The International Criminal Court’s Opportunity to Correct the Erroneous Interpretation of the Mens Rea for Genocide

Abstract

ABSTRACT: The destruction of a group by a process of forced conversion or assimilation, wherein the identity of a protected group, be it national, ethnic, racial, or religious, is eradicated and replaced with another identity is not covered by the prevailing definition of the mens rea of the crime of genocide, which requires that a perpetrator intend the physical or biological destruction of a protected group. This article argues that genocide has been inaccurately applied by international courts, based on an incorrect interpretation of the Genocide Convention that has dominated international law for twenty years, and discusses what non-physical/biological destruction of a group looks like in practice. The article proposes that events in Ukraine give the International Criminal Court, which has yet to definitively interpret the crime of genocide, an opportunity to correct this legal error and thereby ensure that genocide offers better protection to groups from destruction.