The Numbers Game Substantiality and The Definition of Genocide

Journal of Genocide Research
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The Numbers Game: Substantiality and the

Definition of Genocide
Catherine Renshaw
To cite this article: Catherine Renshaw (2021): The Numbers Game: Substantiality and the
Definition of Genocide, Journal of Genocide Research, DOI: 10.1080/14623528.2021.2003990
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JOURNAL OF GENOCIDE RESEARCH
https://doi.org/10.1080/14623528.2021.2003990
The Numbers Game: Substantiality and the Definition of

Genocide
Catherine Renshaw
School of Law, Western Sydney University, Sydney, Australia
ABSTRACT ARTICLE HISTORY

Substantiality is an important but misunderstood part of the Received 22 June 2021
concept of genocide. One problem is that substantiality holds Accepted 5 November 2021
different meanings within law and sociology. Legally,
KEYWORDS
substantiality is connected to the difficulty of proving there is Genocide; Myanmar;
“intention to destroy” in the absence of a specific plan. Rohingya; substantiality;
Substantiality in this sense is a marker of the level of death and mass atrocity
destruction required to support an inference of intent.
Sociologically, substantiality is connected to popular
understandings of genocide that link the gravity of the crime to
the volume of destruction. Substantiality in this latter sense has
been problematized by scholars who point out that genocide
does not necessarily entail a greater level of harm and
destruction than other atrocities, which might fall under the label
of war crimes or crimes against humanity. This article examines
the concept of substantiality with a view to illuminating the
tension that exists between legal and sociological understandings
of genocide. The article uses the alleged genocide of the
Rohingya in Myanmar as a case study to demonstrate the
complexity and contradictions of legal and sociological
applications of the concept of substantiality. The article concludes
that problems with substantiality reflect deeper problems with
the recognition and articulation of the particular wrong inherent
in the crime of genocide.
Introduction
A schism exists between the social understanding of genocide as a crime of scale and the
legal understanding of genocide as a crime of intent.1 In most popular understandings,
genocide is associated with scale: with “mass atrocity”; “mass slaughter”; “mass destruc-
tion”; and “mass death.”2 This accords with the view of many of those who drafted the
CONTACT Catherine Renshaw c.renshaw@westernsydney.edu.au

1
Larissa van den Herik, “The Schism Between the Legal and the Social Concept of Genocide in Light of the Respon-
sibility to Protect,” in The Criminal Law of Genocide, ed. Paul Behrens and Ralph Henham (London: Routledge, 2007),
75–95; Stefan Kirsch, “The Two Notions of Genocide,” Creighton Law Review (2008); Paul Behrens, “Between Abstract
Event and Individual Crime: Genocidal Intent in the Case of Croatia,” Leiden Journal of International Law 28 (2015):
923–35.
2
See Helen Fein, Genocide: A Sociological Perspective (New York: Sage Publications, 1993); Frank Chalk and Kurt Johans-
sen, The History and Sociology of Genocide (New Haven: Yale University Press, 1990); Martin Shaw, What is Genocide?
(Cambridge UK: Polity Press, 2015), 1. Shaw asserts that the popular idea of genocide equates it with mass killing. See
also Paul Boghossian, “The Concept of Genocide,” Journal of Genocide Research 12, nos. 1–2 (2010): 69–80.
© 2021 Informa UK Limited, trading as Taylor & Francis Group
2 C. RENSHAW
Genocide Convention, in the wake of the Second World War. A key concern at the time
was to ensure that the charge of genocide was reserved only for attacks that threaten
the very existence of a human group. The scale and monstrosity of the Holocaust oversha-
dowed debates about the scope and application of the Convention.3
Legally, however, genocide does not require a particular scale of mortality.4 Genocide
is simply the intention to destroy a particular group, coupled with even a single act of
destruction.5 The category of genocidal acts include acts that are not necessarily fatal,
such as causing mental harm to members of a group or transferring children of the
group to another group.6 Nevertheless, the issue of scale – or “substantiality” – is
deeply embedded in most legal determinations of genocide. This is because of the
difficulty of establishing the legal requirement of intent. There will rarely be an explicit,
concrete plan articulating the intention to destroy a group. In most cases, intent must
be inferred from the circumstances. Because of this, the scale of destruction is a relevant
factor in establishing intent. In some cases, such as in Rwanda, evidence of genocidal
intent is manifest in the number of killings. Death on such a scale simply could not
occur unless it was done pursuant to an overarching plan aimed at ending the existence
of the group. In Prosecutor v Akeyasu7 and Kayishema and Ruzindana8 the courts inferred
without difficulty the existence of a plan to commit genocide against the Tutsis from the
context of the attacks against them, including the scale of atrocities and their nature, and
the number of victims.9
However, there are other situations where matters are not as clear. Where perpetrators
have the opportunity to carry out wide-scale destruction but refrain from doing so, the
question arises as to whether the reduced level of destruction augurs against the con-
clusion that the perpetrator intended to destroy the group. The argument is that
absence of substantial destruction could be interpreted as evidence indicating that the
requisite special intention to destroy does not exist.10 For example, the United Nations
Commission of Inquiry that was established to investigate whether genocide
took place in Darfur found it relevant that government forces had refrained from extermi-
nating the entire population in villages it had attacked, instead selectively killing only
3
Irving Loui Horowitz, Taking Lives: Genocide and State Power (New Jersey: Transaction Publishers, 2002); Nathan
A. Kurz, “Hide a Fact Rather than State it: The Holocaust, the 1940s Human Rights Surge, and the Cosmopolitan
Imperative of International Law,” Journal of Genocide Research 23, no. 1 (2021): 37–57. Kurz questions the extent
to which the Holocaust was part of the “discursive context” within which the Universal Declaration of Human
Rights and the Genocide Convention were drafted.
4
Chris Sidoti, “Personal Reflections on the Law of Genocide,” Journal of Genocide Research 21, no. 2 (2019): 234–6; UN
Doc A/HRC/39/CRP.2 (2018), 351–64.
5
Margaret M. de Guzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal
Law (Oxford: Oxford University Press, 2020), 62.
6
United Nations General Assembly, “Convention on the Prevention and Punishment of the Crime of Genocide, 9
December 1948 (Genocide Convention),” United Nations Treaty Series 78, 277. The Elements of Crimes under the
Statute of the International Criminal Court (ICC Elements) confirm that an act of genocide can take place against
a single person - provided that it takes place in the context of a manifest pattern of similar conduct. See ICC-
ASP/1/3.
7
ICTR, “Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4, Trial Chamber I, 2 September 1998”. See William Schabas,
Genocide in International Law: The Crime of Crimes (New York: Cambridge University Press, 2009), 248.
8
ICTR, “Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Trial Chamber II, 21 May 1999”.
9
Ibid., 42. The court in Kayishema [at 93] quoted with approval the Report of the Subcommission on Genocide, where
the Special Rapporteur stated: “the relative proportionate scale of the actual or attempted destruction of a group, by
any act listed in Articles II and III of the Genocide Convention, is strong evidence to prove the necessary intent to
destroy a group in whole or in part.”
10
See UN Doc S/2005/60 (25 January 2005), 138–40.
JOURNAL OF GENOCIDE RESEARCH 3
groups of young men.11 The Commission ultimately determined that genocide had not
occurred.12
Substantiality is also relevant to the legal question of what constitutes “part” of a
group.13 The drafters of the Genocide Convention were intent on ensuring that the
crime of genocide encompassed the intended destruction of a protected group “in
whole or in part.” The total destruction of all members of the group was not a require-
ment. But how significant a part of the group must be targeted? The case law from the
International Criminal Tribunal for the former Yugoslavia (ICTY) establishes that in
different circumstances “in part” can be determined on a geographical basis,14 or on a
