Genocide v Death Penalty

Comparing the California Death Penalty to the Conviction of Genocide: Can Prop 34 help us reform a lack of international justice for war criminals?

Trying and convicting genocide in international court is much like effecting the death penalty in California. The frustrations they share suggest the possibility that within California’s Proposition 34 lies the solution to problematic genocide trials.

Trying and convicting genocide in international court is exceedingly difficult, much like the process of effecting the death sentence in California.  Although the nature of the crimes is fundamentally different, there are similar imposing and undisputed challenges including a long legal process, similar repeal arguments, and possibly similar options for change.

Death penalty trials are uncommonly long, lasting an average of twenty years.1  This stems from the drawn-out process necessary to issue a capital punishment.  Because of the severity of the punishment, due process requires a defense team to consider every aspect of a defendant’s life before an extensive jury selection procedure, and finally trial, which almost always results in a long round of appeals.2

Genocide trials are equally drawn out.  In the current trial of Bosnian Serb wartime leader Radovan Karadzic, presiding Judge O-Gon Kwon expressed concern in 2010 that the trial could take four or more years to complete.3  Even though recently one charge of genocide (out of two) has been dropped, the trial is still going on today.4  This timeline is not atypical due to the definition and requisite intent that must be proven in convicting a person of genocide.

Although no official plan exists to terminate the crime of genocide, legal and international scholars have argued for its abandonment. Their reasoning in many ways mirrors that of Prop 34 supporters.

The United Nation’s Genocide Convention defines genocide as

[A]ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.5

Genocide’s specific requisite intent “to destroy a group, in whole or in part,”6 is what makes trying and convicting criminals of genocide so difficult.  It is not enough that these criminals intended to murder large numbers of a certain population, they must have intended to do so in order to limit or end the existence of that population.7  Gathering evidence from war-torn countries, often years later, while “defendants ‘hijack’ proceedings with their own justificatory glosses”8 is a challenge in proving intended mass murder, let alone genocide’s special intent.

In addition to sharing legal challenges, critics of the death penalty and of the crime of genocide offer similar arguments for their repeals.  Proposition 34, on the ballot this election, looked to end the death penalty in California.  Although no official plan exists to terminate the crime of genocide, legal and international scholars have argued for its abandonment.  Their reasoning in many ways mirrors that of Prop 34 supporters.

One criticism of the legal concept of genocide is that its stringent definition of a “group”—“national, ethnical, racial or religious”9—leaves many otherwise genocidal killings recognized as acts other than genocide. For example, systematic murders of groups such as “women, homosexuals, political dissidents, and people of lower-economic status. . . [would] be viewed, at most, as crime[s] against humanity” under the current definition of genocide.10 This is problematic when genocide’s “supreme status [as] the ‘crime of crimes’” makes “any group whose suffering is not called ‘genocide’ [feel] like a second-class victim.”11  In the instance that a group does qualify as one recognized in the definition of genocide, actually trying the case is emotionally challenging for the group’s survivors as they relive the horrors of the killings and remember family and friends who were killed.12

In California’s debate over the death penalty, families of victims are divided on how they feel about capital punishment.  Some feel a sense of injustice when their loved one’s attacker is not given the death penalty, and others spend entire trials fighting the sentence.  However they feel about the death penalty, though, all families become frustrated and emotionally drained by the exhausting appeals process, and like genocide survivors, tired of reliving the death of their loved one.13

Another argument against genocide convictions is the highly comfortable Scheveningen jail, where many of the international criminal suspects are held before and during trial.  Scheveningen’s accommodations provide inmates with access to benefits such as a gym complete with a fitness instructor, the option to special order dishes according to “cultural and dietary requirements,” and personal televisions, radios, and computers used to work on their cases.14  A security guard at the prison told reporters that Schevenignen is often called “the Hague Hilton” because of its “relatively luxurious facilities, especially when compared to those in the guests’ home countries.”15

