The Crime of Genocide in the Context of International Law

PERTANYAAN

Can the massive killing of the Rohingya in Myanmar be categorized as genocide? Then, is the Israeli-Palestinian conflict considered genocide?

INTISARI JAWABAN

Genocide is a crime that denies the existence of a group of people for racial, ethnic, religious, or national reasons, as stipulated in the 1948 Genocide Convention and the 1998 Rome Statute. To determine a crime of genocide, two things need to be considered, namely actus reus (guilty act) and mens rea (guilty mind).

In this case, the actions in the Rohingya case and the Israeli-Palestinian conflict do fulfill the actus reus element as stated in the 1948 Genocide Convention and the 1998 Rome Statute. However, determining mens rea in these cases is not easy and requires a deeper study.

Please take a look at the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Kejahatan Genosida dalam Konteks Hukum Internasional written by Renata Christha Auli, S.H. and was published on Thursday, 26 October 2023.

This article is an update of the article with the same title, written by Muhamad Eka Ari Pramuditya, S.H., LL.M and was first published on Friday, 17 March 2017, and updated by Saufa Ata Taqiyya, S.H. on Monday, 7 February 2022.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

To answer your question, we first need to understand the definition of the crime of genocide.

Definition of the Crime of Genocide

The word genocide was first introduced by a Polish-Jewish academic named Raphael Lemkin. In his writings, Raphael Lemkin said that:[1]

The crime of genocide involves a wide range of actions, including not only deprivation of life but also the prevention of life (abortions, sterilizations) and also devices considerably endangering life and health (deliberate separation of families for depopulation purposes and so forth) … The acts are directed against groups, as such, and individuals are selected for destruction only because they belong to these groups.

Etymologically, the term genocide comes from the Greek "geno" meaning race, and the Latin "cidium" meaning to kill. So literally, genocide is defined as the killing of a race or the extermination of a race."[2]

Genocide, then, is a crime that denies the existence of a group of people for racial, ethnic, religious, or national reasons. The international element of this crime is the "specific intent" (dolus specialis) of the perpetrator to destroy four protected target groups, namely nation, ethnicity, race, and religion,[3] as stipulated in Article 2 of the 1948 Genocide Convention and Article 6 of the 1998 Rome Statute:

Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group. 

Furthermore, Article 1 of the 1948 Genocide Convention also explains that genocide is prohibited to be committed both in time of war and in peacetime because it is a criminal act in international law, as stated as follows:

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

The definition of genocide in the two international instruments above has also been adopted in national law in Indonesia. Article 8 of the Human Rights Court Law explains that the crime of genocide is any act committed that is carried out for the purpose of annihilating or eradicating the whole or a part of a national group, race, ethnic group, religious group, by means of:

1. murdering members of the group;
2. causing serious physical or mental harm towards members of the group;
3. creating conditions of life which would lead to physical annihilation, ether in whole or in part;
4. imposing measures intended to prevent childbirth within the group; or
5. forcibly transferring children from a particular group to another group

Rohingya Case, Is it a Genocide Crime?

To analyze whether the acts committed towards the Rohingya ethnicity in Myanmar are genocide or not, we need to observe two things, namely the actus reus (guilty act) and mens rea (guilty mind) in the act.[4]

First, the actus reus of genocide is as stated in Article 2 of the 1948 Genocide Convention and Article 6 of the 1998 Rome Statute, which have been described above. Currently, there are many versions of what actually happened in Myanmar in various media. However, most of the media reported that there had been a large number of killings and rapes of the Rohingya, the majority of whom are Muslims. If this is indeed the case, then at least the elements in letter (a), (b), and (c) of Article 2 of the 1948 Genocide Convention and Article 6 of the 1998 Rome Statute have been fulfilled.

Second, what must really be considered is mens rea. It is important to prove that the actions taken against the Rohingya were structured actions that were intended (dolus specialis) to eradicate the Rohingya in whole or in part.

Proving mens rea is not an easy task, especially in the crime of genocide. Judges at the International Criminal Tribunal for Rwanda ("ICTR") in the Akayesu case stated that in order to be prosecuted for the crime of genocide, an act must be committed against one or more persons, because those persons are members of a group. The reason must be specifically that they are part of the group. Thus, victims are selected not because of their individual identity, but because of their membership of a group (ethnicity, race, religion, nationality) (para 521).

In the same tribunal, the judges held that the mens rea/intent to commit the crime of genocide, if not admitted by the perpetrator, could be inferred from a number of acts, including the fact that the accused deliberately and systematically targeted attacks against victims based on their membership of a group, and spared those who did not belong to that group (para 523).

However, in the development of the case, Marzuki Darusman, Chairperson of the UN Fact-Finding Team for Myanmar, stated that there was sufficient information to issue an investigation and prosecution order against senior officials of Tatmadaw (Myanmar military) for the crime of genocide. Marzuki Darusman also emphasized that he and his team considered that intent to commit the crime of genocide could be inferred (from the available findings).[5]

Israel v. Palestine Conflict = Genocide?

Answering your question about whether the Israeli-Palestinian conflict is genocide? Similar to the Rohingya case, to analyze whether there is a crime of genocide in the Israeli-Palestinian conflict, we need to observe the actus reus and mens rea in the conflict.

Based on our research, most of the media also reported that Israel's attacks on Palestinians in the Gaza Strip in order to weaken the power of Hamas violated the principle of proportionality in international humanitarian law.[6] Examples of these violations include attacking civilians and killing civilians indiscriminately,[7] attacking civilian objects and public facilities, the use of prohibited weapons, disproportionate airstrikes, and others.[8] If this is indeed the case, then at least the elements of actus reus in letter (a), (b), and (c) of Article 2 of the 1948 Genocide Convention and Article 6 of the 1998 Rome Statute are fulfilled.

