The Genocide Tribunals and Their Contributions to Elaboration of Case Law on Genocide

Prosecution

International Human Rights Law

Wyatt Fisher

November 12th, 2015

Introduction

Targeted violence against specific populations has plagued humanity since history began.
However, following the atrocities witnessed during and in the aftermath of the Second World War,
the international community gathered in an endeavor to prevent such atrocities from being repeated,
resulting in the adoption by the United Nations (UN) General Assembly (UNGA) of the Convention
on the Prevention and Punishment of the Crime of Genocide (CPPCG) in 19481. The international
community first invoked the CPPCG in incorporating its definition of genocide into the statutes of
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 19912,
more commonly known as the International Criminal Tribunal for the Former Yugoslavia (ICTY),
and the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide
and Other Serious Violations of International Humanitarian Law Committed in the Territory of
Rwanda and Rwandan Citizens responsible for genocide and other such violations committed in the
territory of neighbouring States, between 1 January 1994 and 31 December 19943, more commonly
known as the International Criminal Tribunal for Rwanda (ICTR), to try and convict people for the
crime of genocide, among other crimes, in the 1990s following the Rwandan and Srebrenica
genocides, and in the ensuing years a number of other courts were established for similar purposes.
As the first international courts to make judgments on genocide as a crime since the CPPCG was
adopted, the ICTY and ICTR have contributed important case law regarding applicability of
genocide charges under various circumstances and interpretations of the law. This paper will thus
seek to analyze how case law provided by the ICTY and ICTR has expanded and limited the scope
of genocide as a crime, thus expanding and limiting access to arguments for justice in future
prosecutions of genocide.

Sources

As noted above, the statutes of the ICTY and ICTR share with the CPPCG the definition of
genocide and the acts punishable under genocide. Taken verbatim from Articles 2 and 3 of the
CPPCG, Article 4 of the ICTY Statute and Article 2 of the ICTR Statute state:
2.Genocide means 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

1 UNGA Res 260 (III) Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948)
2 UN Security Council (UNSC) Statute of the ICTY (25 May 1993) (as amended on 7 July 2009)
3 UNSC Statute of the ICTR (8 November 1994) (as amended on 31 January 2010)
 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.
3.The following acts shall be punishable: a) Genocide; b) Conspiracy to commit genocide;
c) Direct and public incitement to commit genocide; d) Attempt to commit genocide; e)
Complicity in genocide.
Unlike in the case of many human rights violations, the crime of genocide bears individual criminal
responsibility rather than state responsibility, but due to its nature as an international crime on the
level of crimes against humanity, provision is made in the CPPCG to ensure justice can be brought
upon those accused of genocide to the fullest ability of the international community. Among these
provisions is Article IV of the CPPCG, which prescribes punishment upon anyone committing
genocide, whether they are constitutionally responsible rulers, public officials or private
individuals, indicating that diplomatic immunity is not an available defense for the crime of
genocide. Additionally, genocide is not subject to any statute of limitations, as per the Convention
on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity4, in
addition to Article 29 of the Rome Statute of the International Criminal Court5.

Mens Rea

There are two legal elements that constitute the crime of genocide, namely the mens rea and the
actus reus. In first examining the mens rea, legal analysis requires close inspection of the verbiage
of the definition of the crime. According to the definition employed in the Statutes, genocide must
be committed with intent to destroy.

Dolus Specialus

The Trial Judgment of the ICTY case Prosecution v. Jelisic first applied the standard of dolus
specialus, or special intent, to prosecute genocide. This ruling established that even in instances
where constitutive acts of genocide were committed, if the accused did not commit those acts with
the specific intent to destroy the targeted group, the accused cannot be found guilty of the crime of
genocide6. This standard has further been applied to other acts punishable under this definition,
including the crime of direct and public incitement to commit genocide, as applied in the ICTR case

4 UNGA Res 2391 (XXIII) (26 November 1968)

5 UNGA Rome Statute of the International Criminal Court (17 July 1998)
6 Prosecution v Jelisic (Judgment) IT-95-10-T (14 December 1999) paragraph 108
Prosecution v. Akayesu7; That is to say that the person who is inciting to commit genocide must
have himself the specific intent to commit genocide However, the same judgment noted that
dolus specialus is not required for conviction of complicity in genocide8.
While ICTY and ICTR judgments have clarified the application of dolus specialus to other
crimes besides the crime of genocide, such as the aforementioned, they have also used the standard
to limit what crimes against humanity can be considered genocide. One such example of this
limitation is in the Trial Judgment of the ICTY case Prosecution v. Kupresic et al, which excluded
the crime of ethnic cleansing from being considered genocide due to the lack of a specific intent to
destroy the targeted group9. Although this interpretation regarding ethnic cleansing has generally
prevailed in jurisprudence, dissent certainly exists. In the Separate Opinion of Judge Lauterpacht
regarding the ICJ case Bosnia and Herzegovina v. Yugoslavia10, he dissented that ethnic cleansing
should be considered an act of genocide because ethnic cleansing is a tool used with the specific
intent to destroy at least part of the targeted group. A further limitation imposed on the application
of dolus specialus is that in a joint criminal enterprise, if initially the accused was unaware that the
joint criminal enterprise would extend to genocide the prosecution must prove beyond a reasonable
doubt that the accused was aware that [genocide] was a possible consequence of the joint criminal
enterprise11.

