Proving Genocide: Genocidal Intent and Other Aims

The International Court of Justice (ICJ) recently concluded its public hearings in the case brought by the Gambia alleging that Myanmar’s security forces committed acts of genocide against the Rohingya group. This article concerns some technical issues which the Court may wish to clarify in its final judgment, regarding proof that a State acted with genocidal intent alongside other political or military aims.

The Gambia and Myanmar agree that the definition of genocide may be satisfied when a State acts with genocidal intent—the intent to destroy a protected group in whole or in substantial part—alongside other political or military aims. This basic point of substantive law follows from the text of the Genocide Convention, the caselaw of the Court and international criminal tribunals, and the legal positions of States (see here). Again, even Myanmar accepts this basic point. The problem is one of proof, not substantive law, and that is where the parties diverge. This article explains how this problem of proof may be solved.

The Gambia must prove that Myanmar acted with genocidal intent alongside other aims, rather than exclusively with those other aims. Myanmar’s written rejoinder explains the problem remarkably well:

As a matter of law, it may well be possible for an individual or a State to act with a genocidal intent (intent A), while simultaneously seeking to achieve an ulterior purpose that has nothing to do with genocide (intent or motive B). As The Gambia says, the conclusion that an individual or State is acting with intent B would not necessarily exclude the conclusion that the individual or State is also acting with intent A.

However, where a pattern of conduct is consistent both with intent A and intent B, in many cases all of following three inferences would be consistent with the evidence as a whole:

(1) the individual or State acted with intent A only;

(2) the individual or State acted with both intent A and intent B; and

(3) the individual or State acted with intent B only.

In such a case, the inference that the individual or State acted with intent A would not be the only inference that could reasonably be drawn. The first two of the three possible inferences, if drawn, would lead to the conclusion that the individual or State acted with intent A (the genocidal intent). However, the third inference, if drawn, would lead to the conclusion that the individual or State acted without intent A (that is, without genocidal intent). As long as the third inference is one of the possible inferences that could reasonably be drawn from the evidence as a whole, then the existence of a genocidal intent will not be the only reasonable inference that can be drawn.

In other words, Myanmar agrees that genocidal intent can exist alongside other aims. The Gambia must prove that genocidal intent did exist alongside other aims.

In broad terms, when a State acts with both genocidal intent and other aims, its other aims will motivate or explain some of its actions, or some aspects of its actions, and so these other aims can be reasonably inferred from some of the evidence. But these other aims will not motivate or explain all of its actions, or all aspects of its actions, and so only a combination of genocidal intent and other aims can be reasonably inferred from “all of the evidence taken together.”

As we will see, genocidal intent may reveal itself in the specific acts committed, the manner of their commission, the accepted costs of their commission, or the instrumental value of group destruction to other aims. Different methods of proof reveal different patterns of interaction between genocidal intent and other aims. The following sections describe these different patterns of interaction in somewhat abstract and stylized terms. But the point is entirely practical: to explain how genocidal intent may be established when a State simultaneously pursues other political or military aims.

Parallel Intent

Genocidal intent may coexist with other aims in a variety of ways. The simplest pattern involves what I call Parallel Intent:

Parallel Intent: The State commits some acts with the intent to destroy a substantial part of a protected group, and commits other acts with a different aim (e.g., to defeat an armed insurgency).

In this pattern, the State’s acts are divisible into some acts committed with genocidal intent and other acts committed with non-genocidal aims. These acts may be committed in the same time period and geographical area, by the same State organs or individuals under the State’s effective control, but on closer inspection they pursue different ends. The genocidal intent behind one subset of acts committed against group members may be inferred from their gravity, scale, systematicity, repetition, and discriminatory targeting, as well as from public speeches, private meetings, and the State’s general political doctrine (see here). In contrast, the non-genocidal aims behind another subset of acts may be inferred from various other circumstances, such as the precise targeting of armed group members and the taking of precautions to avoid or minimize harm to civilians. The crucial point is that while non-genocidal aims may be reasonably inferred from the evidence related to one subset of acts, only genocidal intent may be reasonably inferred from the evidence related to another subset of acts.