Furthermore, for your information, several Hamas spokespersons stated that “The occupation must pay a high price in the blood of its soldiers and settlers...”[9] Although the words used do not overtly call for the killing of Israelis, the statement calls for the 'targeting' of Israelis so that they 'pay a high price in blood'. This constitutes a direct and public incitement to commit genocide.[10]

Hamas' statement is considered to be dehumanizing (in Bahasa Indonesia is known as dehumanisasi). Although international law does not recognize dehumanization as a component of genocide, it is part of the overall genocidal process. Various experts consider dehumanization to be a considerable warning sign that marks the onset of genocide. The act of dehumanization can be said to be an almost inevitable step in the genocidal process where one or both groups dehumanize the other group as fundamentally different and less human.[11]

Based on the above considerations, we need to be careful in classifying an act whether it is genocide or not. Although the acts committed in the Rohingya case and the Israeli-Palestinian conflict have fulfilled the actus reus criteria, we need more studies to determine the mens rea owned by the perpetrators and the study cannot only be based on widely circulated news.

Also read: State Jurisdiction in Hamas v. Israel Case

This is our answer, hopefully, you find it useful.

Legal Basis:

1. Law Number 26 of 2000 on the Human Rights Court;
2. Convention on the Prevention and Punishment of the Crime of Genocide 1948;
3. The Rome Statute of the International Criminal Court 1998.

Court Decision:

International Criminal Tribunal for Rwanda/ “ICTR”), Akayesu, 1998.

References:

1. Elies van Sliedregt. Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide. Journal of International Criminal Justice 5 (2007), Oxford University Press, 2006;
2. Diajeng Wulan Christianti. Hukum Pidana Internasional. Jakarta: Sinar Grafika, 2021;
3. Iras Gabriella (et.al). Pelanggaran Terhadap Prinsip Proporsionalitas dalam Kasus Penyerangan Israel ke Jalur Gaza Menurut Hukum Humaniter Internasional. Diponegoro Law Journal, Vol. 6, No. 2, 2017;
4. Rezki Satris. Peranan Politik Luar Negeri Indonesia terhadap Palestina Pasca Pengakuan Jerusalem Sebagai Ibu Kota Israel. POLITEA Jurnal Pemikiran Politik Islam, Vol. 2, No. 2, 2019;
5. Shannon M. Culverwell. Israel and Palestine- An analysis of the 2014 Israel-Gaza war from a genocidal perspective. James Madison University Thesis, 2017;
6. Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014;
7. Kamus Besar Bahasa Indonesia (the Official Dictionary of the Indonesian Language), dehumanisasi, accessed on Thursday, 26 October 2023, at 01.00 Western Indonesian Time (zone);
8. Raphael Lemkin. Genocide as a Crime under International Law. American Journal of International Law (1947) Vol. 41(1):145-151;
9. Statement by Mr. Marzuki Darusman, Chairperson of the United Nations Independent International Fact-Finding Mission on Myanmar, at the Security Council, accessed on Wednesday, 25 October 2023, at 23.10 Western Indonesian Time (zone).

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[1] Raphael Lemkin. Genocide as a Crime under International Law. American Journal of International Law (1947) Vol. 41(1):145-151, accessed on Wednesday, 25 October 2023, at 22.00 Western Indonesian Time (zone).

[2] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 111.

[3] Diajeng Wulan Christianti. Hukum Pidana Internasional. Jakarta: Sinar Grafika, 2021, p. 40.

[4] Elies van Sliedregt. Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide. Journal of International Criminal Justice 5 (2007), Oxford University Press, 2006, p. 195.

[5] Statement by Mr. Marzuki Darusman, Chairperson of the United Nations Independent International Fact-Finding Mission on Myanmar, at the Security Council, accessed on Wednesday, 25 October 2023, at 23.10 Western Indonesian Time (zone).

[6] Iras Gabriella (et.al). Pelanggaran Terhadap Prinsip Proporsionalitas dalam Kasus Penyerangan Israel ke Jalur Gaza Menurut Hukum Humaniter Internasional. Diponegoro Law Journal, Vol. 6, No. 2, 2017, p. 1.

[7] Rezki Satris. Peranan Politik Luar Negeri Indonesia terhadap Palestina Pasca Pengakuan Jerusalem Sebagai Ibu Kota Israel. POLITEA Jurnal Pemikiran Politik Islam, Vol. 2, No. 2, 2019, p. 167.

[8] Iras Gabriella (et.al). Pelanggaran Terhadap Prinsip Proporsionalitas dalam Kasus Penyerangan Israel ke Jalur Gaza Menurut Hukum Humaniter Internasional. Diponegoro Law Journal, Vol. 6, No. 2, 2017, p. 1.

[9] Shannon M. Culverwell. Israel and Palestine- An analysis of the 2014 Israel-Gaza war from a genocidal perspective. James Madison University Thesis, 2017, p. 42.

[10] Shannon M. Culverwell. Israel and Palestine- An analysis of the 2014 Israel-Gaza war from a genocidal perspective. James Madison University Thesis, 2017, pp. 42-43.

[11] Shannon M. Culverwell. Israel and Palestine- An analysis of the 2014 Israel-Gaza war from a genocidal perspective. James Madison University Thesis, 2017, pp. 45-46.