The Meaning of the Word 'Destroy' and the Implications for the Wider Understanding of the Concept of Genocide

Abstract

The occasion of the sixtieth anniversary of the Genocide Convention (the Convention) provides momentum to both commemorate the past and reflect on what the future may bring. A first observation at this juncture is that the Genocide Convention has seemingly not lost any of its relevance over the past sixty years. The continuing relevance of the Genocide Convention for legal purposes is demonstrated by the fact that the crime of genocide has featured and continues to feature in quite some indictments before national and international criminal courts and tribunals. These cases address Second World War crimes, but also — and perhaps even in their majority — other situations of mass crime. Even though the Holocaust has not been repeated in scale, form and character, the qualification of genocide has been invoked in quite a number of situations, ranging from the massacres in Rwanda, Srebrenica and Darfur, to the annihilations of Indians in the Americas and the transfer of Aboriginal children in Australia. The question is: are all these situations truly comparable, and is the qualification of genocide the most adequate one? Phrased in more abstract terms: to what extent is the definition of genocide — as included in the Genocide Convention — applicable to new situations, and what can recent jurisprudence teach us about the future application of the Convention? In this essay, it is argued that the essence of the legal definition of genocide is captured in the word “destroy” — part of the mental element of the crime —, namely, that an act is committed with the specific intent to destroy a group. A review of recent jurisprudence on the meaning of the word “destroy” will indicate to what extent, if at all, the definition of genocide, as applied by international judges, has moved beyond its original conceptualization.

Keywords: international law, international criminal law, genocide, specific intent to destroy, 60 years Genocide Convention