In its final submissions, the Gambia discussed the possibility that Myanmar’s security forces may have acted with parallel intent, saying that:

the fact that there was a counter-terrorism operation in progress—if that was indeed the case—is pure context. It is not intent. It is not the intent of the State at the time its authorized agents began firing their weapons deliberately at Rohingya civilians, including women and children, upon entering scores of Rohingya villages and began to slaughter the civilian population.

Put another way, counter-terrorism aims might explain why Myanmar’s security forces were in certain areas at certain times, and why they may have performed certain acts directed at armed insurgents. But counter-terrorism aims cannot explain the alleged acts of systematically killing civilians. Indeed, Myanmar did not attempt to explain how such killings could reflect or result from an intent to defeat an armed insurgency. The Court must therefore determine whether the scale of such killings—as well as other particular circumstances, including any patterns of similar conduct in different locations—supports a reasonable inference of genocidal intent and excludes any other reasonable inference.

Overlapping Intent

The most complex pattern of interaction between genocidal intent and additional aims involves what I call Overlapping Intent.

Overlapping Intent: The State commits the same acts with both the intent to destroy a substantial part of a protected group and another aim (e.g., defeating an opposing armed insurgency).

In this pattern, the State’s acts are not fully divisible into some acts committed with genocidal intent and other acts committed with non-genocidal aims. Instead, the same acts (typically composite acts or courses of action) reflect both genocidal intent and non-genocidal aims. In such cases, it may be possible to identify the distinct influence of genocidal intent and show that the course of action can only be fully explained as partly intended to destroy a protected group. The means and manner of its commission, as well as the costs accepted or risks incurred, may reveal that the course of action is partly intended to destroy a protected group and is not exclusively aimed at other ends.

Further complicating matters, genocidal intent may partially overlap or fully overlap with other aims. In cases of partial overlap, genocidal intent and other aims explain different parts of a single course of action. In such cases, other aims may be reasonably inferred from some aspects of the course of action, but only genocidal intent may be reasonably inferred from other aspects of the course of action. In cases of full overlap, genocidal intent and other aims each contribute to every part of a single course of action. In such cases, every part of the course of action promotes or realizes both aims. Nevertheless, it is still possible to infer the existence of multiple aims, including from the costs that the perpetrator is willing to accept in pursuit of its course of action.

The Gambia alleges that Myanmar’s security forces separated and killed the men and boys in several villages. In its Counter-Memorial, Myanmar wrote:

To the extent that The Gambia alleges that there has been “selectivity” in the killings by the Tatmadaw, namely by targeting particular members of the group (“men and boys”, or “women and girls”), this would in any event suggest “that considerations other than a genocidal intent determined the scope of victimhood”. Equally, the attempted neutralisation by the Myanmar Defence Services of ARSA terrorists and their mobilised supporters, who presented a real and sustained threat to the peace and security of the area, is indicative of an intention other than the destruction of a group as such.

Myanmar appears to argue that, if some men and boys in a village may be members or supporters of an armed insurgency, then killing all men and boys in that village would be consistent with the aim of defeating that armed insurgency. Such killings would constitute war crimes, crimes against humanity, and violations of the human right to life, but genocidal intent would not be the only reasonable inference from the evidence.

The Court faced a similar situation in Bosnia v. Serbia. Bosnian Serb forces executed around 8,000 Bosnian Muslim men and teenage boys at Srebrenica. Some were fighters, but most were civilians. Serb forces presumably hoped and desired to kill any fighters and thereby promote their military aims. But if Serb forces were exclusively pursuing military aims, then they would have separated the fighters from the civilians. They did not. They rounded up all the non-elderly men and teenage boys and killed them all. The ICTY found, and the ICJ agreed, that this composite act or course of action, could only be fully explained as at least partly intended to destroy the Bosnian Muslim community in Srebrenica. Similarly, Myanmar’s aim to defeat ARSA cannot fully explain the indiscriminate killing of men and boys in several villages. Myanmar’s forces might have hoped and desired to kill some ARSA members, and thereby promote its military aims, but this aim can only partly explain its course of action viewed as a whole.

The Gambia also alleges that Myanmar “deliberately inflicted on the Rohingya group conditions of life calculated to bring about its physical destruction, in whole or in part” in violation of article 2(c) of the Genocide Convention. The Gambia specifically alleges that:

Myanmar carried out a widespread campaign to deny the Rohingya access to the essentials of life, including shelter, food, water and medical care, by engaging in the wholesale destruction through burning of their homes, shops, mosques and schools, by destroying or stealing their food and by preventing humanitarian aid agencies from accessing the area.

