasons to crown genocide as the “crime of
crimes” in international law. Beyond the peremptory status and uni-
versal enforceability of jus cogens as reflecting “the deeper conscience
of all nations,”27 the invidious stratification of evil is an essential and
inescapable feature of a coherent and equitable normative scheme for
attributing criminal liability. In particular, whether based on retribu-
tive or deterrence/utilitarian theories, a hierarchy of moral turpitude
corresponding to different types of conduct is a categorical imperative
in the apportionment of punishment, however imprecise and ambigu-
ous such ranking may be. While the privileging of particular crimes
over others may remain the subject of contention and dispute in the
face of changing realities and shifting priorities, the principle of pro-
portionality remains entrenched in our basic conceptions of criminal
justice.
The problem with stratifying evil through the medium of legal
abstractions arises where it is imbued with exaggerated significance –
beyond the limited confines of the law. Within a legal framework, the
impartial ascertainment of facts, conclusive determination of guilt
or innocence, and assignment of culpability through sentencing all
imply certainty, finality, and closure, however contrived and limited it
may be. But where legal narratives are portrayed, implicitly or other-
wise, as a definitive means of containing ineffable realities, jurispru-
dence may succumb to a broader “temptation of closure”28 that creates
the illusion of empathy, vindication, and progress while evading the
painful work of mourning, contemplation, and transformation in
the wake of cataclysm. In this respect, appropriating the crime of
genocide is especially enticing because it represents the pinnacle of
evil, founded on the paradigm of the Holocaust. Whether a broad or
restrictive interpretation of genocide is embraced, the fetishistic invo-
cation of this privileged abstraction reflects an inclination to inflate
what is merely a legal concept into something much more – into some-
thing that gives suffering a deeper, more symbolic meaning. Despite

27
Ulrich Scheuner, “Conflict of Treaty Provisions with a Peremptory Norm of General
International Law and Its Consequences,” Zeitschrift fur auslandisches offentliches Recht
und Volkerrecht 27 (1967): 520, 524.
28
See Saul Friedlander, “Trauma, Memory, and Transference,” in Geoffrey Hartman,
ed., Holocaust Remembrance, the Shapes of Memory (Oxford, UK, and Cambridge, MA:
Blackwell, 1994), 252, 261.
176 silence, empathy, and the potentialities of jurisprudence

the tremendous contributions that the ICTY and the ICTR have made
to the development of international criminal law, the tribunals are
not immune from this tendency to see genocide as a symbol, not just
a legal category.
Violations of the core international crimes provoke our passions in
poignant ways. In the “disenchanted” universe of modernity, bereft of
religious belief, these norms represent a desperately needed moral com-
pass, our clinging to the “sacred” amidst the secular ordering rituals of
the contemporary world. They situate our normative discourse in the
transcendent sphere of “unquestionable doctrines.”29 Our professions
of allegiance to these unimpeachable axioms are an essential aspect of
our self-definition as progressive, civilized, and compassionate beings
wedded to the “cosmopolitan faith”30 of “globalization, interdepend-
ence, democracy and the rule of law.”31
Despite the positivist legal constructs that are invariably deployed in
jurisprudence, the “unthinkability” of crimes such as genocide “brings
to the surface the limits of rational argument and the character of
normative knowledge.”32 Perhaps more so than any other aspect of
the “compelling law” – in the inner sanctum of the jus cogens – such
crimes compel us to dispense with the supposed objectivity and emo-
tional distance that would ordinarily characterize the process of
legal reasoning. Under the guise of a “teleological desire to solidify
the humanizing content of … humanitarian norms,” we casually blur
the distinction between the lex lata and the lex ferenda, surreptitiously
merging the law as it is with the law as it ought to be.33 Indeed, the
dedicated legal practitioner may even celebrate the “centrality of pas-
sion” or “the absence of calculating reason” in such jurisprudence as a

29
See, for example, “Introduction: Secular Ritual: Forms and Meanings,” in Sally
F. Moore and Barbara G. Myerhoff, eds., Secular Ritual (Amsterdam: Van Gorcum,
1977), 3: “An essential quality of the sacred is its unquestionability. Unquestionable
tenets exist in secular political ideologies which are as sacred in that sense as the
tenets of any religion. Secular ceremonies can present unquestionable doctrines
and can dramatize social/moral imperatives without invoking the spirits at all.”
30
See Martti Koskenniemi, “Between Commitment and Cynicism: Outline for a Theory
of International Law as Practice,” in Collection of Essays by Legal Advisers of States, Legal
Advisers of International Organizations and Practitioners in the Field of International Law
(United Nations Sales No. E/F/S/99.V.13, 1999), 495, 496.
31
Ibid., 495.
32
Martti Koskenniemi, “Faith, Identity, and the Killing of the Innocent: International
Lawyers and Nuclear Weapons,” Leiden Journal of International Law 10 (1997): 157.
33
Theodor Meron, “The Geneva Conventions as Customary Law,” American Journal of
International Law 81 (1987): 348, 361.
 silence, empathy, and the potentialities of jurisprudence 177

