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Political Crime, War Crimes, and the Genocide Convention
Criminology · Chapter 16: Political Crime and TerrorismSection 16.1 · lesson 66 of 91video coming soon
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In this lesson
Offenses against the state, offenses by the state, and how they are prosecuted.
- Define political crime and its two directions.
- Describe the law on war crimes and genocide.
- Explain the specific intent requirement for genocide.
- Compare the jurisdictional mechanisms for prosecution.
Transcript
Everything said in the video, section by section (1,805 words). Read along, or search it.
Opening Paradox
The State as Victim and Offender
Here is a strange feature of political crime: the state can be both the victim and the offender. It can be the target of treason, and it can also commit the gravest crimes in international law.
Roadmap
Mapping Political Crime by Legal Category
This lesson maps that territory, one legal category at a time. We begin with the two directions of political crime. Then we look at offenses against the state, including treason and sedition, and the constitutional limits on punishing speech. Next comes the harder direction: crimes committed by the state itself. We set out the international framework of war crimes, crimes against humanity, and the crime of aggression. We examine the Genocide Convention, with its protected groups and its demanding specific intent requirement. Finally, we compare the ways these offenses can be prosecuted, and the gap between law and enforcement. Throughout, the discussion stays at the level of legal categories, not graphic events.
Two Directions
Crimes Against the State and By It
Political crime runs in two directions. One direction covers offenses committed against the state, such as treason, sedition, espionage, and unlawful political violence. The other covers offenses committed by the state, against its own population or against others. That second group includes war crimes, crimes against humanity, genocide, and aggression. One more idea sits between those two directions. It names the definitional problem: when the state is accused, the entity that ordinarily defines crime is also the one in the dock. That problem belongs to the second direction, offenses by the state. It helps explain a long imbalance in the field. For a long time, criminology attended to offenses against the state, far more than to harm done by governments and their agents.
Treason
The Constitution Defines Treason Directly
Several legal categories address conduct aimed at the state. Treason is unique among American offenses, because the U.S. Constitution defines it directly. It consists of levying war against the United States, or adhering to its enemies, giving them aid and comfort. Treason also carries an unusual proof requirement. Conviction requires two witnesses to the same overt act, or a confession in open court. Why build that rule into the Constitution itself? The framers wanted to stop treason from becoming a tool for punishing mere political dissent.
Sedition
Sedition and Two Handed-Forward Categories
Sedition addresses conduct aimed at overthrowing or obstructing the government. It is bounded by the constitutional limits on speech that we turn to next. Two further categories are handed forward to later lessons. Espionage is examined fully in section sixteen point two. Unlawful political violence is examined fully in section sixteen point three.
Speech Limits
Incitement as the Narrow Exception
Where does protected political speech end and punishable conduct begin? Under settled constitutional doctrine, advocating an idea is protected expression. That includes advocating the desirability of unlawful action in the abstract. The narrow exception is incitement, and its test is strict. Advocacy loses constitutional protection only when two conditions are met. It must be directed at producing imminent lawless action. And it must be likely to produce such action. This standard, set by the Supreme Court, replaced an earlier and broader test. That older test let government punish advocacy based on a more speculative danger. The reasoning behind the narrower rule is that political speech deserves strong protection. However unpopular or provocative it is, it stays protected unless it becomes a direct and imminent call to action.
Quick Check
Storm the Doors: Protected or Not?
Quick check. A speaker tells a crowd outside a courthouse, storm the doors right now, and the crowd surges forward. Is that protected speech? Pause, and decide. No: that is incitement, directed at imminent lawless action and likely to produce it. Advocating unlawful action only in the abstract would still be protected.
Analytical Problem
When the State Is in the Dock
Now turn to the second direction, offenses by the state. Here criminology faces a distinctive analytical difficulty. Ordinarily, the state defines what counts as crime, and the state prosecutes it. In this direction, that same entity is the one accused. Domestic criminal law is poorly equipped for this situation. A state is generally not in the practice of prosecuting itself. So the frameworks that grew up in response operate largely outside ordinary domestic criminal law. They live instead in the body of international law we examine next. This connects back to section eight point two. There, state-corporate criminology was introduced as a branch of critical criminology, and handed forward to this chapter.
Core Categories
War Crimes, Humanity, and Aggression
The law of armed conflict, also called international humanitarian law, governs how parties behave during armed conflict. It separates lawful conduct in warfare from conduct that is a criminal offense. A grave breach is a serious violation of that law, which international law treats as a war crime. An example is conduct directed at people no longer taking part in hostilities. Crimes against humanity are serious offenses, such as murder or persecution. They are committed as part of a widespread or systematic attack directed against a civilian population. Here is the key contrast: unlike war crimes, crimes against humanity do not require an armed conflict to exist. The crime of aggression concerns the unlawful use of armed force by one state against another. It is defined at the level of state conduct. Even so, individual leaders can be held responsible for it.
Genocide Convention
Four Protected Groups Under the Treaty
The Genocide Convention was adopted by the United Nations General Assembly in nineteen forty-eight, in the wake of the Second World War. It defines genocide, and it obliges the states that join it to prevent and to punish the offense. The Convention protects four categories of group: national, ethnical, racial, and religious groups. Under the treaty's text, that list is exhaustive, not merely illustrative.