In response, Myanmar does not argue that it inflicted such conditions with the aim of defeating an armed insurgency. Instead, it denies that it inflicted such conditions at all, and insists that any such conditions it did inflict were not calculated to physically destroy the Rohingya. But an issue of broader significance looms.

Conditions of life are inflicted on a group, which may contain armed insurgents and a civilian population. A State that inflicts such conditions on a group might claim that it exclusively aims to defeat the insurgents and merely foresees (but does not intend) destruction of the civilian population. Without a method to verify or falsify such claims with evidence, article 2(c) of the Convention will lose much of its practical importance.

Conditions of life may not be divisible into discrete acts (as in cases of parallel intent) or analyzable into distinct parts of a course of conduct (as in cases of partially overlapping intent). When a State prevents humanitarian assistance from reaching an entire area that contains both civilians and fighters, it may be possible to identify the denial of certain medical supplies (such as those exclusively used to treat women and children) as clearly reflecting an exclusive intent to harm civilians. In contrast, the denial of food may be impossible to divide into acts, or even parts of a course of action, reflecting distinct aims to harm civilians on one hand and fighters on the other. Even in such cases (of fully overlapping intent), it is possible to prove that both aims are at work. Genocidal intent may be inferred from statements by relevant officials related to such conditions of life, or from the interaction of such conditions of life with other acts or courses of action (such as attacks on civilian infrastructure) as interdependent components of a broader genocidal plan.

Genocidal intent may also be inferred from the costs which the State accepts in order to inflict such conditions of life on the protected group. Such costs may be financial, political, or legal. Inflicting such conditions may cost money or alienate allies. Most importantly, inflicting such conditions may place the State in breach of its obligations under international humanitarian law or international human rights law, or render individual officials criminally responsible for war crimes or crimes against humanity. At the same time, inflicting such conditions on a group may offer little military advantage, since armed insurgents may seize and store the food and medicine they need despite the obstacles imposed by the State. A State’s willingness to accept high costs for little military benefit may indicate that the State intends to destroy the group and does not exclusively aim to defeat the armed insurgency.

Instrumental Intent

Broadly speaking, patterns of Parallel Intent and Overlapping Intent reveal themselves in the specific acts committed and the manner of their commission. Other patterns reveal themselves in the overall design of a genocidal strategy. One pattern involves what I call Instrumental Intent.

Instrumental Intent: The State acts with the intent to destroy a substantial part of a group, where the partial destruction of the group is intended as a means to achieve some further aim (e.g., to compel surviving members of the group to flee an area, or to undermine a military adversary’s will to fight).

In this pattern, the perpetrator intends to destroy a substantial part of the group, but not for its own sake, as a final end, or as an ultimate objective. Instead, the State intends to destroy a substantial part of a group as an “interim goal” (as Belgium puts it in its declaration of intervention). The partial destruction of the group is the State’s chosen means of achieving its other political or military aims, and not a byproduct or side-effect of pursuing these other aims. These further aims explain why the State intended to destroy a substantial part of the group. Evidence of such further aims may support an inference that various destructive acts committed in various locations were part of a common plan to achieve those further aims, while the scale of such destructive acts may support an inference that the common plan involved nothing less than the destruction of a substantial part of the group as a means to achieve those further aims.

During the public hearing, the Gambia told the Court that:

there is no inconsistency between Myanmar or its officials having this motive [to defeat an insurgent force] and, at the same time, having a specific intent, during the “clearance operations”, while committing the actus reus of genocide to destroy the Rohingya as a group — either as an end in itself or as a means of defeating ARSA by depriving it of its potential base of support.

The Gambia went on to say that “the Tatmadaw’s putative motive and specific intent were complementary: the ostensible object of defeating ARSA was pursued by means of the deliberate destruction of the Rohingya group, as such.” The Gambia may have had in mind a question posed by Judge Hmoud to the Gambia’s expert witness:

if you target the whole population, as supporters of the “terrorist”, can’t there be a plausible reason for that? Meaning that, in order to achieve the counter-terrorism operation goal, you have to nip it in the bud, destroy the incubators.

