Comparative approaches to punishing hate: the intersection of genocide and crimes against humanity.

• Author: Nersessian, David L.

Abstract

The Genocide Convention protects racial, ethnic, religious, and national groups. It does not cover political groups. Some nevertheless suggest that there is no need to consider revising the Convention to include political groups because they are sufficiently protected under other aspects of international criminal law; namely, the crime against humanity of persecution. This assertion is incorrect.

Despite some overlap, persecution and genocide have divergent legal elements and protect different societal interests. Far from covering equivalent ground, the actus reus and mens rea of genocide and persecution vary considerably. Genocide is an inchoate crime aimed at the destruction of groups, whereas persecution is a results-based offense aimed at serious discrimination against individuals. They are not cumulative offenses: an offender can properly be convicted of both crimes arising out of the same underlying criminal transaction.

The use of persecution as a proxy for political genocide runs afoul of fundamental principles of fair labeling. It is not enough that a given criminal can be punished for some international offense. The labels themselves matter. On the whole, genocide is a more serious offense. Labeling acts of political genocide "persecution" understates the gravity of the conduct and mental state at issue and fails to convey that the political group itself was the true victim of the offense. Persecution also is not even available as a chargeable offense in all instances of political genocide, leaving this ultra-serious criminal conduct to be addressed solely as a domestic crime (or not at all).

Taken together, the disparity in treatment reflects a value judgment by the international community about the relative worth of racial, national, religious and ethnic groups versus political groups. There is no overt recognition in international law that political groups have the right to physical and biological existence "as such." The existing legal structure thus makes the profound statement that identical acts committed with identical intent against members of political groups never merit the same degree of legal censure as similar acts against members of national, racial, ethnic and religious groups.

To the extent that this discrepancy is premised upon the invalid assumption that equivalent protection exists elsewhere in international law, it should be revisited. If political groups indeed are valued equally by the international community--at least insofar as their physical and biological existence--the inescapable conclusion is that a lacuna exists within international criminal law: the scope of protection does not correspond to the degree of worth. This lacuna can be filled only through a parallel offense of political genocide that prohibits the identical criminal conduct intended to destroy political groups "as such."

TABLE OF CONTENTS

1. INTRODUCTION II. DEFINING CRIMES AGAINST HUMANITY A. The Attack B. The Civilian Population C. Widespread or Systematic D. Prohibited Acts E. The Mens Rea of Crimes Against Humanity III. PERSECUTION A. The Actus Reus of Persecution B. The Mens Rea of Persecution IV. GENOCIDE V. GENOCIDE AND CRIMES AGAINST HUMANITY: A COMPARATIVE ANALYSIS A. Cumulative Offenses 1. Distinguishing Genocide and Persecution 2. Materially Distinct Elements i. Required circumstances of the offenses ii. Mental state relative to circumstances iii. Additional bases of distinction B. The Principles of Fair Labeling of Criminal Offenses 1. Wrongfulness and Culpability 2. The Victim: Individuals Versus Groups 3. The Absence of an International Label 4. The Relative Seriousness of the Crimes VI. CONCLUSION I. INTRODUCTION

   The Convention on the Prevention and Punishment of the Crime of Genocide is a restrictive multilateral treaty that prohibits criminal conduct intended to destroy racial, national, religious, and ethnic groups "as such." (1) Despite laudable goals, it has been roundly criticized on a number of grounds. Much is written, for example, about the peculiarities of the technical definition of genocide, (2) the Convention's weak jurisdictional bases, (3) and other shortcomings. (4) Other commentators widen the debate and decry the historic absence of political will among states to intervene and prevent genocides from occurring. (5) Perhaps the most significant criticism, however, is that political groups are not among the human collectives that the Convention protects. This critique typically is paired with calls for reform and advocacy of a parallel offense of political genocide (6) that would cover political groups to the same extent as enumerated groups. (7)

