Drawing the boundaries of mens rea in the jurisprudence of the international criminal tribunal for the former Yugoslavia

Even though more than a decade has passed since the creation of the International Criminal Tribunal for the Former Yugoslavia, the law of the most fundamental concept in international criminal law – mens rea - remains unsettled. Through its jurisprudence, the Yugoslavia Tribunal has made enormous efforts to assign different degrees of mens rea for different categories of crimes under its Statute. The present study is an attempt to clarify several issues with regard to the law of mens rea as developed in the case law of the Yugoslavia Tribunal. Among these issues are the following: what precisely is to be understood by the terms “specific intent”, “special intent”, “dolus specialis”, or “surplus intent”? Similarly, what are the precise meanings of the terms “deliberately”, “intention”, “intent”, “intentionally”, “wilful or wilfully”, “knowledge”, and “wanton” as provided for in the ICTY Statute or as employed by the Chambers within its judgments

Group Rights, Group Intentions, and the Value of Groups

This paper is part of a symposium on Berel Lang’s 2016 book Genocide: The Act as Idea (University of Pennsylvania Press). While agreeing with much of Lang’s important argument about the moral significance of criminalizing genocide as a crime against groups, I raise several objections and questions. Lang ties the crime of genocide to group rights, specifically the right of groups to exist in the future; I argue that the concept of group rights obscures rather than clarifies the crime of genocide. What matters is not the rights of groups but the value of groups, both to their members and to non-members. The two leading accounts are those of Arendt and Lemkin, one pluralist and one universalist, and Lang leaves the issue dividing them unresolved. He also neglects an important objection to the criminalization of genocide, namely that placing so much emphasis on groups invites just the kind of tribalist mentality that fosters genocide. Finally, I raise doubts about Lang’s claim that anyone who commits genocide knows it is wrong

Calling Genocide by Its Rightful Name: Lemkin\u27s Word, Darfur, and the UN Report

When the United Nations commission investigating Darfur issued its report in January 2005, it concluded that the Darfur atrocities represented war crimes and crimes against humanity, but not genocide. This had the harmful effect of deflating efforts to mobilize political support to halt the Darfur atrocities. But the Commission\u27s conclusion was based entirely on technicalities in the legal definitions of the international crimes, not on denial that extermination is going on in Darfur. In this paper, the author argues that the legal and popular meanings of genocide have diverged in harmful ways: where laymen understand that mass killings and rapes that are exterminating a civilian population simply are genocide, lawyers also require a specific intent to destroy a protected group as such. The original motivation for defining genocide differently from extermination (a crime against humanity) lay in a theory that religious, racial, and national groups have value over and above the value of the individuals in them. But, subsequent developments have thinned the connection between the crime of genocide and the theory of group pluralism. Hence, there is no longer a good reason to draw a sharp legal distinction between genocide and extermination, which today functions to provide a fig leaf for inaction by the world community. The author proposes adding the crime against humanity of extermination to the other crimes in the definition of genocide

Humanitarian Action and Military Intervention: Temptations and Possibilities.

Although the war in Liberia in July 2003 claimed hundreds of lives, the international community was reluctant to intervene. In this article, the author debates the question: does international military intervention equal protection of populations? The role of humanitarian organisations in military intervention is considered. Aid organisations cannot call for deployment of a protection force without renouncing their autonomy or appealing to references outside their own practices. Such organisations provide victims with vital assistance and contribute to ensuring that their fate becomes a stake in political debate by exposing the violence that engulfs them, without substituting their own voices for those of the victims. The political content of humanitarian action is also outlined and military intervention in the context of genocide is discussed. The author concludes that the latter is one of the rare situations in which humanitarian actors can consider calling for an armed intervention without renouncing their own logic

'The Accidental Birth of Hate Crime in Transnational Criminal Law: 'Discrepancies' in the Prosecution for "Incitement to Genocide" during the Nuremberg Process involving the cases of Julius Streicher, Hans Fritzsche and Carl Schmitt.'

