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INTRODUCTION:

10.1.1 OVERVIEW:
o is a denial of the right of existence of entire human groups, as
homicide is the denial of the right to live of individual human
beings.
o Definition has been heavily criticized as being too narrow. Victims
groups have wanted to appropriate the term for atrocities which
may fall outside the definition.
o When the conduct constituting the offence is attributable to a State,
genocide, like other international crimes, is not only a crime of
individual responsibility: it also engages state responsibility.
o THE BOSNIAN GENOCIDE CASE:
Bosnia took proceedings in the ICJ alleging breaches of
the Genocide Convention by Serbia, in attempting to
destroy protected groups, in particular the Muslim
population.
Court confirmed that the Convention not ONLY
imposes on States a duty to prevent and punish
genocide but also an obligation to refrain from
genocide.
10.1.2 HISTORY:
o Identification of genocide as an international crime came as a
response to the Holocaust.
o Term coined by Polish Lawyer Raphael Lemkin 1944.
o The indictment of the defendants at Nuremberg stated that they
had conducted deliberate and systematic genocide, viz, the
extermination of radical and national groups, against the civilian
population of certain occupied territories in order to destroy
particular races and classes of people, and national, racial or
religious groups, particularly Jews, Poles and Gypsies.

10.1.4 THE NATURE OF GENOCIDE:

o Does there need to be a collective plan to commit genocide before
the crime is committed?
o JELISIC CASE (1999):
ICTY Trial Chamber stated: killings committed by a
single perpetrator are enough to establish the
material element of the crime of genocide and it is a
priori possible to conceive that the accused harbored
the plan to exterminated an entire group without this
intent having been supported by any organization in
which other individuals participated.

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The Chamber did not discount the possibility of a lone

individual seeking to destroy a group as such.
KARADZIC AND MLADIC (1996):
In the interests of international justice, genocide
SHOULD not be diluted or belittled by too broad an
interpretation. Indeed, it should be reserved ONLY for
acts of exceptional gravity and magnitude which shock
the conscience of humankind, and which therefore,
justify the appellation of genocide as the ultimate
crime.

KRISTIC 2001: It is ordinarily assumed therefore that several

protagonists are involved In the crime of genocide.
Although IT IS not a formal element of the crime that there be a
genocidal plan: Jelsic 2001. The tribunals have noted that it would be
difficult to commit genocide without one: Kayishema 1991.
10.2 THE PROTECTED GROUPS:
Not all groups are protected by the Genocide convention, the
convention only lists national, ethnic, racial and religious groups.
Suggested that other groups fall within the protected criteria as a
result of international customary law.
AKAYESU CASE:
ICTR trial chamber determined on the basis of a misreading
that the drafters of the convention intended to protect any
stable and permanent group, rather than simply the groups
specifically mentioned.
**No other Trial Chamber of the two ad hoc Tribunals have
followed the approach established in this case, and the
appeals chamber has consistently, albeit quietly, kept to the
view that the 4 groups are the exclusive focus of the
Genocide Convention: kristic ICTY April 2004. The ICC has
also adopted this view: Situation in Darfur (Al Bashir
arrest warrant case) ICC, 4 March 2009.

10.2.1 NATIONAL, ETHNICAL, RACIAL AND RELIGIOUS GROUPS:

These are the 4 groups given protection by the Genocide Convention.
No distinct meaning for each group.
ICTR attempted to give each a meaning in Akayesu case:
- National Group: collection of people who are perceived to
share a legal bond based on a common citizenship, coupled
with reciprocity of rights and duties.

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Racial group: hereditary physical traits often identified with

a geographical region, irrespective of linguistic, cultural,
national or religious factors.
Ethnic group: a group whose members share a common
language or culture.
Religious group: denomination or mode of worship or a
group sharing common beliefs.
However, in this case, the Tribunal ran into difficulty in
determined whether the Tutsi were a protected group in the
context of the widespread massacres in Rwanda.
Having defined an ethnic group as sharing a common
language or culture, the evidence before the Chamber made
it clear that it WAS NOT THUS that the Tutsi were
distinguished from the Hutu.
Chamber had to rely on the fact that the Rwandans were
required to carry identification cards indicating the ethnicity
of the bearer as Hutu, Tutsi or Twa and that the Tutsi
constituted a group referred to as ethnic in official
classifications.
It was only by the virtue of its determination that any stable
and permanent group was covered by the Convention, and
therefore by the ICTR Statute, that the Chamber was able to
find that the Tutsi were a protected group.

