The crime of genocide

Author:Mioara-Ketty Guiu - Amalia Nitu
Pages:64-79
SUMMARY

This paper is a comparative analysis of the crime of genocide in relation with other similar crimes, for example, some crimes against the person (homicide, bodily harm, illegal deprivation of liberty), the so-called “terrorist attacks” or crimes against humanity. Such an analysis underlines several shortcomings of the current definition, the first one being that the delimitation of genocide from all these crimes has as unique criterion a subjective element which is variable and impossible to verify, consisting of the wish to destroy a certain group of people. At the same time, the paper brings some possible corrections.

 
CONTENT
64 MIOARA-KETTY GUIU, AMALIA NIŢU
THE CRIME OF GENOCIDE
Mioara-Ketty GUIU, Amalia NIU
Abstract
This paper is a comparative analysis of the crime of genocide in relation with other similar
crimes, for example, some crimes against the person (homicide, bodily harm, illegal deprivation of
liberty), the so-called “terrorist attacks” or crimes against humanity. Such an analysis underlines
several shortcomings of the current definition, the first one being that the delimitation of genocide
from all these crimes has as unique criterion a subjective element which is variable and impossible to
verify, consisting of the wish to destroy a certain group of people. At the same time, the paper brings
some possible corrections.
Keywords: Homicide, Terrorist attack, Crimes against humanity.
1. Introduction
In compliance with Article III of the Convention on the Prevention and
Punishment of Crime of Genocide (UN, 1948), the state parties agreed to punish
the following acts: a) genocide1; b) conspiracy to commit genocide; c) direct and
public incitement to commit genocide; d) attempt to commit genocide; e) complicity
to genocide.
Romania ratified this Convention by Decree no. 236/1950, and, by Decree
no. 212/1960 the crime of genocide was introduced in the Criminal Code from
1937 (art. 231²), and the definition was taken from Article II of the Convention.
In the current Criminal Code (Law no. 286/2009) the crime of genocide is
regulated in art.438 Criminal Code in three type-variants and an aggravated one.
In the first type-variant [art. 438 par. (1) Criminal Code], the crime consists of
committing, with the aim to destroy, totally or partially, a national ethnic, racial or
religious group one of the following acts: a) killing members of the group;
Faculty of Law and Public Administration, Spiru Haret University, Research Associate of
“Acad. Andrei Rdulescu” Legal Research Institute of Romanian Academy, Bucharest, Romania;
E-mail: mioarakettyguiu@yahoo.com.
 Faculty of Border Police, ”Alexandru Ioan Cuza Police Academy”; E-mail: amalianitu@yahoo.com.
1 The word genocide comes from the Greek root génos (peoples, species) and the suffix -cide, which
derives from the Latin word (homicide, massacre). This word was circulated by Raphaël Lemkin, who
is considered the main author of the Convention on the Prevention and Punishment of the Crime of
Genocide.
Law Review vol. VI, issue 2, Jul
y
-December 2016, p. 64-79
The crime of genocide 65
b) causing serious bodily or mental harm to the members of the group; c) deliberately
inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part; d) imposing measures intended to prevent births
within the group; e) forcibly transferring children of the group to another group.
The aggravated variant [art. 438 par. (2) Criminal Code] applies when the acts
stipulated in par. (1) are carried out in wartime.
In the second type-variant [art. 438 par. (3) Criminal Code], the crime consists in
conspiracy to commit genocide.
In the third type-variant [art. 438 par. (4) Criminal Code], the crime consists in
direct and public incitement to commit genocide.
In the previous Criminal Code (from 1968) the crime of genocide was
stipulated in art. 357, in two type-variants and an aggravated one. Compared with
the previous text, the current text includes a new type-variant [art. 438 par. (4)
Criminal Code]. At the same time, the first type-variant [art. 438 par. (1) Criminal
Code], was subject to three changes, as follows: the word “community” was
replaced by the word “group”, which is used in art. 6 from the Statute of the
International Criminal Court (ICC Statute); at let. b), the requirement that bodily or
mental harm should be serious was waived (as in the new Criminal Code there is
no longer the crime of serious bodily harm; this crime was replaced with bodily
harm; and at let. c) is stipulated that group destruction may be total or partial.
2. Legal and material object
2.1. Legal object
The crime of genocide protects the right to existence of national, ethnic, racial
or religious groups against acts that would lead to their abolition, in part or in full.
As stated in Resolution 96 (I) adopted by the UN General Assembly on 11
December 1946 genocide is a crime against humanity, violating the law of nations
and contrary to the spirit and aims of the United Nations2.
2.2. Material object
The crime of genocide has a material object which consists in the body of the
individuals that were killed, harmed or abducted.