numerical basis where the targeted part is a significant proportion of the total group,15
or on the basis of an estimation of how important a social, political or religious role
specific targeted individuals play in the survival of the group.16 The case law establishes
that intention to destroy the group “in whole or part” means “in whole or substantial part”
but it is unclear how substantiality should be determined.17
One problem with the narrow focus on numbers is that it can lead to simplistic com-
parisons between complex and singular historical events. Take, for example, the state-
ments made by Myanmar’s Aung San Suu Kyi, in the International Court of Justice in
the Hague in 2019.18 Myanmar was accused of violating the Genocide Convention by per-
petrating genocide against the Rohingya, a Muslim ethnic minority in the West of the
country. In her Opening Statement in defence of the government, Suu Kyi raised the
issue of scale. Suu Kyi told the court that genocide was the systematic killing of more
than six million European Jews and the mass-killing of 70 per cent of the Tutsis in
Rwanda.19 The Rohingya, in contrast, had suffered far lower levels of death.20 This,
implied Suu Kyi, suggested that there was no intention to destroy the Rohingya as a
11
Ibid.
12
Despite the conclusions of the Commission of Inquiry, in March 2005 the Prosecutor of the International Criminal
Court requested authorisation to investigate Omar Al-Bashir for, among other things, the crime of genocide. See
ICC, “Decision on the Prosecution’s Application for a Warrant of Arrest against Hassan Ahmad Al Bashir, The Prosecutor
v. Al Bashir, Case No. ICC-02/05-01/09 Pre-Trial Chamber I, 4 March 2009” Pre Trial Chamber I declined to issue a
warrant for the charge of genocide. The Prosecutor appealed this decision and the Appeal was successful: Prosecutor
v. Bashir, ICC-02/05-01/09-95, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir (12 July 2010).
13
See David Alonzo-Maizlish, “In Whole or in Part: Group Rights, the Intent Element of Genocide, and the Quantitative
Criterion,” New York University Law Review 77, no. 5 (2002): 1388.
14
ICTY, “Prosecutor v Radovan Karadžić, Case No. IT-95-5/18, Trial Chamber Judgement, 24 March 2016,” 210.
15
Ibid.
16
See ICTY, “Prosecutor v, Sikirica, Case No IT-95-8-I, Judgment on Defence Motions to Acquit” (3 August 2001), para. 80;
William A. Schabas, “Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Crim-
inal Tribunal for the Former Yugoslavia,” Fordham International Law Journal 25 (2001): 41–7. See also Paul Behrens,
“The Crime of Genocide and the Problem of Subjective Substantiality,” German Yearbook of International Law 59
(2016): 333–6. Behrens refers to this as the “functional approach” (Ibid., 331).
17
ICTY, “Prosecutor v Radislav Krstić, Case No. IT-98-33-A, Trial Chamber Judgement” (2 August 2001), 203 [Krstić Appeal]
para 8. In Kristic the numerical approach to determining substantiality appears to be favoured [12]: “The numeric size
of the targeted part of the group is the necessary and important starting point, though not in all cases the ending
point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in
relation to the overall size of the entire group.”
18
International Court of Justice (ICJ), “Case concerning Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide (The Gambia v. Myanmar) (Verbatim Record) 11 December 2019”.
19
ICJ, “The Gambia v. Myanmar (Verbatim Record),” 18. See Isabella Steger, “As villages burn and Rohingya flee, Aung
San Suu Kyi tells the world ‘solid evidence’ is needed,” Quartz, 19 September 2017, https://qz.com/1081000/as-
villages-burn-and-rohingya-refugees-flee-aung-san-suu-kyi-tells-the-world-solid-evidence-is-needed/ (accessed 6
February 2021); Hannah Beech, “Aung San Suu Kyi Makes First Visit to Rohingya Area in Myanmar,” New York
Times, 11 February 2017, https://www.nytimes.com/2017/11/02/world/asia/myanmar-suu-kyi-rohingya.html
(accessed 6 February 2021).
20
ICJ, “The Gambia v. Myanmar (Verbatim Record),” 18.
4 C. RENSHAW
group. The scale of destruction required for the event to qualify as genocide was simply
not there.21
Another problem is that attentiveness to scale occludes other and arguably more
potent evidence of genocidal intent. Raphael Lemkin originally defined genocide as “a
coordinated plan of different actions aiming at the destruction of essential foundations
of the life of national groups, with the aim of annihilating the groups themselves.”22
The objective of genocide, according to Lemkin, was the “disintegration of the political
and social institutions of culture, language, national feelings, religion, and the economic
existence of national groups, and the destruction of the personal security, liberty, health,
dignity, and the even lives of the individuals belonging to such groups.”23 Since the draft-
ing of the Genocide Convention, courts attempting to apply the law of genocide have
insisted that destruction must relate to the biological, physical destruction of the
group.24 Courts have accepted as evidence of genocidal intent extensive acts of physical
destruction – and in some cases such as Rwanda, widespread rape.25 But historians,
anthropologists and sociologists have noted that groups – which are social constructs –
can be destroyed by means other than the substantial physical destruction of individual
members of the group – and indeed that destruction by means other than killing is within
the framework of the Genocide Convention.26 Courts have not, however, generally been
prepared to accept as sole evidence of “intent to destroy” the destruction of important
things that tether a group to its identity (such as languages, customs, religious
practices, homes, houses of worship). Holistic assessments that consider acts of physical
destruction alongside other mechanisms that socially destroy the group through the elim-
ination of its members’ ability to share experiences are not prominent in judgments on
genocide.27
Among international crimes (genocide, crimes against humanity, war crimes and
aggression) there is no legal hierarchy of grievousness.28 Each of these crimes is
21
“Aung San Suu Kyi denies ethnic cleansing of Rohingya Muslims in Myanmar,” The Guardian, 5 April 2017, https://
www.theguardian.com/world/2017/may/03/aung-san-suu-kyi-rejects-un-inquiry-into-crimes-against-rohingya
(accessed 6 February 2021); Agence France-Press, “Aung San Suu Kyi rejects UN inquiry into crimes against Rohingya,”
The Guardian, 3 May 2017, https://www.theguardian.com/world/2017/may/03/aung-san-suu-kyi-rejects-un-inquiry-
into-crimes-against-rohingya (accessed 6 February 2021); Michael Sullivan, “Myanmar Leader Aung San Suu Kyi
Defends Country Against Accusations Of Genocide,” NPR, 12 December 2019, https://www.npr.org/2019/12/12/
787552705/myanmar-leader-aung-san-suu-kyi-defends-country-against-accusations-of-genocide?t=1589596170371
(accessed 7 February 2021); “Myanmar Rohingya: Suu Kyi rejects claims at UN Court,” BBC News, 11 December 2019,
https://www.bbc.com/news/world-asia-50741094 (accessed 6 February 2021); Tim Wyatt, “Aung San Suu Kyi Ignoring
‘Unspeakable’ Crimes Against Rohingya Muslims, Court at The Hague Hears,” The Independent, 12 December 2019,
https://www.independent.co.uk/news/world/asia/aung-san-suu-kyi-myanmar-burma-rohingya-muslim-
international-court-justice-a9244051.html (accessed 6 February 2021); Shoon Naing and Stephanie van den Berg,
“Suu Kyi Urges Court to Drop Rohingya Genocide Case,” Sydney Morning Herald, 13 December 2019, https://www.
smh.com.au/world/asia/suu-kyi-urges-court-to-drop-rohingya-genocide-case-20191213-p53jqn.html (accessed 6
February 2021).
22
Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress
(Washington: Carnegie Endowment for International Peace, 1944), 79.
23
Ibid.
24
ICTY, “Prosecutor v Radislav Krstić, Case No. IT-98-33-A, Trial Chamber Judgement” (2 August 2001), 203. The Trial
Chamber “recognises that, despite recent developments, customary international law limits the definition of geno-
cide to those acts seeking the physical or biological destruction of all or part of the group.”
25
ICTR, “Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4, Trial Chamber I, 2 September 1998,” 167.
26
Schabas, “Was Genocide Committed in Bosnia and Herzegovina?” 33–6.
27
Joshua Kaiser and John Hagan, “Gendered Genocide: The Socially Destructive Process of Genocidal Rape, Killing, and
Displacement in Darfur,” Law & Society Review 49, no. 1 (2015): 69–107.
28
Kevin Jon Heller, “What is an International Crime? (A Revisionist History),” Harvard International Law Journal 58 (2017):
353.
“universally condemned,”29 “universally abhorred,”30 and “shocks the conscience of all

