Dolus Specialis Research Articles

Eliminating the Criterion of Intent (mens rea, dolus specialis) for Proof of Genocide is Essential to a New Jus Gentium: Israel’s Military Operations in Gaza 2023-2024

For proof of genocide, the Convention on the Prevention and Punishment of the Crime of Genocide (1948) stipulates that a manifested or reasonably inferred intent (mens rea, dolus specialis) to destroy a group as such is essential. In the absence of proof of intent, any atrocities committed in armed conflict can be deemed, at most, crimes against humanity or war crimes. Despite technological enhancements of military operations that have altered the destructive capacity of armed forces, the criterion of intent remains a high bar to speedy judicial review and judgment in both the International Court of Justice (ICJ) and the International Criminal Court (ICC). In consequence, wanton death and destruction continue unabated in armed conflicts. Furthermore, all too often there is no mitigating intervention authorized by the United Nations Security Council (UNSC) in situations of alleged genocide, usually because of the exercise of the veto from a permanent member (the USA, Russian Federation, China, the UK, and France). The question arises, therefore, whether it is not past time to revise the Convention for the express purpose of eliminating the criterion of intent entirely. Eliminating the criterion of mens rea would allow petitioners to the Courts to submit only the evidence of genocidal acts (actus reus). It is argued here that this revision is in the interest of international peace and security and, thereby, international justice, i.e., a new jus gentium (law of nations, law of peoples). Keywords: Genocide Convention; mens rea; Kantian deontology; universal law; jus gentium; Israeli-Palestinian conflict

Grouphood Promotion v. Grouphood Destruction: China’s Regional Ethnic Autonomy as Antithesis to Genocidal Intent

Abstract China’s ethnic policy is characterized by a strong promotion of ethnic equality and unity and regional ethnic autonomy under the unified multi-ethnic State framework. With regional ethnic autonomy at its core, this is a policy of precision autonomy and grouphood promotion. On the other hand, genocide is a crime of grouphood destruction, committed with the specific intent (dolus specialis) to “destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. An examination of the main tenets of China’s ethnic policy and the specific intent element of the crime of genocide makes it crystal clear that, instead of aiming to “destroy, in whole or in part, a national, ethnical, racial or religious group, as such”, China’s ethnic policy aims to do the opposite, i.e., to promote the perception of the grouphood, the wellbeing and flourishing of every ethnic group. China’s policy of ethnic equality and unity and regional ethnic autonomy under the unified multiethnic State framework is thus the antithesis to genocidal intent of grouphood destruction. The increase of the Uygur population from 2.2 million to 12 million and of the life expectancy of the group from 30 to 74.7 years in Xinjiang over the past 60 years and the idolization of Uygur actors and actresses across China and beyond put on conspicuous display the successful reality of this policy.

ZLOČIN GENOCIDA U PRAVU O ODGOVORNOSTI / THE CRIME OF GENOCIDE IN LAW OF RESPONSIBILITY

The paper deals with the issue of the responsibility of the main subjects of international law for grave breaches of obligations arising from the imperative norms of general international law in relation to the commission of the crime of genocide. The focus of this paper is in certain aspects of the relationship between individual criminal responsibility and the international responsibility of States and international organizations, which should be interpreted as two separate systems of responsibility in international law. Each system has its own special fundaments, features and characteristics. Consequently, the starting point is that the responsibility of States for genocide does not depend on the responsibility of individuals for the crime, although the International Court of Justice has made extensive use of the conclusions of the chambers of the International Criminal Tribunal for the former Yugoslavia. (Judgment from 2007). The paper therefore analyzes the question of the existence of a theoretical legal possibility for the so-called indirectly proving the responsibility of States (and international organizations) for genocide through a prior examination of the criminal responsibility of leaders, but also through proving a joint criminal enterprise for the purposes of committing the crime, or do these conceptions represent a starting point for the responsibility of the main subjects of international law or they are simply "proof" of the attribution of the act to a State? In this paper, we examine whether a joint criminal enterprise could be a reflection of a State plan and/or policy for committing the crime of genocide and how a collective plan or policy for committing that crime could be interpreted. After all, are they actually a dolus specialis of this crime, that is, whether a genocidal intent is manifested in a State precisely in a plan or policy?

The Conflict in Ukraine and Genocide

Abstract Since the beginning of the conflict between Russia and Ukraine that started on 24 February 2022 accusations of genocide have been levelled against each other by both sides. This article focuses on the claim that Russia is carrying out a genocide in Ukraine. After explaining the concept of genocide and the legal consequences of such qualification, the article applies the law to the situation, drawing the conclusion that, based on the current information, it does not appear that a genocide is being committed as, so far, no dolus specialis can be identified.