3. Subjects
3.1. Active direct subject
In the crime of genocide the active direct subject is not named, meaning that
any individual who meets the general conditions required to be liable under the
criminal law, may be author.
2 United Nations General Assembly Resolution, 1946 96 (I), The Crime of Genocide,
[Online], Available: http://archive.adl.org/education/curriculum_connections/spring_2005/
spring_2005_lesson2_ resolution .htl
66 MIOARA-KETTY GUIU, AMALIA NIŢU
However, the dominant opinion in the doctrine is that genocide and the other
international crimes (delicta juris gentium) are “collective crimes”3, committed by
one group against another and which have a discriminatory dimension, being
determined by political, racial or religious reasons.
Another well-known opinion is acknowledged in art. 211-1 from the French
Criminal Code, which says that the acts of genocide be carried out based on a prior
agreement, on “a concerted plan”, which means, basically, that the acts of genocide
may be committed only by an organized criminal group4.
In the international law doctrine there is also the opinion that, like in the case
of the other international crimes, genocide may be committed only by individuals
who are leading a state (heads of states, governmental officials) or by leaders of
groups or organizations who took the power. This opinion is explicitly expressed
in some UN communications5 and clearly comes out of the disposition from art. 7 § 2,
let. a) of the ICC Statute. Making reference to the requirement that crimes against
humanity should be committed within a generalized and systematic attack, this
Statute stipulates that the attack has to take place “while enforcing or supporting
the political view of a state or organization”.
3.2. Passive subject
The crime of genocide has both a principal passive subject as well as a
secondary passive subject.
The principal passive subject is the victim-group, subject to acts of genocide,
which can be any national, ethnic, racial or religious group.
By “national group” we understand a nation, a human community based on
the unity of language and consciousness (group member have a common history
and culture). There is the opinion6 according to which the word nation does not
coincide with the word peoples, which is broader and refers to all the citizens of a
state, including neutralized people. But, this distinction does not appear in the
international documents where the concepts of nation and peoples are considered
synonyms.
3 Bussy Florent, The crime against humanity, a critical study, Témoigner, Auschwitz
Foundation International Quarterly, No 115/2013 (§ 8), [Online] Available:
https://temoigner.revues.org/528.
4 French Criminal Code, Book II (“Felonies and misdemeanours against persons”), Title I
(“Crimes against humanity and against persons”), Subtitle I (“Crimes ahainst persons”),
Chapter I (“Genocide”), [Online], Available: https:// www.legifrance.gouv.fr/
affichCodeArticle.do?cidTexte=LEGITEXT000
006070719&idArticle=LEGIARTI000006417532&dateTexte=&categorieLien=cid
5 Nations Unies, La prévention du génocide, [Online], Available: http://www.un.
org/fr/pre ventgenocide/rwanda/about/bgpreventgenocide.shtml
6 Del Vecchio, G., Lessons on juridical philosophy, Europa Nova, Publishing House,
1995, p. 275.
The crime of genocide 67
“Ethnic group" means a human community based on ethnic unity (a tribe, a
family), respectively a community made up of individuals who are related and
have a common descent.
"Racial group" means a group of people who have the same basic biological
and anthropological characteristics (skin colour, hair colour etc.).
"Religious group" means a group of people who share and practice the same
religion.
Secondary passive subject is the person killed, injured etc.
4. The first type-variant
4.1. Objective element
In the first type-variant [art. 438 par. (1) Criminal Code], the objective element
is accomplished in five different alternative ways, namely: a) killing the members
of the group; b) causing serious bodily or mental harm to the members of the
group; c) deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part; d) imposing measures intended
to prevent births within the group; e) forcibly transferring children of the group to
another group.
“Killing” (letter a) means the act which causes death. Although the law does
not specify, the jurisprudence unanimously believes that killing is a crime
(homicide) only if two conditions are met: 1) the offender caused the death of
another person (this requirement is deduced from the fact that the law
distinguishes between homicide and suicide); 2) the author has acted unlawfully,
without any right,(the act is not an offense, if the author was entitled or obliged to
kill – for example, in the case of self-defence, or soldiers fighting to defend the
country etc.).
Unfortunately, the doctrine does not provide a clear answer on the question of
knowing what is meant by causal act for the death of a person. On the one hand, it
argues that the crime of murder always has a material object, which consists of the
victim's body – thus, the act is considered causal only if the offender acted, directly
or indirectly, on the victim's body, when his act was the physical cause of death of
the victim. On the other hand, the doctrine argues that the author is responsible for
the victim's death, whenever his action constituted a sine qua non condition of the
result (the theory of the equivalence of conditions) – which means, on the contrary,
that it is not necessary for the author to have acted on the victim's body, either
directly (by hitting, strangulation etc.) or indirectly (through the use of a trained
animal, a poisoned food etc.), as it is sufficient that his act can be considered a legal
cause of the victim's death.