KRISTIC TRIAL CHAMBER:

Regarded to the better approach, is to recognize that the list is

exhaustive but to accept that the 4 groups were not given distinct and
different meanings in the Convention: Kristic August 2001:

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NOT ON SLIDES, MATERIAL ELEMENTS:

10.3.1 THE PROHIBITED ACTS:

o Not every act committed with the intention to destroy, in whole or in part,
a protected group will lead to a conviction for genocide.
o Only those which are mentioned in Article II of the Genocide
Convention may form the actus reus of genocide.
o Actual damage not required, intent is required!
o KILLING MEMBERS OF THE GROUP:
Owing to the operation of Article 30 of the ICC Statute,
genocidal killings MUST be intentional in proceedings before
the ICC.
If there is doubt about the intention to kill, rather than the
intention to cause serious harm, it is of course possible to
charge the defendant pursuant to Article II(b) of the
Convention for the conduct that led to the death.
o CAUSING SERIOUS BODILY OR MENTAL HARM TO THE MEMBERS OF THE
GROUP:
Akaseyu case: acts of sexual violence and rape CAN
constitute genocide; sexual violence was found to be an
integral part of the process of destruction in the Rwanda
genocide. The ICC Elements of Crimes NOW follow this
approach.

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THE BOSNIAN GENOCIDE CASE NICELY SUMMED UP

THE POSITION:

DELIBERATELY INFLICTING ON THE GROUP CONDITIONS OF LIFE

CALCULATED TO BRING ABOUT ITS PHYSICAL DESTRUCTION IN WHOLE OR
PART:

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10.3.2 THE CONTEXTUAL ELEMENT:

The ICC Elements of Crimes have an additional material element,
which was introduced to avoid the problem that isolated hate crimes could
fall within the Convention definition, diluting the seriousness of the term
genocide.

10.4 MENTAL ELEMENTS:

Mental elements of genocide comprise both the requisite intention to
commit the underlying prohibited act (such as killing) and the intent
special to genocide.
10.4.1 INTENT:
The special intent required to genocide necessitates each
individual perpetrator, whether leader or foot soldier, having
the intention to destroy the group or part of it when
committing any of the prohibited acts: Akayesu.
Kristic case 2004:
o The defense here argued that the purpose of the
killings in Srebrenica was not to destroy the group as
such, but to remove a military threat; this was
evidenced by the fact that men of military age had
been targeted.
o The trial chamber HELD that the killings DID NOT
constitute genocide.

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INTENT CONTINUED:
The ICTR also stated that intent may be deduced from the behavior of
others in Akayesu:

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KRISTIC APRIL 2004:

The Appeals Chamber here noted that the intent to destroy MUST
be discernible in the joint participation of the crime itself, held that
individual participants MUST each have the necessary intent.
**THIS INSISTENCE ON THE SPECIAL INTENT FOR EACH
INDIVIDUAL PERPETRATOR REMAINS THE STANDARD
REQUIRED FOR THE CRIME OF GENOCIDE BY THE CASE LAW
AND MAY BE SEEN AS CORRECTLY REFLECTING THE NEED TO
RESERVE GENOCIDE CONVICTIONS ONLY FOR THOSE WHO
HAVE THE RIGHT DEGREE OF CRIMINAL INTENT.
General Kristic was acquitted of genocide, as lacking the specific
intent to destroy, but he was convicted to aiding and abetting acts
of genocide.

10.4.2 TO DESTROY:
The intent is to destroy. The destruction specified here is physical or
biological, although the means of causing the destruction of the group
may be by acts of causing the deaths of individuals.
Some national jurisdictions have extended the meaning of genocide to
cover other forms of destruction within their own law. But the Trial
Chamber in Kristic: AUGUST 2001

BOSNIAN GENOCIDE CASE: ICJ confirmed that genocide was limited

to physical or biological destruction of a group, if the transfer of members
of a group results in the splitting up of the group, that IS NOT genocide
UNLESS done with intent to physically destroy the group. HOWEVER, ACTS
OF ETHNIC CLEANSING- AND ATTACK ON CULTURAL AND RELIGIOUS
PROPERTY MAY BE SIGNIFICANT EVIDENCE TOWARDS ESTABLISHING THE
INTENT TO DESTROY!

10.4.3 IN WHOLE OR IN PART:

There MUST be an intent to destroy the protected group in whole or in
part.
BOSNIAN GENOCIDE CASE:

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KRISTIC, AUGUST 2001:

o

Trial chamber determined that the Bosnian Muslims constituted the protected
group and the Bosnian Muslims of Srebrenica or the Bosnian Muslims of
Eastern Bosnia constitute a part of the protected group.
This finding was affirmed by the Appeals Chamber, which also pointed out
that, in determining what a substantial part was, the prominence of the
targeted individuals within the group as well as the number targeted could
also be relevant.