Similarly, in California, death row inmates “live in special [private] housing . . . and have special lawyers, exercise and visitor privileges,”16 as well as a certain amount of ‘celebrity’ with pen pals writing letters of support.17  This is particularly controversial in California because of the high cost to the state.18

It is for these and other reasons that supporters of Prop 34 hoped to repeal the death penalty in California and instead sentence individuals to life without parole.  This, they argued, would save time since the appeals process would be greatly reduced when a person’s life is not on the line.  As a result, California would save money both on litigation and by not funding convicted persons’ comfortable death row lifestyles.  Furthermore, families of victim’s would see justice much more swiftly and without having to relive the trauma at countless appeals.19

Opponents to the legal concept of genocide have offered several options for change.  Some advocate for modification of the definition of genocide to include groups such as people of lower socio-economic status, homosexuals, political groups, and women.20  While this may offer a modernized, more inclusive application of genocide, it would not expedite the trial process itself.  It seems under this modification, there is still no alternative that could hasten justice without “relaxing evidentiary standards [and] undermin[ing] values such as legality and reasonable doubt,” since it would not change “genocide’s stringent requirements.”21

Others argue that the crime should be “retired” and instead courts should “call its constituent evils by their ancient names,”22 such as murder, rape, and torture of civilians. These charges amount to ‘war crimes’ and ‘crimes against humanity’ and produce similar sentences for largely the same acts as genocide, but are easier to convict on because of the lower standard for requisite intent.23  Those in favor of this solution say that all aspects of genocide are also other crimes and “rather than parse killers’ motives, we better affirm our own values by denying that any reasons could ever justify such acts.”24

With Proposition 34’s recent defeat in California,25, repeal of the death penalty in California will not happen soon.  Nevertheless, its lessons can still help us think about the value and purpose of international genocide trials.


  1. Adrian Moore, California Voters’ Guide 2012: Proposition 34, Research Foundation (Oct. 16, 2012),
  2. Mick, Why Do Death Penalty Cases Take So Long?, Broden & Mickelsen Attorneys at Law (Jan. 29, 2008),
  3. Karadzic Tries to Sabotage Bosnian Genocide Trial, Srebrenica Genocide Blog (Sept. 3, 2010, 7:10 PM),
  4. Genocide Count Dropped in Karadzic Trial, CNN (June 28, 2012, 10:02 PM),
  5. Convention on the Prevention and Punishment of the Crime of Genocide art. 2, Dec. 9, 1948, S. Exec. Doc. O, 81-1, 78 U.N.T.S. 277 (hereinafter Convention).
  6. Sonali B. Shah, The Oversight of the Last Great International Institution of the Twentieth Century: The International Criminal Court’s Definition of Genocide, 16 Emory I.L.R. 351, 357 (Spring 2002) (discussing the definition and modification of the term genocide).
  7. See Shah, 356-358.
  8. Timothy W. Waters, Never Again to Genocide Trials, Project Syndicate (Jul. 27, 2012),
  9. Convention, supranote 5.
  10. Shah, supranote 6.
  11. Waters, Supranote 8.
  12. Mike Corder, Anger, Drama at Ratko Mladic’s Genocide Trial, Yahoo! News (May 16, 2012),–finance.html.
  13. Moore, supranote 1.
  14. Anna Holligan, Profile: Scheveningen Prison, BBC News Europe (16 May 2012, 5:41 PM),
  15. Id.
  16. Moore, supranote 1.
  17. Jonathan Simon, Why Death-Row Inmates Oppose Life Without Parole, The Berkeley Blog (Sept. 9, 2012),
  18. Moore, supranote 1.
  19. Id.
  20. Shah, supranote 6.
  21. Waters, Supranote 8.
  22. Id.
  23. Id.
  24. Id.
  25. Aaron Smith, California to Keep Death Penalty, CNN Money (Novemer 7, 2012, 11:57 A.M.),