Physical-biological or socio-cultural ‘destruction’ in genocide? Unravelling the legal underpinnings of conflicting interpretations

Abstract

The recent implementation of the 1948 Genocide Convention has shed light on some of its ambiguities, in particular the meaning of the ‘intent to destroy the group’, the mens rea of genocide, and whether the intended destruction should be understood in physical-biological terms or as an intent to eliminate the group as a social-cultural entity. The debate has been particularly acute within the International Criminal Tribunal for the Former Yugoslavia (ICTY), where the former, narrow understanding has finally prevailed. In contrast, in other jurisdictions, such as the German courts, a clear stance has been taken in favour of a broader socio-cultural understanding. This article integrates the legal constraints of interpretation into the debate on the meaning of group destruction. It focuses on the respective foundations of these conflicting interpretations, especially the reference to ‘cultural genocide’, and addresses the socio-legal underpinnings of both. In particular, it places a special emphasis on the international legal rules of interpretation as set out in the 1969 Vienna Convention on the Law of Treaties and on the principles of international criminal law such as the nullum crimen sine lege principle.