sign of “genuine commitment”34 or as a welcome opportunity to reaffirm

unqualified adherence to the sacred mores of a liberal identity.
In coming to terms with monstrous atrocities, the jurist should be
wary of abandoning conventional legal methodology for a teleological
jurisprudence as a means of expressing righteous indignation. The
fear is not that an otherwise “neutral” or “objective” legal reasoning
will be consumed by what Aristotle depicted as the “wild beast” of
desire or that it will be corrupted by erratic passion and unwieldy
subjectivity.35 Rather, the caveat is not to stray into a deceptive closure
that fails to grasp the profound subtleties of working through trau-
matic events without suffocating ineffable meaning; the imperative is
to respect the capacity of such restraint to inspire genuine reflection,
empathy, and transformation. In other words, what is celebrated as
“progressive” jurisprudence may also reflect a misguided search for
closure, a yearning for a facile catharsis in the emotionally discon-
nected oblivion of legal abstractions. While overly strict and sterile
jurisprudence may reflect callous disregard for the ordeal of victims,
moral platitudes may represent a subliminal need to rationalize the
irrational, to manage the unmanageable, and to create the semblance
of order in the face of disintegration and chaos, without genuine com-
mitment or empathy. Such attempts at closure within the confines of
legal discourse not only distort the strictures of jurisprudence, but
also privilege a comforting distance over painful intimacy. Fetishistic
invocation of genocide becomes a substitute for meaningful engage-
ment. The appropriation of hierarchical abstractions as a form of rec-
ognition, and fierce contests over who “owns” genocide in the arena
of competitive suffering – both eclipse the enormity of the challenge
in confronting radical evil. By reducing genocide to legal definition,
by banishing perpetrators to a remote island outside our moral realm,
by refusing to implicate ourselves as bystanders, we engage in a self-
purification constructed not through critical self-examination, but by
invoking the alterity – the radical otherness – of evil.
Through such devices, we avoid implicating our “civilized” self in
our support of the Khmer Rouge when it was politically expedient,
in our furnishing weapons to Saddam Hussein as he gassed Kurdish
civilians, in our triumphant post-histoire complicity in Bosnia’s “ethnic

34
Koskenniemi, “Faith, Identity, and the Killing of the Innocent,” 497.
35
Aristotle, Politics (as cited in Francis A. Allen, The Habits of Legality, Criminal Justice and
the Rule of Law [New York: Oxford University Press, 1996], 3).
178 silence, empathy, and the potentialities of jurisprudence

cleansing,” in our appalling indifference to the slaughter of a million

Rwandan Tutsis, and in our ongoing passivity in the face of the horrors
unfolding daily in Darfur.
There is yet another, perhaps more troubling dimension to certain
displays of passion in jurisprudence. Beyond the trivialization that an
all-embracing reduction of genocide to law represents, overt displays
of allegiance to unimpeachable humanitarian axioms may also signify
a “non-dialogic” or “one-sided” empathy,36 a dominating self-affirmation
that negates the “other” by disregarding the distinction between the
aggrieved survivor and the compassionate human rights advocate; the
suffering of the victim is lost in the advocate’s self-affirming demon-
strations of virtue. In other words, so-called progressive jurisprudence
can become a ritual sacrifice at the altar of piety in which the offering
is someone else’s blood and travail. Far from empowering the dis-
possessed, such condescending noblesse oblige may further reduce the
humanity of survivors, whose only worthwhile possession may be their
stories. In the thoughtful words of Elizabeth Spelman, suffering is “an
arable field, on which some do the difficult work of plowing and plant-
ing, and others arrive just in time to enjoy the harvest.”37 The resort
to “other people’s experience of suffering to make sense of our own”
can result in our simply “exploit[ing] their labor: I acknowledge your
suffering only to the extent to which it promises to bring attention
to my own.” Thus, in place of genuine empathy, the relation between
“self” and “other” is one in which “[y]ou sow the seeds [and] I pluck
the fruits of sorrow.”38 In this confusion between self-affirmation and
empathy, emotional connection with the immediate reality of suffer-
ing and with the meaning of the struggle for justice is lost. Likewise,
the voice of the aggrieved is lost in self-righteous commentary.
Against this backdrop, the postmodern rejection of blind faith in
“the rule of law” and its pretensions of “neutrality” and “objectivity”
may be viewed in a different light. A critical self-consciousness of the
inherent limitations of legal reasoning need not lead to paralysis or
despair. On the contrary, such consciousness may help liberate jur-
isprudence from the onerous burden of a wider closure. Somewhere

36
See Karl Morrison, “I Am You”: The Hermeneutics of Empathy in Western Literature, Theology,
and Art (Princeton: Princeton University Press, 1988), xxvi, 30, 60.
37
Elizabeth V. Spelman, Fruits of Sorrow: Framing Our Attention to Suffering (Boston: Beacon,
1997), 172.
38
Ibid.
 silence, empathy, and the potentialities of jurisprudence 179

between incontestable and indeterminate interpretations, between

the objective and the subjective, both the potential and the limitations
of the law may be discovered.
In becoming conscious of the limitations of legal discourse when
dealing with crimes such as genocide, we also become conscious of
the potentialities of mere positive law, through its deliberate silence,
as a means of awakening empathy and a feeling of community with
the “other.”39 Thus, a self-conscious jurisprudence that concedes the
inevitable influence of subjectivity but that deliberately strives for the
relative objectivity of positive rules is a means not of suppressing “pas-
sion,” but of displacing it elsewhere, outside the strictures of legal dis-
course. Ironically, the self-restraint of positivist jurisprudence becomes
the most befitting tribute to suffering, to the ineffable that is ever pre-
sent yet can never be adequately labeled. In what it leaves unsaid, such
jurisprudence demonstrates both the promise and the wisdom of legal
reasoning that is self-conscious, disciplined, and probing.
There is another advantage, too, of identifying and surrendering the
desire to inflate lawmaking and jurisprudence into meta-legal closure.
In other words, a conscious and deliberate understanding of the law’s
modest ambitions may significantly attenuate the pressures that a well-
meaning jurist or human rights advocate may feel when confronted
with the enormity of crimes such as genocide. Contrary to expressions
of righteous indignation and demonstrations of virtue as sometimes
evinced in progressive jurisprudence, justice, as Hannah Arendt puts
it, “demands seclusion, it permits sorrow rather than anger, and it pre-
scribes the most careful abstention from all the nice pleasures of put-
ting oneself in the limelight.”40
When Arendt remarked to Karl Jaspers that the Nazi atrocities
“explode the limits of the law,” she also exposed the potentialities res-
iding in a conscious banalization of overwhelmingly monstrous crimes
through the rituals of legal process. Through acknowledging that the

