ETHNIC CLEANSING AND GENOCIDAL INTENT: CONCEPTUALIZING DESTRUCTION OF LOCAL POPULATIONS.

• Author: Travis, Hannibal

1. INTRODUCTION 807 II. THE EVOLUTION OF GENOCIDAL INTENT 813 A. Genocidal Intent as Intentional Attempted Destruction 813 1. Intent, Knowledge, and "Specific Intent" 814 2. The Inferential Approach to Genocidal Intent 817 B. The Convention's Text and Context in Shaping Its Genocidal Intent Requirement 820 1. The Original Meaning of the Term "Destroy" 820 2. The Restriction of Physical Destruction to Two Forms of Genocide 821 3. The Historical Context of the Genocide Convention 823 4. The Unlikelihood of Actual Destruction Being Caused Post-1945 825 5. Observations as to the Intended Applications of the Genocide Convention during Its Drafting and Ratifications 826 C. Partial or Local Genocidal Intent in the Decisions of the International Court of Justice ("ICJ") 830 III. TOWARD A REASONABLE INFERENCE OF GENOCIDAL INTENT AFTER THE DARFUR SITUATION 833 A. Conceptualizing Genocidal Intent as Total 833 1. Excluding Counterinsurgencv in the Darfur Case 833 2. Ruling Out Selective Genocide 837 B. Broadening the Reasonable Inference Standard 839 C. Ruining the Lifeworld as Genocidal Intent 839 IV. CONCEPTUALIZING GENOCIDAL INTENT BROADLY AFTER THE ICTY'S 841 DECISIONS IN THE BOSNIAN MUNICIPALITIES GENOCIDE CASES A. Text and Context in Defining Genocide at the ICTY 841 B. Genocidal Intent at Srebrenica 843 C. Genocidal Intent in the Bosnian Municipalities Cases 845 1. Partial Genocidal Intent in Prosecutor v. Karadzic 848 2. Partial Genocidal Intent in Prosecutor v. Mladic 850 3. The Trial Chamber Acquittal of Karadzic on Genocide 853 4. The Trial Chamber Acquittal of Mladic on Genocide Charges 856 V. GENOCIDAL INTENT AT A HYBRID TRIBUNAL 857 A. The Initial Recognition of the Cambodian Genocide 858 B. Partial Genocidal Intent in Cambodia 858 C. The Cham Muslim Genocide in Cambodia 859 VI. CONCLUSION 860 I. INTRODUCTION

   The scope of genocidal intent is an urgent question for courts, diplomats, and other government officials including heads of state, legislators, and citizens of the world. A finding of genocidal intent has contributed to U.N. or other arms embargoes or trade sanctions on several occasions. (1) Governments could be obligated to prosecute or extradite foreign heads of state or military officials who travel outside of their home country after committing, attempting, conspiring in, or becoming complicit in genocide. (2) Other governments might intervene, either as a matter of collective security under the authority of a United Nations Security Council resolution, or in individual self-defense, or on humanitarian grounds. (3)

   Many countries have experienced civil wars and their militaries have gone into battle against ethnic, political, religious, or national insurgencies. When does a military effort that kills and displaces thousands or tens of thousands of civilians amount to genocide, or put another way, when do patterns of violence employed against civilians reflect an "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such," as required by the Convention on the Prevention and Punishment of the Crime of Genocide? (4) The International Criminal Court's ("ICC's") most prominent arrest warrant, and its first including a charge of genocide, arose out of massacres and mass displacements in the Darfur region of Sudan from 2004 through 2008. (5) The warrant intensified an existing debate about whether accusations of genocide were justified after the deaths of up to three hundred thousand members of victimized groups, mainly Fur, Masalit, and Zaghawa, who had perished from causes related to the 2004-2008 violence. (6)

   This article focuses on the nature of the physical and biological destruction that characterizes genocide as opposed to ethnocide, persecution, or other related concepts. Ethnic cleansing is a pattern of atrocities that seems genocidal to many observers because it removes an ethnic or religious group from a locality or region as populations flee mass killings, sexual assaults, the bombing of towns or cities, and the destruction of religious institutions or other private property, but the cleansing's partial scope gives rise to arguments by those accused of genocide that legitimate governmental or military objectives rather than an unlawful "intent to destroy" a group motivated the underlying conduct. (7)

