Intent in the Genocide Convention
In The Gambia v Myanmar, the International Court of Justice must decide whether Myanmar committed acts of genocide against its Rohingya population; whether the Rohingya are a national, ethnic, racial, or religious group protected by the Genocide Convention; and whether Myanmar intended to commit genocide against them. The question of intent will decide the case. The ICJ has only twice decided whether a state violated the Genocide Convention. In Bosnia v Serbia, the ICJ held that there was insufficient evidence that Serbia intended to commit genocide. Instead, Serbia's intent was to “ethnically cleanse” Bosnian Muslims from Serb-held areas of Bosnia. The ICJ held that to prove genocidal intent, genocide must be the only possible intent of Serb action. In Croatia v Serbia, the ICJ similarly held that Serbia's intention was “ethnic cleansing,” not genocide.
Prof. William Schabas defended Myanmar in The Gambia v Myanmar, based on the ICJ’s Bosnia and Croatia decisions. He claimed Myanmar’s intent in 2017 was the “ethnic cleansing” of Rohingya from Rakhine province, where Myanmar faced a Rohingya insurgency. Genocide was not the only possible intent that could be inferred from Myanmar's actions. Therefore, Myanmar's acts did not meet the "only intent" test for genocide.
This panel will consider and demolish Schabas’s argument. It will show that the ICJ's decisions in Bosnia and Croatia were based on an erroneous theory of genocidal intent, first published in Schabas’s treatise, Genocide in International Law. The panel will propose a concept of intent that accords much better with international criminal law. State intent should be judged by considering the foreseeable consequences of a systematic and widespread pattern of acts aimed to destroy, in whole or in part, a national, ethnic, racial, or religious group. This concept of intent accords with the concept of intent in other crimes against humanity.
Presentations of the Symposium
Schabas’s Singular Intent Theory – An Impossible Threshold of Genocidal Intent
In The Gambia v Myanmar, Professor Schabas argued that Myanmar did not commit genocide against its Rohingya population. His argument rested on two ICJ cases, Bosnia v Serbia and Croatia v Serbia. In both cases, the ICJ held that to prove genocidal intent, destruction of a national, ethnic, racial, or religious group must be the only intent that can be inferred from a state’s actions. If some other intent can be inferred, such as “ethnic cleansing,” then the actions lack the required genocidal intent. Schabas’s singular intent theory was first stated in Genocide in International Law, which heavily influenced the ICJ’s decisions in Bosnia and Croatia, and acquittals by the ICTY. Schabas’s singular intent theory ignores the fact that the same act may have multiple intents, and they do not cancel each other. Genocidal massacres may also be intended to achieve “ethnic cleansing.” Schabas’s theory imposes an impossible threshold to prove genocidal intent. It contradicts basic principles of domestic and international criminal law. The ICJ should reject Schabas’s singular intent theory. It should hold that intent to destroy a group, in whole or in part, can be proven by a systematic, widespread pattern of actions, like other crimes against humanity.
"Ethnic cleansing" is a term for genocide denial.
The term “ethnic cleansing” — a translation of the Serbo-Croatian phrase etnicko ciscenje — is a euphemism first used in the 1990s during the Bosnian Genocide by Slobodan Milosevic and Serb propagandists. The motive behind introducing the term was to deny that Serb forces were committing genocide. Since then, the term “ethnic cleansing” has been used as a term for genocide denial. It is used by UN officials, diplomats, and journalists to avoid using the terms “genocide” or “crimes against humanity.” “Ethnic cleansing” is not prohibited by any international treaty. In the ICTY under Chief Justice Cassese, the term “ethnic cleansing” was used to acquit defendants of the intent required to convict them of genocide. In Bosnia v Serbia and Croatia v Serbia, the ICJ used “ethnic cleansing“ to negate allegations that Serbia intended genocide. “Ethnic cleansing” has also been used by UN officials, diplomats, and journalists to deny that Myanmar was committing genocide against the Rohingya. The term has obstructed efforts to prevent or prosecute genocide. International lawyers, policy makers, and journalists should expunge “ethnic cleansing“ from the legal lexicon and instead use established legal, prosecutable terms such as “forced deportation“ and “genocide.”
Distinguishing Myanmar’s genocide of the Rohingya from Croatia v Serbia
The ICJ is not bound by prior decisions. Nevertheless, it is hesitant to overrule them. The facts in Croatia v Serbia are distinguishable from those in Myanmar’s genocide against the Rohingya. The Rohingya genocide was more systematic and widespread than Serb atrocities in Croatia.
• The ICJ in Croatia stated: “[...] the number of victims alleged by Croatia is small in relation to the size of the targeted part of the group.” Rohingya victims numbered over half of the Rohingya population. Thirty thousand Rohingya were massacred; 700,000 Rohingya were deported; mass rape of Rohingya women was Myanmar Army policy.
• There is no minimum number of deaths necessary to prove genocidal intent. Conditions of life deliberately imposed to destroy a group is sufficient. Myanmar destroyed 434 Rohingya villages (over half) and destroyed all Rohingya food sources.
• Hate speech on Facebook created a culture of genocide in Myanmar.
• Decades-long ethnic and religious discrimination against Rohingya was Myanmar state policy.
• Myanmar's state army, the Tatmadaw, directly committed genocide and crimes against humanity against the Rohingya. In Croatia, Serb militias, not the Serbian state army, committed the crimes.
Re-thinking State Intent
This paper will discuss how we should think about intent when we evaluate state practice, specifically for the crime of genocide. Can states – as abstract entities – be ascribed mens rea? Mens rea is a concept borrowed from individual criminal law. Individuals have minds. States do not. The paper will analyze state responsibility for genocide under international law, as identified in the case law of international tribunals and courts, particularly in the decision of the International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro. The travaux préparatoires of the Genocide Convention as well as the International Law Commission’s project on state responsibility, specifically Draft Article 19 on state crimes, will be examined to evaluate what types of responsibility exist for states vis-à-vis the commission of genocide. How can judges assess the extent to which a state can possess genocidal intent? This paper maintains that individual acts of genocide can only be committed by individuals. This does not mean that states cannot be made liable for violation of the Genocide Convention. Instead, this paper will propose a better approach for analyzing state intent, by judging the foreseeable consequences of a systematic pattern of acts of genocide.