Article by: Eric Osborne, Matthew Dowd & Ryan McBrearty
46 PEPP. L. REV. 547 (2018)
Genocide has been called the “crime of crimes.” That superlative is well-stated. Genocide is the intentional destruction of an entire people—a worse crime is almost beyond comprehension. The very word conjures some of the most horrific images in recorded history. And yet our legal understanding of this most-important crime is limited. Because the crime of genocide requires specific intent, even horrific atrocities will not qualify as genocide as a matter of law if done for a purpose other than the intended destruction of a target group. Thus whether actions qualify as genocide and what type of evidence is sufficient to establish genocide is widely debated.
The question of genocide and specific intent has prompted decades of debate within the academic literature. For example, scholars debate whether the “purpose-based” or the knowledge-based” approach is best for determining if specific intent exists. Yet despite dozens of articles and books on the subject, there are so few agreed-upon actual cases of genocide that resolving academic debates or understanding what constitutes specific intent is difficult. Scholars predominately extrapolate from decisions made by international tribunals such as those established to prosecute the perpetrators of the Bosnian and Rwandan genocides. But even those decisions are limited to the actions of individuals. The nations of the world, including the United States, failed to declare that genocide was happening at the time of the Bosnian and Rwandan genocides. So what actions by a political organization constitute specific intent sufficient for the nations of the world to declare that an ongoing genocide is taking place?
On March 17, 2016 Secretary of State John Kerry issued a declaration that ISIS was committing genocide against certain minority groups in Iraq. This was only the second such declaration of genocide during an ongoing conflict in history. Secretary Kerry’s declaration thus serves as an exceptionally rare precedent by which certain academic debates can be resolved. This Article seeks to answer what constitutes specific intent to commit genocide by thoroughly examining the evidence and arguments presented to Secretary Kerry related to the Christians of Iraq. The Article provides an overview of the academic debate regarding specific intent, details the evidence against ISIS that was presented to Secretary Kerry, and looks at the specific legal arguments that were raised to show that ISIS had the requisite specific intent. The article concludes by extrapolating what evidence and arguments may have been persuasive to secure the declaration. In doing so, the Article seeks to provide authoritative on the crucially important question of what is necessary to show specific intent and to determine that genocide is taking place.