The chameleon of mens rea and the shifting guises of culture-specific genocidal intent in international criminal proceedings

ABSTRACT

This article examines the significance of the mens rea-related evidence present in the specific language and discourse identified in the records of the International Military Tribunal, the International Criminal Tribunal for Rwanda, and the International Criminal Tribunal for the former Yugoslavia. The author argues that international proceedings have seen the emergence of a new type of evidence: a cognitive, linguistic, culturally determined plural of genocidal mens rea. As a result, the mental element of genocidal intent can neither be interpreted nor understood without an advanced forensic approach to the language used by the network of génocidaires. Based on a combination of cognitive and social science research with the humanities, the article applies a hybrid method of analysis to some of the genocide cases in international criminal justice and demonstrates how and why this approach ought to be introduced into the process of identification of the guilty minds of the architects of genocide.

Acknowledgments

I would like to express my sincere gratitude to Clare Lawson from the International Criminal Court (ICC) in The Hague, Camille Bibles, former Senior Trial Attorney at the ICTY, and Dermot Groome, former Senior Trial Attorney at the ICTY and Professor at the Dickinson Schools of Law, Penn State, USA, whose legal and intellectual insights have benefited this article significantly. I am equally indebted to the Thomas J. Dodd Research Center and the Institute of Human Rights at the University of Connecticut, where I held the position of the Gladstein Visiting Professor of Human Rights in 2014 and where an extended version of this article was presented as the 2014 Marsha L. Lilien Gladstein Lecture on April 3, 2014.

The views expressed herein are those of the author(s) alone and do not necessarily reflect the views of the International Criminal Tribunal or the United Nations in general.

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Predrag Dojčinović

Predrag Dojčinović has been working in the linguistic and research section of the Office of the Prosecutor at the International Criminal Tribunal for the Former Yugoslavia since 1998. His publications include Propaganda, War Crimes Trials and International Law (2012). Dojčinović was a Gladstein Visiting Professor of Human Rights at the University of Connecticut in 2014.