The Specific Intent to Commit Genocide

On December 9, 1948, H. V. Evatt, the Australian President of the United Nations General Assembly, announced that “the supremacy of international law had been proclaimed and a significant advance had been made in the development of international criminal law." [U.N. GAOR, 3d Sess., 179th plen. mtg. at 852, U.N. Doc. A/PV.179 (1948).] The event at issue was the General Assembly's unanimous adoption of Resolution 260(A)(III), the International Convention on the Prevention and Punishment of the Crime of Genocide. [Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277, U.N. G.A. Res. 260, U.N. GAOR, 3d Sess., 179th plen. mtg. at 174, U.N. Doc. A/810 (1948) ] From its initial codification in the 1948 Convention on the Prevention and Punishment of Genocide to its most recent inclusion in the Rome Statue of the International Criminal Court, the international crime of genocide has been defined as involving an “intent to destroy a protected group in whole or in part.” [Van Schaack, Slye, International Criminal Law and its Enforcement, (West, 2007).] The concept of specific intent exists as a mental element that is required above and beyond the mental state necessary as to the actus reus of the crime. In other words, the predominant interpretation of this language views genocide as a crime of “specific” intent, in which the aggressor deliberately seeks the whole or partial destruction of a protected group. Moreover, the intention must be to destroy the group ‘as such,’ meaning as a separate and distinct entity, and not merely some individuals because of their membership in a particular group." [ILC Report, supra note 14, at 88.] With its use of the word "intent," the Convention covers a central aspect in criminal culpability. An issue arises when attempting to find a uniform definition of criminal intent. According to the traditional common-law doctrine, criminal perpetrators intended the consequences of their actions if they knew to a practical certainty what the consequences of those actions would be, regardless of whether or not they deliberately sought to realize those consequences. [See, e.g., Glanville Williams, The Mental Element in Crime 20 (1965) ] At the same time, however, common law jurisdictions have also employed an alternate model of intent-based liability. In the case of so-called “specific intent” crimes, liability attaches only to perpetrators whose actual aim or purpose is to realize certain forbidden consequences. [See, e.g., Glanville Williams, Criminal Law: The General Part 34 (1961).]

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