Group Mentality, Expressivism, and Genocide
International Criminal Law Review, Vol. 2.2, pp. 93-143, 2002
52 Pages Posted: 13 Aug 2007
This article explores the abiding question of how to construe the state of mind set forth in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; that is "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." The question promises to challenge the International Criminal Court just as it has judges of the ad hoc tribunals established in the 1990s, the International Criminal Tribunals for Rwanda and for the former Yugoslavia. First the article traces the development of the group mentality element from its early and broad outline to the narrow formula in the Convention. It then looks at how the ad hoc tribunals have endeavored to construe the 1948 definition in light of much more recent events. In particular, the article contrasts the seriatim approach employed in most opinions with the ensemble approach adopted by the ICTY in Prosecutor v. Krstic. Analysis of this divide begins by posing a question sometimes overlooked in debates about the definition of genocide: What does it matter? Conduct that satisfies the actus reus component of genocide - murder, sexual assault, starvation - is without doubt reprehensible. Does naming an act "genocide" bring added significance? This article answers that question in the affirmative. Law operates as a means for articulation and nourishment of societal values. This expressive function has special force in international criminal law, only now entering an era in which ongoing international criminal tribunals reinforce pronouncements of norm, such as the proscription against genocide in the 1948 Convention. This offense - commission of a heinous act with the desire to eliminate a human group - is deemed the most serious of crimes, in legal writings no less than in popular media. That social meaning of genocide, this article argues, imposes constraints. Tribunals must act in a manner that recognizes and nurtures the status of the norm against genocide. Extending protection to too many groups could upset the singular status of the proscription against genocide; denying it to deserving groups could undermine the tribunal's authority. This article recommends answering the protected group question according to a synthesis of seriatim and ensemble construction. Key to the inquiry is the particular context in which an atrocity occurred. Resort to appropriate components of each method of construction will permit a tribunal to identify a group within its own social context, and thus to determine whether the particular group falls within the aegis of the Convention definition. This reasoned inquiry into individual culpability both strengthens the authority of the tribunal and assures that only those perpetrators whom society consider the very worst will receive the indelible brand of génocidaire.
Keywords: genocide, international law, international criminal law, Raphael Lemkin, International Criminal Court, International Criminal Tribunal for Rwanda, International Criminal Tribunal for the Former Yugoslavia, Convention Against Genocide, expressivism, deterrence, retribution, criminal justice
JEL Classification: K10, K14, K33, K41, K40, K42
Suggested Citation: Suggested Citation