The definition of genocide

The two elements of the Convention necessary to secure a criminal prosecution are the actus reus (meaning the criminal act) and the mens rea (meaning the mental intention).^[5]

 The Convention defines genocide as follows:

Article II

In the present Convention, genocide means 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)  Killing members of the group;

b)  Causing serious bodily or mental harm to members of the group;

c)  Deliberately inflicting on the group conditions of life calculated to
     bring about its physical destruction in whole or in part;

d)  Imposing measures intended to prevent births within the group;

e)  Forcibly transferring children of the group to another group.

Article III

The following acts shall be punishable:

a)  Genocide;

b)  Conspiracy to commit genocide;

c)  Direct and public incitement to commit genocide;

d)  Attempt to commit genocide;

e)  Complicity in genocide.

The sub-paragraphs of Article II define the criminal acts themselves—the actus reus—and the first phrase of Article II contains the elements of the mens rea.

The Actus Reus

The IMTFE concluded that

The evidence relating to atrocities and other Conventional War Crimes presented before the Tribunal establishes that from the opening of the war in China until the surrender of Japan in August 1945 torture, murder, rape and other cruelties of the most inhumane and barbarous character were freely practiced by the Japanese Army and Navy^[6].

Individual acts clearly documented within the IMTFE fulfil the actus reus element required by the Convention.^[7]

The Mens Rea

Introduction

Genocide is different from other crimes because it requires a specific/special intent, or dolus specialis.^[8] The physical acts must be perpetrated with this intent to destroy, in whole or in part, and be directed at one of the stated groups (national, ethnical, racial, or religious).^[9] This special intent must not be confused with motive, which would be the reason that a person started to engage in a particular conduct.^[10]

The group

Tribunal case law, such as those from International Criminal Tribunal for the Former Yugoslavia^[11] (ICTY) and the International Criminal Tribunal for Rwanda^[12] (ICTR) confirms a move towards the use of a standard of ‘perception and self-perception’ to define members of a group. Two criteria that have been applied where there is difficulty defining the group, is (a) ‘whether a set of persons are perceived and in fact treated as belonging to one of the protected groups, and in addition (b) they consider themselves as belonging to one of such groups.’^[13]

On the facts, the targeted group—‘the factual group’—is the one seen from the perspective of the Japanese, which included the full-blooded Dutch, some Dutch-Indonesians (because of the arbitrariness of the registration), and some Europeans, and Americans. All these were identified by their identification cards after registration, for example on Java on 11 April 1942, ^[14]and placed into camps, this included captured POWs.^[15] These identity cards effectively divided the group between those being Indonesian and those not.

Starting in April 1944, all the camps came directly under the administration of the Japanese armies—on Java, under the 16^th Army and on Sumatra, the 25^th Army. From that time on, the term POW was used to describe both civilians and true POWs in the camps.^[16] This means that any military dictates applied equally to civilians and POWs.

In whole or in part

The question that arises is, once a group has been identified, how much of the group has to be destroyed? And if a part of a group is destroyed, what is the threshold above which it can be claimed to be of genocidal intent?

The whole group ‘in its entirety’ does not have to be eliminated,^[17] which is why ‘in whole or in part’ was used in the definition. The Whitaker Report clarifies this by stating ‘the actual proportionate scale of the actual or attempted destruction of a group, by any of the means listed in Articles II and III of the Convention, is certainly strong evidence to prove the necessary intent to destroy a group, in whole or in part.’^[18]

Proving intent

As intent is a mental factor, it is ‘difficult, even impossible, to determine,’ which is why, ‘in the absence of a confession from the accused, his intent can be inferred from a certain number of presumptions of fact,’^[19] indeed it can be said that ‘the intent is a logical deduction that flows from evidence of the material acts.’^[20]

Acts

The acts that have been cited as helping to establish the intent are the context of the crime; its massive scale; elements of its perpetration that suggest hatred of the group and a desire for its destruction;^[21] the scale of the atrocities; and the systematic nature of the attacks, killing, displacement; and rape, as well as racially motivated statements by perpetrators;^[22] and deliberately and systematically targeting victims on account of their membership of a particular group, while excluding members of other groups.^[23] Systematic has been described as conduct ‘thoroughly organised and following a regular pattern on the basis of a common policy.’^[24]

Internment camps and removal of a group from a given area

Having established State policy to dominate the Asia-Pacific region, including the DEI, how did the Japanese behave once they had invaded the DEI?

