CLARIFYING GENOCIDAL INTENT: A NEW INTERPRETIVE DOCTRINE

David Phillips

Abstract

The ulterior intent provision of the international crime of genocide is the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. This special intent clause is the hallmark of genocide, yet it lacks uniform understanding and universality. Consequently, it has drawn interpretations across the mens rea spectrum, including dolus directus, dolus indirectus, and the broader notion of dolus eventualis. It shall be the aim of this essay to clarify genocidal intent and propound a clear and understandable interpretive doctrine, in the absence of which genocide will remain perennially susceptible to divergent interpretations. The doctrine shall necessitate the purposeful targeting of an individual by reason of his or her membership of a protected group together with the foresight and desire to destroy the group, in whole or in part. Put simply, genocidal dolus specialis can only encompass dolus directus. Although there is considerable academic support for the broadening of intent beyond this strictly goal-oriented standard to a result-oriented, or knowledge-based approach, to do so would be to subvert the concept of genocide as originally envisaged by Raphael Lemkin, and the notions of genocidal intent as envisaged at the preparatory stage of the Genocide Convention. Moreover, it would blur the distinction between genocide and crimes against humanity, and would only serve to undermine the rule of law.