humanity.”31 Nevertheless, in popular understandings, it is genocide that carries the
status of “crime of crimes”32 and “the ultimate crime.”33 A mistaken notion of the central-
ity of scale is at the heart of this (mis)understanding. The consequences are problematic.
Victims, for example, seek acknowledgment that genocide took place – rather than some
other international crime – as authentication of the extent of their suffering. To illustrate:
In June 2021, the Appeals Chamber of the International Criminal Tribunal for the Former
Yugoslavia upheld a genocide conviction against former Bosnian Serb military comman-
der Ratko Mladić, for his role in the massacre of 8,000 Bosnian Muslims at Srebrenica.34
The Appeals Chamber refused, however, to add a second conviction for genocide for
crimes committed against Bosnian Muslims and Bosnian Croats elsewhere, such as in Pri-
jedor.35 In relation to atrocities carried out in Prijedor, the court confirmed the convictions
for the crimes of persecution and crimes against humanity. The response of one of the
victim’s children was: “to have things like this happen and for it not to constitute genocide
is deeply disheartening … .Genocide is the worst atrocity that can be committed and that
can be delivered by an international court but it’s also a way for survivors to have had
their traumas acknowledged.”36 There are other problems as well. Scholars such as
Moses note that the focus on genocide distracts from other forms of humanly caused civi-
lian death – which may be more extensive, in terms of the level of destruction, than
genocide.37
Against this backdrop, this article aims to do two things. First, it seeks to reaffirm
Lemkin’s original conception of the wrong inherent in the crime of genocide, reflected
in the Genocide Convention, which is that the core of genocide is the malign intention
to destroy the group (or part of it). The number of victims is not the key determinant
29
UN Doc A/65/181 (29 July 2010), 4.
30
Richard H. Cooper, Responsibility to Protect: The Global Moral Compact for the 21st Century (New York: Palgrave Mac-
millan, 2009), 233. See also UN Doc A/66/93 (20 June 2011).
31
UN Doc A/C.6/69/SR.11 (6 November 2014), 6.
32
Schabas, Genocide in International Law: The Crime of Crimes.
33
On 4 September 1998, the ICTR in the Kambanda case described genocide as the “crime of crimes”: ICTR 97-23-S, Trial
Chamber I, 4 September 1998 [16]. UNESCO’s 1985 “Report on the question of the prevention and punishment of the
crime of genocide” (the Whitaker Report) describes genocide as “the ultimate crime and the gravest violation of
human rights it is possible to commit” E/CN.4/Sub.2/1985/6[14]. Much of the literature employs the rhetoric of gen-
ocide as the “crime of crimes”. See Payam Akhavan, Reducing Genocide to Law: Definition, Meaning, And the Ultimate
Crime (Cambridge: Cambridge University Press, 2014), 147. Matthew Lippman (2000–2001), “Genocide: The Crime of
the Century. The Jurisprudence of Death at the Dawn of the New Millenium”, Houston Journal of International Law 23
(2000–2001): 508. However the notion of a “hierarchy of crimes” with genocide at the pinnacle was rejected by the
Tribunals – see Kayishema ICTR Appeals Chamber, Judgment, ICTR-95-1-A), Appeals Chamber, I June 2001 [367].
34
IRMCT, “Prosecutor v. Ratio Mladić, Case No. MICT-13-56-A, Appeals Chamber Judgement, 8 June 2021”. See Anthony
Deutsh and Stehpanie Van Den Berg, “Genocide conviction upheld against former Bosnian Serb military chief Mladic,”
Reuters, 8 June 2021, https://www.reuters.com/world/europe/bosnian-serb-military-leader-mladic-will-hear-final-
verdict-genocide-case-2021-06-08/ (accessed 8 June 2021).
35
See Admir Muslimovic, “War Victims Hope for Double Genocide Conviction for Ratko Mladic,” Balkan Transitional
Justice, 7 June 2021, https://balkaninsight.com/2021/06/07/war-victims-hope-for-double-genocide-conviction-for-
ratko-mladic/ (accessed 8 June 2021); Aleksander Brezar, “Not Bad Enough for Genocide? The Bosnian Towns
Cheated by Mladić Verdict,” Euro News, 11 June 2021, https://www.euronews.com/2021/06/11/not-bad-enough-
for-genocide-the-bosnian-towns-feeling-cheated-by-mladic-verdict (accessed 12 June 2021).
36
“Mladic Appeal,” BBC News, 8 June, Global News Podcast. See also “Reaction to UN court’s rejection of Ratko Mladic
genocide appeal,” BBC News, 9 June, Global News Podcast.
37
A. Dirk Moses, The Problems of Genocide. See Baghossian, “The Concept of Genocide,” 74. Baghossian notes that “it is
an interesting and unanswered question whether targeting a particular group really is worse than killing a large
number of people.” David Scheffer, “Genocide and Atrocity Crimes,” Genocide Studies and Prevention 1 (2006):
229–50.
6 C. RENSHAW
of genocide nor is it the explanation for why genocide is commonly regarded as “the nadir
of human evil.”38 Second, the article seeks to demonstrate the negative consequences of
the misperception that scale is inherent in the crime of genocide. The article argues that
the focus on numbers limits our understanding of the particular wrong of genocide and
diminishes our ability to recognize the comparable wrong of other international crimes.
The article illustrates the “numbers problem” that lies at the core of genocide with refer-
ence to the case of Myanmar’s Rohingya, who were subjected to a campaign of ethnic
cleansing – and possibly genocide – by the country’s military in 2016 and 2017. Inter-
national legal proceedings concerning the military’s conduct against the Rohingya are
taking place in the International Court of Justice (under the Genocide Convention),39 in
the International Criminal Court (where the Prosecutor is investigating crimes against
humanity including deportation and persecution)40 and in an Argentinian state court
under the principle of Universal Jurisdiction (for crimes including genocide).41 The
Myanmar cases will raise the issues of intent, substantiality and the grey area between
ethnic cleansing and genocide.
First, the article explains how the concept of substantiality has been employed in
relation to the legal issue of intent. Second, the article examines shortcomings of attempts
to translate the moral imperative for the protection of groups into law; and how the focus
on scale as part of proving “intention to commit genocide” occludes the understanding of
the nature of genocide. The article then explains how the concept of substantiality might
apply in the context of the legal proceedings brought against the government of
Myanmar in relation to the genocide of the Rohingya, to highlight some of the impli-
cations of the focus on scale. To conclude, the article proposes suggestions for how we
might reorient the sociological and legal understandings of genocide through greater
attentiveness to qualitative accounts of genocidal harm.
Substantiality and Evidence of Intent

