Evaluating genocidal intent: the inconsistent perpetrator and the dynamics of killing

Abstract

This article investigates the challenging question of how to judge genocidal intent in a contextual and interdisciplinary perspective. With the case of Goran Jelisić as an example, the paper will discuss the problems involved in judging individual genocidal intent. Jelisić was not sentenced for genocide in his trial. The reasons given are assessed in light of other trials and the case of Josef Schwammberger, SS ghetto commander in Przemyśl (Poland) in 1943–44, in particular. The article argues that the reasoning of the Trial Chamber in the Jelisić case regarding his ‘inconsistent’ or ‘arbitrary’ behaviour is not convincing since perpetrators of mass violence or genocide are hardly ever ‘consistent’ in their actions. If—in theory—similar arguments were made regarding perpetrators of the Holocaust, it would also prove very difficult to charge them with genocide – even though the Genocide Convention has its roots in the experience of the Holocaust. The different and sometimes contradicting interpretations of genocidal intent in international criminal law show a high level of uncertainty. The complexities of a genocidal process and perpetrator behaviour in particular are not always sufficiently recognized. This might call either for a reform of the Genocide Convention and the laws attached, a wider interpretation, or clearer guidelines on how specific genocidal intent has to be assessed.