The Ustasha genocide over the Serbs: The continuing Dolus Specialis

The key characteristic of the criminal aspect of the genocide, which distinguishes it from other violations of international humanitarian law and raises it to the level of the "crime above all crimes", is the existence of the so-called genocidal intention of "complete or partial destruction of a specific national, ethnic, racial or religious group". The gravity and monstrosity of the content of such intention, as q rule, require that it is deeply rooted in the conscience of the members of the group perpetrating this crime, while such inveteracy also implies the permanence of the intention, or genocidal idea. During World War II, the Serbian people, together with Jews and Romas, in the Independent State of Croatia were the victims of the genocide, the crime that abhorred even the Nazis. The idea and intention of the extermination of the Serbian people from the territory considered as Croatia's national territory by the Croatian nationalists, although existing for centuries in the past, got its "theoretical formation" in the 19th century, primarily in the works of Ante Starčević, who was called the "Father of the Fatherland" while he was still alive. The Ustasha openly showed their enthusiasm and inspiration by Starčević's works during World War II, claiming that there would not have been the Independent State of Croatia if it had not been for Starčević. The Ustasha ideology persisted after World War II, primarily through the activities of the Ustasha emigrants, but Croatian nationalism, open to accept the Ustasha ideological legacy, also persisted in the territory of Croatia itself. At the end of the 1980s and the beginning of the 1990s, the revival of the idea about the secession of Croatia and its realization also led to the revival of the idea of the Serbs as a "destructive factor" in Croatia and the necessity of their elimination from that territory. Tuđman's Croatia resumed the Ustasha ideology in all its elements, including its attitude towards the Serbs and the genocidal intention, which had been largely realized during World War II. Drawing on the experience from the ISC, the Serbs became organized and prevented the repetition of the fate of their ancestors and relatives killed during World War II, but did not succeed in avoiding the "ethnic cleansing" from the territory of Croatia. The manner in which today's Croatia interprets events both from World War II and from the 1990s shows that the Ustasha ideology is still deeply rooted in the significant element of the Croatian society, including practically the entire top government of Croatia. An essentially important element of the Ustasha ideology is its genocidal intention towards the Serbs still living in Croatia.

Book Review: <em>Scorched Earth: Environmental Warfare as a Crime Against Humanity and Nature</em>

The subtitle of Emmanuel Kreike’s Scorched Earth foreshadows the goal of this impressive and comprehensive contribution to the field. His goal is to chip away at the Nature-Culture dichotomy that he argues drives, and limits, much of the analysis that is produced of historical, and modern, warfare. Kreike uses the concept of environcide, which he defines as “intentionally or unintentionally damaging, destroying, or rendering inaccessible environmental infrastructure”, and argues that the traditional assumptions about nature and culture in the study of warfare obscure the importance of the natural world in determining who lives and who dies. For the field of genocide studies, Kreike’s work promotes the analysis of mass violence and potentially genocidal conflicts by looking not simply at actions taken by perpetrators directly against victims, but also at a litany of actions that perpetrators might take that could reasonably result in mass death, joining those in the field who promote a shift in the definition of genocide that includes actions that do not simply meet the definition of dolus specialis to also those that demonstrate dolus eventualis. While confiscating food and burning fields may not fit our current understanding of genocidal acts, they can certainly have the same eventual outcome as the use of machine guns and poison gas. And, recent scholars of risk factors do note the importance of “crises, resource scarcity, population pressure, natural disasters” as increasing the likelihood of genocide.

Dehumanising Ideology, Metaphors, and Psychological Othering as Evidence of Genocidal Intent

Abstract Evidence of genocidal intent is rarely overtly available. Prosecutors arguably avoid prosecuting the crime of genocide because of its too-high evidentiary threshold. This paper argues that psychology, linguistics, and biology provide some of the tools that courts should revert to in the proof of the dolus specialis. Every genocide is characterised by dehumanisation. There is an intrinsic connection between the génocidaire’s understanding of the victims as dehumanised ‘others’ and the intent to destroy a group. Social psychology has shown that the perpetrator sets apart the victim group as inferior, subhuman, and a threat to the in-group. Dehumanising discourse exposes the perpetrators’ understanding and ideologies and makes the victim group discernible. Linguistic research reveals the significance of metaphors for dehumanisation and intergroup hostility. Lastly, research on bio-signals such as heart rate, breathing, skin conductance response or eeg can assist in measuring the impact of dehumanisation and provide the courts with yet another tool to prove genocidal intent. Through recourse to a palette of conceptual and theoretical approaches, this paper provides an account of the ways in which a dark constellation of metaphor, dehumanising ideology, and psychological othering coalesce to form genocidal intent.