In part

Perhaps the most significant contribution to jurisprudence the judgments of the ICTY and
ICTR has been clarification regarding the words in part in the definition of genocide. Mainly two
arguments have been used in defense of those accused of committing genocide as regards the
clause: geographic limitation and quantity of victims.
As regards the former argument, several rulings have found that those accused of
committing genocide can be found guilty even if their crimes were limited geographically. The
ICTY Nikolic Decision found that acts of genocide committed within a single region can still be
considered to fall under the definition of genocide given the in part clause12, while the Judgement
of ICTY case Prosecutor v. Jelisic further found that even when the dolus specialus only extends to

7 Prosecution v Akayesu (Judgment) ICTR-96-4T (2 September 1998) paragraph 580

8 Ibid paragraph 540
9 Prosecution v Kupresic et al (Judgment) IT-95-16 (14 January 2000) paragraph 606
10 Case concerning Application of the Convention on the Preventionand Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia) (Separate Opinion of Judge Lauterpacht) (11 July 1996) page 430-2

11 Prosecutor v Talic (Indictment) IT-99-36/1 (14 March 1999) paragraph 31

12 Prosecution v Nikolic (Judgment) IT-94-2 (18 December 2003)
one region while the actus reus extends beyond that region, the definition of genocide is still
applicable13. The ICTR case of Prosecutor v. Akayesu further found the accused guilty of genocide
even when the actus reus only extended to a single commune14. These rulings reject the notion that
in part refers to a part of the whole population, but rather indicate the crimes must be taken in
context. This is further to be understood considering that courts in ruling on accusations of genocide
must first establish that the acts occurred in the context of a genocide that did in fact occur. From
these rulings, it can be gathered that acts of genocide committed by the accused need not be
particularly geographically widespread for the accused to retain individual criminal responsibility.
As regards the latter argument, findings of the courts have varied slightly, affording the
judge more discretion than in other determinations regarding genocide. The ICTR Kayishema and
Ruzindana judgement found that in part must refer to a considerable number of members of the
targeted group15, while the ICTR Bagilishema judgment established that at least a substantial part
of the group must be targeted16. The threshold which might constitute considerable or
substantial numbers of victims remains unclear and up to the discretion of the judge, but because
in part refers to the mens rea, rather than the actus reus, the actual number of victims is less
relevant in finding the accused guilty of genocide than the overall intent. However, the ICTY Krstic
judgment did clarify that this intent must seek to destroy a distinct part of the group as opposed to
an accumulation of isolated individuals within it. That judgment further ruled that intent to kill
only the adult men of the targeted group still constitutes a significant enough portion of the
population to constitute dolus specialus17.

Beyond Killing (Actus Reus)

The second legal element that constitutes the crime of genocide is the actus reus, or the
criminal act. While the definition of genocide enumerates five categories of acts that constitute acts
of genocide, the ICTR and ICTY rulings have clarified whether certain actions and levels of
involvement in these actions constitute genocide.

Rape

13 Ibid paragraph 83
14 Ibid
15 Prosecution v Kayishema et al (Judgment) ICTR-95-1-T (21 May 1999) paragraph 97
16 Prosecution v Bagilishema (Judgment) ICTR-95-1A-T (7 June 2001) paragraph 64
17 Ibid paragraph 590
Historically, rape was not considered a constitutive act of genocide. However, the ICTR Akayesu
ruling set a legal precedent for rape and sexual violence as acts of genocide as long as there exists a
dolus specialus to destroy18. This ruling relies on section 2(b) of the articles defining genocide,
concluding that rape and sexual violence cause serious bodily harm, while the ICTR Rutaganda
ruling further elaborates that serious harm need not entail permanent or irremediable harm19.
However, application of this standard has been inconsistent, with prosecutors often not pursuing
charges of rape as an act of genocide, as can be seen for example in the lack of charges despite
evidence of genocidal rape in the ICTR cases of Ruzindana20 and Cyangugu. Additionally, while the
ICTY came to recognize rape as constitutive of torture and crimes against humanity, it failed to
follow the Akayesu ruling precedent and refused to prosecute rape as genocide because they felt the
dolus specialus was missing. This reflects an ongoing debate in legal jurisprudence. However, the
United Nations Security Council (UNSC) in 2008 unanimously resolved that rape and other forms
of sexual violence can constitute [] a constitutive act with respect to genocide,21 (UNSC res
1820) reflecting the evolution of international standards and the role international bodies have in
advancing international human rights jurisprudence.