   Not everyone agrees. Some opponents respond substantively by arguing that solid historic and theoretical grounds warrant the ongoing exclusion of political groups. (8) Others offer a more pragmatic rebuttal. Putting aside the legitimacy and wisdom of excluding political groups, some diplomats and commentators suggest that it simply is unnecessary to revisit the issue because political groups are adequately protected under other aspects of international criminal law. (9) It is claimed in particular that persecution, which is a type of crime against humanity, sufficiently protects political groups because it criminalizes serious discrimination against individuals on political (and other) grounds. (10)

   It is this pragmatic argument that provides the principal impetus for this Article. After all, if political groups are protected sufficiently elsewhere, any debate within the international community (11) over a separate crime of political genocide becomes largely academic. The present work thus has a narrow, albeit important, objective. It aims to demonstrate that genocide and crimes against humanity--even the crime against humanity of persecution--simply are not equivalent offenses. They are comprised of divergent constituent elements and protect different underlying social interests. In the same way that crimes against humanity are conceptually insufficient to protect racial, ethnic, religious, and national groups "as such," they likewise cannot substitute for a specific offense that protects political groups "as such."

   The suggestion that the issue should be put aside because offenders can be punished as perpetrators of other international crimes or as criminals under domestic law misses the real point. The heart of the issue is what it really means to "protect" a human group in the first place. The criminal law is far more than a lever that simply authorizes the infliction of a given quantum of penal sanction. The unique labels associated with different crimes express varying degrees of social condemnation for the conduct--even when the ultimate punishment is the same. Because domestic crimes (and even less serious international offenses) were insufficient to convey the unique criminality at issue in genocide, a separate offense was created to more accurately redress the conduct. As demonstrated below, the same holds true for political genocide. The existing scheme of domestic and international crimes is insufficient to accurately describe and condemn acts intended to destroy political groups "as such."

   This Article concentrates on only one part of a highly complex puzzle: the formulation of a response to political genocide through the substantive definition of a criminal offense. The legal elements of crimes "lay down a set of standards of what is permissible or not" and authorize varying degrees of social punishment for deviations from the standard set. (12) But substantive definitions are only one aspect of the overall solution and must be understood within the wider setting of social norms and political realities. As important as they are, these broader considerations fall outside the scope of the present work. This Article does not address the procedural means by which criminal offenses are created and fitted within the larger rubric of a criminal justice system, nor does it deal with the obvious political and diplomatic complexities that any proposal to punish political genocide as a separate crime undoubtedly would engender. (13)

   The discussion begins in Part II with the development of crimes against humanity at Nuremberg following World War II. This is followed by an analysis of the modern conception of crimes against humanity, as applied in domestic case law, the international criminal tribunals, and the International Criminal Court (ICC) Statute. The following sections--Parts III and IV--analyze the substantive offenses of persecution and genocide in detail, laying the groundwork for the comparative study that follows.

   Part V provides a detailed comparative analysis of genocide and persecution. It discusses the important distinctions between the crimes and demonstrates that they are not cumulative offenses. (14) It also demonstrates that--all other considerations being equal--genocide is a more serious offense. Not only does genocide have a more stringent actus reus and mens rea, but the injury it aims to redress is more severe than the harm at issue in persecution.

   Part V also demonstrates that the use of persecution as a proxy for a separate offense of political genocide violates fundamental principles of fair labeling. Persecution cannot fully and fairly describe the conduct and mental state at issue, the injury caused, or the true victim of the crime. Part V also points out that persecution is not even an available charge in all circumstances. This leaves a lacuna in international law that requires the ultra-serious criminal conduct at issue to be addressed as a domestic crime (or not at all).

   Part VI summarizes and concludes that political groups are not sufficiently protected through the existing rubric of crimes against humanity and persecution. A parallel offense of political genocide thus is necessary, both to fully protect political groups and to accurately describe and condemn genocidal...