TABLE OF CONTENTS I. INTRODUCTION 1383 II. THE MENTAL ELEMENT REQUIRED FOR SERIOUS BODILY OR MENTAL 1384 HARM III. WHAT CONSTITUTES "BODILY" OR "MENTAL" HARM 1386 A. The Commission of Acts Resulting in Bodily 1387 Harm B. The Commission of Acts Resulting in Mental 1390 Harm C. General Evidentiary Principles for Proving 1397 Bodily or Mental Harm IV. THE THRESHOLD REQUIRED FOR "SERIOUS" HARM 1399 A. Legislative History of the Genocide Convention 1400 B. The Jurisprudence of the Ad Hoc Tribunals and 1402 the ICJ 1. Harm that Goes "Beyond Temporary 1403 Unhappiness, Embarrassment, or Humiliation" 2. Harm that Inflicts "Grave and Long-Term 1403 Disadvantage to a Person's Ability to Lead a Normal and Constructive Life" 3. Harm that "Contribute[s] or Tend[s] to 1405 Contribute to the Destruction of All or Part of the Group" V. CONCLUSION 1418 I. INTRODUCTION
The historic understanding of genocide immediately alludes to the repositories of egregious acts perpetrated on a large scale. The mass execution of European Jews in World War II. Their starvation and torture. The destruction of Jewish homes, artifacts, and businesses in Eastern Europe. The demeaning and hateful rhetoric of Nazi leaders. The mass and systematic slaughter of Tutsis in Rwanda in 1994--roughly eight hundred thousand in the first six weeks of the conflict alone. The separation, torture, coordinated killing, mass burial, and disguised reburial of over eight thousand Bosnian Muslim men and boys from Srebrenica in just over two weeks.
Invariably, we think about circumstances where thousands of individuals were killed, mistreated, and abused, and all with the intention of destroying the larger religious, racial, national, or ethnic group to which they belonged. And while these cases are without doubt examples of genocide, they also inspire misconceptions in the popular understanding of the crime. In law, genocide does not require mass killings, let alone one killing. Genocide simply requires the commission of one of the underlying acts of genocide coupled with the specific intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Genocide need not occur over a short period or during war. Genocide need not be systematic or coordinated. Genocide does not require hate speech. Instead, genocide is a far more dynamic and multifaceted crime: one deliberately designed to capture the variant ways individuals or organizations might seek to destroy a protected group.
This more dynamic and broad understanding is exemplified by genocide being committed through the commission of any act resulting in serious bodily or mental harm--Article II(b) of the Genocide Convention (Convention). For instance, in Srebrenica, genocide was not just committed against the men and boys killed, but also against the women, children, and elderly who survived but were subject to mental and physical abuse. Similarly, in Rwanda, the victims of genocide included the men and women raped, the individuals beaten and tortured, and those who had no option but to leave the country.
Serious bodily or mental harm is not defined in the Convention or any treaty that includes the crime. The phrase is inherently vague and inherently broad. Unlike the other enumerated acts of genocide--killing members of the group, forcibly transferring children, creating conditions of life deliberately calculated to bring about the destruction of the group, and putting into place measures intended to prevent births--the actus reus of serious bodily or mental harm is not a discrete or individual act in and of itself. Rather, it encompasses a category of acts, namely any act causing the predicate level of harm ("serious"), including those neither stipulated nor discussed in the legislative history and those deliberately excluded by the Convention's framers. How we understand genocide, its breadth and scope, largely depends on how we understand the limits and contours of serious bodily or mental harm, for no other actus reus of genocide is as potentially limitless.
Despite the significance of the actus reus, there is little comprehensive scholarly discussion on Article II(b). Most commentaries relating to "serious bodily or mental harm" concentrate on the origin of the provision and its relationship to the Nazi torture and medical experimentation regime, or more recently to including sexual violence. Many commentaries simply outline the jurisprudence on the actus reus without exploring its origin, effects, or problems.