The definition of genocide in international law is straightforward. The Genocide Conven-
tion defines genocide as a crime committed with the intent to destroy, in whole or in part,
a national, ethnic, racial or religious group, as such.42 Genocide requires the commission
of certain acts (killing; causing serious bodily or mental harm; inflicting conditions of life
calculated to bring about a group’s physical destruction; imposing measures intended to
prevent births; forcibly transferring children to another group) carried out with the
specific intention (dolus specialis) of destroying the group.43 Most attempts to prove
38
Alonzo-Maizlish, note 13 above, 1402.
39
ICJ, “Republic of The Gambia v. Republic of the Union of Myanmar – Application Instituting Proceedings and Request for
Provisional Measures,” 11 November 2019, https://www.icj-cij.org/en/case/178 (accessed 20 February 2020).
40
ICC, “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the
People’s Republic of Bangladesh/Republic of the Union of Myanmar, Pre-trial Chamber III,” 14 November 2019, https://
www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/19-27 (accessed 20 February 2021).
41
Maung Tun Khin, “Complainant Files - Criminal Complaint of Genocide and Crimes against Humanity Committed
against the Rohingya Community in Myanmar – Universal Jurisdiction,” Burma Campaign, 11 November 2019,
https://burmacampaign.org.uk/media/Complaint-File.pdf (accessed 12 March 2021); “Myanmar’s Aung San Suu Kyi
Faces First Legal Action Over Rohingya Crisis,” The Guardian, 21 November 2019, https://www.theguardian.com/
world/2019/nov/14/myanmars-aung-san-suu-kyi-faces-first-legal-action-over-rohingya-crisis (accessed 12 March
2021).
42
Genocide Convention (1948), Article II.
43
Ibid.
genocide fail on the issue of demonstrating genocidal intent.44 One argument sometimes
made in response to allegations of genocide is that in situations where military leaders
possess a maximal concentration of power vis-a-vis the victim group, then failure to
annihilate the protected group is an indication that leaders did not intend genocidal
destruction.45 If they had intended destruction, the argument goes, then that is what
they would have achieved.46 The unfortunate result is that those alleging the crime of
genocide are forced to show that genocide was successful in order to prove intent.47
The findings of the Darfur Commission stand as an example of the difficulty of proving
intent to commit genocide. The Commission was established by the Security Council in
2004 with a mandate to investigate, among other things, whether genocide occurred
in Darfur at the hands of the government of Sudan.48 The Commission found that
although Government forces and militias had carried out the actus reus of genocide (kill-
ings) and the victims were arguably members of a distinct racial, ethnic and religious
group, the crucial element of genocidal intent was missing.49 In short, the Commission
found that while Sudanese government forces killed and displaced members of tribes,
they did not do so with the intention of annihilating the groups, in whole or in part.
Instead, the Commission found, the intention was to drive victims from their homes, pri-
marily for the purpose of counter-insurgency warfare.50 In reaching this conclusion, the
Darfur Commission noted several examples where government forces had the opportu-
nity to exterminate large numbers of members of the group, but refrained from doing
so.51 This, in the view of the Commission, was one of the factors that showed that the
intent of the attackers was not to destroy the ethnic group as such. Instead, the intention
was to murder the men they considered rebels, and forcibly expel the whole population
so as to vacate the villages and prevent rebels from hiding among the local population.
The Commission concluded that the government of Sudan had not pursued a policy of
genocide.52
Early assessments of the violence in Darfur was that it constituted “ethnic cleansing.”53
Ethnic cleansing is “rendering an area ethnically homogeneous by using force or intimi-
dation to remove persons of given groups from the area.”54 Ethnic cleansing is not a
legal term. Although some commentators view the term as a euphemism for genocide
on the grounds that there is no difference between the two concepts in terms of their
44
Katherine Goldsmith, “The Issue of Intent in the Genocide Convention and Its Effect on the Prevention and Punish-
ment of the Crime of Genocide: Towards a Knowledge-Based Approach,” Genocide Studies and Prevention: An Inter-
national Journal 5 (2010): 238–57.
45
See e.g. ICTY, “Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Trial Judgement, Case No. IT-02-60-T,” 17 January
2005; International Commission of Inquiry on Darfur, “Report of the International Commission of Inquiry on Darfur
to the UN Secretary-General, pursuant to SC Res. 1564, 18 September 2004,” https://www.un.org/ruleoflaw/files/
com_inq_darfur.pdf (accessed 21 March 2021).
46
See discussion note 11 above.
47
See Alonzo-Maizlish, note 13 above, 1388, “A court must determine whether genocide has occurred as proof of
whether a specific defendant could have genocidal intent.”
48
UN Doc. A/RES/1564 (2004).
49
UN Doc S/2005/60 (2005), 4.
50
Ibid.
51
UN Doc S/2005/60 (2005), 138–43.
52
Ibid.
53
Human Rights Watch, “Sudan: Government commits ethnic cleansing in Darfur,” https://www.hrw.org/news/2004/05/
07/sudan-government-commits-ethnic-cleansing-darfur.
54
UN Doc S/25274 (1993), 16. The same definition was quoted by the ICJ in its judgment in the Bosnia and Herzegovina
v. Serbia and Montenegro case (delivered on 26 February 2007). See Maja Vajda, “Ethnic Cleansing as Genocide –
Assessing the Croatian Genocide Case before the ICJ,” International Criminal Law Review 15 (2015): 147–69.
8 C. RENSHAW
aim and outcome,55 the weight of the case law supports the proposition that ethnic
cleansing (dissolution of the group via expulsion) must be distinguished from genocide
(destruction of the group).56 Even when expulsion takes place with the aim of destroying
the group, or part of it, this does not amount to genocide unless expulsion is
accompanied by the specific genocidal acts listed in Article 2 of the Genocide Convention.
Where, as in Srebrenica, ethnic cleansing is accompanied by Article 2 acts such as killing,
causing serious bodily or mental harm, and inflicting conditions of life calculated to bring
about the group’s physical destruction, then ethnic cleansing can sometimes shade into
genocide.57
In such contexts, the issue of substantiality emerges as one of the questions that is
asked to determine whether there is the requisite intention to destroy, rather than to
merely displace. If killings and other prohibited acts result in the physical destruction
of a substantial proportion of the population, or a substantial proportion of part of the
population, then this is evidence that may demonstrate genocidal intent. It is not
sufficient that killings and other prohibited acts are so extreme and egregious that
they cause a significant proportion of the group to disperse and lose the ability to recon-
stitute as a group.58
Destruction on a restricted scale can equate to genocide if it is established that there is
an intention to destroy a group “in part.”59 The International Tribunal for the Former
Yugoslavia60 and the International Court of Justice in the Bosnian Genocide Case61
confirmed that intention to destroy an entire community, in a limited geographic area,
can properly be characterized as an act of genocide.62 Destruction could relate to a geo-
graphical location where part of the group existed; or to members of the group (the reli-
gious or political leadership, for example) who are significant to the groups identity and
existence.63 The ICTY held that for genocide to occur, a significant or substantial part of
the group must be targeted and the part must be sufficiently large to impact the group as
55
Rony Blum et al., “‘Ethnic cleansing’ bleaches the atrocities of genocide,” European Journal of Public Health 18 (2008):
204–09.
56
See ICTY, “Prosecutor v Radislav Krstić, Case No. IT-98-33-A,” 196, 206–07. Schabas believes that ethnic cleansing and
genocide cannot co-exist because the intention in relation to each is entirely different: displacement in the case of
ethnic cleansing; destruction in the case of genocide. Schabas, Genocide in International Law: The Crime of Crimes, 200.
See also ICJ, “Separate Opinion of Judge Lauterpacht,” Application of the Convention of the Prevention and Punishment
of the Crime of Genocide, ICJ Reports (1993).
57
ICC, “Decision on the Prosecution’s Application for a Warrant of Arrest against Hassan Ahmad Al Bashir, The Prosecutor
v. Al Bashir, Case No. ICC-02/05-01/09 Pre-Trial Chamber I, 4 March 2009,” 52. In ICTY, “Prosecutor v Brđanin, Case No.
IT-99-36-T, Trial Chamber II Judgement, 1 September 2004,” at [976] the Trial Chamber stated that forcible displace-
ment “could be an additional means to ensure the physical destruction.” See discussion in Paul Behrens, “A Moment
of Kindness” in The Criminal Law of Genocide: International, Comparative and Contextual Aspects, ed. Ralph Henham
and Paul Behrens (Burlington: Ashgate, 2007), 75–95, 133. See also ICTY, “Prosecutor v. Jelisić, Case No. IT-95-10-T, 14
December 1999” at [83]: “The Trial Chamber notes that it is accepted that genocide may be perpetrated in a limited
geographical zone”.
58
The Trial Chamber in Stakic saw a clear difference between the “mere dissolution” of a group and physical destruction.
ICTY, “The Prosecutor v Milomir Stakic, Case No. IT-97-24-T, Judgment 31 July 2003” [Stakic (Trial Chamber)] [519].
59
Genocide Convention (1948), Article II.
60
ICTY, “Prosecutor v Radovan Karadžić, Case No. IT-95-5/18-AR98bis, Appeals Chamber Judgement, 11 July 2013,” 23–6.
61
ICJ, “Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 26 February 2007,” 166.
62
Ibid., 32–7.
63
“Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), U.N. SCOR, UN
Doc S/1994/674 (1994),” para. 94. “If essentially the total leadership of a group is targeted, it could also amount to
genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals,
business leaders and others – the totality per se may be a strong indication of genocide regardless of the actual
numbers killed.”
a whole.64 Relevant factors include the numeric size of the group, both absolute and
relative, or the prominence of the targeted individuals within it.65 What is essential is
that the destruction is directed towards ending the existence of that part of the group,
as such, as an entity: “the intent to destroy a group, even if only in part, means seeking
to destroy a distinct part of the group as opposed to an accumulation of isolated individ-
uals within it.”66
In Prosecutor v Radislav Krstić, where the court found that the murder of 8,000 Muslim
men in Srebrenica was genocide, the court stated that it had a “margin of discretion” to
interpret what “in part” means in different contexts.67 For example, it might be the case
that a large number of killings in a broad geographical area does not qualify as genocide,
because it does not show the intent to target the very existence of the group. On the
other hand, the killing of even a small number of members located within a tiny geo-
graphical area might qualify as genocide if it is carried out with the intent to destroy
the part of the group that exists in that area. The decision of the ICTY Trial Chamber in
Prosecutor v. Dusko Sikirica, Damir Dosen, Dragan Kolundzija followed Krstić and concluded
that the intent to destroy “in part” could relate to a significant or substantial number of
the group relative to its total population; or to the intent to destroy a significant or sub-
stantial section of the group.68 The cases seem to indicate that whether the group
belongs to a country or a region or a single community, it is clear that it must belong
to a geographic area, limited though that may be.69
The difficulty lies in determining what constitutes a “significant” or “substantial” part of
the group70 Two approaches have emerged. The first is a numerical (or quantitative)
approach. This approach assesses the extent of destruction actually carried out relative
to the total size of the group. In the Sikirica case, for example, the ICTY sought to establish
whether or not there was intent to destroy part of the group of Muslims in the Prijedor
municipality.71 The tribunal calculated the total population of Muslims; divided this by
the number who were killed during a certain period; and arrived at a figure of between
2 per cent and 2.8 per cent.72 This percentage was, in the view of the court, negligible.
64
ICTR, “Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Trial Chamber II Judgement, 21
May 1999,” 44. The ICTR approved the International Law Commission’s statement from the Draft Code of Crimes
that “the crime of genocide by its very nature requires the intention to destroy at least a substantial part of a par-
ticular group.” See also the discussion in ICJ, “Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 26 Feb-
ruary 2007,” 126.
65
ICTY, “Prosecutor v Radislav Krstić, Case No. IT-98-33-A, Appeals Chamber Judgement, 19 April 2004,” 4.
66
UN Doc E/CN.4/Sub.2/1985/6, 16. The Special Rapporteur on the Prevention of Genocide has stated that “in part”
would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a signifi-
cant section of a group such as its leadership. Both proportionate scale and total number were relevant.” See also
Andrea Gattini, “Breach of the Obligation to Prevent and Reparation Thereof in the ICJ’s Genocide Judgment,” Euro-
pean Journal of International Law 18, no. 4 (2007): 695.
67
ICTY, “Prosecutor v Radislav Krstić Case No. IT-98-33-T,” 208.
68
ICTY, “Prosecutor v. Dusko Sikirica, Damir Dosen, Dragan Kolundzija (Judgement on Defence Motions to Acquit), Case No.
IT-95-8-T, Trial Chamber Judgement, 3 September 2021,” 12.
69
See Ibid., 30.
70
ICTY, “Prosecutor v Radislav Krstić, Case No. IT-98-33-A,” 2-8; ICTR, “Prosecutor v Ignace Baglishema, Case No ICTR-95-
1A-T, Appeals Chamber Judgement, 7 June 2001,” 29; ICTY, “Prosecutor v Radislav Krstić, Case No. IT-98-33-T,” 205–06;
ICTY, “Prosecutor v Popović et al, Case No. IT-05-88-T, Trial Chamber II Judgement, 10 June 2010,” 336–7; ICTY, “Pro-
secutor v Brđanin, Case No. IT-99-36-T, Trial Chamber II Judgement, 1 September 2004,” 249; ICJ, “Bosnia and Herze-
govina v. Serbia and Montenegro, Judgment of 26 February 2007,” 126. See William A. Schabas, “Darfur and the
‘Odious Scourge’: The Commission of Inquiry’s Findings on Genocide,” Leiden Journal of International Law 18, no.
4 (2005): 871; Schabas, “Was Genocide Committed in Bosnia and Herzegovina?” 23.
71
ICTY, “Prosecutor v. Dusko Sikirica, Damir Dosen, Dragan Kolundzija (Judgement on Defence Motions to Acquit), Case No.
IT-95-8-T, Trial Chamber Judgement, 3 September 2021,” 13.
10 C. RENSHAW
The court reached the conclusion that when “considered along with other aspects of the
evidence, it becomes clear that this is not a case in which the intent to destroy a substan-
tial number of Bosnian Muslims or Bosnian Croats can properly be inferred.”73 In Croatia v
Serbia the Court rejected a “purely numerical approach” to establishing intent.74 Nonethe-
less, the Court found it relevant to compare the number of Croat victims – allegedly
12,500 – to the size of the targeted part of the group, in order to reach the conclusion
that there was no intent to destroy the relevant part of the group.75 If there had been
intent to destroy, the Court reasoned, the number of victims would have been much
larger.76
The second approach is what Behrens calls the “functional approach.”77 This approach
considers the significance of the part of the group targeted and asks whether the effect of
destroying this part could lead to the destruction of the group as such. In Krstić, for
example, the ICTY accepted the argument that the death of 8,000 military-aged
Bosnian Muslim men would have severe procreative implications for the Srebrenica
Muslim community, “potentially consigning the community to extinction.”78 The tribunal
found that the destruction of 8,000 men from a group of 40,000 demonstrated an inten-
tion to destroy a substantial part of the group. In Bosnia v Serbia, the ICJ adopted the Tri-
bunal’s findings in Krstić. The court held that held that “since the object and purpose of
the Convention as a whole is to prevent the intentional destruction of groups, the part
targeted must be significant enough to have an impact on the group as a whole.”79
Numbers and the Nature of Genocide