In the absence of a common point of view, the jurisprudence promotes the
most diverse solutions. However, most courts have adopted the theory of
equivalence of conditions, whereby they retain the existence of an offense of
68 MIOARA-KETTY GUIU, AMALIA NIŢU
homicide both when the act consisted of physical violence, provided this was the
cause of natural death of the victim and when the act can only be considered a
legal cause of the victim's death.
More specifically, they believe that there is a legal cause of the result (death of
the victim) in two sets of cases: 1) when the act consisted of physical violence
which led the victim to commit suicide or to behave dangerously so that to lose the
life (for example, when under threat of rape, the victim decided to commit suicide;
or when, under threat of death, the victim tried to save himself/herself, climbing a
wall, where he/she fell from, resulting in death); 2) when the author exposed the
victim to an external and predictable threat (e.g. after raping the victim, the author
has abandoned her on the field, unconscious, in winter and the victim died due to
frost; or after robbing the victim, the author abandoned him/her, unconscious, at
night time, in the middle of a road where the victim was hit and killed by a truck,
that was driving regular).
However, we should mention that these are not the only cases when the act
appears as a legal cause of the victim's death. In addition, there are two other series
of such cases, which, unfortunately, in most legal systems, are not included in the
group of offenses against life, but are provided separately (in other groups of
offenses), namely: 1) when the offender fails to help the victim in danger of death;
2) when the offender prevents saving the victim who is in danger of death.
Nonetheless, discussions are continuing on these issues, and in some doctrines
(German, Italian, etc.) there is already the prevailing opinion that the crime of
homicide can be committed both by omission (especially when the author has the
legal or conventional obligation to intervene to save the victim – for example, if the
paramedics fail to provide first aid for the injured or the swimming instructor fails
to jump and save a student from drowning) and by preventing rescue measures
(e.g. the author locks the victim in the house which is under fire or hinders the
emergency call, in case of an accident).
By “bodily or mental harm” (letter b) we mean, according to the Romanian
legislation (art. 194 Criminal Code, named “bodily harm”), an act of battery or
other violence that caused any of the following consequences: a) disability;
b) injuries or damage to health which needed more than 90 days of medical care;
c) aesthetic severe and permanent injury; d) abortion; e) endangering a person's life.
Like in the case of result which consists in the victim's death, the result of
bodily harm can be caused not only by physical violence, but also psychological
violence (e.g. the author scares the victim, causing imbalance and hitting him/her
against a hard body) or by exposing the victim to an external and predictable
threat (e.g. the author digs a hole in the road and leaves it unmarked at night, thus
causing the fall and serious injury of a person).
The phrase “deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part” (letter c) raises
discussions.
The crime of genocide 69
This phrase has basically the same meaning as the term extermination, which,
according to Article 7 § 2 let. b) ICC Statute describes the intentional act to impose
conditions of life like deprivation of access to food and medicines, with the aim of
involving the destruction of the group. But the document entitled Elements of
Crimes7 notes that by extermination one can understand massacre (slaughter) of
the group members – which means that the facts of inflicting on the group
conditions of life calculated destructive merges totally with facts of homicide and
therefore, their separate provision is unjustified.
Providing them separately would be justified only in one case, namely
whether we would proceed to distinguish not only between words but meanings,
meaning by "killing" strictly those facts that appear as physical causes of the result
(death of the victim). In this case (and only this) the terms mentioned may be used
to describe the other acts that occur as legal causes of the result.
But, even in such circumstances, it is doubtful to punish as genocide the acts of
inflicting on the group destructive conditions of life. If such an act is committed
while the victims at the disposal of the author (authors), being seized or
imprisoned, most likely, the courts will consider the existence of the crime of
torture in its aggravated form (torture that resulted in the death of the victim) –
due to the reason that the facts overlap both in objective and subjective terms, as
long as they both involve a reason for discrimination (on any grounds: race,
ethnicity etc.). And, if the victims had freedom of movement, most likely, nobody
will be punished, considering that it comes from a lack of diligence on the part of
the authorities, namely an act of negligence, incompatible with the purpose of
physical destruction, considered to be specific to the crime of genocide.
Therefore, the only solution remains, finally, that of abandoning what is
provided in Art. 438 par. (1) let. c) of the Criminal Code, as considered unnecessary.
By "imposing measures to prevent births within the group" (letter d) we mean
the adoption of mandatory decisions (provisions) under which victims are
subjected to castration or sterilization operations or abortion.
