CEU Electronic Theses and Dissertations, 2012
| Author | Burns, Dana Leigh |
|---|---|
| Title | Dolus Specialis: How the Judicial Interpretation of Genocidal Intent Devalues Genocide's Special Status |
| Summary | In the literature of international humanitarian law, there are countless epithets and synonyms for this crime: mass killing, eliminationism, an odious scourge, a crime without a name, the crime of crimes. These terms not only convey the horror of the crime but also drive at the challenges to its definition. Sixty years ago, scholars and politicians agreed on name and legal definition. According to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, genocide means one of five prohibited acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such. Yet, I challenge that the ad hoc International Criminal Tribunals, established by United Nations Security Council resolution in the wake of the Yugoslav and Rwanda violence, do not interpret dolus specialis, or genocidal intent, in line with this law. Questioning how and why the judicial interpretation of genocidal intent varies, I intended to demonstrate that the confusion of genocide’s collective commission with the perpetrators’ individual intent. As measures of its collective nature, the courts adopted requirements of crimes against humanity, namely their “widespread or systematic” commission, requiring a plan or policy, against vulnerable “civilian populations.” Therefore these interpretations diminish the genocide’s special intent and status. In the interpretation of genocidal intent, judges assume the perspectives of their social psychologist peers. Similarly, I combined social psychologist James Waller’s individualist model of intent and international lawyer George Fletcher’s collectivist view of perpetration. Waller dismisses the prominent, single variate explanations for perpetrators’ participation&# x2014;extraordi narily evil groups, ideology, psychology, and personality—and develops a multifactoral model of individual commission. On the other hand, Fletcher argues that collectives violate international humanitarian law, which in turn penalizes individuals. In analyzing the interpretation of genocidal intent as articulated by the International Criminal Tribunals of the former Yugoslavia and Rwanda and the Court of Bosnia Herzegovina, I applied social psychology to international law. To test my hypothesis, I conducted a multiple-case study and analyzed the judgments in which the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) as well as the War Crimes Section of the Court of Bosnia Herzegovina (WCS BiH) acquit and convict individuals of genocide. I found that the courts employed the jurisdictional elements of crimes against humanity and required planning, systematization, and widespread attacks as “presumptions of fact” from which to infer genocidal intent. However, they also developed contextual analysis of parts of dolus specialis, recognizing that genocide may not always be gross and systematic but efficient and selective. Given the “difficult[y], even impossibl[ity], to determine […] in the absence of a confession from the accused” his intent as well as legal focus of the Tribunals and the Court of Bosnia Herzegovina, the courts rarely discussed the accused’s psychological motivation. Their reliance on evidence of planning and systematization demonstrates, though, that they preferred the evil collective thesis as an explanation for genocide’s perpetrator. Unfortunately, genocides “are never hindered by a lack of willing executioners.” |
| Supervisor | Bard, Karoly |
| Department | Legal Studies MA |
| Full text | https://www.etd.ceu.edu/2012/burns_dana.pdf |
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