Offences against Internationally Protected Persons: Problems of International Legal Qualification

INTRODUCTION.The article examines various aspects of the international legal qualification of offences committed against internationally protected persons. The analysis of different elements of corpus delicti was laid at the heart of the study: namely, those of actus reus (whether the offence was perpetrate in the situation of an armed conflict), mens rea (whether the perpetrator was moved by a special intent, particularly the terrorist dolus specialis), and the legal status of a perpetrator (whether he or she was a state agent).MATERIALS AND METHODS. The materials of the study encompass international conventions, rules and principles of customary international law, case law of international courts and tribunals and international legal doctrine. The paper uses the comparative method and those of analysis and synthesis. RESEARCH RESULTS. The key result of the study consists in the assumption that offences against internationally protected persons can be considered as either a conventional crime within the meaning of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (including, if a terrorist dolus specialis is established, as a crime of terrorism), or (in case of armed conflict) a violation of laws and customs of war, for this category of persons falls within the definition of protected persons by implication of Article 4 of the 1949 IV Geneva Convention, which gives grounds for the application of Article 146 of the 1949 IV Geneva Convention for purposes of the their criminal prosecution.DISCUSSION AND CONCLUSIONS.Given the result of the study, it is states that the following test can be applied for purposes of international legal qualification of offences against internationally protected persons: first, it is necessary to establish whether the offence of committed in a situation of armed conflict; second, it is highly important to enquire about the intent of the delinquent. If there is a terrorist dolus specialis, the offence can be qualified as terrorism-related. Moreover, it is necessary to establish the status of the delinquent and whether the one is a state agent or a private person, or, even if the person is a state agent, whether the one is a person acting sua sponte; additionally, the status of a delinquent and its relation with the belligerent state in regard to the situation of armed conflict is also significant for the qualification of respective offences in light of international law

Examination of the Crime of Genocide Under the Rome Statute of the International Criminal Court

The crime of genocide has historical antecedents, dating back to several decades before its eventual acceptance as an international crime and codified as such. Ironically, the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 (the Genocide Convention) did not provide punishment for the crime of genocide or genocide related matters. Instead, it empowered the Contracting Parties to undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the Convention and, in particular, to provide effective penalties for persons guilty of genocide. But this lacuna is covered in Part 7 of Article 77 of the Rome Statute of the International Criminal Court (ICC Statute), which provides applicable penalties for a person convicted of genocide or genocide related matters. Generally, conducts that amount to genocide are clear even though definition of the four classes of group ‘is an intricate problem that requires serious interpretative efforts’. This paper examines the crime of genocide under the Statute of the International Criminal Court. The paper begins by examining the general overview of the crime of genocide by way of introduction and historical background; and then proceeds to appraise the very nature of the crime and the requirement of proving the offence. Noting the difficulties associated with proving the crime of genocide, particularly ‘intent’, the paper examines situations wherein inference can be drawn. The paper concludes with overarching recommendations. Keywords: Genocide, Genocide Convention, intent, dolus specialis, jus cogens, ICC. DOI: 10.7176/JLPG/105-05 Publication date: January 31 st 2021

“For private or personal use”: The meaning of the special intent requirement in the war crime of pillage under the Rome Statute of the International Criminal Court

AbstractLegislating for international courts and tribunals is a delicate and complex process, which sometimes results in unintended consequences. Arguably, the inclusion of a special intent requirement, also known as dolus specialis, concerning “private or personal use” in the definition of pillage under the Rome Statute of the International Criminal Court is one such consequence. But this is not the only reason why the war crime of pillage deserves special attention. On closer examination, other questions arise concerning its interpretation and application. What is the meaning of “military necessity” and “necessity” in relation to pillage, and how do they correlate with the special intent requirement? To answer these questions, the article examines the drafting history, law and current practice relating to the crime's ambiguous new element. It then proposes several avenues to address the recurring uncertainty regarding its meaning: conservative, radical and pragmatic.