In this way genocide does no longer consists in acts of self-infliction, but in
incitement, respectively an urge (order), official or unofficial, addressed to other
people to subject members of the victim group to certain operations (removal of
glands or sexual organs, tubal ligation etc.), which, being carried out without the
consent of the subjects, fall under criminal law as acts of illegal deprivation of
liberty, bodily harm and, ultimately, "acts of torture"8.
Since the text refers to imposing measures to prevent births, we must stress
that those carrying out such measures cannot defend themselves, claiming that
they were threatened with punishments or other reprisals – this because the crimes
7 Elements of Crimes, [Online], Available: https:// www.icc-cpi.int/ NR/ rdonlyres/
336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ ElementsOfCrimesEng.pdf.
8 Rassat, M.-L., Droit pénal spécial. Infractions des et contre les particuliers, Dalloz, Paris,
2006, p. 347.
70 MIOARA-KETTY GUIU, AMALIA NIŢU
under international law, as genocide, the scope of incidence of cases that removes
guilt was severely restricted. In this regard, we remind you that under Article 31 §
1 let. d) ICC Statute the constraint may exempt from liability only if they are the
result of a death threat or a serious, ongoing or imminent infliction on own or
another physical integrity. Or, we can recall that the prohibition of torture is
absolute and that under Article 2 § 2 of the Convention against torture and other
punishments or cruel, inhuman or degrading (UN, 1984), one cannot invoke
superior orders or of a public authority to justify torture.
By "forcibly transferring children belonging to a group to another group"
(letter e) we mean kidnapping, forcible taking from the group they belong to, of
persons who are under 18, and obliging them to live in another group. In this way
genocide consists in acts of illegal deprivation of liberty committed against minors
belonging to the same national, ethnic group etc. We are not interested if the
transfer is carried out at once or in stages9.
Because these five facts are provided as alternative ways, there will be one
crime of genocide, even if the author commits all these facts.
4.2. Issues related to the objective element
In connection with these five facts there are still unclear number of issues
which require a common approach, given the obligation of States Parties to
harmonize their legislation (this obligation is even mentioned in the Preamble of
the Rome Statute, which states that it is the duty of every state to exercise its
criminal jurisdiction over those responsible for international crimes, the
international Criminal Court's jurisdiction being complementary to national
jurisdictions).
A. The first question is to know whether genocide is a simple or complex crime.
It is difficult to give a categorical response to this question, as long as the
notion of complex crime does not have the same meaning in all doctrines: in some
doctrines (e.g. the French one), it is considered that a crime is complex when its
objective element comprises a plurality of material acts, identical or different10; in
other doctrines (Italian, Romanian etc.), it is considered that a crime is complex
when its content includes, as a constituent or as an aggravating circumstance, an
act which is itself a crime (such a definition is enshrined in Article 84 of the Italian
Criminal Code and Article 35 of the Romanian Criminal Code).
9 Stnoiu, R.M., Genocide, in “Theoretical Explanations on Romanian Criminal Code’’ by
V. Dongoroz et all, Special Part, vol. IV, Romanian Academy Publishing House, Bucharest,
1972, p. 931; Antoniu, G., Genocide, in “Criminal Law Code, commented and annotated” by
T. Vasiliu et all, Special Part, vol. II, Scientific and Encyclopaedic Publishing House,
Bucharest, 1977, p. 542.
10 Desportes, F., Le Gunehec, F., Droit pénal général, Economica, Paris, 2006, p. 416;
Bouloc, B. Droit pénal général, Dalloz, Paris, 2005, p. 213.
The crime of genocide 71
The difficulty, however, also has another cause, namely that relevant
international texts were designed to prevent the formulation of a categorical
answer, even when the notion of complex crime would have the same acceptation
everywhere.
If the notion of complex offense would be used exclusively with the first
acceptation, the above mentioned difficulty would remain because the document
entitled Elements of Crimes. On the one hand, this document establishes that any
of the five acts (ways) can have only one victim – which would lead to the
conclusion that genocide is a simple crime, wherein the objective element consists
of a single material act. On the other hand, this document introduces a new
requirement (which is not listed in Article 6 of the ICC Statute), namely that the act
is part of a series of analogue objective events – which would lead to the
conclusion that genocide is, on the contrary a complex crime, wherein the objective
element consists of a plurality of material acts, identical or different. However, this
latter conclusion may also be challenged, noting that the explanation given to the
phrase "within a" (p. 2), the same document alleges that the series must be
preceded by "initial acts". Or, besides the fact that those "initial acts" are not
described (stipulated) anywhere, which rejects the principle of legality (nullum
crimen sine lege), one can observe that since the text does not specify, it means that
the series may be limited to the act as such (homicide, harm etc.) and to an act of
moral preparation (an arrangement, a plan etc.) and, in such circumstances, we
cannot talk of a plurality of material acts.