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SIGNIFICANT DEVELOPMENTS IN THE ICJ:

APPLICATION OF THE CONVENTION ON THE PREVENTION AND

PUNISHMENT OF THE CRIME OF GENOCIDE (BOSNIA AND HERZEGOVINA
V SERBIA AND MONTENEGRO) [1993] ICJ REP 3:
FACTS:
o Serbia was alleged to have attempted to exterminate the Bosniak
(Bosnian Muslim) population of Bosnia and H.
o Claim was filled by Dr. Francis Boyle.
o PARAGRAPHS 428-438
o (1) THE OBLIGATION TO PREVENT GENOCIDE:
430: it is clear that the obligation in question is one of
conduct and not one of result, in the sense that a state
CANNOT be under an obligation to succeed, whatever the
circumstances, in the preventing the commission of
genocide: the obligation of states is rather to employ
all means reasonably available to them to prevent
genocide from occurring.
A state does not incur responsibility simply because a
desired result is not achieved; responsibility is incurred if
State failed to take ALL measures to prevent genocide which
were within its power, and which might have contributed to
preventing the genocide.
Parameters to see whether a state duly discharged the
obligation concerned:
**NOT TOO LONG READ FOR YOURSELF! NICELY SUMMARIZED HERE:
https://en.wikipedia.org/wiki/Bosnian_Genocide_case

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THE AD HOC TRIBUNALS AND THE ICC:

1. THE ICTR: (AKAYESU)
o FACTS:
A was the mayor of Taba, 2 September 1998 Trial
Chamber I of the tribunal found him guilty of 9 out of 15
counts charging him with genocide and other crimes.
His was the first conviction EVER for genocide, and
it was the first time an international tribunal ruled
that rape and other forms of sexual violence could
constitute genocide.
Check highlighted cases folder.
Goes through the definitions of the groups defined under
Statue in genocide.
Mainly discusses intent!!! Intent present no actual harm,
is still a crime.
2. JELSIC:
a. 14 DECEMBER 1999: paragraphs 64-108:
o 65. trial chamber must evaluate whether the intent of the
accused was such that his acts must be characterized as
genocide.
o 66 talks about elements of intent.
o 67: targeted groups of genocide
o

With respect to genocide, Trial Chamber I found that there was insufficient evidence to
prove the existence of a special plan to destroy the Muslim group (the special intent
element required for the crime of genocide) in Brko, Bosnia and Herzegovina. Similarly,
Trial Chamber I found that even Jelisi himself did not have this special intent. Therefore,
he was acquitted of the charge of genocide.

Jelisi was sentenced to 40 years of imprisonment.

Court's holding and analysis

Trial Chamber I found Jelisi guilty of all counts of violations of the laws or customs of war and crimes
against humanity to which he pleaded guilty. (paras. 24 et seq.).
With respect to genocide, Trial Chamber I found that the Prosecutor has not provided sufficient evidence
allowing it to be established beyond all reasonable doubt that there existed a plan to destroy the Muslim
group in Brko [Bosnia and Herzegovina] or elsewhere within which the murders committed by the
accused would allegedly fit (para. 98).
Trial Chamber I also considered whether Jelisi alone could have committed genocide. Trial Chamber I
acknowledged that [s]uch a case is theoretically possible. The murders committed by the accused are

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sufficient to establish the material element of the crime of genocide and it is a priori possible to conceive
that the accused harboured the plan to exterminate an entire group without this intent having been
supported by any organisation in which other individuals participated (para. 100). However, in the present
case, it has not been proved beyond all reasonable doubt that the accused was motivated by the dolus
specialis of the crime of genocide [and] must be found not guilty on this count (para. 108)

JELSIC 2001:
Paragraphs 44-77
44. The appeals chamber in this case clarifies the requisite meaning of
mes rea under Article 4 of the Statute.
Paragraph 45 goes through the meaning and interpretation of Article 4.
45: The Appeals chamber will use the term specific intent to describe
the intent to destroy in whole or in part, a national, ethnical, racial or
religious group, as such.
46: defines specific intent: Requires that the perpetrator, by one of
the prohibited acts enumerated in Article 4 of the Statute, seeks to
achieve destruction, in whole or in part, of a national, ethnical, racial or
religious group as such.
47: no requirement for specific evidence of intent, may be inferred.