Introduction
The term ‘genocide’ was first introduced by Raphael Lemkin, a Polish-Jewish legal scholar, from the Greek root ‘geno’ which means race, nation, or tribe, and ‘caedere’ which means killing. Lemkin proposed to outlaw genocide in the League of Nations. His proposal was adopted by the United Nations General Assembly in 1948 with the formation of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (“Genocide Convention”).
Special Intent or Dolus Specialis
Genocide embodies a special intent or dolus specialis. The special intent that must be established is that the perpetrator selects the victims because they are members of the group that was intended to be destroyed rather than the identity of the victims. There must be a manifested intention, either in the form of a plan or a systematic structure of the act.
Actus Reus
Article II (a) to (e) of the Genocide Convention lists acts which, if committed with specific intent, amount to genocide.
| Article II of the Genocide Convention | Authorities/Descriptions |
| (a) Killing members of the group | The Chamber in Prosecutor v Akayesu (Case No ICTR-96-4-T) defined ‘killing’ as unlawful, intentional killing of a human being. The requisite elements of murder are that the victim is dead; the death resulted from an unlawful act or omission of the accused; and at the time of the killing, the accused had the intention to kill or inflict grievous bodily harm on the deceased having known that such bodily harm is likely to cause the victim’s death, and is reckless whether death ensues or not. |
| (b) Causing serious bodily or mental harm to members of the group | In The Prosecutor v Clement Kayishema and Obed Ruzindana Case No ICTR–95–1–A, the Prosecution submitted that blows and wounds inflicted would constitute serious harm when they are so violent that they immediately cause the malfunctioning of one or many essential mechanisms of the human body. Non-physical aggressions such as the infliction of strong fear or strong terror, intimidation, or threat are serious mental harm. |
| (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part | In Kayishema, it was viewed that “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” includes methods of destruction that do not immediately lead to the death of members of the group. Therefore, the conditions of life envisaged include rape, starving of a group of people, reducing required medical services below a minimum, and withholding sufficient living accommodation for a reasonable period, provided the above would lead to the destruction of the group in whole or in part. |
| (d) Imposing measures intended to prevent births within the group | In Akayesu, the Chamber held that the measures intended to prevent births within the group should be construed as sexual mutilation, practice of sterilisation, forced birth control, separation of the sexes, and prohibition of marriages. |
| (e) Forcibly transferring children of the group to another group | ‘Forcibly transferring children of the group to another’ as a form of genocide was because of the effects such acts would have on the children and the survival of the identity of the group in the future. Children of such an age, if moved to another culture would possibly embrace the new culture easily. They will grow up not knowing their own beliefs, heritage, and culture, which should have been preserved if they were brought up within their own group. |
Case Studies
1. Indonesian Killings of 1965-1966
In the 1960s, there was widespread fear of communism around the world, including in Indonesia, which had the largest non-ruling communist party, the Partai Komunis Indonesia (PKI). Following a military takeover in Jakarta in 1965, General Suharto launched a massacre against the PKI. The massacre was carried out with the stated intention of eliminating the PKI “down to its very roots”.
The violence was sparked by the kidnapping and murder of six Indonesian military generals on 1 October 1965 by an armed group called the 30 September Movement. Since then, this has been seen as an excuse for the government to conduct massive manhunts for communists and sympathisers. Between October 1965 and March 1966, an estimated half a million people were killed and over a million more imprisoned. The victims of the killings were beheaded, some were castrated, and their dismembered bodies were left in public places. Some victims were beaten to death, while others were shot.
While the National Commission for Human Rights carried out an investigation after Suharto’s fall that confirmed the military’s accountability, it did not lead to significant action or trials against the alleged perpetrators. Thus, it is urged that the Indonesian authorities must put an end to this injustice once and for all.
2. Rohingya Crisis
For decades, the Rohingya in Myanmar have been the victim of widespread human rights violations. When Ne Win’s military regime took over Burma in a coup d’état in 1962, the Rohingya gradually lost their rights. Authorities have repeatedly confiscated their identification documents. The Rohingya are also stateless because they are classified as foreigners under Article 145(a) of the Constitution of the Union of Burma (1974).
On 25 August 2017, the Rohingya militant group Arakan Rohingya Salvation Army (ARSA) attacked 30 police posts and a military base in Rakhine State, killing 12 officers in retaliation for the Rohingya’s long history of violence and repression. The Myanmar military responded to these killings with massive and disproportionate violence, including killings, rape, sexual violence, beatings, torture, village burning, and forced starvation tactics. Between 25 August and 24 September 2017, at least 6,700 Rohingya were killed.
The term “genocide” was initially avoided by the United Nations when atrocities against the Rohingya increased in 2017. However, the Independent International Fact-Finding Mission on Myanmar (‘IIFFMM’) reported in 2018 that “the crimes in Rakhine State, and the manner in which they were perpetrated, are similar in nature, gravity and scope to those that have allowed genocidal intent to be established in other contexts.” Since then, the IIFFMM has released more reports confirming genocide and demanding that the Myanmar military be held responsible for atrocities, including genocide.
In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) No. 2023/68 (2023), following Gambia’s allegation that Myanmar had failed to perform its duties under the Genocide Convention to prevent and punish genocidal acts committed against the Rohingya, the International Court of Justice imposed provisional measures in 2020, ordering Myanmar to ensure that the military stops committing genocide against the Rohingya.
3. Indigenous People in Malaysia (Ethnocide/Cultural Genocide)
In 2014, the Malaysian government and its state-owned electric utility company Sarawak Energy Berhad (SEB) planned to build 12 large-scale dams to generate hydroelectric power. These dams are part of the industrial development initiative known as the Sarawak Corridor of Renewable Energy (SCORE). To create these dams, 10,000 indigenous people from 20 different ethnic groups would be removed from their traditional lands and homes.
Among the hydroelectric dams is the Bakun Dam (the largest dam in Southeast Asia). The Bakun Dam flooded 696 km2 of old forest ecosystems and displaced 10,000 indigenous people, drowning their villages, farms, and the forests in which they would hunt and gather food, medicines, and other goods. Mark Bujang, the head of Sarawak NGO Borneo Resources Institute, commented, “What the government is doing when they’re flooding all these areas is actually killing off the culture, the traditions of the community. It’s basically ethnocide.”
In Nor Anak Nyawai & Ors v Borneo Pulp Plantation Sdn Bhd & Ors [2001] 6 MLJ 241, the court referred to Article 7 of the draft declaration on the Human Rights of Indigenous Peoples which provides that indigenous peoples have the collective and individual right not to be subjected to ethnocide and cultural genocide, including prevention of and redress for any action which has the effect of depriving them of their cultural values or ethnic identities and dispossessing them of their lands, territories or resources.
The case of Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors And Other Appeals [1997] 3 MLJ 23 concerned the whole of the affected area belonged to the State of Sarawak. The respondents were three such natives and the Court of Appeal held that the respondents lacked substantive locus standi as there were persons, apart from the respondents, who were adversely affected by the project. There was no special injury suffered by the respondents over and above the injury common to others. Such a decision was said to be detrimental to the underprivileged, disregarding their customary rights and cultural heritage.
Conclusion
To sum up, genocide does not necessarily involve the physical annihilation of a group. It can take other forms, such as cultural eradication, in addition to mass killing. While complete prevention of genocide appears to be impossible due to the complexities of human behaviour and history, significant efforts can be made to reduce its frequency, scale, and impact. Every step taken to reduce the occurrence of genocide is a meaningful step towards a more humane world.