39
On the interdependence between limitations and potentialities, see, for example,
Peter Haidu, “The Dialectics of Unspeakability: Language, Silence, and the Narratives
of Desubjectification,” in Saul Friedlander, ed., Probing the Limits of Representation:
Nazism and the “Final Solution” (Cambridge, MA: Harvard University Press, 1992), 277,
278, remarking that “silence is enfolded in its opposite, in language. As such, silence
is simultaneously the contrary of language, its contradiction, and an integral part of
language. Silence, in this sense, is the necessary discrepancy of language with itself,
its constitutive alterity.”
40
Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (London and New
York: Routledge, 1994), 6.
180 silence, empathy, and the potentialities of jurisprudence

guilt of those who conceived the Final Solution “oversteps and shat-
ters any and all legal systems,”41 she acknowledged the insurmount-
able dimensions of evil represented by the Holocaust. In this context,
the closure that legal process could not achieve in capturing the mag-
nitude of suffering became the only befitting expression of its true
gravity. This sensibility was reflected in the Eichmann case, where the
enormity of evil was captured by what the court, with full deliber-
ation, failed to articulate:

The scene that unfolded before us in this appeal is one steeped in blood and
tears, in which the story of the Holocaust of European Jewry is revealed. No
human pen, no human tongue can ever succeed in describing the barest outline of the
suffering of the millions who were killed – slaughtered and burned in the exter-
mination camps and gas-chambers by the murderous tools invented and per-
fected by the “fertile” brain and the perverse fantasy of the Nazi scum.42

The judges of the Jerusalem district court – including Holocaust

­survivors – well understood that attempting to inflate jurisprudence
into a broader closure was futile and that superfluous commentary
would inescapably drown and devalue the harrowing testimony
of survivors. They understood that, just as the law speaks through
expressions of passionate humanity, so, too, does it speak through its
deliberate silence.
The silence of the law is not intended to suggest that we move in the
direction of postmodern radical indeterminacy, where “argumentative
oppositions continue to deconstruct the foundations of one another
infinitely.”43 In the quixotic rush to destroy all totalizing tendencies,
such anti-foundational fanaticism imposes yet another single, tri-
umphant truth: its absolute negation of all truth. For our purposes,
though, what is important is that, ironically, such radical critiques
of reason are equally complicit in avoiding genuine emotional con-
nection and empathy, all in the name of rationalism. The tragedy, as
Roberto Unger points out, is that the “planned campaign of social and
cultural ­criticism … is a dead-end. It tempts the radical indeterminist

41
“Letter to Karl Jaspers,” in Hannah Arendt/Karl Jaspers: Correspondence 1926–1969, eds.
Lotte Kohler and Hans Saner, trans. Robert Kimber and Rita Kimber (New York:
Harcourt Brace Jovanovich, 1992), 51, 54.
42
Attorney General of Israel v. Eichmann, 36 I.L.R. 277, 322 (Supreme Court of Israel, 1962)
(emphasis added).
43
Outi Korhonen, “New International Law: Silence, Defence or Deliverance?,” European
Journal of International Law 7 (1996): 1, 16–17 (footnotes omitted).
 silence, empathy, and the potentialities of jurisprudence 181

into an intellectual desert, and abandons him there alone, disoriented,

disarmed, and, at last, corrupted – by powerlessness.”44
We must bear in mind the distinction between reverent and repres-
sive silence. As Peter Haidu observes, “Silence is the antiworld of speech,
and at least as polyvalent, constitutive, and fragile. The necessary ref-
uge of the poet, the theologian, and the intellectual, it is equally the
instrument of the bureaucrat, the demagogue, and the dictator.” Thus,
silence can signify “courage and heroism or the cover of cowardice
and self-interest.” The pliability of silence resembles that of words “in
that each production of silence must be judged in its own contexts,
in its own situations of enunciation. Silence can be a mere absence of
speech; at other times, it is both the negation of speech and a produc-
tion of meaning.” At times, silence has to be overcome for the same
reason that “the effort is made to index a ‘beyond’ of language in full
recognition of the fact that language is not to be transcended.”45
In this light, George Steiner’s aphorism that the “world of Auschwitz
lies outside speech and it lies outside reason”46 signifies both the limita-
tions and the potentialities of language as a medium. In its attempts
to convey meaning, the sphere of the sacred can be touched but not
conquered; any pretension that this sphere can be fully rationalized
and captured betrays a misapprehension of its intrinsically elusive
nature. Just as crimes such as genocide “defy comprehension and
escape human conventions for making sense and meaning of life,”47 a
consciousness of the inadequacy of legal constructs opens the way to
appreciating the magnitude of suffering – a surrender to the transcend-
ent empathy that it demands. Confronted by the ineffable, our limited
subjective universe momentarily falls into the embrace of the infinite,
the beyond where self and other merge in a communion of shared,
but unknowable, spiritual essence, where seeking justice becomes an
embodiment of humanity’s inextricable oneness. Far from the silence
that is a deceptive “cover of cowardice and self-interest,”48 this tran-
scendence is the starting point of an eternal conversation, between
presence and absence, being and nonbeing, silence and words. It calls to