The argument in this section is that the question of scale and its manifestation in the
concept of substantiality de-centres the reason why the crime of genocide exists –
which is for the protection of groups. What Raphael Lemkin early on called the “vandalism
and barbarity” of assaults on collectivities was, in his view, tantamount to an assault on
humanity because groups are intrinsically valuable as repositories of culture.80 The impor-
tance of culture is that it gives individual life meaning and comprises the building blocks
of human civilization.81 In Lemkin’s view, the destruction of a group causes harm to both
the individual member of the group but also to all humans, or “humanity.”82
The UN General Assembly 1946 Resolution on the Crime of Genocide states that gen-
ocide is “the denial of the right of existence of entire human groups, as homicide is the
72
Ibid., 31.
73
Ibid.
74
ICJ, “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Inter-
national Court of Justice (Judgement), 3 February 2015,” 65.
75
Ibid., 128.
76
Ibid., 127.
77
Behrens, “Genocide and the Problem of Subjective Substantiality,” 331.
78
ICTY, “Prosecutor v Radislav Krstić, Case No. IT-98-33-A,” 10.
79
ICJ, “Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 26 February 2007,” 126.
80
See “Lemkin’s Madrid Paper (1933)” in Facing History, “Totally Unofficial: Raphael Lemkin and the Genocide Conven-
tion,” https://www.facinghistory.org/sites/default/files/publications/raphael_lemkin.pdf, 13–15; Douglas Irvin-Erick-
son, “The Life and Works of Raphael Lemkin: A Political History of Genocide in Theory and Law” (PhD diss.,
Rutgers University, 2014).
81
Ibid., 19–41. Berel Lang, Genocide: The Act as Idea (Pennsylvania: University of Pennsylvania Press, 2016).
82
Donald Bloxham and A. Dirk Moses, eds., The Oxford Handbook of Genocide Studies (New York: Oxford University Press,
2010), 26.
denial to live of the individual human being. This denial shocks the conscience of
mankind, results in great losses to humanity in the form of cultural and other contri-
butions represented by these human groups, and is contrary to moral law and to the
spirit of the United Nations.”83 In 1951, the International Court of Justice restated the
objects of the Convention: (i) to safeguard the very existence of certain human groups
and (ii) to confirm and endorse the most elementary principles of morality.84 Tribunals
applying the law of genocide have affirmed that “the victim of the crime of genocide is
the group itself.”85
One explanation for why groups are especially deserving of protection is that individ-
uals linked by characteristics such as race and ethnicity have no choice in their member-
ship of the group. This explanation draws on the debates that took place during the
drafting process of the Genocide Convention about whether “political groups” should
be included as one of the groups protected under the Convention. Raphael Lemkin,
advising the Secretariat of the Ad Hoc Committee charged with drafting the Conven-
tion, argued that political groups lacked the permanency and specificity of the other
groups.86 Several countries agreed with this position. Iran, for example, distinguished
between involuntary group membership, such as racial identification, and voluntary
group membership, such as political affiliation: “it must be admitted that destruction
of the first type appeared more heinous in the light of the conscience of humanity,
since it was directed against human being whom chance alone had grouped together
… .Although it was true that people could change their nationality or their religion, such
changes did not in fact happen very often.”87 Half a century later, the Akayesu decision
of the ad hoc International Criminal Tribunal for Rwanda affirmed this distinction,
arguing that “stable and permanent groups” are protected by the Genocide Convention,
because “a common criterion in the four types of groups protected by the Genocide
Convention is that membership in such groups would seem to be normally not chal-
lengeable by its members, who belong to it automatically by birth, in a continuous
and often irremediable manner.”88 Larry May summarizes the argument in the following
way: “certain groups have significance because their memberships are based on immu-
table characteristics of which no individual should be discriminated against.”89 From a
moral perspective, on this argument, genocide is a paramount evil because it subsumes
the individual within a group where the individual has no choice about membership;
and then targets the group itself for destruction. At this level genocidal is the radical
83
UN Doc A/Res/96(I), 188–9.
84
ICJ, “Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, International Court of
Justice (Advisory Opinion), 28 May 1951,” 12.
85
ICTR, “Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 2 September 1998,” 133. See also Nehe-
miah Robinson, “The Genocide Convention: Its Origins as Interpretation,” Case Western Reserve Journal of International
Law 40 (2008): 315.
86
“Draft Convention on the Crime of Genocide, UNESCOR, 3d Sess, UN Doc E/448 (1948), 22. “Professor Lemkin … pointed
out, on the one hand, that political groups have not the permanency and specific characteristics of the other groups
referred to and, on the other hand, that the Convention on genocide being of general interest, it should not run the
risk of failure by introducing ideas on which the world is deeply divided”. See also UN Doc E/325 Ec/Soc Res 77(V)
‘Genocide’ (6 August 1947); David Neressian, Genocide and Political Groups (Oxford: Oxford University Press, 2010),
91–134.
87
UN Doc A/C.6/SR.74 (Abodoh, Iran), cited in Schabas, Genocide in International Law: The Crime of Crimes, 157.
88
ICTR, “Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber I, 2 September 1998,” 132.
89
Larry May, “How is Humanity Harmed by Genocide,” International Legal Theory 10, no. 1 (2004): 5.
12 C. RENSHAW
denial of individual autonomy.90 Pain and death are inflicted because a person belongs
to a particular ethnicity, nationality, race or religion. The specific individual injustice
in this is that the victim is destroyed not for something they did but for something
they are.
One difficulty with this explanation is that groups formed on the basis of “religion” or
“nationality” are in reality no more stable or permanent than groups formed on the basis
of political affiliation.91 Another difficulty is that the explanation conflates the crime of
genocide with the crime of persecution.92 The latter is focused precisely on the evil of tar-
geting individuals on the basis of their membership of a political, racial or religious
group.93
Lemkin offered a different reason why groups should be regarded as vitally important.
Groups house culture. Culture forms the “building blocks of human civilization.”94 Reflect-
ing on the cultures targeted by Germany in the Second World War, Lemkin noted “how
impoverished our culture would be if the people doomed by Germany such as the
Jews had not been permitted to create the Bible or give birth to an Einstein, a Spinoza;
if the Poles had not had the opportunity to give the world a Copernicus, a Chopin, a
Curie; the Greeks a Plato and a Socrates, the English a Shakespeare, the Russians a
Tolstoy and a Shostakovich, the Americans an Emerson and a Jefferson, the Frenchmen
a Renan and a Rodin.”95 This statement has sometimes been interpreted as valorization
of an elitist idea that the worth of culture lies in its propensity to produce rare individuals
whose art advances civilization and illuminates the meaning of their age.96 This view
misses the link between Lemkin’s view of culture and the philosophy of Johann Gottfried
Herder, who maintained that culture, appropriately nurtured, was a means of inculcating
in all citizens universal justice, humanness, and active reason, which undergird emotional
dispositions, key among which is horror of war and a reformed patriotism. In the post-war
period Martha Nussbaum has demonstrated the continuing relevance of culture, under-
stood in this way, in nourishing peace, compassion and love. These things are necessary
“if the world is ever to become a world of peace.”97
Second, Lemkin asserts that culture gives individual life meaning. Genocide is a wrong
to the individual members of the group because culture (community) is essential for the
development of the individual human person. The reason for this is that we can only live
90
See Michael Freeman, “The Philosophical Foundations of Human Rights,” Human Rights Quarterly 16, no. 3 (1994);
Gerhard Ernst and Jan-Christoph Heilinger, eds., The Philosophy of Human Rights: Contemporary Controversies: Justifi-
cation and Universality (Berlin: De Grutyer, 2011). Immanuel Kant determined that one of the philosophical foun-
dations of international human rights law is the status of human beings as rational agents capable of directing
their lives through principles and hence possessing dignity.
91
A. Dirk Moses, “Raphael Lemkin, Culture and the Concept of Genocide,” in The Oxford Handbook of Genocide Studies,
ed. Bloxham and Moses, 19–41.
92
See Olivia Swaak-Goldman, “Case Analysis: The Crime of Persecution in International Criminal Law,” Leiden Journal of
International Law 11 (1998): 145–54; Sonja Kahl, Persecution and Genocide. About the Delimitation of Genocide and
Persecution (Norderstedt: Grin Verlag, 2019).
93
Caroline Fournet and Clotilde Pegorier, “‘Only One Step Away From Genocide’: The Crime of Persecution in Inter-
national Criminal Law,” International Criminal Law Review 10, no. 5 (2010).
94
See Moses, “Raphael Lemkin, Culture, and the Concept of Genocide,” 19–41.
95
“Memorandum from Lemkin to Kempner, 5 June 1946,” quoted in The Oxford Handbook of Genocide Studies, ed.
Bloxham and Moses, 29.
96
Ibid. Moses writes, “In this statement, the value of culture inhered in its elites who made contributions valuable for
humanity as a whole.”
97
Martha C. Nussbaum, Political Emotions: Why Love Matters for Justice (Cambridge, Mass.: Harvard University Press,
2013): 47.
authentic, fully realized human lives “in dialogue with, and sometimes in struggle against,
the things our significant others want to see in us.”98 There is a connection here to Article
29(1) of the Universal Declaration of Human Rights: “Everyone has duties to the commu-
nity in which alone the free and full development of his personality is possible.” We
cannot, as Charles Taylor explains, identify our “unique selves”; or live our “original life”
by only looking inwards. Taylor argues that a vital aspect of human life is its fundamentally
dialogical character.99 We become human agents, capable of understanding ourselves,
and hence of defining our identity, through our membership of groups. It is in groups
that we acquire human languages of expression, including art, gesture and love. The vio-
lence done through the destruction of the group is a personal violence that has devastat-
ing and lifelong effects on individuals.
These are the arguments that support the notion that there is a particular wrong that
inheres in attempting to end the existence of a group. The argument is that when we
reach back into our origins, as a species that first survived by coming together, we recog-
nize that survival required forming and defending bonds of blood and belief. We also
understand that we are a species that only realizes its full potential in union with
others, who can share rituals of pain and joy and birth and the passing of time and
death. The rituals and symbols of shared life give meaning to our short existences. To
destroy the groups that house culture is an evil against the group but also against
each one of us because all of us wish to thrive in this way.100
If this is so, then what “shocks the conscience of mankind” in relation to the crime of
genocide is not the number of those within the group who are targeted for killing or who
in the end are in fact killed.101 What shocks the conscience of mankind is that such a pre-
cious and vital source of good is marked for destruction. What is shocking is that one
group asserts that it has a right to exist and ensure that its members thrive, but that
another group does not. The wrong inherent in genocide is this malign belief and the
intention to destroy that accompanies it. The Genocide Convention cleaves to this under-
standing of the nature of the wrong of genocide when it makes clear that genocide is a
crime of intent, not a crime of scale.102 The problem is with translating this understanding
into law.
Scale and the Attempted Destruction of the Rohingya