If the notion of complex crime would be used exclusively with its second
acceptation, the above mentioned difficulty would remain, because of the
definition itself (Article 6 of ICC Statute). Because the facts described in the
definition are not all provided as stand-alone crimes, genocide can be
characterized as a complex crime only in the first two ways (letters a and b) –
because only in these ways the text allows to conclude that genocide absorbs,
where appropriate, an offense of homicide (Art. 188 of the Criminal Code), first
degree murder (Art. 189 of the Criminal Code.) or bodily harm (Art. 194 of the
Criminal Code). On the other hand, in the other three ways (letters c, d, e) the text
rather describes some modus operandi (inflicting on the group destructive
conditions of life) or some particular cases of bodily harm and/or illegal
deprivation of liberty (preventing births, forced transfer of children) – which leads
to the conclusion that in these ways, genocide is, on the contrary, a simple crime.
However, we may notice that, in principle, the crime of genocide is a complex
crime, regardless of the significance attributed to the notion of complex crime.
However, it would be desirable that the doctrine clarify the content of this
notion (in our opinion it is possible to merge the two views on the notion of
72 MIOARA-KETTY GUIU, AMALIA NIŢU
complex crime, bringing corrections to each of them) and, at the same time,
reformulate the definition of the crime of genocide so that the text should make
better reference to the conditions of this crime, mainly the fact that genocide
absorbs, finally, several identical or different crimes.
B. The second issue is to know what the specific of the crime of genocide is, which the
element gives individuality to this crime, making it different from both the absorbed crime
(homicide, bodily harm etc.) and the other similar crimes.
On this issue, the unanimous answer given by the doctrine is that the
specificity of genocide lies in the existence of a "special dol"11, which implies that
the author (authors) act with a particular, well-defined purpose, namely to destroy,
in whole or in part, a national, ethnical, racial or religious group.
However, in our case, we have great reservations about such an answer.
The main objection is that the distinction between a crime and another cannot
rely on a volatile and uncertain element, as any subjective element is (purpose,
motive etc.). To respect the principle of legality (nullum crimen sine lege certa), it is
imperative that the distinction between a crime and another be based on objective,
stable and verifiable elements. Or, the purpose is, rather a subjective, unstable and
non-verifiable element which can only be deduced, taking into account objective
circumstances of the act – for example, in the case of genocide, the purpose is
deduced from two alternative circumstances explicitly stated in the Elements of
Crimes, namely: either from the fact that the act is part of a series of analogue,
objective events; or from the fact that the act has, in itself, the ability to cause mass
casualties (which means that the author uses the means of mass destruction:
bombs, grenades, automatic weapons, chemical or biological weapons etc.).
But in relation to such circumstances, it is impossible to distinguish between
genocide, homicide, a terrorist attack or other crimes against humanity.
For example, in relation with such circumstances we cannot distinguish
between genocide, which is a crime against humanity and serial killings, which is a
crime against the person – this because from the perspective of the group the
victims belong to any act of killing is equivalent with its total destruction and the
risk of its total destruction proportionally grows with the number of victims. As a
result, if the author has continued to kill, it can be assumed with sufficient reason,
that he acted with intent to destroy the group itself.
Or, in relation with such circumstances, we cannot distinguish between
genocide (Art. 438 Criminal Code), which is a crime against humanity and
bombing a community (Art. 402 of the Criminal Code), which is a crime against the
state. Theoretically, this distinction is based on the different purpose of the act: in
the case of genocide the purpose would be to destroy a human group; in the case
of an attack the purpose of the crime would be to destabilize state structures.
11 Olivier de Frouville, Droit international pénal, éditions A. Pedone, 2012 – Extrait de
l'ouvrage, p. 87, [Online], Available: http://www.pedone.info/dipenal/partie2.pdf.
The crime of genocide 73
However, basically, we find that in both cases the purpose is deducted from
the same two circumstances, namely either from the circumstance that the act is
part of a series of objective and analogue events or from the fact that the act has, in
itself, the ability to cause large numbers of casualties. Or, the mere fact that from
the same circumstance we can draw two different purposes proves quite clearly,
we think, that only in abstract theory, the mentioned distinction is based on a
different purpose; in reality, such a distinction is based on other unclear and
arbitrarily set of criteria.
However, it is not enough to notice that the purpose cannot serve as a
distinction criterion between genocide and other similar crimes.
Moreover, we have to notice that the confusion related to the crimes against
humanity, including genocide, is amplified the existence of the so-called
“attacks/terrorist attacks”, which seem to be an intermediary category of violent
crimes, situated between crimes against person and crimes against humanity, and
which are usually included in the group of crimes against the state, being
considered that their purpose would be to hinder or prevent the exercise of the
state power by generating panic.
