The International Court of Justice (ICJ) will soon hold public hearings in the case brought by the Gambia against Myanmar. The case involves serious allegations of genocide committed against the Rohingya group. This essay concerns some technical issues that the ICJ may wish to clarify in its final judgment, regarding the intent to kill members of a group and its relationship with the intent to destroy a group. Lawyers are familiar with the many meanings of “intent” and should not be surprised to learn that these two elements of genocide involve very different conceptions of “intent.”
Under the Genocide Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The intent to destroy, in whole or in part, a protected group is typically referred to as the “specific intent” or dolus specialis, which distinguishes genocide from other international crimes. Specific intent is a mental state which extends beyond the acts committed (here, killing individual group members), often contemplating a further result which the perpetrator aims to bring about but which may or may not occur (here, total or partial group destruction). This article concerns the perpetrator’s mental state toward the acts themselves, specifically with respect to killing individual group members.
“Intent” to Kill
In Bosnia v. Serbia, the ICJ recognized that the acts enumerated in the Genocide Convention “themselves include mental elements.” In particular, “’[k]illing’ must be intentional, as must ‘causing serious bodily or mental harm’… The acts… are by their very nature conscious, intentional or volitional acts.” In Croatia v. Serbia, the ICJ observed that “the words ‘killing’ and ‘meurtre’ appear in the English and French versions respectively of [the Genocide] Convention. For the Court, these words have the same meaning, and refer to the act of intentionally killing members of the group.” To support its point that “killing” and “meurtre” (murder) refer to “intentionally killing,” the ICJ cited a passage of the International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber’s judgment in Prosecutor v. Blagojević and Jokić, which found that “killing” within the definition of genocide has the same meaning as “murder” within the definition of crimes against humanity (para. 642). The same ICTY judgment also observed that “the mens rea of murder as a crime against humanity” involves “dolus directus or dolus eventualis” (fn. 1912, citing Prosecutor v. Stakić). It follows that “intentionally” killing group members within the definition of genocide means killing group members with either dolus directus or dolus eventualis.
For lawyers trained in the common law tradition, the concepts of dolus directus and dolus eventualis require some explanation. Dolus directus includes both the aim or conscious object to cause a result (dolus directus in the first degree) as well as awareness that an action is virtually certain to cause a result (dolus directus in the second degree). These mental states correspond to the common law concepts of direct intent and oblique intent. The precise content of dolus eventualis is somewhat elusive, but the ICTY’s explanation in Stakić is as good as any:
The technical definition of dolus eventualis is the following: if the actor engages in life-endangering behaviour, his killing becomes intentional if he “reconciles himself” or “makes peace” with the likelihood of death. Thus, if the killing is committed with “manifest indifference to the value of human life”, even conduct of minimal risk can qualify as intentional homicide. Large scale killings that would be classified as reckless murder in the United States would meet the continental criteria of dolus eventualis.
While lawyers trained in the common law may resist classifying manifest indifference to human life as a form of “intent,” they should recognize this mental state as similar to the “implied malice” sufficient for murder. To complete the picture, the ICTY also found that murder as a crime against humanity may be committed with “the intent either to kill or to cause serious bodily harm with the reasonable knowledge that it would likely lead to death” (Blagojević and Jokić, para. 556). This includes acts aimed to injure an individual but likely to kill them (similar to one form of “express malice” in some common law jurisdictions) and acts not aimed at any individual but likely to kill someone (including the “[l]arge scale killings” referred to in Stakic).
The ICTY returned to the same point in Prosecutor v. Karadzic: killing group members as an element of genocide involves the same mental element as the war crime of murder and the crime against humanity of murder (para. 542), namely dolus directus or dolus eventualis (see, e.g., para. 448). More recently, the Extraordinary Chambers in the Courts of Cambodia (ECCC) concluded that the elements of killing as an act of genocide are equivalent to the elements of murder as a crime against humanity, which include killing with dolus directus or dolus eventualis (Case 002/02 Judgment, paras. 635-651, 796). This approach both reflects the generally recognized principle that “when several norms bear on a single issue they should, to the extent possible, be interpreted so as to give rise to a single set of compatible obligations,” and preserves the defining feature of genocide under international law. Genocide, war crimes, and crimes against humanity involve similar constituent acts, most notably killing vulnerable individuals. The distinctive element of genocide is found elsewhere, in the specific intent to destroy a group, in whole or in part.