This volume of three interrelated studies aims to explore the various contingencies through which individuals responsible, to various degrees, for promoting expressions of racist hate were subjected to markedly different types of legal responses within the landmark Nuremberg trials programme. These contingencies, together with loose judicial reasoning, complicate scholarly efforts to identify the historical emergence of this type of transnational hate crime, and to illustrate the complications that arise when seeking to ascertain its implications as a precedent. It needs to be emphasised at the outset that what follows is not a comprehensive study of the origins of the criminalisation of hate speech in general as this would have to include a full comparative survey of all domestic laws and their judicial interpretation, application and institutional enforcement. In addition, the interaction between domestic, regional and international criminalisations would also have to be addressed in what would amount to a massive multi-volume study, beyond the scope of this study. It is acknowledged that a strong case can be made for a more comprehensive approach, placing the contents of what follows within this wider context of transnational regulation. For example, there has clearly been a measure of interaction, albeit of an inconsistent type, between US immigration and naturalisation law and practice, and international criminal law relating to hate speech, with the Streicher case expressly referred to as a precedent for the idea that "persecution," as a subset of crimes against humanity, can include racist and anti-Semitic propaganda

Britain and genocide: historical and contemporary parameters of national responsibility

This article (originally given as the Annual War Studies Lecture at King's College, London, on 25 January 2010) challenges the assumption that Britain's relationship to genocide is constituted by its `vigilance towards the genocide of others. Through a critical overview of the question of genocide in the historical and contemporary politics of the British state and society, the article suggests their wide-ranging, complex relationships to genocide. Utilising a conception of genocide as multi-method social destruction and applying the interpretative frames of the genocide literature, it argues that the British state and elements of identifiably British populations have been involved directly and indirectly in genocide in a number of different international contexts. These are addressed through five themes: the role of genocide in the origins of the British state; the problem of genocide in the Empire and British settler colonialism; Britain's relationships to twentieth-century European genocide; its role in the genocidal violence of decolonisation; and finally, Britain's role in the genocidal crises of the post-Cold War world. The article examines the questions of national responsibility that this survey raises: while rejecting simple ideas of national responsibility as collective guilt, it nevertheless argues that varying kinds of responsibility for genocide attach to British institutions, leaders and population groups at different points in the history surveye