We have already shown that the distinction between these three categories of
crimes is difficult or even impossible. Therefore, in this context, we limit ourselves
to observe that provision related to terrorist attacks as standalone crimes is
unjustified.
In this respect, several arguments may be invoked, such as: the fact that the
main focus of numerous international conventions relating to preventing and
combating terrorism was to develop judicial cooperation among states and to
ensure more effective protection of persons against violence and not that of
establishing a new group of crimes; the fact that the word "terrorism" does not
designate a physical act, but refers to a quasi-general effect of violence, namely to
intimidate, to inflict fear – which explains why, despite the efforts (there were
formulated more than 100 definitions of these crimes), so far, there is no
universally accepted definition of the alleged "terrorist crimes"; the fact that
violence can occur at any level and in any field (as proven by the numerous
classifications of terrorism: individual terrorism, organized terrorism, state
terrorism, political terrorism, economic terrorism, cyber terrorism etc.) – which
confirms that the ancient view that all crimes can be summarized into two
categories: crimes committed by fraud and violent crimes (aut vi aut fraude
delinquitur).
Finally, against the provision of crimes of terrorist attacks, one can argue that,
unlike fraud, violence acts can be committed only against an individual or group
of individuals, and not against the state or another legal body (the legal entity
cannot be hit, poisoned etc.) - therefore, we repeat, that does not justify the
existence of a third group of crimes of violence, situated midway between crimes
against the person and crimes against humanity.
74 MIOARA-KETTY GUIU, AMALIA NIŢU
C. The third issue is to know whether and how the provision related to genocide as
separate from other crimes against humanity is justified.
The answer to this question depends on the answer to another prior question,
namely to know what are the similarities and differences between the crime of
genocide and the other crimes against humanity.
But this preliminary issue is difficult to clarify because of a lack of rigour of the
texts.
It would be logically that genocide and the other crimes against humanity
have in common the fact they are all crimes of violence, of great seriousness,
committed by a group against another group and, for this reason, they always
cause a large number of victims. Since we assume that genocide is the most serious
crime against humanity, it would be logic that the name "genocide" make reference
to, as the very etymology of the word indicates, crimes against life, which are the
most serious crimes of violence.
In fact, however, it appears that the five acts described in article 6 from ICC
Statute ("The Crime of Genocide") are found, explicitly or implicitly, in Article 7
from ICC Statute ("Crimes against humanity") – which leads, from the very
beginning, the idea that genocide is confused with the crimes against humanity.
However, this idea could be challenged, showing that the distinction between
genocide and the crimes against humanity remains possible, if we consider the
essential requirements and, more specifically, that in the case of genocide, the text
(article 6 ICC Statute) stipulates that the act be committed in order to destroy a
particular national, ethnic, etc. group, while in the case of crimes against humanity,
the text (article 7 ICC Statute) stipulates that the acts be committed as part of a
widespread or systematic attack directed against any civilian population.
We have already pointed out, against this idea, that the purpose cannot be a
criterion for distinguishing between a crime and another. But to fully answer, we
must note that acts of genocide are also committed "as part of a widespread or
systematic attack". The definite proof, in this regard, is the fact that the purpose to
destroy a group, which would be specific to genocide, is deducted, as shown in the
Elements of Crimes, either from the fact that the act is part of a analogue of objective
analogous events, or from the fact that the act is, in itself, the ability to cause large
numbers of victims. Or, if we consider that acts of genocide are, essentially, acts of
violence, we can easily understand that committing such acts in series or against a
large number of people equals a widespread or systematic attack.
However, to justify the distinction between genocide and other crimes against
humanity, some authors12 tried to base this distinction on grounds of the passive
12 Crişu-Ciocînt, A., Crimes against Humanity (Comments), in „New Criminal Code.
Comments on articles” by T. Toader et all, Hamangiu Publishing House, Bucharest, 2014,
p. 655; Gorunescu, M., Crimes against Humanity (Comments), in “New Criminal Code,
commented” by V. Dobrinoiu et all, vol. II, Special Part, Universul Juridic Publishing House,
Bucharest, 2012. p. 1210.
The crime of genocide 75
subject of the crime, noticing that in the crime of genocide, the principal passive
subject is "a national, ethnical, racial or religious group", while in other crimes
against humanity, the principal passive subject is the "civilian population"
respectively all the persons that are not involved in fighting or other military
missions, and who enjoy international protection under the Geneva Conventions
and additional protocols.
Therefore, it is necessary to notice that the passive subject cannot serve as a
criterion for distinction between genocide and crimes against humanity. As it
becomes evident, at a closer look, the so-called "civilian population" which is not a
distinct passive subject but is part of a particular national, ethnic, racial or religious
group – which means that we cannot exclude the existence of crime genocide,
because the victims are only civilians (non-combatants).