The Gambia’s response is simple: if Myanmar intended to destroy a substantial part of the Rohingya group as a means of defeating ARSA, then it acted with genocidal intent.

The Gambia’s position is consistent with and supported by the Court’s caselaw. In Bosnia v. Serbia, the ICTY observed that Bosnian Serb forces (the VRS) intended to destroy the Bosnian Muslims of Srebrenica as a means of achieving further political aims, including creating a viable ethnically Serb state while rendering unviable a Muslim state (Krstić Appeal, para. 15). The crime of genocide “became part of the means to achieve the objective” of emptying the enclave of Bosnian Muslims (Mladic Trial, paras. 4987, 5096, 5098, 5108; Mladic Appeal, para. 369). While the ICJ emphasized that these further goals did not necessarily require the partial destruction of the Bosnian Muslim group, the Court found that the VRS in fact formed the intent to partially destroy the group in Srebrenica.

In Croatia v. Serbia, the Court confirmed that a State’s further goals provide part of the context within which other evidence of genocidal intent must be assessed. As the Court observed, “it is clear that acts of “ethnic cleansing” … may be significant as indicative of the presence of a specific intent (dolus specialis) inspiring those acts.” For better or worse, the Court found that the evidence before it indicated that Serb forces intended to create a “coercive atmosphere” as a means of expelling the Croat group, but did not intend to destroy a substantial part of the group as a means of expulsion, a result of expulsion, or otherwise.

A State’s instrumental intent to destroy a group as a means to achieve further aims may explain certain features of its conduct that might otherwise indicate a lack of genocidal intent. A State may intend to destroy a part of a group no larger than necessary to achieve its further aim, rather than destroy the largest part of the group it has the means and opportunity to destroy. The State may cease its destructive acts when its further aims are achieved, rather than pursue fleeing survivors across borders or continue large-scale killing of civilians after an armed adversary surrenders. The State’s officials may speak of civilian harm with some regret, describing such harm as a lesser evil necessary to achieve a greater good. None of this negates or disproves genocidal intent that is otherwise clearly established. This simply reflects the instrumental relationship between the perpetrator’s genocidal intent and its other aims. Relatedly, it may be true that the State would stop committing destructive acts if the group fled in large numbers, or if their adversary surrendered. But it does not matter what the State would intend or do in a counterfactual world in which its further aims were met, or could be met in other ways. It matters that, in the actual world, the State intended to destroy a substantial part of a group as means to achieve its further aims.

Conclusion

Genocidal intent coexists with other aims and relates to other aims in various ways. Multiple aims may run in parallel or overlap; they may constrain one another or create a chain of means and ends. Different relations of genocidal intent and other aims may be inferred from conduct, statements, or a combination thereof. Genocidal intent can be found in the specific acts committed, the manner of their commission, the accepted costs of their commission, and the instrumental value of group destruction to other aims. The ultimate question is whether all the evidence taken together establishes that the perpetrator acted with the intent to destroy a substantial part of a group—whatever their other aims may be.

This article has focused on inferring a State’s genocidal intent from its conduct. But statements by government officials are especially useful to prove how a perpetrator’s multiple aims related to one another. For example, statements of strategic goals (such as displacing civilians or defeating an armed adversary) can help prove instrumental intent by revealing the further aims which the perpetrator pursued by means of the partial destruction of a group. Statements indicating intent to harm civilians can help prove overlapping intent, especially when the perpetrator faces few material or legal costs that would indicate genocidal intent rather than depraved indifference. The ultimate question facing the Court is whether it is fully convinced, by all the evidence taken together, that the State acted with genocidal intent alongside its other aims.

The Gambia argues that Myanmar acted with a combination of parallel, overlapping, and instrumental intentions. Many acts were intended solely to partially destroy the Rohingya. Others may have been intended solely to defeat ARSA. Still others may have been committed with both genocidal intent and other aims. Myanmar may have intended to partially destroy the Rohingya as an end in itself, as a means to defeat ARSA, or both. The Court must carefully examine the totality of the evidence in order to identify the various aims at work as well as their various interactions.

https://www.justsecurity.org/131897/proving-genocide-intent-other-aims/