In 2019, the Gambia brought a case against Myanmar in the International Court of Justice,
alleging that Myanmar’s treatment of the Rohingya in 2016 and 2017 violated the Geno-
cide Convention. In preliminary proceedings, lawyers representing Myanmar argued that
98
Charles Taylor, The Politics of Recognition (New Jersey: Princeton University Press, 1994). “The genesis of the human
mind is in this sense not monological, not something each person accomplishes on his or her own, but dialogical”
(Ibid., 32).
99
Ibid.
100
ICJ, “Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, International Court of
Justice (Advisory Opinion), 28 May 1951,” 23. The International Court of Justice explained in its Advisory Opinion that
the “dual character” of the Convention is on the one hand it to safeguard the very existence of certain human groups
and on the other to confirm and endorse the most elementary principles of morality.
101
De Guzman, Shocking the Conscience of Humanity.
102
Michael Freeman, “Speaking about the Unspeakable: Genocide and Philosophy,” Journal of Applied Philosophy 8, vol. 1
(1991): 3–17. Freeman identifies as a key issue that has divided scholars whether genocide is to be defined by its
intent or its outcome.
14 C. RENSHAW
it was significant that the Application detailing the case against Myanmar did not specify
the number of Rohingya deaths, and did not compare this number to the size of the popu-
lation allegedly attacked, or to the number that crossed the border into Bangladesh.103
The reason for this omission, Myanmar’s lawyers argued, was because recounting the
number of dead would weaken the claim regarding Myanmar’s intention to commit gen-
ocide: “10,000 deaths out of a population of well over one million might suggest some-
thing other than an intent to physically destroy the group.”104 Myanmar’s lawyers
noted that the proceedings against Myanmar were perhaps the first under the Genocide
Convention where the total number of victims was not volunteered by the applicant.105
They also raised the question of why there was no evidence of intentional killings or sys-
tematic physical destruction in the camps within Myanmar where over 100,000 Rohingya
languished.106 This, in the view of Myanmar’s lawyers, indicated that in circumstances
where Myanmar’s authorities had ample opportunity to pursue elimination, they chose
not to do so.107
The Gambia’s initial pleadings were based on the report of an Independent Fact
Finding Mission appointed by the United Nations Human Rights Council to investigate
the violence against the Rohingya. The Fact Finding Mission described how “clearance
operations” in northern Rakhine state, in response to an attack by armed insurgents on
several border guard posts, resulted in extreme violence against the Rohingya.108 Clear-
ance operations largely followed the military’s standard procedure for dealing with insur-
gencies, practiced for decades in Myanmar’s long running civil war with armed ethnic
organizations across the country. Areas were cordoned off, villagers were ordered to
move to new military-controlled locations and those who remained were treated as insur-
gents and shot on sight.109 The military then confiscated food and destroyed crops. The
Mission described clearance operations as essentially “scorched earth campaigns in which
large numbers of civilians are killed and entire villages destroyed, leading to mass displa-
cement.”110 The 2016 and 2017 violence included the murder of Rohingya villagers,
including women, children and the elderly; the summary execution of imams, religious
scholars and community leaders; rape and torture; the burning and looting of villages.111
Myanmar’s security forces, prior to and after the attacks on villagers, laid antipersonnel
landmines on the roads outside Rohingya villages and at crossing points on Myanmar’s
border with Bangladesh.112
103
104
Ibid., 36–8.
105
Ibid.
106
Ibid., 38–9.
107
ICJ, “The Gambia v. Myanmar (Verbatim Record),” 36–7.
108
UN Doc A/HRC/39/CRP.2 (2018), 177–314; Antoni Slodkowski et al., “How A Two-Week Army Crackdown Reignited
Myanmar’s Rohingya Crisis,” Reuters, 25 April 2017, https://www.reuters.com/investigates/special-report/myanmar-
rohingya-crisis2/ (accessed 5 February 2021). See also Office of the High Commissioner for Human Rights, “Interviews
with Rohingyas fleeing from Myanmar since 9 October 2016,” 3 February 2017, https://ohchr.org/Documents/
Countries/MM/FlashReport3Feb2017.pdf (accessed 31 March 2021).
109
UN Doc A/HRC/39/CRP.2 (2018), 346–88. The procedures were known as the “Four Cuts” strategy, pya ley pya,
designed to cut the main links (food, funds, intelligence, recruits) between insurgents, their families and local
villagers.
110
UN Doc A/HRC/39/CRP.2 (2018), 346.
111
Ibid., 178–298.
112
Ibid., 286.
The statistics of death and destruction, as reported by the Fact Finding Mission, were
that 993 Rohingya villages in the Northern Rakhine townships of Maungdaw, Buthidaung
and Rathedaung were destroyed – equating to more than 70 per cent of the villages in
that area. These villages were emptied of inhabitants and physical structures were
totally demolished.113 Across these townships, five large scale massacres were carried
out and in each of these, hundreds of Rohingya men, women and children were
killed.114 In total, in the period 2017–2018, from a population of more than 1 million
Rohingya, an estimated 10,000 were killed and almost 800,000 were forced to flee
across the border into Bangladesh.115
The Fact Finding Mission also reported details of what happened in specific villages, as
recounted by survivors. In the village of Min Gyi, for example, as Tatmadaw forces
approached the area, Rohingya who lived in Min Gyi, and Rohingya from neighbouring
villages who had sought refuge in Min Gyi, were reassured by the ethnic Rakhine
village leader that it was safe to remain in the village.116 But Tatmadaw soldiers advanced
on the village, burning Rohingya huts and shooting at people as they came. Rohingya
men, women and children fled to the nearby river, where they remained trapped on
the shore between the water and the Tatmadaw attack. Those who tried to swim
across the river were shot. Of those who remained huddled on the shore, the men
were separated from the women and systematically killed, fired at en masse, and the
throats of any survivors were cut by knife. Children were shot, thrown into the river or
burnt. Women and girls were raped and then most of them were killed. The bodies of
the dead were burnt.117
The Fact Finding Mission also reported the wider historical context. Events such as the
massacre at Min Gyi occurred against a backdrop of decades-long persecution and dis-
crimination against the Rohingya. In September 2017, Senior General Min Aung Hlaing
stated that the military campaign against the Rohingya was “unfinished business” from
the Second World War, when the Rohingya fought with the British against Burmese
forces who were fighting with the Japanese.118 In return for their loyalty, the British prom-
ised the Rohingya a Muslim National Area in what is now Rakhine state. The promise,
which the British never fulfilled, was viewed by ethnic Burmese as evidence that the
Muslims of Rakhine were disloyal to Burma and working toward the balkanization of
the country. In 2019, in her opening address to the International Court of Justice, Aung
San Suu Kyi referred to the roots of the current conflict in the colonial policies of the
British: “The sacrifices made by Muslim fighters motivated a call for the creation of an
autonomous Muslim space in northern Rakhine, centred on Maungdaw. Whether or
not this was encouraged by British officers, Britain rejected this call as soon as it had reoc-
cupied Burma, before independence in 1948.”119 Antagonism against the Rohingya has
113
Ibid., 221.
114
Ibid., 353.
115
Médecins Sans Frontières. “No one was left: Death and violence against the Rohingya in Rakhine State, Myanmar,” at
https://www.msf.org/myanmarbangladesh-%E2%80%98no-one-was-left%E2%80%99-death-and-violence-against-
rohingya (accessed 5 February 2021), 25.
116
UN Doc A/HRC/39/CRP.2 (2018), 178–84.
117
Ibid.
118
James Hookway, “Myanmar Says Clearing of Rohingya Is Unfinished Business From WWII,” The Wall Street Journal, 2
September 2017, https://www.wsj.com/articles/myanmar-army-chief-defends-clearing-rohingya-villages-1504410530
(accessed 22 March 2021).
119
ICJ, “The Gambia v. Myanmar (2019) (Verbatim Record),” 14.
16 C. RENSHAW
existed since the end of colonial rule, surfacing periodically in episodes of persecution and
violence.120 The delicate political conditions of Myanmar’s transition from military dicta-
torship (1962–2010) to partial democracy (2010–2021) made the Rohingya even more vul-
nerable to extreme action by the military.121
Based on its assessment of the nature and scope of the military’s acts, the Fact Finding
Mission formed the view that the only available inference from the scale of destruction
was that there was an intention on the part of the state to destroy the Rohingya as a
group, in whole or in part.122 The Fact Finding Mission asked itself the question: What
would the relevant authorities and perpetrators do, if they wished to destroy the Rohin-
gya? The answer, in the Fact Finding Mission’s view, was precisely what had been done to
the Rohingya, “a veritable checklist” of genocide: rights systematically stripped away; a
dehumanizing narrative and rhetoric from government officials and other actors; metho-
dical planning; mass killing; mass displacement; mass fear; overwhelming levels of brutal-
ity; physical destruction of the homes of the targeted population.123 The Fact Finding
Mission concluded that the displacement of the Rohingya could be viewed in the same
way as the forcible transfer of Bosnian Muslims from Srebrenica, as part of “a single
scheme to commit genocide, involving killings, forcible transfer and the destruction of
