Despite sharing historical roots, genocide and persecution are increasingly considered two separate crimes with divergent legal elements that represent two different social wrongdoings. Genocide is a crime aimed at the destruction of groups, characterized by intent to destroy the group, whereas persecution is an offense aimed at serious discrimination against individuals, characterized by the mass or systematic character of the killing. Therefore, this paper will tackle the question of moral difference between genocide and persecution and ask why genocide can still be considered the “crime of crimes” if, contrary to persecution, it does not even require a mass-scale attack or a high number of victims. The most convincing approach argues that genocide risks more ancillary harm due to the additional intent not only
to harm current group members, but also to destroy the group itself. Genocide per se is not worse than persecution, but it is more likely to expand into massive devastation. This is the reason why even “small” genocides need to be prosecuted, punished and prevented by international law.
Table of Contents
- I. INTRODUCTION
- II. LEGAL DIFFERENCES BETWEEN GENOCIDE AND PERSECUTION
- 1) Mens rea Genocidal intent
- 2) Actus reus - Part of Widespread or Systematic Attack
- 3) Actus reus - Grounds of Discrimination
- III. RELATION BETWEEN THE TWO CRIMES
- 1) Genocide as a species of crime against humanity (persecution)
Objectives and Key Themes
This paper analyzes the moral and legal differences between genocide and persecution. It questions why genocide remains the "crime of crimes" even without requiring mass-scale attacks or a high victim count. The paper examines the legal distinctions between the two crimes, their historical relationship, and the implications of their differing definitions for international law.
- Legal distinctions between genocide and persecution
- The historical relationship between genocide and persecution
- The concept of genocidal intent
- The role of scale and systematic attack in defining these crimes
- The implications of defining genocide as the "crime of crimes"
Chapter Summaries
I. INTRODUCTION: This introductory chapter establishes the central question of the paper: why is genocide considered the "crime of crimes," even though legally it doesn't require the same scale of violence as persecution? It highlights the differing legal perspectives on genocide and persecution, noting that while public perception associates genocide with mass killings, the legal definition encompasses a wider range of actions, including non-lethal ones. The chapter sets the stage by outlining the paper's structure and the key questions it will address. It briefly touches on the historical context of genocide and persecution, highlighting the influence of the Holocaust on public perception.
II. LEGAL DIFFERENCES BETWEEN GENOCIDE AND PERSECUTION: This chapter delves into the legal definitions of crimes against humanity, persecution, and genocide, drawing on the statutes of the ICTY, ICTR, and ICC. It meticulously outlines three key differences between genocide and persecution. First, it contrasts the mens rea, explaining that genocidal intent requires the intent to destroy, in whole or in part, a protected group, a higher threshold than the discriminatory intent required for persecution. Second, it highlights the requirement of a widespread or systematic attack for crimes against humanity (including persecution), which is absent in the definition of genocide. Finally, it discusses the grounds of discrimination, noting that while persecution encompasses a broader range of grounds, genocide is limited to national, ethnic, racial, and religious groups. The chapter concludes by summarizing these legal distinctions and their implications for the severity of the two crimes.
III. RELATION BETWEEN THE TWO CRIMES: This chapter explores the complex relationship between genocide and persecution, acknowledging their shared historical roots in the Nazi atrocities. It examines the traditional view of genocide as a particularly heinous form of persecution and contrasts it with the more recent understanding of genocide and persecution as distinct crimes. The chapter delves into the arguments for and against viewing genocide as a species of crime against humanity, carefully considering the implications of this categorization for legal interpretations and applications.
Keywords
Genocide, persecution, crimes against humanity, international criminal law, genocidal intent, discriminatory intent, International Criminal Court (ICC), International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), mens rea, actus reus, mass violence, systematic attack, legal definitions.
Frequently Asked Questions: Analysis of Legal Differences Between Genocide and Persecution
What is the main topic of this paper?
This paper analyzes the moral and legal differences between genocide and persecution. It explores why genocide is considered the "crime of crimes," even without requiring mass-scale attacks or a high victim count, examining the legal distinctions, historical relationship, and implications for international law.
What are the key themes explored in the paper?
The key themes include the legal distinctions between genocide and persecution; their historical relationship; the concept of genocidal intent; the role of scale and systematic attack in defining these crimes; and the implications of defining genocide as the "crime of crimes."
What are the main legal differences between genocide and persecution as discussed in the paper?
The paper outlines three key differences: 1) Mens rea: genocidal intent requires the intent to destroy, in whole or in part, a protected group—a higher threshold than the discriminatory intent needed for persecution. 2) Actus reus: crimes against humanity (including persecution) require a widespread or systematic attack, absent in the definition of genocide. 3) Grounds of discrimination: persecution encompasses a broader range, while genocide is limited to national, ethnic, racial, and religious groups.
What is the historical relationship between genocide and persecution?
The paper explores the complex relationship, acknowledging shared historical roots in Nazi atrocities. It examines traditional views of genocide as a particularly heinous form of persecution and contrasts this with the more recent understanding of them as distinct crimes. It also delves into whether genocide can be considered a species of crime against humanity.
How does the paper define genocidal intent?
Genocidal intent, as discussed, requires the intent to destroy, in whole or in part, a protected group (national, ethnic, racial, or religious). This is a higher threshold than the discriminatory intent required for persecution.
What role does the scale of violence play in distinguishing genocide and persecution?
While public perception often links genocide to mass killings, the legal definition encompasses a broader range of actions. Crimes against humanity, including persecution, require a widespread or systematic attack, a criterion absent in the definition of genocide. This highlights that genocide’s severity isn't solely determined by the scale of violence.
What is the significance of defining genocide as the "crime of crimes"?
The paper investigates why genocide holds this status despite not always involving the same scale of violence as persecution. This involves analyzing the legal distinctions, the unique nature of genocidal intent, and the implications for international law and justice.
What sources does the paper use?
The paper draws on the statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC).
What are the key chapters of the paper and their summaries?
The paper includes an introduction setting the stage; a chapter detailing the legal differences between genocide and persecution; and a chapter exploring their relationship, including the debate about genocide as a species of crime against humanity. Summaries of each chapter are provided in the document.
What are the keywords associated with this paper?
Genocide, persecution, crimes against humanity, international criminal law, genocidal intent, discriminatory intent, International Criminal Court (ICC), International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), mens rea, actus reus, mass violence, systematic attack, legal definitions.
- Citation du texte
- Sonja Kahl (Auteur), 2015, Persecution and Genocide. About the Delimitation of Genocide and Persecution, Munich, GRIN Verlag, https://www.grin.com/document/502387