Beyond its citation to the ICTY, the ICJ has said little about the exact nature of the intent to kill. In Bosnia v. Serbia and Croatia v. Serbia the ICJ reviewed a range of alleged killings, including by shelling, sniper fire, and mass executions. The ICJ found that killings of group members were committed but did not detail the specific, individual killings it found or identify the exact mental states with which they were committed. It made only one express finding regarding intent to kill. In its counter-claim, Serbia initially alleged that Croatian armed forces “indiscriminately shelled several towns and villages” in an area with a majority Serb population, aimed both at military targets and the civilian population. The ICJ rejected the allegation, based on its reading of the ICTY Appeals Chamber’s judgment in the Gotovina case. The ICJ concluded that “it is unable to find that there was any indiscriminate shelling of the [] towns deliberately intended to cause civilian casualties.” In the alternative, Serbia argued that, even if the artillery attacks on the Krajina towns “were not indiscriminate, and thus lawful under international humanitarian law,” the attacks could still violate the Genocide Convention if committed with the specific intent to destroy a group, in whole or in part. The ICJ rejected this argument as well, stating that
if one takes the view that the attacks were exclusively directed at military targets, and that the civilian casualties were not caused deliberately, one cannot consider those attacks, inasmuch as they caused civilian deaths, as falling within the scope of Article II (a) of the Genocide Convention.
This passage is not especially helpful. The ICJ’s use of terms like “deliberately intended” simply raises the question at issue, namely what kind of “intent” brings killing group members under the Genocide Convention. Substantively, if an attack is “not indiscriminate” and, more broadly, lawful under international humanitarian law, then it will not kill civilians with either dolus directus or dolus eventualis. International humanitarian law prohibits attacks directed against civilians. It also requires taking all feasible precautions to avoid or at least to minimize harm to civilians, and prohibits attacks which may be expected to cause disproportionate harm to civilians. It is hard to imagine an attack that complies with these rules yet either aims to kill civilians or reflects manifest indifference to the value of civilian life. This passage is consistent with the position that “intentionally” killing members of a group includes killing with either dolus directus or dolus eventualis.
The ICTY sought to interpret its Statute to align with the Genocide Convention and with customary international law. In contrast, the International Criminal Court (ICC) is constrained by article 30 of its Statute, which provides that “a person has intent where… [i]n relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.” This provision includes dolus directus, in the first and second degree, but excludes dolus eventualis. The ICC Pre-Trial Chamber has found that, under the ICC Statute, killing group members involves “a general subjective element that must cover any genocidal act … which consists of article 30[‘s] intent and knowledge requirement.” Accordingly, at the ICC, only a defendant who “means” to cause the death of group members or is aware that their action will cause the death of group members in the ordinary course of events may be prosecuted for committing genocide by killing group members.
Fortunately, the ICJ is not bound by the ICC Statute, and may interpret the Genocide Convention on its own terms, taking into account other relevant rules of international law including the customary international law of crimes against humanity and war crimes. The ICJ has generally aligned its interpretation of genocide with the ICTY’s caselaw, attaching “the utmost importance” to the ICTY’s legal findings, and there is no reason for it to depart from its past practice here. The ICJ should affirm that killing group members with either dolus directus or dolus eventualis falls within the scope of the Genocide Convention.
From Intent to Kill to Intent to Destroy
Some readers may wonder whether the nature of intent to kill really matters. In practice, the same evidence that would support an inference of dolus eventualis will often support an inference of dolus directus as well. For example, indiscriminate shelling of a town obviously demonstrates manifest indifference to civilian life, but may also indicate an aim to kill both civilians and fighters alike. The ICC has held that the war crime of attacking civilians “may encompass attacks that are carried out in an indiscriminate manner” as well as “attacks that are launched without taking necessary precautions to spare the civilian population or individual civilians.” The aim to kill civilians often can be inferred in the same way.