This Article attempts to fill that gap by comprehensively defining the actus reus of "serious bodily or mental harm" by looking at its constituent elements. The analysis first evaluates the mental element specific to the actus reus (Part II). Second, it defines "bodily" and "mental" harm (Part III). Last, it defines the threshold requirement of "serious" (Part IV). In each Part, this Article draws from the primary sources of international law, as summarized in Article 38(1) of the Statute of the International Court of Justice (ICJ). For each Part, this Article outlines the relevant legislative history and judicial decisions and emerging controversies and jurisprudential problems. It tries to resolve those issues in a manner which accords with the Convention's spirit and a faithful reading of subsequent judicial decisions, particularly by those international courts and tribunals who addressed the law on genocide.
THE MENTAL ELEMENT REQUIRED FOR SERIOUS BODILY OR MENTAL HARM
Genocide is a crime with two mental elements. (1) There is the specific intent (dolus specialis)--the defining feature of the crime (2)--that requires any genocidal act be committed with the intent to destroy, in whole or in part, a group protected by the Convention. (3) A detailed explanation of the dolus specialis deserves far more space than that available in this Article and distracts from the Article's narrower focus, thus the author directs the reader's attention to the sources identified in the accompanying footnote. (4)
Besides the dolus specialis, the general intent requirement applies to the objective elements (actus reus) of the offense. It requires that serious bodily or mental harm be the product of a volitional act or omission that intentionally, or knowingly, produces the relevant harm. As summarized in the ILC's commentary to the Draft Code of Crimes against the Peace and Security of Mankind,
[t]hese are not the type of acts that would normally occur by accident or even as a result of mere negligence. However, a general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such an act with respect to the immediate victim or victims is not sufficient for the crime of genocide. (5) This requirement was confirmed by the ICJ (6) and the two ad hoc tribunals, the ICTY and the ICTR. (7) As noted by Paola Gaeta, the jurisprudence of these courts "[a]ccord[s] to the general standards of liability." (8) In practical terms, the general intent requirement precludes responsibility for harms produced by negligent or reckless conduct, or those the result of involuntary acts. On the other hand, it permits responsibility for harms that a person is aware are consequences that would ordinarily occur in the course of events because of his or her conduct. (9)
WHAT CONSTITUTES "BODILY" OR "MENTAL" HARM
The actus reus of serious bodily or mental harm self-evidently concerns only two types of harm: bodily and mental. This Part evaluates those two types (Part III.A and III.B) and identifies some general evidentiary principles that apply to proving either one (Part III.C). For these purposes, some brief comments on how the Convention was drafted are necessary.
In 1946, the United Nations General Assembly tasked the United Nations Economic and Social Council (ECOSOC) with drafting a genocide treaty. (10) ECOSOC delegated the responsibility of preparing a first draft to the United Nations Secretary-General, who in turn appointed John Humphrey, Director of the UN Division of Human Rights, to fulfill that task. (11) Humphrey was assisted by Raphael Lemkin, a Polish-Jewish lawyer responsible for coining the word "genocide"; Henri Donnedieu de Vabres, a judge in the Nuremberg trials; and Vespasian V. Pella, the former President of the Committee on Legal Questions of the League of Nations. Together, the four prepared the Convention's first draft, also known as the "Secretariat Draft." (12)
In 1947, the Secretariat Draft was reviewed by a seven-state ad hoc committee appointed by ECOSOC, (13) which, in May 1948, produced a new draft of the Convention. (14) The UN General Assembly referred the ad hoc committee draft to its standing committee for legal issues, the Sixth Committee, comprising of a representative from each United Nations member state. (15) Finally, on December 2, 1948, the Sixth Committee produced a text of the Convention, (16) which was ratified by states and entered into force in 1951.
The Commission of Acts Resulting in Bodily Harm
Bodily harm first emerged in the ad hoc committee draft, whereupon recommendation from the French delegation the actus reus of "impairing the physical integrity of members of the group" was included. (17) During Sixth Committee deliberations, the phrase was changed to "bodily harm" upon suggestion by United Kingdom delegates who considered "physical integrity" to be too "vague." (18) This change likely limited the ultimate ambit of the act. The civil law protection against l'integrite physique, from where the French proposal probably originated, is a broader concept than the common law concept of "bodily harm." (19) L'integrite physique protects against any act that might violate the respect or dignity of a person's body, including conduct that fails to cause any physical or visible harm. (20) The phrase "bodily harm" remained in the final text of the Convention. However, neither the specific acts...