44
Roberto M. Unger, What Should Legal Analysis Become? (London and New York: Verso,
1996), 121.
45
Haidu, “The Dialectics of Unspeakability,” 278.
46
George Steiner, “K,” in Steiner, Language and Silence (London: Faber & Faber, 1966), 123.
47
Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon, 1998), 147.
48
Haidu, “The Dialectics of Unspeakability,” 278.
182 silence, empathy, and the potentialities of jurisprudence

mind the thirteenth-century Sufi mystic, Rumi, who conveyed silence

in his enchanting words:

If you want peace and purity,

tear away your coverings.
This is the purpose of emotion,
to let a streaming beauty flow through you.
Call it spirit, elixir, or the original agreement
between yourself and God.
Opening into that gives peace, a song of being empty,
pure silence.49

49
Say I Am You: Rumi, trans. John Moyne and Coleman Barks (Athens, GA: Maypop,
1994), 52.
 Index

Aboriginal rights, Canadian violations Bauer, Yehuda, 126

of, 121–23 Beć, Janja, 137
actus reus criteria, genocide as, 30n.12, Bing Bing Jia, 74
49–52 biological destruction
Adorno, Theodor, 102 forcible transfer of children as, 52n.23
affirmative prevention principle, 64 genocide as, 50–52
Africa Action, 135 blameworthiness, sentencing criteria and,
Agos (newspaper), 1 76, 78
Agranat, Simon, 117, 118–19 Blaškic´ case, 28, 54
Akayesu, Jean-Paul, 8 The Body in Pain (Scarry), 170
Akayesu case, 45, 45n.81, 50–51, 52–55, Booker, Salih, 135
83, 115, 144–53 Bosnia v. Serbia, genocide charges in case
Akçam, Taner, 2 of, 9, 137–38
Alito, Samuel, 20 Bosnian Muslims
American Jewish Congress, 95 discriminatory intent mass-murder of,
Amnesty International, Georgia genocide 159–68
charges and, 6 mass-murder in Srebrenica of, vii, viii,
Andenæs, Johannes, 25, 26n.51, 64 33, 49, 137–38, 153–68
Annan, Kofi, 8 Brčko, mass-murder of Muslims in, 153–68
Annett, Kevin, 121 Brennan, William J., 18
anti-Semitism, Holocaust as crime of, Browning, Christopher, 108
115–20 Buddhist minority, Cambodian genocide
Arendt, Hannah, 10, 104, 117–18, 179 against, 133–35
armed conflict Burger, Warren, 19
no nexus with crimes against humanity, Bush, George W., inaction on genocide
35–37 by, 2–3
war crimes nexus with, 31–32
Armenian massacre, 1–2, 91–92, 126 Cambodia
Army of Republika Srpska, 57 Extraordinary Chamber in the Courts of
attack, nexus with, crimes against Cambodia, ix, 9
humanity standard and, 35 genocide in, ix, 132n.47, 133–35
Axis Rule in Occupied Europe (Lemkin), 6–7, Khmer Rouge, ix, 133–35
90, 93–95 United Nations General Assembly
Group of Experts on
Bahá’í minority, persecution in Iran of, Cambodia, 134
viii, 132, 169 Canada, Aboriginal rights violations in,
Barthes, Roland, 140 121–23
Al-Bashir, Omar, 9, 46, 48n.95, 136 Canadian Indian residential school
Bassiouni, M. Cherif, 87n.122 system, 122–23

183
184 index

capital punishment against civilian population, 39

for rape, 12 as core international crime, 35
Supreme Court rulings on, 18–22 definitional uncertainties concerning,
Caravielhe, René, 139–40 41–42
Cassese, Antonio (Judge), 4, 23, 71–73, elusiveness of categorization of, 52–55
79–81 genocide vs., 81–87
categorical imperative, retribution as, 16 mens rea requirement, 39–42
Cham minority, Cambodian genocide nexus with attack requirement, 39
against, 133–35 persecution as, 42–43
Charny, Israel, 126–27 sentencing criteria for, 67–81
Charter of the International Military widespread or systematic attack
Tribunal. See Nuremberg Charter requirement for, 37–39
Chea, Nuon, 134 criminal liability, in Jelisic´ case, 153–54
Chester v. Waverley Municipal Council, 141–43 criminal tainting
children Prosecutor v. Erdemovic´ case, 23
rape of, death penalty for, 20–22 stigma and punishment and, 22–23
transfer of, as biological and cultural culpability, punishment and principle of,
destruction, 52n.23 16–17
China, Genocide Convention amendments cultural destruction
from, 112 forcible transfer of children as,
Christopher, Warren, 139 52n.23
Churchill, Winston, 93, 105 genocide as, 50–52
civilian population, crimes against
humanity and role of, 39, 74 Darfur, genocide in, 3–5, 135–36
Clinton, William J., inaction on Rwanda Dawidowicz, Lucy, 128
genocide by, 3, 139, 139n.75 De Ribes, Champetier, 102
“code of chivalry” in war crimes, death penalty
sentencing principles and, 76 for rape, 12
Coker, Ehrlich Anthony, 12 Supreme Court rulings on, 18–22
Coker v. Georgia, 12, 18–22, 30 delicta juris gentium, 92
Collins, Tom, 143 Destexhe, Alain, 144n.11
commodification of genocide, 124–32, 177 Destruction of the European Jews, The
Constitution of the United States, Eighth (Hilberg), 109
Amendment of, 13 deterrence
consummation of crime of genocide, 45, punishment as, 14–15
45n.83 purposes of punishment in
Convention on the Prevention and international criminal law and
Punishment of the Crime of principle of, 62–66
Genocide, 7 retribution vs., 25
Cooper, John, 95, 96n.40, 97, 99 sentencing principles and, 77
core international crimes Dink, Hrant, assassination of, 1–2
classification of, 27–31 discriminatory intent, in Jelisic´ trial,
crimes against humanity as, 35 159–68
nexus with armed conflict, 31–32 dolus eventualis, 44
protected person status and, 32–33 dolus generalis, 44
war crimes as, 31–35 dolus specialis. See special intent
Corfu Channel case, 76 Douglas, Lawrence, 110
Crawford, James, 83 Draft Code of Offences Against Peace, 81
crime, preeminence of genocide as, 10–11 duress defense, criminal tainting and fair
“crime of barbarity,” Lemkin’s proposal labeling principles and, 23
for, 92, 100
“crime of crimes” nomenclature Eichmann, Adolf, trial of, 82, 106,
Holocaust in context of, 103 115–20, 154, 180
tribunals’ use of, 84 The Eiffel Tower and Other Mythologies
crimes against humanity (Barthes), 140
absence of armed conflict requirement Eighth Amendment of the U.S.
in, 35–37 Constitution, 13
 index 185

