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2017/18 INTERNATIONAL LAW GENOCIDE 1. MEANING / DEFINITION Genocide is generally regarded as the mother of all crimes in international law. The term ‘genocide’ was coined by Rafael Lempkin in 1944 in his book, Axis Rule in Occupied Europe. The word is a hybrid consisting of the Greek word ''genos'' ...

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2017/18 INTERNATIONAL LAW GENOCIDE

1. MEANING / DEFINITION Genocide is generally regarded as the mother of all crimes in international law. The term ‘genocide’ was coined by Rafael Lempkin in 1944 in his book, Axis Rule in Occupied Europe. The word is a hybrid consisting of the Greek word ''genos'' meaning race, nation or tribe, and the Latin suffix, ''caedere'', meaning killing. Before this formulation, the things that now constitute genocide had been described as a “crime without a name” (Winston Churchill). The first international instrument to prohibit genocide was the Genocide Convention 1948. The Convention, which was agreed after the Nuremberg trials, came into force on 12 January 1953. The Genocide Convention 1948, Article 2; and the Rome Statute of the ICC 1998, Article 6, both define genocide as meaning: “Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part (d) Imposing measures intended to prevent births within the group (e) Forcibly transferring children of the group to another group 

Similar definitions are contained in the ICTY Statute, Article 4(2); and the ICTR Statute, Article 2.

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The crime of genocide has two components – the physical act (actus reus) of genocide; and the mental element (mens rea) of genocide. Both elements must be present for a conviction to be made. 

Genocide may be committed in time of peace, as well as in time of war. o

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish – Genocide Convention, 1948, Art. 1.

2. INDIVIDUAL CRIMINAL RESPONSIBILITY The Genocide Convention imposed individual criminal responsibility for the crime of genocide. Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals – Genocide Convention 1948, Art. 4 See also Articles 1, 5 and 25 ICC Statute Under Article 25(3), the crime may be committed:   

Directly as an individual, jointly with another (others), or through another person By ordering, soliciting or inducing the commission or attempt at the commission of the crime; or By aiding, abetting or otherwise assisting in the commission or attempted commission of the crime

3. ELEMENTS OF THE CRIME The relevant act constituting genocide must be committed in the following circumstances: 

The victim(s) belonged to a particular national, ethnical, racial or religious group.

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The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

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The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

See the ICC Statute Elements of Crime, Article 6

4. THE ACTUS REUS OF GENOCIDE The following acts are the means by which genocide may be committed: 1. Killing/Murder Genocide includes the intentional killing of people on national, racial, ethnic or religious grounds. The killing may be of one individual or many people provided it was intentional and was motivated by the desire to destroy the group to which the victim belongs. Prosecutor v Bagilishema, ICTR (Trial Chamber) 7/06/2001 Article 2(2)(a) of the (ICTR) Statute, like the corresponding provisions of the Genocide Convention, uses “meurtre” in the French version and “killing” in the English version. The concept of killing includes both intentional and unintentional homicide, whereas meurtre refers exclusively to homicide committed with the intent to cause death. In such a situation, pursuant to the general principles of criminal law, the version more favourable to the accused must be adopted. The Chamber also notes the Criminal Code of Rwanda, which provides, under Article 311, that “Homicide committed with intent to cause death shall be treated as murder”— para. 57.

See also Prosecutor v Muvunyi, ICTR (Trial Chamber) 12/09/2006.

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2. Causing serious bodily or mental harm to members of the group

Serious bodily harm means the infliction of “non-fatal physical violence causing disfigurement and serious injuries to external or internal organs or senses” -Prosecutor v Seromba, ICTR (Appeals Chamber) 12/03/2008.

Serious bodily harm also includes mutilation, use of force, beating with rifle butts, cutting with machetes, and causing mental injury -- Prosecutor v Akayesu, ICTR (Trial Chamber) 2/09/1998 Prosecutor v Bagilishema (supra) For the purposes of interpreting Article 2(2)(b) of the (ICTR) Statute, the Chamber construes “serious bodily or mental harm” to include acts of bodily or mental torture, inhumane or degrading treatment, rape, sexual violence, and persecution. In the Chamber’s view, “serious harm” entails more than minor impairment on mental or physical faculties, but it need not amount to permanent or irremediable harm – para. 59. Mental harm includes harm “that results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life” -- Prosecutor v Kristic, ICTY (Trial Chamber) 2/08/2001. 

Rape and sexual violence may provide enough physical and mental violence to constitute genocide if the genocidal intent is present.

Prosecutor v Akayesu: Indeed rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even, according to the Chamber, one of the worst ways of inflicting harm on the victim as he or she suffers both bodily and mental harm – para. 731. Bosnia Herzegovina v Serbia and Montenegro, ICJ Judgment of 26 February 2007 (otherwise called to as Bosnia Genocide Case): “Rapes and sexual violence could constitute acts of genocide if accompanied by a specific intent to destroy the protected group”.

