Author: Nema Milaninia
What is genocide? The typical answer immediately brings to mind incidents of large-scale killings like those in World War II, Rwanda, and Srebrenica. The same images, however, create an incomplete and potentially misleading picture of the crime. Genocide is a far broader concept than mass executions. The crime was deliberately designed to capture the variant and innumerable ways individuals or organizations might try to destroy racial, ethnic, religious, or national groups. And while certain acts, like rape and other acts of sexual violence, never formed part of the crime’s initial understanding, these acts are now accepted as tools of destruction and part of our understanding on how genocides have and may occur.
How we understand these issues and genocide largely depends on our exploration of the underlying act of serious bodily or mental harm. The reason being that no other underlying act is as broad and potentially limitless. By its very terms, the actus reus captures any conduct capable of causing the requisite level of harm of “seriousness.” And this breadth has given international courts flexibility to further our understanding of genocide, including the relationship between sexual violence, displacement crimes, and the ways génocidairesattempt to destroy the protected groups.
Despite the central importance of the underlying act to understanding genocide, academics and commentators have largely failed to discuss the direct issues explored in relation to serious bodily or mental harm.
This Article attempts to fill that gap by conducting an extensive study and analysis of the UN Convention on the Prevention and Punishment of the Crime of Genocide’s legislative history and judicial decisions by international courts and tribunals. Through that analysis, this Article evaluates emerging controversies and jurisprudential problems about the act and tries to resolve them in a manner that accords with the Convention’s spirit and a faithful reading of subsequent judicial decisions. In that analysis, it shows there exists a tension between jurists who evaluate the act by strictly looking at its broad, but plain, terms and those who interpret the act in view of its context, namely as an act that must be capable of fulfilling the crime’s destructive aims. In these regards, the act takes on a character beyond its simple terms, and engages the very issue of what genocide means and entails.