   The present article analyzes not so much the nature of a "specific intent" to destroy a group (as opposed to another mental state that is known as "general intent"), but what it means to intend to "destroy" a group assuming that this is the purpose or aim of the accused, i.e. the accused's "specific intent." (8) It contrasts the crucial decision of the Pre-Trial Chamber I not to issue a warrant for genocide in the Darfur, Sudan, situation--and the World Court judgment on genocide in Bosnia and Herzegovina which supported it--with other judgments issued since 2009. (9) International criminal courts and a hybrid domestic-international criminal tribunal have issued rulings that adopt much broader notions of "intent to destroy" a group. (10) This article identifies patterns of conduct that such tribunals classify as genocidal even though these patterns will not lead to the elimination of the entire affected group in the near term, such as selective massacres and assassinations of leaders, widespread sexual violence and mental trauma, and deprivation of the essentials of life by such techniques as deportation into inhospitable areas or devastation of homesteads. (11)

   The text and context of the Genocide Convention justify a reading of Article II that covers a steadily intensifying, incomplete, and unpremeditated form of genocide, one that has physically and biologically destructive consequences without being a total or complete genocide. (12) This reading draws support from Article II's list of genocidal acts, its contrasting use of intentional states, and its use of the phrase "destroy ... in part." It is confirmed by the analysis and discussion of these textual aspects of Article II in the drafting history and in the judgments and orders of ad hoc, hybrid, and standing international tribunals. (13) This article, as the ad hoc international criminal tribunals in The Hague and Arusha close their doors and the hybrid tribunal in Phnom Penh is moving in the same direction, analyzes some of the last statements of these important institutions on how the ICC and the world should interpret the Genocide Convention and conceive of genocidal intent in complex fact patterns. (14)

   New instances of ethnic and religious persecution have emerged and civilian communities have been devastated by militias, armies, and mobs in a number of countries. Therefore, the social and diplomatic concept of genocide has evolved. In 2018, Adama Dieng, U.N. Special Advisor of the Secretary-General on the Prevention of Genocide, opined that murders, rapes, and tortures in Rakhine state of Myanmar would reveal genocidal intent "to cleanse northern Rakhine state of Rohingya existence." (15) The International Court of Justice, on application by The Gambia for provisional measures, seemingly accepted Dieng's premise that genocidal acts and not simply persecutory or criminal acts would be committed if killings, rapes, and deprivation of life-sustaining resources took place during the "clearance" of the Rohingya from portions of Rakhine state on the scale alleged by The Gambia. (16) In 2016, Special Adviser Dieng warned of "potential for genocide" in South Sudan after noting a "risk" of ethnic "violence" there. (17) He also spoke of genocide and other crimes in the Central African Republic. (18) By way of contrast, in June 2014 and again in August 2014, Special Advisor Dieng characterized Islamic State of Iraq and Syria threats to religious minorities and attacks on civilians as war crimes and/or crimes against humanity but not genocide. (19) The U.S. State

   Department, on the other hand, reached a conclusion that genocide had occurred during these threats and attacks in response to a 2016 request by Congress for such a formal finding, while the U.N. Office of the High Commissioner for Human Rights opined that the campaign against regional minorities "may" have been genocidal. (20) The Mapping Exercise on the Democratic Republic of the Congo ("DRC") of the UN High Commissioner for Human Rights warned of genocide as a result of massacres and widespread sexual assault by rebels and invading armies in the eastern DRC, widely known as North and South Kivu. (21)

   In developing a theory of genocidal intent that explains and justifies such diplomatic and intergovernmental findings, as well as indictments, such as those of former President al-Bashir of Sudan, this article explores concepts of genocidal intent. A narrower concept was employed by the ICC's Pre-Trial Chamber I in a 2009 decision not to issue a warrant for genocide in Darfur and by the World Court in its 2007 judgment on state responsibility for genocide in Bosnia and Herzegovina (a judgment which supported the 2009 decision on the Darfur warrant). The International Criminal Tribunal for the Former Yugoslavia has employed broader conceptions of what it means to "destroy" a group, including in decisions on the Bosnian Serb leadership's potential responsibility for genocide in the municipalities of Bosnia and Herzegovina. Similarly, the Extraordinary Chambers of the Courts of Cambodia in a 2018 decision on Khmer Rouge officials' culpability for genocide against the Cham Muslims and Vietnamese in Cambodia employed a broader conception of "destroy."

   Part II analyzes the problem of genocidal intent in three aspects. First, it examines the distinction between specific intent and less purposive mental states, such as knowledge and recklessness. Second, it describes the ICC's inferential approach to specific intent. Third, and most importantly, it investigates the meaning of intent to "destroy," assuming that said intent may be specific...