ejusdem generis rule, Rwandan genocide origin of term, 6–7, 89–90

and, 145, 151 as preeminent crime, 10–11
Elements of Crimes (International stigma in wake of, 24
Criminal Court), 34, 34n.29, 39–42, Genocide Convention
45–48 Aboriginal rights violations and, 123
empathy, awareness of genocide and, actus reus in, 49–52
169–70 adoption of, vii, 81, 88–90
Erdemović, Draźen, 57–59 American ratification of, 100
Erdemovic´ case, 23, 57–59, 67–69 Article I prevent and punish provision,
ethnic cleansing 139
nexus with armed conflict, 33 Eichmann trial in wake of, 115–20
in Yugoslavia, viii groups excluded in, 85–86
ethnic identity, Rwandan genocide and, Holocaust as catalyst for,
148 103, 111–15
Evatt, Herbert, 7, 113, 142–43 jurisprudence and relevance of, 9
evidentiary standards lack of enforcement provisions in, 114,
armed conflict–war crimes nexus and, 114n.119, 114n.121, 115n.122
30 Lemkin’s campaign for, 98–101
in Jelisic´ case, 158 Rwanda genocide and, 144–46
Extraordinary Chamber in the Courts of widespread/systematic attack criteria
Cambodia, ix, 9 and, 46
Georgia, Russian genocide in, 5–6
fair labeling “goal-oriented,” genocide as, 45
in criminal law, 22–23 Gourevitch, Philip, 138
Prosecutor v. Erdemovic´ case, 23 gravity of crime criteria
Fein, Helen, 130 genocide vs. crimes against humanity,
Finta, Imre, 24 81–87
Fletcher, George, 16–17, 18, 78 sentencing principles and, 59–87,
Formulation of the Nuremberg Principles, 72n.74
81 Gross, Ernest, 98
Foucault, Michel, 25 Guatemala, Mayan victims of genocide
Friedman, Philip, 100n.63 in, ix

gas warfare, introduction in World War I Habermas, Jürgen, 102

of, 27–28 Hague Regulations, 94
General Assembly. See United Nations Haidu, Peter, 126, 128, 181
General Assembly Hannay, David, 138
general prevention principle, 25, 64 Hart, H. L. A., 22
Geneva Conventions “heinousness and magnitude” concept,
armed conflict–war crimes nexus and, sentencing criteria for war crimes
31 and crimes against humanity and,
“grave breaches” provisions of, 68–69
32–33 Hidden from History: The Canadian Holocaust.
“intent to destroy” principle and, 48 The Untold Story of the Genocide of
protected person status and, 32–33 Aboriginal Peoples by the Church and State
“scope of application” of humanitarian in Canada, 122–23
law and, 32 hierarchy of crimes
war crimes regulation, 31 basic principles of, 17–22
genocide death penalty and, 12
case histories invoking, 132–40 proportionality and punishment and,
crimes against humanity vs., 81–87 13–17
elusiveness of definitions of, 52–55, sentencing criteria and, 67–81
124–32, 144n.11, 146n.26 “uniqueness” of genocide and, 124–32
jurisprudence and, 141–68 Hilberg, Raul, 109
legal debate concerning, viii History of Genocide (Lemkin) (incomplete),
mens rea criteria for, 42–49 91
mental element of, 43–44 Hitler, Adolf, 93
186 index