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See also: 

Prosecutor v Kayishema and Ruzindana, ICTR (Trial Chamber) 21 May 1999

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Prosecutor v Stakic, ICTY (Trial Chamber) 31 July 2003

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Prosecutor v Blagojevic and Jokic, ICTY (Trial Chamber) 17/01/2005

3. Deliberately inflicting conditions of life calculated to bring about the physical destruction of a group, in whole or in part Under this heading would come things like starvation, denial of medical care, forced labour and enslavement. These activities may not kill immediately but they have the capacity to cause the physical destruction of the targeted group. Prosecutor v Akayesu , (Trial Chamber), September 2, 1998: The Chamber holds that the expression deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, should be construed as the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction. For purposes of interpreting Article 2(2)(c) of the Statute, the Chamber is of the opinion that the means of deliberate inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or part, include, inter alia , subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement – paras 505-6.

Ethnic Cleansing, i.e., “rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area”, is not synonymous with genocide. Ethnic cleansing may however amount to genocide if it is accompanied by any of the genocidal acts and the genocidal intent.

Bosnia and Herzegovina v. Serbia and Montenegro (1996) ICJ: Ethnic cleansing may only amount to genocide “if it corresponds to or falls within one of the categories of acts prohibited by Article II (of the Genocide Convention). Neither the intent, as a matter of policy, to render an area

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‘ethnically homogenous’ nor the operations that may be carried out to implement such policy can, as such, be designated as genocide: the intent that characterizes genocide is to ‘destroy in whole or in part a particular group […] In other words, whether a particular operation described as ethnic cleansing amount to genocide depends on the presence or absence of acts listed in article II of the Genocide Convention, and of the intent to destroy the group as such. Prosecutor v Krstic, ICTY (Appeals Chamber) 19 April 2004: Forcible transfer could be an additional means by which to ensure the physical destruction of the Bosnian Muslim community in Srebrenica. The transfer completed the removal of all Bosnian Muslims from Srebrenica, thereby eliminating even the residual possibility that the Muslim community in the area could reconstitute itself. 4. Imposing Conditions to Prevent Birth Forced sterilization, forced abortion, sexual mutilation, prevention of marriage/cohabitation, gender segregation, and rape with intent to alter the ethnic or racial make-up of a protected group will all come under this heading.

Akayesu (supra) For purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that the measures intended to prevent births within the group, should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages. In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group – para. 507. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate – para. 508.

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5. Forcible Transfer of Children Forcibly removing children under 18 years from their families and groups to other groups with a view to destroying the group’s existence and identity would amount to genocide. Such transfer would alienate the children from their group and prevent them from imbibing and perpetuating the group’s language, culture and way of life. Force in this context includes “threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power” (Elements of crime of genocide in the ICC statute). Akayesu (supra) With respect to forcibly transferring children of the group to another group, the Chamber is of the opinion that, as in the case of measures intended to prevent births, the objective is not only to sanction a direct act of forcible physical transfer, but also to sanction acts of threats or trauma which would lead to the forcible transfer of children from one group to another – para. 509. See also Kayishema and Ruzindana (supra) 6. Scope of Genocidal Act It is not necessary to establish that genocide was committed throughout a country ; the crime may take place over a limited area in a country. Akayesu: In a case other than that of Rwanda, a person could be found guilty of genocide without necessarily having to establish that genocide had taken place throughout the country concerned. Bosnia Herzegovina v Serbia and Montenegro: It is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited

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area […] “It is not necessary to intend to achieve the complete annihilation of the group from every corner of the globe”.

5. THE MENS REA OF GENOCIDE The crime of genocide requires a specific intent – the dolus specialis. This is the intent not only to commit the act of genocide, but also the intent to destroy the affected group in whole or in part. This mens rea has to exist prior to the commission of the genocidal act. 1. Intent to Commit Genocide Genocide entails the commission of any of the genocidal acts with "intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such.” Thus, the crime requires intent, knowledge, and deliberateness. Mere recklessness or lack of care is insufficient.

Akayesu: The crime of genocide is characterized by its dolus specialis, or special intent, which lies in the fact that the acts charged … must have been "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such" – para. 517.

Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T (Trial Chamber), June 7, 2001: […] A crime of genocide is proven if it is established beyond reasonable doubt, firstly, that one of the acts listed under Article 2(2) of the Statute was committed and, secondly, that this act was committed against a specifically targeted national, ethnical, racial or religious group, with the specific intent to destroy, in whole or in part, that group. Genocide therefore invites analysis under two headings: the prohibited underlying acts and the specific genocidal intent or dolus specialis – para. 55

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The Chamber therefore finds that Article 2(2)(a) of the Statute must be interpreted as a homicide committed with intent to cause death. Furthermore, to constitute a crime of genocide, the enumerated acts under Article 2(2)(a) must be committed with intent to destroy a specific group in whole or in part. Therefore, by their very nature the enumerated acts are conscious, intentional, volitional acts that an individual cannot commit by accident or as a result of mere negligence – para. 58

Prosecutor v Rutaganda, (ICTR Trial Chamber), 6/12/1999, para. 59: A person may only be convicted of genocide if he committed one of the enumerated acts with “the specific intent to destroy, in whole or in part, a particular group. Kayishema and Ruzindana, (Trial Chamber) May 21/05/1999, para. 91: The mens rea must be formed prior to the commission of the genocidal acts.” The individual acts themselves, however, do not require premeditation; the only consideration is that the act should be done in furtherance of the genocidal intent. It is this specific intent that distinguishes the crime of genocide from the ordinary crime of murder. The Trial Chamber opines that for the crimes of genocide to occur, the mens rea must be formed prior to the commission of the genocidal acts. See also: 

Prosecutor v Kupreskic et al, ICTY, 14/01/2000

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Bosnia Herzegovina v Serbia and Montenegro

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Croatia v Serbia, Judgment, 3 February 2015, para 132: o The “intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such” is the essential characteristic of genocide, which distinguishes it from other serious crimes. It is regarded as a dolus specialis, that is to say a specific intent, which, in order for genocide to be established, must be present in addition to the intent required for each of the individual acts involved (see also I.C.J. Reports 2007 (I), p. 121, para. 187) o AND PARA 154: In the Court’s view, even if Serbia’s allegations in regard to the refusal to allow the Serb refugees to return home—

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allegations disputed by Croatia — were true, that would still not prove the existence of the dolus specialis: genocide presupposes the intent to destroy a group as such, and not to inflict damage upon it or to remove it from a territory irrespective of how such actions might be characterized in law.

Establishing genocidal intent The genocidal intent may be established from the words or deeds of the accused person; or inferred from the context or circumstances of a particular case. Prosecutor v Bagilishema, para. 63: Evidence of the context of the alleged culpable acts may help the Chamber to determine the intention of the Accused, especially where the intention is not clear from what that person says or does. The Chamber notes, however, that the use of context to determine the intent of an accused must be counterbalanced with the actual conduct of the Accused. The Chamber is of the opinion that the accused’s intent should be determined, above all, from his words and deeds, and should be evident from patterns of purposeful action. Genocidal intent may, therefore, be inferred from :

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“the general context of the perpetration of other culpable acts

systematically directed against that same group, whether . . . committed by the same offender or by others;”

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“the scale of atrocities committed;”

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the “general nature” of the atrocities committed “in a region or a country;”

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“the fact of deliberately and systematically targeting victims on account of

their membership of a particular group, while excluding the members of other groups;”

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“the general political doctrine which gave rise to the acts;” “

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the repetition of destructive and discriminatory acts;” or

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“the perpetration of acts which violate, or which the perpetrators

themselves consider to violate the very foundation of the group—acts which are not in themselves covered by the list . . . but which are committed as part of the same pattern of conduct.”

• “the number of group members affected;” • “the physical targeting of the group or their property;” • “the use of derogatory language toward members of the targeted group;” • “the weapons employed and the extent of bodily injury;” • “the methodical way of planning;” • “the systematic manner of killing;” and • “the relative proportionate scale of the actual or attempted destruction of a group” See: Akayesu; Kayishema and Ruzindana

No need for central plan – for a genocidal intent to exist, however, there is no need for a centralized policy or plan involving many people; one person with the relevant intent can commit genocide. 2. Intent to Destroy “in whole or in part” Genocide involves an intent to destroy a protected group wholly or partly; an act that does not involve such intent will not amount to genocide.

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Akayesu: With regard to the crime of genocide, the offender is culpable only when he has committed one of the offences charged under Article 2(2) of the Statute with the clear intent to destroy, in whole or in part, a particular group. The offender is culpable because he knew or should have known that the act committed would destroy, in whole or in part, a group – para. 520. In concrete terms, for any of the acts charged under Article 2 (2) of the Statute to be a constitutive element of genocide, the act must have been committed against one or several individuals, because such individual or individuals were members of a specific group, and specifically because they belonged to this group. Thus, the victim is chosen not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group. The victim of the act is therefore a member of a group, chosen as such, which, hence, means that the victim of the crime of genocide is the group itself and not only the individual – para. 521.

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A substantial part of the group must be targeted