Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes against Humanity
Nersessian, David L., Stanford Journal of International Law
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
I. 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
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. …