Hohenberg, John, 89 Bosnia v. Serbia case, 9, 137–38

Holocaust Corfu Channel case, 76
Arendt’s comments on, 10 Genocide Convention interstate
crimes against humanity criteria in enforcement through, 114, 115n.124
wake of, 41–42 genocide criteria, 48
Eichmann trial as judicial narrative of, Lemkin’s appointment, 99
116 International Criminal Court (ICC), viii
Genocide Convention in wake of, classification of crimes by, 28, 28n.7
111–15 Darfur genocide charges and, 135–36
as genocide paradigm, vii, 6, 28, 155 Elements of Crimes as tool of, 34,
legal ritual of prosecutions involving, 34n.29, 39–42, 45–48
102–20 genocide statute of, 82–83, 146n.29
Lemkin’s personal experience of, 96–98, gravity of crime and individual
100 circumstances as factors in
Lemkin’s warnings concerning, 93–95 sentencing, 59–66
“naming” and labeling of, 102 hierarchy of crimes in, 72–73
“Nuremberg view” of, 108 intent standard for genocide, 45
Queen v. Finta case and, 24 lack of genocide prosecutions in, 9
survivors of, 171 nexus requirement lifted in crimes
“uniqueness” of, 124–32, 125n.13 against humanity rulings, 36
hors de combat. See protected person status persecution statute, 43
Human Rights Watch, Georgia genocide prosecutorial strategy of, 155
charges and, 6 Rwandan genocide jurisprudence and,
humanitarian law 146–47
protected person status and, 32–33 Sudanese crisis and, 4
“scope of application,” 32 widespread/systematic attack standard
Humphrey, John, 89 for crimes against humanity, 37–39
Hutu tribe, Rwandan genocide and, 148 international criminal jurisdiction,
Genocide Convention references to,
ICC. See International Criminal Court 114
ICJ. See International Court of Justice international criminal law
ICTR. See International Criminal Tribunal legacy of criminal tribunals, 32
for Rwanda Lemkin’s advocacy for, 95, 97
ICTY. See International Criminal Tribunal International Criminal Tribunal for
for the Former Yugoslavia Rwanda (ICTR), ix
“‘If I Look at the Mass I Will Never Act’: Akayesu case, 45, 50–51, 52–55, 148
Psychic Numbing and Genocide” armed conflict–war crimes nexus
(Slovic), 172–73 requirement, 32, 36–37
Ignatieff, Michael, 129 civilian population terminology of, 74,
ILC. See International Law Commission 75n.80
in abstracto, war crimes, 79–81 genocide criteria of, 8, 9, 28n.7, 43n.72,
“in whole or in part” criteria for genocide, 83
48–49 gravity of crime and individual
incapacitation, punishment and, 14n.10 circumstances as factors in
individual circumstances criteria, sentencing, 59–66
sentencing principles and, 59–66 hierarchy of international crimes,
individual rehabilitation, sentencing ambiguity concerning, 83
principles and, 65 “intent to destroy” terminology of,
“inherent jurisdiction” principle, 44–45
genocide and, 82–83 jurisprudence of, 144–53
intent Kambanda case and, 54, 83, 97n.49
discussion in Jelisic´ of, 154n.58 Kayishema case and, 150–51
sentencing criteria and determination legacy of, 32
of, 77–81 mens rea in crimes against humanity
“intent to destroy” principle, 44–45, 48–52 and, 39–42
International Court of Justice (ICJ) sentencing criteria for, 60n.15, 66–87
actus reus and, 51 special intent under, 44
 index 187

Trial Chamber hierarchy of, 29n.8 Jackson, Robert, 96, 107

widespread/systematic attack standard Jacobs, Steven, 89
for crimes against humanity, 30 Jaspers, Karl, 104, 106, 179
International Criminal Tribunal for the Jelisić, Goran, 153–68
former Yugoslavia (ICTY), 59–66 Jelisic´ case, 153–68
affirmative prevention principle of, 64 Jewish people, Holocaust as unique
Appeals Chamber obiter dicta crime against, 115–20, 124–32.
ruling, 36 See also Holocaust
armed conflict–war crimes nexus Jorda, Claude, 166
requirement, 31–32, 36–37 Joseph, Jasper, 122–23
Blaškic´ case, 28 “juridical seriousness” principle,
civilian population terminology of, 74, sentencing criteria and, 69–71, 75–76
75n.80 jurisprudence
definitional uncertainties concerning genocide and role of, 141–68
crimes against humanity and, potential of, 169–70
41–42 jus cogens principle, 175, 176
deterrence principle and, 63–66 just dessert principle, punishment and, 17
genocide criteria of, 8, 28n.7, 43n.72 Justice case (United States v. Josef Altstoetter),
“intent to destroy” criteria of, 44–45, 82
48–49
Jelisic´ case and, 153–68 Kama, Laity, 8
Krstic´ case and, 48, 49, 56, 135 Kambanda case, 54, 83, 97n.49
legacy of, 32 Kant, Immanuel, 16
mens rea in crimes against humanity Karadžić, Radovan
and, 39–42 genocide charges against, 8, 167
mens rea principles and, 33–35 trial of, vii, viii
Popovic´ case, 37n.39, 51 Katz, Steven, 125n.13, 126
Prosecutor v. Erdemovic´ case, 23 Kayishema case, 84, 150–51
protected person status and, 33 Kellner, Hans, 105
quantitative and qualitative genocide Kennedy v. Louisiana, 20–22
criteria, 48 Khmer Rouge, ix, 133–35
Rule 98bis, Rules of Procedure, 156–57 King, Kimi, 61
sentencing criteria for, 60n.15, 66–87 Kirchheimer, Otto, 111
special intent under, 44 “knowledge of the attack” requirement,
Srebrenica massacre and, vii, 49, 56 in crimes against humanity, 39–42
widespread/systematic attack criteria, Komšić, Željko, 137
30, 46 Kordic´ case, 34n.28, 64n.39
international law, purposes of Korey, William, 91, 92, 95n.38, 97
punishment in, 62–66 Koskenniemi, Martti, 103
International Law Commission (ILC), Krdžić, Hedija, 137
82–83 Kristof, Nicholas, 172, 174
on genocide, 154 Krstic´ case, 48, 49, 56, 135
permanent penal court and, vii Kunarac case, 63–66, 64n.35, 75n.80
widespread/systematic attack standard Kuper, Leo, 131
for crimes against humanity, 37 Kupreškic´ case, 43, 74, 85
International Military Tribunal at
Nuremberg. See Nuremberg Lahav, Pnina, 117, 118–19
International Military Tribunal Latham, John, 141–43
international treaty against genocide, Lauterpacht, Hersch, 7, 114
Lemkin’s proposal for, 92, 97 Lavrov, Sergei, 5
International War Crimes Tribunal, League of Nations, 92, 100
Vietnam war and, 132–33 legal framework for genocide
Iran, Islamic Republic of, Bahá’í debate concerning, viii
persecution in, viii, 132, 169 empathy vs. psychic numbing and,
Israeli law, Eichmann trial and primacy 172–73
of, 116n.126, 118 Holocaust through, 102–20
Istitabih, Islamic principle of, 169 limitations of, 178
188 index

