The Interpretation of Genocidal Intent under the Genocide Convention and the Jurisprudence of International Courts

Abstract

Many scholars studying substantive criminal law examine the crime in an analytical way to determine the elements of crime, determining these elements as the material or objective element ( actus reus) and the mental or subjective element ( mens rea). In accordance with this, a crime consists of a physical act or omission (material element) and the psychological bond that links the act to the perpetrator (mental element). The elements of the crime of genocide are derived from the definition of Article 2 of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. According to this, the crime of genocide is committing any of the acts enumerated in the Convention with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. The mental element of genocide was not mentioned either during the Nuremberg trials or in the Convention. The discussion on the mental element of the crime of genocide or ‘genocidal intent’ took place within international criminal law for the first time during the trials at international courts for the Former Yugoslavia and Rwanda in order to prove the perpetrators' genocidal intent. This article discusses the definition of genocide, the mental element of the crime in substantive criminal law, the mental element of the crime of genocide and the jurisprudence of the international tribunals related to the issue.