More fundamentally, one might think that only killings of group members committed with dolus directus in the first degree (direct intent) can be committed with the specific intent to thereby contribute to the total or partial destruction of a group. Indeed, if one imagines a single individual with both the intent and the capability to destroy a substantial part of a group, that individual would aim to kill group members as a means of destroying the group. Put the other way around, if an individual aims to destroy a group by killing its members, then surely that individual must aim to kill its members.
But that is not how the world works. In the real world, genocide is not committed by a single individual who aims to kill with the further aim to destroy. Genocide is committed by large numbers of people, often organized into military hierarchies, bureaucratic structures, or social networks. Some individuals aim to kill specific, individual group members. Others do what they are told without caring whom they kill. They are told to shell a town, so they shell a town. Their aim in shelling the town may be to kill civilians, to terrorize civilians, or simply to follow orders. The intent and capacity to destroy a group converge at a higher level of authority. It is these higher authorities who intend for the shelling of towns to kill members of a group and contribute to the group’s destruction. At the same time, these higher authorities typically do not intend to kill specific people on an individual basis, or order the killing of specific people. These higher authorities develop or approve general plans, policies, and procedures aimed at the destruction of a group, in whole or in part, including by leading their subordinates to kill categories of people (members of a group) rather than specific, targeted individuals.
International criminal tribunals have deployed different legal categories to capture the complex dynamics of mass atrocities. The ad hoc tribunals developed a form of joint criminal enterprise liability (“JCE I”) according to which physical perpetrators need not possess specific intent where they are used by members of a joint criminal enterprise to commit genocide. As the ECCC explained, following the ICTY,
It is not determinative whether the direct perpetrator shared the mens rea of the JCE member or knew of the existence of the JCE; what matters under JCE I is whether the JCE member used the direct perpetrator to commit the actus reus of the crime forming part of the common purpose.
In contrast, the ICC has developed a form of indirect co-perpetration according to which “the mental state of mid level superiors and low level physical perpetrators is irrelevant.” As the ICC Trial Chamber has explained,
Indirect co-perpetration requires the following objective elements: (i) the existence of an agreement or common plan, between the accused and one of more other persons, to commit the crimes or to engage in conduct which, in the ordinary course of events, would result in the commission of the crimes; and (ii) the control of the members of the common plan over a person or persons who execute the material elements of the crimes by subjugating the will of the direct perpetrators.
On the ICC’s approach, indirect perpetrators individually or jointly use “at least part of the apparatus of power subordinate to him or her [or them], so as to steer it intentionally towards the commission of the crime.”
In its prior cases, the ICJ has not felt the need to adopt a specific legal test linking the intent of higher authorities with the intent (or lack thereof) of direct perpetrators. Perhaps it will feel no need to do so in Gambia v. Myanmar either. The important point here is that the ICJ should not interpret intent to kill in a way that precludes a finding of genocide when (i) higher authorities steer their subordinates toward carrying out attacks that are indiscriminate or otherwise violate international humanitarian law, (ii) the higher authorities aim for such attacks to kill unidentified members of a group and contribute to the group’s total or partial destruction, and (iii) the subordinates kill with manifest indifference to human life.
Conclusion
The ICJ should explicitly interpret “intentionally” killing members of a group to include both dolus directus and dolus eventualis. Direct perpetrators may kill group members with the aim to kill them, with the virtual certainty of killing them, or with manifest indifference to their lives, and may not share the intent to destroy their group. Higher authorities may steer their subordinates toward such killings, with the intent to thereby contribute to the total or partial destruction of their group, without ordering specific attacks or aiming to kill specific group members. These rather technical issues may not prove decisive in Gambia v. Myanmar. But a sound interpretation of the law can only assist the ICJ in reaching a sound judgment based on the evidence before it.
FEATURED IMAGE: The International Court of Justice (ICJ), principal judicial organ of the UN, holds public hearings (by video link) on the preliminary objections raised by Myanmar in the case concerning “Application of the Convention on the Prevention and Punishment of the Crime of Genocide” (The Gambia v. Myanmar) at the Peace Palace in The Hague, from 21 to 28 February 2022. Sessions are held under the presidency of Judge Joan E. Donoghue, President of the Court.(via UN Photo)