The distinction between genocide and other crimes against humanity is also
problematic. The relevant texts do not establish any objective and verifiable criteria
to allow this distinction, and, under these conditions, they do not take into
consideration, once again, both the principle of legality (lex certa), and the right to
non-discrimination.
A reform of the relevant texts cannot be limited to establishing a clear criterion
for distinguishing between genocide and other crimes against humanity. In
addition, it has to establish the community elements (similarities), under which,
crimes against humanity, including genocide, can be distinguished from crimes
against persons or other crimes of violence.
Therefore, in our opinion, two other measures are required.
Firstly, it would be necessary that genocide and other crimes against humanity
be redefined, so that they consist not only in the commission but also in the
participation, in any form (co-authorship, instigation or complicity) to committing
serious crimes of violence - which shows clearly that, unlike the crimes against the
person, which can be committed by a single individual, crimes against humanity,
including genocide, can be committed only by a group of individuals.
Secondly, it would be necessary to set a threshold, respectively a minimum
number of victims, strictly necessary for the existence of a crime of genocide or
other crimes against humanity. Securing such a threshold, whether it would be
numerical or percentage, would facilitate the distinction between crimes against
humanity and other crimes of violence and at the same time would ensure prompt
action of the international community to end the conflict (it is well known the fact
that, because of late intervention of the international community, Rwandan
genocide victims numbered over 800,000).
4.3. Immediate effect and causality relation
Since genocide is a complex crime it presents both a main and a secondary
effect.
The main immediate effect consists in a state of danger to the existence of a
national, ethnical, racial or religious group.
76 MIOARA-KETTY GUIU, AMALIA NIŢU
The secondary immediate effect coincides with the immediate effect of the
absorbed crime.
The causality relation has to be proved only when the absorbed crime is an
effect crime (homicide, bodily harm).
4.4. Subjective element
Currently, the main idea in the doctrine is that genocide is committed only
with direct intention, characterised by the aim to destroy, in whole or in part, a
national, ethnic, racial or religious group.
We do not share this opinion. In our opinion, it is less important if the author
acted with direct intention (special dol), pursuing the destruction of the group, or
with indirect intention (possible dol), accepting the destruction of the group if it
leads to personal advantages (occupying a territory, access to natural assets etc.).
What is important is only that the author acted consciously and voluntarily,
acknowledging that their act endangers the existence of the group.
5. Other variants
5.1. Aggravated variant
According to art. 438 par. (2) Criminal Code, genocide is severely punished
(only with life imprisonment) if the acts stipulated in par. (1) are committed in
wartime.
According to art. 185 Criminal Code, wartime means not only the period of
war but also the period of conscription, which means that the aggravated variant
applies only if the acts of genocide are committed between the starting and the
ending of the conscription period.
But the existence of this aggravated variant is not justified. In this sense, we
can make several observations.
First, we see that the aggravation of the sentence is meaningless, since
genocide is the most serious crime against humanity that can be punished with the
most severe punishment (life imprisonment), regardless of whether committed in
time of peace or wartime.
Secondly, we may notice that the acts of genocide are always amid major
conflicts between two or more groups of people so that it is at least wrong to
distinguish between genocide committed in peacetime and a genocide committed
in wartime.
Thirdly we notice that with such a distinction, it is claimed, mainly, that the
genocide committed in peacetime would be less serious than genocide committed
in wartime, which is an absurdity. The real seriousness of the genocide acts cannot
be determined based on whether or not an official statement on the state of war
was made, but must be determined in relation to other criteria, completely
different, such as: the modus operandi and the means of committing the crime, the
The crime of genocide 77
consequences, the number of victims, the degree of culpability of the author
(authors) etc.
Finally, we may notice that with such a distinction, it is also claimed that the
state of war would allow the author (authors) to escape, which is another
absurdity, because, as the jurisprudence of international criminal courts proves,
acts of genocide are often committed by representatives of the authorities
themselves, declaring war in order to justify genocide.
Thus, we may give up on this variant, as meaningless.
5.2. Type variants stipulated in art. 438 par. (3) and (4) Criminal Code
According to the dispositions of art. 438 par. (3) and (4) Criminal Code, it is
considered genocide and conspiracy to commit a crime, as well as direct and
public incitement to commit genocide.
These dispositions are questionable, even at first sight, taking into
consideration that they require that different acts than those under art. 6 ICC
Statute, and with less seriousness, are called genocide.
At a closer look it becomes evident that these dispositions are not justifiable.
It is not justifiable the existence of a text to incriminate conspiracy to
committing genocide since the action to set up a criminal group (art. 367 Criminal
Code) stipulates that any agreement to commit a crime is punishable.