Lemkin, Raphaël Nazis and Nazi Collaborators

genocide terminology developed by, (Punishment) Act, 116n.126, 118
6–7, 89–90, 168 nexus with armed conflict principle
life and career of, 91–101, 93n.23, absence of, in crimes against humanity,
95n.38, 100n.63 35–37
Levi, Primo, 108 war crimes and, 31–32
lex lata/lex ferenda distinction, 176 nexus with attack requirement, crimes
lex talionis principle, stigma and, 25 against humanity, 39
Lieber Code, 31 NGOs (nongovernmental organizations),
Lincoln, Abraham, 31 Darfur crisis and, 135
“lone génocidaire” concept, 46 Nikolic´ case, 64
low-ranking perpetrators of genocide, nongovernmental organizations (NGOs),
criminal prosecution of, 153–54, Darfur crisis and, 135
165–68 normative function, in crimes against
humanity, 73
Mahmudnizhad, Farkhundih, 169 nulla poena sine praevia lege poenali principle,
Mahmudnizhad, Mona, 169 sentencing criteria and, 71–73
Maier, Charles, 124 nullum crimen sine lege principle
Marshall, Thurgood, 18 in Eichmann trial, 118
material elements of genocide genocide and, 34n.28, 47
actus reus and, 30n.12, 50–52 Rwandan genocide jurisprudence and,
in Jelisic´ case, 158 151
“material seriousness” principle, Nuremberg Charter
sentencing criteria and, 69–71, 75–76 crimes against humanity principles,
Maya, mass-murder in Guatemala of, ix 35–37, 41–42
Médecins sans frontières, 139–40 hierarchy of crimes and, 71, 73
Meernik, James, 61 war crimes criteria and, 73n.77
Mein Kampf (Hitler), 95 Nuremberg International Military
Memorandum on the Law of Genocide, vii Tribunal, vii
mens rea principle Arendt’s comments on, 10
in crimes against humanity, 39–42 establishment of, 105
as genocide criteria, 30n.12, 42–49 Genocide Convention and, 88–90,
in Jelisic´ case, 153–54 111–15
in war crimes, 33–35 inadequacy of, 104–11
mental element of genocide, 30n.12, legal ritual of, 102–20
43–44 origin of genocide terminology and,
crimes against humanity and, 85 6–7, 95, 97
in Jelisic´ case, 159 “Nuremberg view” of the Holocaust, 108
sentencing criteria and, 76–81
Minow, Martha, 24 Obama, Barack, on death penalty, 20,
Mladić, Ratko, 8 20n.35
moral conception of genocide, 168 The Origins of Totalitarianism (Arendt), 104
Morgenthau, Henry Jr., 105 Ossetian separatists, Russian invasion of
murder, in hierarchy of crimes, 70–71 Georgia and, 5–6
Muvinyi case, 51 Owen, Wilfred, 27–28

national courts, Genocide Convention’s Pasha, Talaat, 91

emphasis on, 114, 114n.119 persecution, as crime against humanity,
national reconciliation, sentencing 42–43, 85
principles and, 65 physical destruction, genocide as,
nations, Lemkin’s discussion of, 94, 50–52
94n.33 Plavšic case, 65
Nazi war criminals Popovic´ case, 37n.39, 49, 51
ex post facto law violations against, 118 Porrajmos (Romani Holocaust), 125
Lemkin’s analysis of, 93 Porter, Jack, 130
Nuremberg trials and, 104–11 Powell, Colin, 3
 index 189

Powell, Lewis F., 19 Rehnquist, William, 19

Power, Samantha, 2–3, 36 religious discrimination, genocide
A Problem from Hell: America in the Age of terminology applied to, 130
Genocide (Power), 2–3 retribution/retributive theory
progressive jurisprudence, 178 deterrence vs., 25
proportionality hierarchy of crimes and, 17–22
core international crimes, 27–31 punishment as, 16–17
criminal law principles relating to, sentencing criteria and, 76
76–81 Romani Holocaust (Porrajmos), 125
purposes of punishment and, 13–17 Rome Conference, ICC intent standard for
sentencing criteria of international genocide adopted at, 45
tribunals and, 66–87 Rome Statute, 87n.122
stigma in punishment and, 22–26 Rorty, Richard, 173
proprio motu principle Rosenthal, A. M., 90
in genocide trials, 58 rule of law, postmodern rejection of, 178
in Jelisic´ case, 156–57, 164 Russell, Bertrand, 132–33
prosecutorial strategy Russell Tribunal, 132–33
of International Criminal Court, 155 Russia, invasion of Georgia by, 5–6
in Jelisic´ trial, 159–68 Rwanda. See also International Criminal
with low-ranking perpetrators, 153–54 Tribunal for Rwanda
protected person status, in war crimes, Akayesu case and genocide in, 144–53
32–33, 75n.80 travaux préparatoires in genocide
Prunier, Gérard, 148–53 jurisprudence, 151–52
psychic numbing and genocide, 172–73 Tutsi genocide in, ix, 8, 9, 131
psychological status, as defense in Jelisic´ U.S. inaction regarding genocide in, 3,
case, 159–68 139, 139n.75
psychology of healing, recovery from
genocide and, 169–70 Samast, Ogun, 1
Pulitzer, Joseph, 105 Samphan, Khieu, 134
punishment Sartre, Jean-Paul, 132, 132n.47
as deterrence, 14–15 Sary, Ieng, 134
proportionality and purposes of, 13–17 “scale and gravity” threshold, crimes
purposes of, in international criminal against humanity, 35
law, 62–66 Scarry, Elaine, 170
rehabilitation and incapacitation and, Schabas, William, 83, 85, 135
14n.10 Scheffer, David, 114
retribution as, 16–17 Schulhofer, Stephen, 77–81
stigma and proportionality in, 22–26 Schwelb, Egon, 41–42
wrongdoing and culpability principles “scope of application” of humanitarian
and, 16–17 law, 32
Putin, Vladimir, 5 Scott, Duncan Campbell, 123
sentencing principles
qualitative criteria for genocide, 48 genocide and, 59–66
quantitative criteria for genocide, 48 gravity of crime and individual
Queen v. Finta, 24 circumstances as factors in, 59–66
Quo Vadis (Sienkiewicz), 91 at international criminal tribunals,
60n.15, 66–87
racial discrimination, genocide purposes of punishment in
terminology applied to, 130 international criminal law, 62–66
rape war crimes vs. crimes against humanity,
death penalty for, 12, 18–22 67–81
fair labeling principle, 22–23 sentimental education, Rorty’s concept
as genocide, 29, 52–55 of, 173
in hierarchy of crimes, 70–71 Shahabuddeen, Mohamed, 69–71, 73,
rationalism, genocide and, 141–43, 174–82 75–76
rehabilitation, punishment and, 14n.10 Shawcross, Hartley, 7, 96n.42, 106, 112–14
190 index

