Accomplice to Genocide Liability: The Case for a Purpose Mens Rea Standard

I. INTRODUCTION In 1948, the United Nations General Assembly passed the Convention on the Prevention and Punishment of the Crime of Genocide ("Genocide Convention") to prevent the Nazi atrocities from reoccurring.1 For the next forty years, the Genocide Convention went largely unused, not due to the absence of genocidal conduct, but due to cold war politics.2 Since the fall of the Soviet Union, the international community has increasingly relied on the Genocide Convention, and this has created a jurisprudence of genocide.3 This development, combined with the relative decline of the role of state actors, has created a much wider variety of genocidal scenarios than the drafters of the Convention had in mind in 1948.4 The purpose of this Comment is to address inconsistencies between judicial interpretations in the UN ad hoc tribunals as to the mens rea for accomplice liability of top state officials for genocide. The Comment will use, as a case study, a recent Zimbabwean land-seizure program to show that courts should apply a stricter, purpose-based standard, as opposed to a more expansive knowledge-based standard, to judge accomplice liability. Section I provides an overview of the Genocide Convention and recent cases involving the interpretation and development of the jurisprudence governing genocide. This jurisprudence, combined with the purpose, history, and various enforcement issues particular to the Genocide Convention, bears critically on the normative scope of accomplice liability. Section II describes the disastrous land redistribution program in Zimbabwe that could possibly give rise to liability for genocide under a knowledge-based regime. The government designed this program to give land to its supporters, but the program was also associated with racist rhetoric and attitudes, as government officials emphasized and antagonized the racial division between their black supporters and the mainly white landowners. Section III applies the Genocide Convention to this program, showing possible avenues for prosecuting top Zimbabwean officials and noting the two distinct applications of aiding and abetting liability. This section shows that a knowledge mens rea standard for accomplice liability would subject top party leaders to criminal liability for genocide, while a purpose standard would not. Section IV argues that the majority mens rea requirement for accomplice liability provides an overbroad application of the Convention, reigning in too much conduct, and that the stricter, minority requirement is more appropriate to achieve the objectives of the Genocide Convention. II. THE LAW AGAINST GENOCIDE A. THE GENOCIDE CONVENTION'S IDIOSYNCRATIC HISTORICAL CHARACTER Following World War II, the UN set about drafting and adopting the Genocide Convention. The drafting was greatly influenced by the Holocaust and the Cold War. An observer could characterize the drafting as composing two, slighdy conflicting, purposes: to prohibit the specific atrocities committed by the Nazis and Japanese and to limit this prohibition as much as possible, to prevent criticism of US and Soviet Union policies.5 Most notably, the Sixth Committee draft deleted "political groups" from the list of groups protected by the Genocide Convention at the insistence of authoritarian regimes.6 The resulting document does an excellent job at condemning historical atrocities, but has had difficulties adjusting to equally horrific events that deviate from the Holocaust mold.7 Despite this shortcoming, there have been no major textual changes to the Genocide Convention since its passage,8 and the label of genocide under the Convention is still a major milestone for mobilizing international energy towards humanitarian intervention.9 B. THE GENOCIDE CONVENTION The Genocide Convention defines genocide as: Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a. …