Specific Intent
Intent to Destroy Sets Genocide Apart
What sets genocide apart from other mass atrocity is a specific intent requirement. The perpetrator must intend to destroy, in whole or in part, one of the four protected groups as such. That distinguishes genocide even from crimes against humanity committed on a similar scale. The intent element is often the most demanding part of a genocide prosecution. It is not enough to prove that members of a protected group were harmed. The prosecution must prove a state of mind directed at destroying the group itself.
Enumerated Acts
The Five Acts Listed in the Convention
The Convention lists the specific acts that, combined with that intent, constitute genocide. We state them strictly as legal categories, without description of events. First, killing members of the group. Second, causing serious bodily or mental harm to members of the group. Third, deliberately inflicting conditions of life calculated to bring about the group's physical destruction, in whole or in part. Fourth, imposing measures intended to prevent births within the group. Fifth, forcibly transferring children of the group to another group.
Why Intent Matters
Without Intent, an Act Is Not Genocide
Notice how much work the intent element does. Each act, standing alone without the specific intent to destroy the group, may still be a separate offense. It might be a war crime or a crime against humanity. But without that intent, it does not rise to genocide.
Jurisdiction Bases
Territorial, National, and Universal Jurisdiction
Several distinct bases of jurisdiction govern prosecution of these offenses. Territorial jurisdiction applies where the conduct occurred. National jurisdiction rests on the nationality of the offender or, in some systems, of the victim. Universal jurisdiction lets any state prosecute certain especially serious offenses, such as grave breaches and genocide. It applies regardless of where the conduct occurred, or who was involved. That reflects the international community's shared interest in these crimes.
Courts
Ad Hoc Tribunals and the Last-Resort Court
Ad hoc tribunals were created by the international community for specific historical conflicts, and their jurisdiction is limited to them. The permanent International Criminal Court works under a complementarity principle. It may act only where national courts with jurisdiction are unwilling or genuinely unable to prosecute. That makes it a court of last resort, not a substitute for domestic prosecution. Its reach is also limited by which states have joined its founding treaty, and by when that treaty took effect for a situation.
Comparison
War Crimes Versus Crimes Against Humanity
Now compare four categories of international crime, two at a time. War crimes, or grave breaches, rest on a serious violation of the law of armed conflict. They can be prosecuted on territorial, national, and universal grounds, in national courts, ad hoc tribunals, or the permanent court. Crimes against humanity rest on a widespread or systematic attack on civilians, with no armed conflict required. Jurisdiction is territorial, national, and increasingly universal, with the permanent court subject to complementarity.
Comparison
Genocide and Aggression Jurisdiction Compared
Genocide rests on the enumerated acts, committed with intent to destroy a protected group. One point about genocide jurisdiction is often stated wrongly. The Convention's own text names courts of the territorial state and an international penal tribunal. Universal jurisdiction over genocide rests on customary international law, rather than on the Convention itself. The crime of aggression has the narrowest jurisdiction of the four. It is enforced by the permanent court, subject to significant restrictions.
Enforcement Gap
Where Law and Practice Diverge
A persistent gap separates this legal framework from its practice. Many states have not joined the permanent court. Enforcement frequently depends on political will, and that will may be absent. And the practical capacity to investigate and try these offenses is limited, since they often arise in the aftermath of conflict. This gap is stated as a documented feature of the field, not as a criticism of any particular institution.
Why It Matters
What Criminology Gains From State Crime
Why, then, does criminology study state crime at all? The critical tradition introduced in Chapter eight supplies useful analytical tools. They let us study harm produced through organizational and governmental power, not only through individual conduct. And they push a basic question to the front. Who holds the authority to define an act as criminal in the first place?
Practice: Direction
Sorting Offenses Against or By the State
Let's sort a few offenses by direction. Levying war against one's own government is a crime against the state, and so is giving defense information to a foreign power. Advocating unlawful overthrow, and violence aimed at the government, also run against the state. A state attack on civilians, an act intended to destroy a protected group, combatant violations, and aggression all run by the state.
Practice: Jurisdiction
Matching Offenses to Jurisdiction Types
For jurisdiction, an offense by a national on home territory supports territorial or national jurisdiction. When the state's own courts are unwilling, the permanent court may step in. A body created for a specific historical conflict is an ad hoc tribunal. A grave offense with no state connection points to universal jurisdiction.
Reverse Check
Why the Court Declines a Grave Case
Now flip it around. The permanent court declines a grave case, even though no national court will prosecute it. What two limits likely explain it? Pause, and decide. Treaty membership and timing: no qualifying state has joined the treaty, and the offense predates its entry into force. It isn't gravity or complementarity: the case is grave, and no national court will act.
Final Point
Genocide Cases Turn on Intent Evidence
Finally, any genocide case turns on evidence of intent to destroy the group as such, not just evidence of harm.
Key Takeaways
Lesson Summary: Direction, Speech, Intent, Gap
Let's pull it together. Political crime runs in two directions: against the state, and by the state. Speech is protected short of incitement. International law sets out war crimes, crimes against humanity, aggression, and genocide. And genocide turns on specific intent, with a persistent gap between law and enforcement.
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