homes.”124
The conclusion reached by the Fact Finding Mission was supported by several other
organizations. As early as 2013, the United States Holocaust Museum identified the risk
of genocide facing the Rohingya.125 Key factors of concern included: the group’s status
as an ethnic and religious minority without the protection of citizenship rights; the dehu-
manization of the Rohingya through widespread hate speech, including by government
leaders and religious figures; the restriction on freedom of movement and the segre-
gation and internment of Rohingya in camps; physical violence against the Rohingya
and Rohingya businesses, mosques and homes; blocking of humanitarian assistance,
including healthcare; confiscation of land; legal restrictions on marriage and registration
of children’s birth; sexual violence; blockages of information in and out of Rohingya com-
munities. The Holocaust Museum concluded that many of the preconditions for genocide
were in place and that the “Rohingya may once again become the target of mass atroci-
ties, including genocide.”126 The reference to “once again” was to the previous pogroms
against the Rohingya carried out by the military in 1962, 1974 and 1992.127 In 2012, vio-
lence against the Rohingya, including by civilians and members of the police force,
resulted in scores of deaths and the displacement of 100,000 Rohingya.128
120
Azeem Ibrahim, The Rohingyas: Inside Myanmar’s Hidden Genocide (London: C. Hurst & Co., 2016), 35–79.
121
Catherine Renshaw, Human Rights and Participatory Politics in Southeast Asia (Philadelphia, University of Pennsylvania
Press, 2019), 233–8.
122
UN Doc A/HRC/39/CRP.2 (2018), 359,
123
UN Doc A/HRC/39/CRP.2 (2018), 365–6.
124
ICTY, “Prosecutor v Radislav Krstić, Case No. IT-98-33-A,” 99; UN Doc A/HRC/39/CRP.2 (2018), 354.
125
The United States Holocaust Memorial Museum, “The Plight of the Rohingya: A Persecuted Minority,” August 2020,
https://www.ushmm.org/genocide-prevention/countries/burma/case-study/introduction/the-plight-of-the-rohingya
(accessed 21 February 2021).
126
Ibid.
127
See UN Doc A/HRC/39/CRP.2 (2018), 21–2; 27–30; 114.
128
Catherine Renshaw, “Myanmar’s Genocide and the Legacy of Forgetting,” Georgia Journal of International and Com-
parative Law 48 (2020): 425; Afrozo Anwary, “Interethnic Conflict and Genocide in Myanmar,” Homicide Studies 24
(2020): 85–102; and Beth Van Schaack, “Determining the Commission of Genocide in Myanmar,” Journal of Inter-
national Criminal Justice 17 (2019): 285–323.
For its part, the government of Myanmar claimed that the 2017 violence was the result
of efforts by Myanmar’s security forces to address the serious terrorist threat posed by
ARSA. According to the government, forces were deployed for a limited period of time
(25 August – 5 September 2017) to carry out clearance operations in areas that had
been subjected to coordinated attacks by ARSA terrorists. The government established
its own internal Commission of Inquiry which concluded that fear of violence was the
reason why hundreds of thousands of Rohingya left their homes to cross the border
into Bangladesh.129 This was not the first time, the Commission noted, that these mass
outflows had taken place: “It has almost become a natural protection instinct in some
families in Maungdaw and Buthidaung Townships to flee across the River Naf into Bangla-
desh when cycles of communal violence recur.”130 This was a point picked up by Myan-
mar’s lawyers in the International Court of Justice, who asked: “[n]obody is seriously
alleging that there has been a policy driven by genocidal intent underway since the
1960s. Did something change? Why is a “clearance operation” in 2017 different from
one in previous decades?”131
Among the many difficult questions that will have to be decided in the Rohingya gen-
ocide case is how the law should navigate the grey area between genocide and ethnic
cleansing.132 For example, it is plausible that with the knowledge of past Rohingya exo-
duses, the Tatmadaw acted with extreme brutality in a small number of villages in order to
encourage large numbers of Rohingya in many other villages to flee their homes in fear
lest the same fate befall them. The anticipated and actual response pattern of the victim
group is one of the contingencies that shapes the outcomes of attacks on victim popu-
lations, influencing the level of violence and consequently also the scale of casualties.133
Violence is calibrated to the victims response: “[it] may have a temporary or finite impulse
of destruction; it may be selective or indiscriminate in its targeting, location or strata
orientation.”134 But it is not the outcome of violence, including the victims’ response,
that should determine whether genocide has occurred. It would be a perverse logic
that permits the court to conclude there was no “intention to destroy” because the
majority of Rohingya, in the face of mass atrocity, refused to stay put and submit to
slaughter.
The difficulty is the insistence in the legal authorities that intention to effect substantial
biological annihilation is necessary to support a finding of genocide135 and the line of
cases that elevate the scale of destruction as the key substantive evidence of intent.136
129
Republic of the Union of Myanmar President Office, “Executive Summary Of Independent Commission of Enquiry-
ICOE’ Final Report,” 21 January 2020, https://www.president-office.gov.mm/en/?q=briefing-room/news/2020/01/
21/id-9838 (accessed 5 February 2021).
130
Ibid.
131
132
An early assessment of the violence in Myanmar was that it was “a textbook example of ethnic cleansing.” UNHRC,
“Darker and more dangerous: High Commissioner updates the Human Rights Council on human rights issues in 40
countries – Human Rights Council 36th session: Opening statement by Zeid Ra’ad Al Hussein, 11 September
2017,” https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22041; UN News, “UN human
rights chief points to “textbook example of ethnic cleansing,” news release, 11 September 2017.
133
Vahakn Dadrian, “A Typology of Genocide,” International Review of Modern Sociology 5 (1975), 201–12.
134
Ibid., 205.
135
See van den Herik, note 1 above, 84: “It follows from the travaux preparatoires, the ICTR case law, the 1996 ILC report,
and parts of the ICTY case law that the 1948 Genocide Convention only pertains to destroying a group by annihilating
its members”.
136
ICTR, “Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4, Trial Chamber I, 2 September 1998” paras. 523–4; ICTR,
“Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Trial Chamber II, 21 May 1999”; ICJ,
18 C. RENSHAW
Are there means of assessing intent that do not invoke the issue of scale? Some accounts
of the violence against the Rohingya, primarily from sociologists, emphasize the “non-
killing genocidal crimes” committed against members of the group. Key among these
is rape and sexual torture. For example, Afrozo Anwary’s work with Rohingya refugees
leads her to conclude that “the sadistic torture of the Rohingya women by Myanmar’s sol-
diers symbolises the military’s attempt to mutilate the life-giving power of the Rohingya
that facilitates the continuation of the community.”137 Afroza’s qualitative evidence of
degradation of Rohingya women builds a different kind of account that could facilitate
the conclusion that the perpetrators’ intention was to destroy the foundations of the
group’s existence:
In early June 2016, at least nine young girls from my village were taken to the military barrack.
After a few weeks, only two of these girls were found naked and unconscious in the rice field.
There were signs of torture all over their body. They were brought back to their families. Both
of them committed suicide later … I never thought of leaving my village until I heard about
these girls. My family had a lot of property in my village that we wanted to protect. But after
this incident, I was desperate to come to Bangladesh to save my three young daughters.138
Afroza refers to several occasions on which victims committed suicide following rape or
sexual humiliation. One 15-year-old Rohingya woman was raped by a soldier, became
pregnant and gave birth to a girl-child. The woman said:
The baby looked like a Buddhist with small eyes and light skin. I did not breastfeed her and
wanted her to die. I left her in heavy rain one evening outside the shack. But she did not die
… All my dreams are lost. My family is avoided by other Rohingya refugees because of the
shame I bought to it by being raped by a Buddhist soldier and by having his baby … .I
tried to commit suicide.139
In Afroza’s account, the incidents that precipitate suicide are various. On another
occasion, soldiers forced Rohingya women and girls out of their homes and stripped
off their clothes and burquas. One fifteen-year-old girl was menstruating, using a rag to
cover her genital area. She was ridiculed and mocked by soldiers. Aroza writes: “although
no woman was raped or killed that day, after the soldiers left, the girl came home and
committed suicide by ingesting insecticide due to the humiliation she endured.”140
Statistics on suicide following degradation do not easily fit in numerical analyses of the
scale of destruction. Yet they are important factors in building a full picture of the
impact of degradation and violence on the group and the destruction that follows in
the medium to long term.
Afroza’s account begins to capture what it means to destroy the “group” that is the
Rohingya. As well as detailing rape and killing, Afroza explains the significance and
impact of other non-killing attempts to destroy the Rohingya, such as prohibitions that
restrict the “longstanding practices of the Rohingyas that the Myanmar government tar-
geted against, such as going to Mosques and schools, wearing the Burqua, reciting the
“Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 26 February 2007,” para. 198; ICTY, “Prosecutor v Radi-
slav Krstić, Case No. IT-98-33-A, Appeals Chamber Judgement, 19 April 2004,” 4.
137
Afroza Anwary, “Sexual Violence Against Women as a Weapon of Rohingya Genocide in Myanmar,” The International
Journal of Human Rights (2021): 11.
138
Ibid., 11.
139
Ibid., 15.
140
Ibid., 11.
azaan, the Islamic call to worship from the Mosque at specific timed of the day, the ritual
animal slaughter during Eid-ul-Adha, the second most important religious day in the
Muslim world when Muslims slaughter and sacrifice an animal.”141 Afroza recounts the
religious ceremonies associated with marriage, child-birth and family, the meaning of
these ceremonies for Rohingya communities, and the distress and humiliation that fol-
lowed arrest and imprisonment for breaching Burmese laws that target Rohingya commu-
nity practices. Torture, assault, rape and death would also sometimes follow arrest for
breach of these laws – but by then the death of the community had already occurred.
Conclusion
It is clear from the issues raised by the parties in preliminary proceedings in the Inter-
national Court of Justice that the issue of substantiality will be central to the determi-
nation of whether or not the Rohingya suffered genocide. 142 The arguments and
counter-arguments on this point will highlight the schism between the social concept
of genocide and the legal concept; and between the understanding of genocide as a
crime of scale and the understanding of genocide as a crime of intentionality.143 It will
reveal the inherent subjectivity of determinations about substantiality;144 and for
victims, the problematic moral signal sent by deploying numerical evidence to determine
genocide.145
The law of genocide assumes that mass atrocity is to an extent generalizable and that a
correct understanding of its nature and dimensions will allow us to recognize, punish and
perhaps even to prevent it. The extent of killing and the numbers of the dead are some-
times relevant issues in determining the legal question of whether there is intention to
destroy in the absence of a plan, and they are a well-recognised but increasingly con-
tested factor in the categorization of mass-atrocity as genocide in social scientific
inquiry.146 This article has sought to highlight the problems inherent in the focus on
scale. One of these is that it invites crude and unhelpful comparisons between mass atro-
cities, and is not attentive to the fact that each act of mass atrocity turns on its own logic
of geography, the social organization of the victim groups, the direction and momentum
of the violence and the urgency with which perpetrators pursue the political ends to
141
Ibid., 13.
142
ICJ, “Republic of The Gambia v. Republic of the Union of Myanmar – Application Instituting Proceedings and Request for
Provisional Measures,” 11 November 2019, https://www.icj-cij.org/en/case/178 (accessed 20 February 2020); ICJ, “The
Gambia v. Myanmar (Verbatim Record),” 30–36; ICJ, “Republic of The Gambia v. Republic of the Union of Myanmar –
Request for the Indication of Provisional Measures,” 23 January 2020, https://www.icj-cij.org/public/files/case-
related/178/178-20200123-ORD-01-00-EN.pdf (accessed 12 March 2021). See also Steven R. Ratner et al., “The Geno-
cide Convention After Fifty Years: Contemporary Strategies for Combating a Crime Against Humanity,” Proceedings of
the Annual Meeting (American Society of International Law) 92 (1–4 April 1998). Substantiality has been described by
Payam Akhavan as “perhaps the most difficult quandary” in the law of genocide, in relation to the extent of destruc-
tion of a group required by the term “genocide” (Ibid., 11).
143
See van den Herik, note 1 above.
144
See discussions in ICTY, “Prosecutor v Radislav Krstić, Case No. IT-98-33-A; ICTY, “Prosecutor v. Sikirica et al., Case No. IT-
95-8-T”; ICTY, “Prosecutor v. Jelisić, Case No. IT-95-10-T, 14 December 1999”.
145
Letter Schwelb to Humphrey, 19 June 1946, PAG-3/1.3, Box 26, United Nations War Crimes Commission 1943–1949,
Predecessor Archives Group, United Nations Archives, New York (UNWCC Archives) in Philippe Sands, East-West Street:
On the Origins of “Genocide” and “Crimes Against Humanity” (New York: Knopf, 2016), 184–5. Hersch Lauterpacht, the
great European jurist of his time, was not favourably disposed to the creation of the crime of genocide because he
feared “if one emphasises too much that it is a crime to kill a whole people, it may weaken the conviction that it is
already a crime to kill one individual.”
146
Akhavan, Reducing Genocide to Law (2004), viii.
20 C. RENSHAW
which violence is directed. The article has also argued that at a deeper level, the focus on
“the numbers game”147 misses the mark in relation to why genocide is an especially grave
offence. On Lemkin’s view, the particular wrong of genocide lies in the fact that it is a
denial of pluralism, which is a universal good because it underpins the possibility for
peaceful relations across the world. Recognition of this good entails a concomitant recog-
nition of a particular form of evil that attaches to the intention to destroy it.148 It is this evil
that the crime of genocide is designed to punish. It is most appropriately captured in sub-
jective accounts of degradation, humiliation, loss of dignity and sometimes life that flows
from these acts.
Much could be said about Lemkin’s original arguments for the moral relevance of gen-
ocide. They sit uneasily with a modern ethos that eschews racial or ethnic essentialism
and instead orients itself towards an ethical cosmopolitanism. It could be argued that
genocide de-prioritizes comparable wrongs carried out against civilians who do not
happen to belong to one of the groups identified in the Genocide Convention; and
that genocide is insufficiently attentive to the fact that national, religious, racial and
ethnic groups are often targeted for destruction for political and security purposes, not
simply as a result of racism, prejudice and visceral hatreds. Because of these arguments
and others, scholars such as A. Dirk Moses have made impassioned and compelling
cases for recognizing the harm generated by the limitations of the law of genocide.149
Ultimately, the categories and precedents of law and the typologies of sociology are
both inadequate in mediating between the particularity of atrocity crimes and the need
for general theories to explain genocide. When it comes to the question of scale, the
danger is that preconceptions about the requisite level of destruction cloud and distort
our capacity to recognize that what occurred was the intention to destroy a group. The
UN Fact Finding Mission reported that: “The situation in many areas now appears to
match the official narrative: ‘there is no group called Rohingya in Myanmar’.”150 In the
case of Myanmar, the focus on numbers occludes a truth that is already being told by Rohin-
gya survivors, in their words and poetry: “You killed us and deleted our shadows.”151 The
remedy is a readjustment of focus, back to the importance of the group, its right to exist
and the variable nature of the acts that threaten its survival in different circumstances.
Acknowledgement
The author would like to acknowledge the excellent research assistance carried out by Ms Gabrielle
Colin and Mr Dane Burge in the preparation of this article.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
147
John Quigley, The Genocide Convention: An International Law Analysis (Basingstoke: Routledge, 2006), 139–45.
148
David Luban, “Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur, and the UN Report,” Chicago Journal of
International Law 7 (2006): 309. See also Douglas Irvin-Erickson, Raphael Lemkin and the Concept of Genocide (Phila-
delphia: University of Pennsylvania Press, 2016).
149
See Moses, Problems of Genocide; Steven Leonard Jacobs, Lemkin on Genocide (Maryland: Lexington Books, 2012).
150
UN Doc A/ HRC/39/CRP.2, 364.
151
Mohammed Rezuwan, “Sea of Tears,” Refugees International, 27 August 2020, https://www.refugeesinternational.org/
reports/2020/8/27/seas-of-tears-a-poem-by-rohingya-refugee-mohammed-rezuwan. See Catherine Renshaw, “Poetry,
Irrevocable Time and Myanmar’s Political Transition,” International Journal of Transitional Justice 14 (2020): 14–34.
Notes on Contributor
Catherine Renshaw holds a PhD, LLM and BA(Hons, Hist.) from the University of Sydney and an LLB
from the University of New South Wales. She is a Professor in the School of Law at Western Sydney
University. Much of her research focuses on Southeast Asia, particularly Myanmar, and she is a
founding member of the Australia Myanmar Constitutional Democracy Project. She is the author
of several books, including Human Rights and Participatory Politics in Southeast Asia (University of
Pennsylvania Press 2019) and Experts, Networks and International Law (Cambridge University
Press 2017, with Holly Cullen and Joanna Harrington). Her work on Myanmar and the question of
historical justice includes: “Myanmar’s Genocide and the Legacy of Forgetting” (2020) Georgia
Journal of International and Comparative Law; “Poetry, Irrevocable Time and Myanmar’s Political
Transition” (2020) International Journal of Transitional Justice and “Myanmar’s Transition without
Justice” (2020) Journal of Current Southeast Asian Affairs DOI: 10.1177/1868103419893527.

The Numbers Game Substantiality and The Definition of Genocide

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The Numbers Game: Substantiality and the Deﬁnition of

ABSTRACT ARTICLE HISTORY

CONTACT Catherine Renshaw c.renshaw@westernsydney.edu.au

“universally condemned,”29 “universally abhorred,”30 and “shocks the conscience of all

Substantiality and Evidence of Intent

Numbers and the Nature of Genocide

Scale and the Attempted Destruction of the Rohingya

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