Shelly, Christine, 3, 138 “temptation of closure,” in genocide

Shreiter, Robert, 171 jurisprudence, 175
Sienkiewicz, Henryk, 91 Thirith, Ieng, 134
Silajdžić, Haris, 137 Tomuschat, Christian, 83
silence about genocide, potential of transfer of children, as biological and
jurisprudence vs., 169–70 cultural destruction, 52n.23
Sloane, Robert, 61 travaux préparatoires in Rwanda genocide
Slovic, Paul, 172–73 jurisprudence, 151–52
Soviet Union, Genocide Convention Truman, Harry S., 107
amendments, 112 Truth and Reconciliation Commission of
special deterrence, purposes of South Africa, 171
punishment in international criminal Truth Commission into Genocide in
law and principle of, 62–66 Canada, 123
special intent Turkey, Armenian massacre in, 1–2, 91–92
genocide vs. crimes against humanity Tutsi tribe, genocide in Rwanda of, ix, 3,
and criteria of, 83–85, 86–87 144–53
in Jelisic´ case, 153–54, 166
mens rea and, 43–45 Udombana, Nsongura, 135
Rwandan genocide and, 149 ulterior motive, discussion in Jelisic´ of,
Spelman, Elizabeth, 128–29, 178 149n.57, 154
Srebrenica “ultimate crime”
mass-murder of Bosnian Muslims in, vii, genocide designated as, 124
viii, 49, 56, 137–38 Holocaust depicted as, 124–32
sentencing criteria for massacre UN Historical Clarification Commission,
participants at, 66 ix
Stalin, Josef, 105 Unger, Roberto, 180
Starr, Irene, 121–23 Unification of Penal Law Conference, 92
state sovereignty, crimes against “uniqueness” of Holocaust, 124–32,
humanity as basis for intrusion of, 42 125n.13
Steiner, George, 10, 181 United Nations General Assembly
stigma authority of, 97n.49
proportionality in punishment and, Convention on the Prevention
22–26 and Punishment of the Crime of
purposes of punishment in Genocide, 7
international criminal law and Genocide Convention adoption, 81, 99
principle of, 62–66 Group of Experts on Cambodia, 134
Stimson, Henry, 105 Lemkin’s crusade at, 98
storytelling, healing from genocide using, Resolution 96(1), genocide definition in,
169–70 50–52
Such is Life (Collins), 143 Rwandan genocide jurisprudence and,
Sudan, Darfur genocide in, 3–5 145
Suljic, Fatija, 137 United Nations Security Council,
Supreme Court. See United States Supreme commission of inquiry on Darfur,
Court 4–5
survivors of genocide, storytelling by, United Nations War Crimes Commission,
169–70 crimes against humanity definitions
“systematic attack” criterion and, 41–42
crimes against humanity and, 37–39 United States
definitional uncertainties concerning, inaction regarding genocide by, 2–3
41–42 ratification of Genocide convention by,
100
Tadić, Boris, 137 United States Military Tribunals, 97n.49
Tadić, Dusko, 69–73 United States Supreme Court
Tadic´ case, 31, 36 death penalty for rape decisions by, 13,
hierarchy of crimes and, 74–76 18–22
mental element of crime and, 79–81 hierarchy among crimes principle and,
sentencing criteria in, 69–73 18–22
Teilerian (Armenian activist), 91, 92n.19 United States v. Greifelt et al., 97n.49
 index 191

United States v. Josef Altstoetter (Justice case), as core international crime, 31–35
82 elusiveness of categorization of, 52–55
Universal Declaration of Human Rights, sentencing criteria for, 67–81, 72n.72
88–90 War Crimes Chamber (Bosnia-
universal jurisdiction, Genocide Herzegovina), 8
Convention’s rejection of, 114 West, Rebecca, 107n.83
universality of genocide, Eichmann “widespread or systematic attack”
jurisprudence and, 120 criterion
for crimes against humanity, 37–39
vandalism, crime of, 92 definitional uncertainties concerning,
victim-administered justice, Eichmann 41–42
trial and, 115–20 World War I, gas as weapon in, 27–28
victimhood, status of, 124 wrongdoing
Vietnam, invocation of genocide in, hierarchy of crimes and, 17–22
132–33 punishment and principle of, 16–17
Vietnam war and International War
Crimes Tribunal, 132–33 Yugoslavia, ethnic cleansing in, viii
Vietnamese minority, Cambodian See also International Criminal
genocide against, 132n.47, 133–35 Tribunal for the Former Yugoslavia

war crimes Zionism, Holocaust as catalyst for, 117

armed conflict nexus with, 31–32