Criminologically Explained Reality of Genocide, Structure of the Offense and the 'Intent to Destroy' Requirement
COLLECTIVE VIOLENCE AND INTERNATIONAL CRIMINAL JUSTICE: AN INTERDISCIPLINARY APPROACH, pp. 153-173, Alette Smeulers, ed., Antwerpen et al, 2010
25 Pages Posted: 13 Dec 2011
Date Written: December 12, 2011
I have argued elsewhere that the traditional understanding of the “intent to destroy” requirement in the genocide offense as a purpose based special or specific intent (dolus specialis) with regard to all participants in a genocidal enterprise should be replaced by a combined structure - and knowledge-based approach distinguishing according to the status and role of the (low-, mid- and top-level) perpetrators. Thus, the purpose based intent should only be upheld with regard to the top- and mid-level perpetrators while for the low-level perpetrators’ knowledge of the genocidal context should suffice. Apart from doctrinal considerations related to the peculiar structure of the genocide offense and its relationship with crimes against humanity, I have argued that this reading of the “intent to destroy” requirement better fits the criminological reality of genocidal campaigns. From this reality it follows, so I argued, that a genocide cannot be committed by a few crazy individuals alone but needs intellectual masterminds and an organizational apparatus to be carried out. The low-level perpetrators, i.e., the easily interchangeable “footsoldiers” of a genocidal campaign, normally lack the means to destroy a group alone and sometimes do not act with a purpose or desire to destroy. In fact, although these individuals cannot solely contribute in any meaningful way to the ultimate destruction of a group, they can either express any meaningful, act-oriented will as to the overall result. These low-level perpetrators, albeit carrying out the underlying genocidal acts with their own hands, are, in terms of their overall contribution to the genocidal campaign, only secondary participants (accessories), more precisely aiders or assistants. In other words, while they are the direct executors of the genocidal plan and therefore should be convicted as such (i.e., as principals) their acts receive only their full “genocidal meaning” because there exists a genocidal plan in the first place. As the low-level perpetrators were not involved in designing this plan but are, in a normative sense, only used as mere instruments to implement it, they need not possess the destructive special intent themselves but only know of its existence. In addition, I argued, that, as to the direct perpetrator’s (hostile) attitude towards the group, it does not make a difference if he acts with the purpose or knowledge of the overall genocidal purpose. He may even act with a kind of indirect purpose by not distancing himself completely from the overall genocidal purpose.
In this paper I will put my theory through a criminological reality check by examining the following questions: Do my arguments correspond to the criminological reality of genocidal acts and campaigns? Is the threefold distinction between low-, mid- and top-level perpetrators or participants in genocide too simplistic in the light of the more sophisticated models of recent criminological research? Finally, does the criminological reality of genocide support the reinterpretation of the intent to destroy requirement or does it speak against it?
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