Specific intent (dolus specialis) in the Armenian genocide, the Holodomor and the Holocaust: comparative analysis

Although comparative genocide as the second generation of genocide studies has developed over the past two decades, the Holodomor as a crime of genocide committed by Stalin’s regime has not been examined in comparative perspective. In this article, the author traces the reasons for that and offers a comparative analysis of the Holodomor with examples of genocide in the first half of the 20th century – namely, the Armenian genocide of the Ottoman Empire and the Holocaust of Nazi Germany. The author compares the three genocides as crimes under international law in terms of the mental (mens rea) elements of genocide that characterize each of them, noting the dissimilarities and similarities in specific intent (dolus specialis) of those crimes. The author draws to the conclusion that the key common element in the genocides perpetrated in the Ottoman Empire, the Soviet Union, and the Third Reich is that state organization was substituted by hegemony of a ruling party: the Ittihadists, the Communists, and the Nazis. The importance of comparing cases of genocide is evident: if lessons from the past are not heeded and genocide is not punished, history will repeat itself as can be seen in the east and south (Crimea) of Ukraine, where the successor state to the Soviet Union – the Russian Federation – continues an attack on the Ukrainian nation. Article received 28.02.2019

GENOCIDE AND ETHNIC CLEANSING OR ABOUT DISPOSITION RELATION BETWEEN ONE INTERNATIONAL-CRIMINAL ACT AND ONE SOCIOLOGICAL-POLITICAL SCIENCE CONCEPT

Genocide is the most severe criminal act in the international law that is determined by the Genocide Convention; there is no criminal act that is legally codified as ethnic cleansing, but it is a media and sociological-political science concept that, starting from the ‘80s of the 20th century, collectively implicate large number of individually codified crimes that are determined in the international criminal legislation as crimes against humanity and war crimes. According to Lemkin, the concept of genocide is significantly wider even in regard to the concept of ethnic cleansing, since it implicates a wide scale of measures committed against a national minority, with intent to destroy it, considering not only biological and physical destruction, but including them also. In any case, there must be a dolus specialis, which according to Lemkin consists of destroying one national group in various aspects of its identity, while according to the Genocide Convention it consists exclusively of physical and biological extermination of a national, ethnic, racial or religious group.
 Ethnic cleansing, as comprehended in sociological-political science interpretations, primarily denotes forced actions with the aim of creating ethnical monolithic territories. The actions are not directed to physical and biological extermination of an “undesirable ethnic group” in a territory, but as forced actions are directed to the leaving of the territory and may implicate also war crimes and crimes against humanity, but cannot be reduced only to them. In that sense, dolus specialis would be creation of an ethnically homogenous territory and this would make a difference from the genocide if this concept were legally codified. Besides, ethnic cleansing must be connected with the concept of ethnic group.

‘Calling ISIL Atrocities Against the Yezidis by Their Rightful Name’: Do They Constitute the Crime of Genocide?

In March 2016, both the US House of Representatives and Secretary of State John Kerry designated the alleged crimes committed by ISIL against, inter alia, the Yezidis, a small religious minority in Iraq and Syria, as ‘genocide.’ This article examines the evidence for this designation as emerges from various human rights reports and other publicly available sources, to assess whether ISIL’s actions against the Yezidis may be legally characterized as the crime of genocide. The article finds that, while ISIL’s actions against the Yezidis in Iraq and Syria may constitute the underlying acts of the crime of genocide, on the basis of information currently available in the public domain, it is not possible to reach a view on whether individuals perpetrators had the dolus specialis necessary to commit the crime of genocide. The article, however, outlines a pattern of conduct which could indicate a genocidal plan.

The Road to Genocide: The Propaganda Machine of the Self-declared Islamic State (is)

In the same manner as the Third Reich, Islamic State (is) uses law, terror and propaganda as ‘techniques of governance’ that serve to advance their political aims: securing themselves in power, preparing and waging war, and fostering the idea of an Islamic state. is have successfully used print and radio media systematically for the dissemination of lethal ideas and for the mobilization of the population on a grand scale in order to materialise these ideas. When such propaganda is laced with the dolus specialis of the crime of genocide, the severity of the mass action it brings about can be disastrous. This article analyses the hate propaganda used in the online publications of is. Evidence will then bring to light the fact that their hate propaganda amounts to direct and public incitement of others to commit genocide and the propagandists could, thus, be prosecuted for this crime at national or international courts.

Whether Specific Intent to Destroy (Dolus Specialis) is Required for Genocidal Crime or Mere Prior Knowledge is Sufficient?

Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.