The DEI capitulated on 8 March 1942 and the first internments of civilians started on 13 March.^[25] These internments continued until March 1943, after which date, movements of internees between camps took place.^[26] De Jong charts the Japanese actions towards the Dutch, outlining the ‘anti-Dutch campaigns,’ which supports the view that the Dutch were put into internment camps to stop them interfering in the process of Japanese domination—economically, through taking the oil; politically, as the administration of the Netherlands was pushed aside; and nationally, as the Japanese ‘made it clear from the outset that they regarded the Dutch as inferior beings.’^[27]

The destruction must be in a physical or biological sense^[28] and would mean the disappearance of the group from this earth.^[29] However, it has been stated that the removal of a group from one area to another cannot be seen as the specific intent to destroy the group.^[30] The Darfur report notes that the fact that attackers rounded up people and placed them in camps was not indicative of the intent to destroy the group.^[31]

Plans

It has been noted by the ICTR that ‘although a specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry out genocide without such a plan, or organisation,’^[32] and the ‘existence of such a plan would be strong evidence of the specific intent requirement for the crime of genocide.’^[33]

On the facts I would suggest that there were three plans in existence; the first; the overall plan of the Japanese towards the Asia-Pacific;^[34] the second; the 4 October 1940 plan which shows intention of the Japanese towards the DEI and its resources^[35], and the third being the Order to Kill.

The Order to Kill

A military order was issued on 1 August 1944,^[36] laying out the plan for the ‘final disposition’ of prisoners, and including instructions for the time and method of such disposition. ‘The time’ refers to a preference for acts under superior orders. ‘The methods’ are outlined as follows:

(2)   The Methods,

a)  Whether they are destroyed individually or in groups, or however it is done, with mass bombing, poisonous smoke, poison, drowning, decapitation, or what, dispose of them as the situation dictates.

b)  In any case it is the aim not to allow the escape of a single one, to annihilate them all, and not to leave any traces.

This specific plan was directed against those in the camps, as being ‘part’ of a group. Although it was never implemented (because ‘of the suddenness of the final events and the breakdown of the Japanese Army Command), many POWs certainly believed they were destined for a ‘final solution’ when the time came.’^[37] This is evidence of the dolus specialis required for genocide, or an attempt, against the whole group.

By way of comparison, figures are used from Levene’s book showing the numbers of deaths that occurred in the alleged genocides he studied: between 1941 and 1945, for the Jews of the Holocaust the number was between 5 and 6 million, an estimated 72% of the Jewish population of the countries under Nazi hegemony;^[38] in Armenian, between 800,000 and 1 million were directly or indirectly killed, over a period of 18 months between 1915 and 1916, about 50% of a pre-war Ottoman Armenian population of not more that 2 million;^[39] in the Rwandan Tutsi population, between half a million and 800,000 primarily Tutsis were killed, from April to early July 1994 (about 100 days), about 10% of a total Rwandan population of 8 million;^[40] under the Khmer regime, 1,671,000 people perished during a six-month period from summer 1978 to January 1979, about 21% of Cambodia’s total population.^[41]

In the DEI, the death rate of 24,000 was 18% for those in the camps, spread over a period from January 1942 to August 1945.^[42] Comparing the number of deaths to the total number of 300,000 Dutch and Dutch-Indonesians in the DEI at the start of the war, the figure is 8%.

If the Order to Kill had been carried out successfully, according to the ‘methods for disposition,’ the numbers might have risen to 100% for those in the camps and to 44% of the total of the original population of 300,000.

Attempt to commit genocide

On the facts, the genocide did not take place but an attempt was made.  Article III (d) of the Convention mentions attempt to commit genocide. An attempt is an incomplete crime, one that encompasses preliminary acts.^[43] Attempt is ‘criminal conduct that is preparatory to a crime, but which by definition cannot be followed by the intended crime’ and states that the offence is not consummated because of ‘subjective or external circumstances.’^[44] The ILC 1996 Draft Code of Crimes contains the following as a general provision: ‘attempts to commit such a crime by taking action commencing the execution of a crime which does not in fact occur because of circumstances independent of his intentions.’^[45] There is no case law on how attempt is to be applied, as there have been no prosecutions for attempted genocide.^[46] The Rome Statute of the International Criminal Court 1998 states that attempt occurs when the perpetrator takes a substantial step towards the execution of the act.^[47]