It is not justifiable, either, the existence of a text to incriminate public
instigation to commit genocide since the crime of public instigation (art. 368
Criminal Code) stipulates that any act of public incitement to committing a crime is
punishable.
These texts are not only useless, but even dangerous, since they offer a bad
example, which may inspire their continuous multiplication, until we reach the
completely absurd situation where a crime of public incitement or criminal
conspiracy is annexed to each intended crime.
Apparently, the introduction of these texts was an obligation following from
the ratification of the Convention to Prevent and Punish Genocide (UN 1948) and
from the fact that, Article III imposes on the state parties to punish not only the acts
of genocide but the related ones as well, among which we notice these two
(conspiracy to commit genocide, direct and public incitement).
Therefore, we have to emphasize that article III of the above mentioned
Convention cannot be used as an argument to justify the existence of the texts in
art. 438 par. (3) and (4) Criminal Code. As is known, the international texts do not
establish incriminations and therefore they need not be reproduced ad litteram in
domestic legislations. Assuming the obligation to punish certain acts, each state
assumes the obligation to ensure that, under its national law, those acts are crimes
and are punishable, regardless of the title. Only in the event that, after verification,
it is noticed that national law does not incriminate these acts, either explicitly or
implicitly, it would become necessary to introduce one or more new
78 MIOARA-KETTY GUIU, AMALIA NIŢU
incriminations. But even then, the state should not be limited to reproduce the
names and descriptions of those acts, as they appear in conventions; on the
contrary, the state must undertake a transposition, an adaptation of international
texts, so as to meet the rigors of criminal science and also to integrate naturally into
the national legislation.
Since the Romanian law already incriminates by default, both conspiracy to
commit genocide and public incitement to genocide, one had to notice that this law
meets the requirements of Article III, letter b) and c) of the Convention, and any
addition is superfluous.
6. Attempt
Attempted genocide is punishable under art. 445 Criminal Code and art. III,
letter d) from the Convention to Prevent and Punish Genocide.
However, we must notice that the attempted genocide is possible only in one
case, namely when the act is trying to destroy a human group by using bombs,
lethal gas or other means of mass destruction.
In other cases the attempted genocide is not possible.
In this regard, it should be noted that genocide is a dual complexity crime: in
addition to always absorbing another crime (murder, bodily harm, illegal
deprivation of liberty), genocide typically involves a plurality of acts (crimes). In
other words, in most cases, genocide absorbs a series of homogeneous or
heterogeneous crimes. Besides the fact that some of the absorbed crimes cannot be
attempted (e.g. attempt is not possible in continue crimes, such as illegal deprivation
of liberty), we can see that there is no attempt in the case of plurality of crimes.
7. Conclusions
Relatively recent (1948), the crime of genocide is the most serious crime against
humanity, which endangers the existence of a wholly human groups.
But unfortunately, the development of this incrimination was done somewhat
hastily, without sufficiently taking into account the requirements of the principle of
legality or other requirements of criminal science, therefore, it has several
shortcomings.
Firstly, although it started from the premise that genocide is a complex crime,
however, in defining this crime, any of the acceptation attributed to the concept by
the criminal science as being a complex offense, has not been observed. As a result,
the current definition prevent from formulating a definite answer to the question
as to whether the crime of genocide absorbs another crime, and the question of
whether the crime of genocide involves a plurality of acts (crimes).
Secondly, the distinction between the crime of genocide and other similar
crimes was based on a subjective element, uncertain and unverifiable, alleging that
The crime of genocide 79
the specific of genocide is the purpose to destroying a national, ethnic, racial or
religious group. Or, in relation with this element (purpose), it is impossible to
distinguish between the crime of genocide and crimes against persons (homicide,
bodily harm or unlawful deprivation of liberty), a terrorist attack or other crimes
against humanity.
Thirdly, international documents describe genocide as a crime against
humanity, but, the definitions of these crimes do not justify such a description, as
they do not envisage any element related to community (similarity), according to
which crimes against humanity, including genocide, make a distinct group. These
definitions underline, at the most, another error, namely that genocide is mistaken
with other crimes against humanity.
Therefore, in our opinion, in order to eliminate these shortcomings, more
measures should be adopted, namely:
- crimes against humanity, including genocide, should be defined as
participatory acts, in any form (co-author, incitement, complicity) to committing
serious crimes against the person;
- to delimitate the acts (crimes) which have the objective element of the
genocide from the acts (crimes) which have the objective element of the other
crimes against humanity;
- to establish the minimum number of victims, absolutely necessary to claim
the existence of a crime against humanity, including genocide;
- to limit the use of “terrorist attacks” to the area of criminal procedural law,
being further used, exclusively to delimitate the cases that need international
judiciary cooperation.