Elucidating the Dolus Specialis: An Analysis of ICTY Jurisprudence on Genocidal Intent

What critically defines the crime of genocide is the dolus specialis, the special intent to destroy a protected group in whole or in part. The precise meaning of this intent to destroy, however, continues to be the subject of academic debate. This article seeks to contribute to this important debate by exploring whether the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) has brought greater clarity to the meaning of genocidal intent. It does so by analysing the Tribunal’s jurisprudence with respect to three important issues: what constitutes evidence of genocidal intent; can knowledge as opposed to purpose suffice for genocidal intent; and what is the meaning of destroying a group in whole or ‘in part’? Divided into three core sections, the article explores the Tribunal’s jurisprudence with respect to each of these issues in turn, concluding that the ICTY’s judgements have helped to elucidate the ambiguities of genocidal intent.

What Does ‘Intent to Destroy’ in Genocide Mean?

Genocide is a crime with a double mental element, i.e. a general intent as to the underlying acts, and an ulterior intent with regard to the ultimate aim of the destruction of the group. The prevailing view in the case-law interprets the respective ‘intent to destroy’ requirement as a special or specific intent (dolus specialis) stressing its volitional or purpose-based tendency. While this view has been followed for a long time in legal doctrine without further ado, it has recently been challenged by knowledge- and structure-based approaches, which have not received sufficient attention. A historical, literal, systematic and teleological interpretation of the ‘intent to destroy’ requirement, taking into account the particular structure of the genocide offence and the meaning of ‘intent’ in comparative law, reveals that the traditional view can no longer be maintained. It should be replaced by a combined structure- and knowledge-based approach that distinguishes according to the status and role of the (low-, mid- and top-level) perpetrators. Thus, the purpose-based intent should be upheld only with regard to the top- and mid-level perpetrators, whereas for the lowlevelperpetrators knowledge of the genocidal context should suffice. Lastly, this new approach requires a fresh look at the ‘intent to destroy’ requirement in cases of participation in genocide.

The Issue of Intent in the Genocide Convention and Its Effect on the Prevention and Punishment of the Crime of Genocide: Toward a Knowledge-Based Approach

Since the Genocide Convention was created in 1948, its effectiveness has been hindered by debates on what the definition actually means. It has been widely accepted that the meaning of “intent,” within the Genocide Convention, refers to specific or special intent, dolus specialis. However, as more trials have taken place, creating more understanding of the crime of genocide, the linking of dolus specialis with the intent definition, that was so easily accepted at the first genocide trial (Akayesu at the International Criminal Tribunal for Rwanda [ICTR]), has been repeatedly put into question. The new approach being put forward as the most appropriate interpretation of “intent” is the knowledge-based approach. The Vienna Convention on Treaties states that interpretations of laws should follow the treaty's original purpose and objective, and should do this by looking at the preparatory work and its circumstances. By looking at the Travaux Preparatoires of the Genocide Convention and Raphael Lemkin's origina...

What does ‘intent to destroy’ in genocide mean?

AbstractGenocide is a crime with a double mental element, i.e. a general intent as to the underlying acts, and an ulterior intent with regard to the ultimate aim of the destruction of the group. The prevailing view in the case-law interprets the respective ‘intent to destroy’ requirement as a special or specific intent (dolus specialis) stressing its volitional or purpose-based tendency. While this view has been followed for a long time in legal doctrine without further ado, it has recently been challenged by knowledge- and structure-based approaches, which have not received sufficient attention. A historical, literal, systematic and teleological interpretation of the ‘intent to destroy’ requirement, taking into account the particular structure of the genocide offence and the meaning of ‘intent’ in comparative law, reveals that the traditional view can no longer be maintained. It should be replaced by a combined structure- and knowledge-based approach that distinguishes according to the status and role of the (low-, mid- and top-level) perpetrators. Thus, the purpose-based intent should be upheld only with regard to the top- and mid-level perpetrators, whereas for the low-level perpetrators knowledge of the genocidal context should suffice. Lastly, this new approach requires a fresh look at the ‘intent to destroy’ requirement in cases of participation in genocide.

Responsibility of Serbia for genocide: Application of the Convention on the prevention and punishment of the crime of genocide

On February 26th 2007, International Court of Justice claimed Serbia responsible for failing to prevent genocide and punish perpetrators underlining its' responsibility to cooperate with International Criminal Tribunal for former Yugoslavia. Although it was confirmed genocide has been committed in Srebrenica 1995, Serbia is not obliged to pay financial reparations. Judgment makes distinction between individual and three-fold state responsibility for genocide, based on Convention on the Prevention and Punishment of the Crime of Genocide and other sources of international law. There are evident disagreements among judges on jurisdiction, interpretation rules, even on meritum of the case. Many questions still remain open especially what precedent effects will have on establishment of state's dolus specialis and how it will influence the reconciliation process in the region.