"Annihilation through labor": the killing of state prisoners in the Third Reich

One of the most distinctive features of Nazi society was the increasingly radical division of its members into “national comrades” and “community aliens.” The former were to be protected by the state and encouraged to procreate, while the latter were seen as political, social, racial, or eugenic threats and were to be ruthlessly eliminated from society. With the start of the Second World War, various nonlethal forms of discrimination against these “community aliens” were gradually replaced by policies geared to physical annihilation, culminating above all in the extermination of the European Jews. In view of a crime of this previously unimaginable magnitude, it is hardly surprising that when historians started in earnest to examine the genocidal policies of the Nazi dictatorship in the 1960s they focused on the development and administration of the “Final Solution of the Jewish Question,” as the Nazis called it. But in the last two decades, the fate of other “community aliens” in the Third Reich, such as the Roma and Sinti (“Gypsies”), slave laborers, and the disabled, has been investigated too. Some historians have also begun to examine those who deviated in various other ways from the norms of society, people who were often classified in the Third Reich, and indeed before, as “asocials.” There was never an agreed definition as to who these people were, and the term was used to stigmatize a vast variety of nonnormative behavior. According to a 1938 directive by the head of the German security police, Reinhard Heydrich, any person could be classified as “asocial” who “demonstrates through conduct opposed to the community . . . that he does not want to adapt to the community.” During the Third Reich, such vague statements served as the basis for the persecution of juvenile delinquents, criminal offenders, vagrants, prostitutes, and homosexuals, among many others. Certain groups were simultaneously classified as racial and social outsiders and thus suffered “dual racism.” This was true in particular for the Sinti and Roma, who had been persecuted for their way of life long before the Nazi “seizure of power” in 1933. Historical research into the fate of the “asocials” has produced some valuable insights into the treatment of members of these marginal groups in the Third Reich, many of whom died in SS concentration or extermination camps. Yet despite this growing interest, the most comprehensive of all the extermination programs directed against “asocials” in the Third Reich has never been investigated. From late 1942 onward, over twenty thousand offenders classified as “asocial” were taken out of the state penal system and transferred to the police for “annihilation through labor.” At least two-thirds of them perished in concentration camps. But in the historical literature this program has either been dealt with in passing or completely ignored. Why have historians neglected the murder of state prisoners? There appears to be a reluctance to focus on offenders against the law in the Third Reich, unless their offences can be seen in some way as forms of political or social protest. In contrast to the racially or politically persecuted, not all common criminals can be described merely as innocent victims, and the often brutal behavior of criminal Kapos in concentration camps probably further alienated historians from dealing with the criminals. Another factor that explains the poor state of research is the inaccessibility of source material. Leading officials in the Ministry of Justice made sure that most files relating to the “annihilation through labor” of state prisoners were pulped before the end of the war.8 Yet individual documents have survived, scattered around various archives in Germany. They can be complemented by information gained from individual prisoner files, as well as from unpublished documents and testimonies collected in numerous postwar legal investigations. None of these criminal investigations ever led to the conviction of the prison officials involved—another reason for the lack of historical interest. Finally, German legal history after the war spread the myth that the legal administration had rejected or even resisted the Nazi regime. State penal institutions, if dealt with at all, were described as safe havens that had “nothing to do with the concentration camps.” Thus, until today, historians have largely ignored the state prison system and its inmates. This article will first describe the origins of the decision in 1942 for the extermination of certain state prisoners. Then the actual process of transfer will be investigated in detail, examining issues such as the background of the transferred inmates and the participation of prison officials. The article will also deal with the fate of the state prisoners after their transport to the Nazi concentration camps and the radicalization of policy against the prisoners remaining in the state penal institutions. Exploring these issues contributes to our knowledge of the treatment of deviants in the Third Reich. But this article will also address some wider issues concerning the nature of the Nazi dictatorship, such as the origins of extermination policies in the Third Reich. In recent years, a number of historians have argued that it was time to move beyond the “sterile debates” between so-called intentionalist historians, who focused on the murderous will and ideology of the Nazi leaders, above all Hitler, and so-called structuralist historians, who pointed to the dynamic and uncoordinated interactions between different agencies of the Nazi dictatorship that led to a “cumulative radicalization” (Hans Mommsen). Various historians have now put forward a synthesis of both positions, while ground-breaking empirical research into the “final solution” has posed new questions and provided new answers. Still, many of the more recent studies of Nazi genocide continue to explore central issues first raised in the debates between intentionalists and structuralists such as Hitler’s role in extermination policy, the interaction between regional officials and the decision makers in Berlin, and the role of racial ideology versus more material motives in Nazi mass murder. This study of the “annihilation through labor” of state prisoners addresses some of these general issues. It will also shed new light on the relation between the judiciary and the police in the Third Reich. The postwar portrait of a passive or even anti-Nazi judiciary has not gone unchallenged. Still, many historians continue to describe the judicial authorities and the police as having been in a constant state of conflict. They describe the Third Reich as a “dual state,” split between the “prerogative state” and the “normative state.” The latter was the traditional state apparatus, ensuring that normal life was ruled by legal norms. However, in matters that were thought to touch on the interest of the state, the “prerogative state” could override these legal norms, above all through the agency of the police, locking up all political, racial, and social suspects in SS concentration camps without trial. Thus, state attorneys and the police are seen as competing institutions of prosecution, while state penal institutions and concentration camps are described as competing institutions of confinement. A detailed investigation of the transfer of state prisoners can help to establish how far this picture of the “dual state” stands up to critical scrutiny

Disavowal. Distinction and Repetition: Alain Badiou and the Radical Tradition of Antisemitism

My focus in this chapter on the militant French philosopher, Alain Badiou, emerges from my work into the various ways that the Shoah has been incorporated into antisemitic ways of thinking. In what follows, I argue that Badiou’s thoughts on what he terms “uses of the word ‘Jew’”3 in general, as well as on the Shoah in particular, offers a series of continuities with what can be called the radical tradition of antisemitism—a tradition that reaches back at least as far as Bruno Bauer’s anti-emancipationist, and avant le lettre, antisemitic texts of the 1840s. It simultaneously questions the notion of a sharp rupture between what have been termed “classical” and “new” antisemitism. It questions also the place of the Shoah in recent critical thinking within a dialectic of disavowal, dis-tinction, and repetition