Attempt and the Order to Kill

The Order to Kill was never carried out because in 1945 the atomic bombs were dropped on Hiroshima (6 August) and Nagasaki (9 August). The Japanese were aware that the end of the war was approaching, especially after the Potsdam Proclamation in July of that year. Prior to the end of the war, the Japanese had been moving the Dutch in the camps and concentrating them into a smaller number of camps. In 1942, there were 155 internment camps in the whole of the DEI; by August 1945, this number had been reduced to about 43. Most of these last camps were on Java, as the largest part of the Dutch population had lived there prior to the war.^[48] The reason put forward for this concentration was that the Japanese authorities wanted to ensure that they could control the internees and apply military rules,^[49] and in the event of an Allied landing, the internees could not assist them in any way.^[50] The Order to Kill states, ‘at such time as the situation became urgent and it be extremely important, the POWs will be concentrated and confined in their present location, and under heavy guard the preparation for the final disposition will be made.’^[51] These preparations represent a substantial step towards the commission of the actus reus.

Retroactive application of the concept of genocide

The principle of legality is such that a person may only be held criminally liable and punished for a crime if, at the moment when the act was performed, it was regarded as a criminal offence. It encompasses the maxim nullum crimen sine lege, which requires criminal rules to ‘unambiguously indicate the prohibited conduct,’^[52] and prevents the retroactive application of the law. This issue was addressed at the Nuremberg Trial when the American chief prosecutor said ‘let’s not be derailed by legal hair-splitters. Aren’t murder, torture, and enslavement crimes recognized by all civilised people? What we propose is to punish acts which have been regarded as criminal since the time of Cain and have been so written into every civilised code’^[53] (and similar comments would apply to IMTFE). But as one writer comments, the actions being tried at Nuremberg, ‘however horrible and violative of the basic values of civilised communities, were committed in the absence of a specific set of international criminal laws.’^[54] It is difficult to claim that the crime of genocide was so certain between 1942 and 1945 that it could be unambiguously applied in a criminal court of that time and that the prohibited act was so precisely defined at that time so as to put the perpetrators on notice.

Evaluation

To conclude; the 4 October 1940 Plan, which is attributable to the Japanese State, shows the general intention of the Japanese towards the Dutch. The general acts of brutality that took place in order to fulfill the 4 October 1940 Plan, leading up to the Order to Kill, could be construed to show a genocidal intention towards the Dutch group. Many of the indicators outlined previously have been fulfilled, and the Japanese excluded others from this group and from their acts. However, the wording of the plan suggests that this was not specific intent, as required by the genocide definition, because (a) there was only specific intent towards those who thwarted Japan in its plans to acquire oil field plans and (b) people were rounded up and placed in camps. The Registration and the way that the internees were moved from camp to camp supports the plan, but as seen from the Darfur report, this can contra-indicate genocidal intent.^[55]

I believe that the genocidal intent was actually formed by the Order to Kill and that such acts as occurred between the Order to Kill and the thwarting of its actually being carried, the attempt, were committed with genocidal intent.

The ICTY has stated that ‘convictions for genocide can be entered only where the intent has been unequivocally established.’^[56] The facts examined above support the dolus specialis towards the group ‘the Dutch,’ as seen from the perception of the perpetrators, the Japanese as evidenced by the Order to Kill, and substantial steps were taken to carry out that Order. It is submitted that the actus reus for the crime of genocide by the Japanese State has been satisfied by the facts surrounding and leading up to the implementation of the Order to Kill.

It is difficult to say with certainty that the events between 1942 and 1945 could be prosecuted as genocide, relying on evidence of customary international law or even jus cogens at that time, even if the nullem crimen sine lege rule is circumvented, but it is submitted that many of the authors trying to establish the existence of genocides prior to the Convention do not even consider this issue.^[57] Indeed, the European Parliament has accepted that events in Armenia between 1915 and 1916 constituted genocide,^[58] voting on a clause requiring Turkey to recognize the Armenian genocide as a condition for accession to the European Union.

Finally, although the definition of genocide was not proven by the brutal acts that took place before the Order to Kill, it is important to bear in mind the statement of the Whitaker Report: ‘Other attacks and killings do, of course, remain heinous crimes, even if they fall outside the definition of genocide.’^[59]