Hate media

The role of the media during the Rwandan Genocide to incite the public to violence as well as to
coordinate attacks against Tutsi and moderate-Hutu Rwandans highlighted the role media can play
in perpetuating genocide. In the ICTR case Prosecutor v. Nahimana et al, the judgment found that
editors and publishers of media are generally responsible for the content of the media they control,
and that as such if those media are used in committing genocide, the editors and publishers are thus
duly responsible for committing genocide themselves22. While the dolus specialus standard still
applies in the case of hate media as per the ICTR Akayesu ruling23, it appears that the ICTR was
liberal in their application of this standard in the case because of the disproportionate effect of the
media broadcasts and because they found the accused had superior responsibility for their
broadcasts and the effects thereof. This case law thus expanded the scope of constitutive acts of
genocide.

Cultural destruction
18 Ibid paragraph 731
19 Prosecutor v Rutaganda (Judgment) ICTR-96-3-T (6 December 1999)
20 Ibid
21 UNSC Res 1820 (19 June 2008)
22 Prosecutor v Nahimana et al (Judgment) ICTR-99-52-T (3 December 2003)
23 Ibid
In examining the wording of the definition of genocide, what is meant by destruction is unclear.
While most courts have taken it to mean the physical destruction of a targeted group, the ICTY
Krstic judgment examined possible other meanings, recognizing that there is an ongoing
international debate regarding cultural destruction as a form of genocide. Cultural destruction can
be taken to mean destruction of artifacts and national characteristics in with the aim to erase
practical existence of a targeted group. In its Krstic judgment, the court found that customary
international law does not extend the definition of genocide, particularly the intent to destroy, to
cultural destruction. Yet, the court also found that physical destruction of a portion of the target
population that results in the loss of significant social, cultural, and institutional knowledge (such as
adult men) does constitute genocide as a significant part of the population. However, the court did
find that cultural destruction can be used as evidence of intent to destroy, thus expanding tools
available in prosecuting genocide24.

Discussion of linkages and further questions

Conclusions

The ICTY and ICTR have played and continue to play an important role in the elaboration
of jurisprudence related to genocide. Most important from a legal standpoint of this elaboration has
been the clarification through case law of the scope of required mens rea, while from a normative
standpoint the expansion of actus reus prosecutable under the crime of genocide and the expansion
of what in part entails from a geographic standpoint have been the most significant contributions.
In pursuing justice for victims of genocide and other crimes committed during the Rwandan
Genocide and the Yugoslav Wars, the tribunals send a strong normative message to the world that
genocide is an intolerable violation of jus cogens.
The contributions to international human rights jurisprudence by the courts are numerous,
and among those outlined in this paper include the inclusion of the limited geographic scale of
genocide, both in action and intent, as fulfilling the meaning of in part, clarification that in part
does require a substantial population of the targeted group in context of the geographic scale of the
crime, and yet does not include the accumulation of destruction of individuals when the dolus
specialus does not exist. Additionally, the courts have expanded the actions punishable as genocide
to include rape and sexual assault, as well as incitement and coordination of genocide through hate

24 Prosecutor v Krstic (Judgment) IT-98-33-T (2 August 2001) paragraph 580

media broadcasts. Yet, much of these expansions are yet to become customary international law, and
thus constitute the beginning of future developments in this area of international human rights law.
Additional future developments to genocide law that do not yet have a basis in jurisprudence
from these courts exist. Among the most pressing of these potential developments are the inclusion
of ethnic cleansing as a constitutive act of genocide and inclusion of cultural destruction as a means
of destruction in genocide. These issues are especially pressing considering current developments,
such as the cultural destruction being carried out by the Islamic State in Iraq and Syria and the
arguable character of ethnic cleansing in Israeli policy in the West Bank. While at times the
international community is ahead of the courts on these matters, as in the case of UNSC action
regarding rape and sexual violence as a constitutive act of genocide, it is important for the courts to
take a stand in promoting the establishment of new international norms regarding genocide through
jurisprudence in the endeavor to prevent future genocides.
 Bibliography

Case concerning Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia) (Separate Opinion of Judge Lauterpacht) (11
July 1996)
UNGA Res 260 (III) Convention on the Prevention and Punishment of the Crime of Genocide (9
December 1948)
UNGA Res 2391 (XXIII) (26 November 1968)
UN Security Council (UNSC) Statute of the ICTY (25 May 1993) (as amended on 7 July 2009)
UNSC Statute of the ICTR (8 November 1994) (as amended on 31 January 2010)
Prosecution v Akayesu (Judgment) ICTR-96-4T (2 September 1998)
Prosecutor v Talic (Indictment) IT-99-36/1 (14 March 1999)
Prosecution v Kayishema et al (Judgment) ICTR-95-1-T (21 May 1999)
Prosecutor v Rutaganda (Judgment) ICTR-96-3-T (6 December 1999)
Prosecution v Jelisic (Judgment) IT-95-10-T (14 December 1999)
Prosecution v Kupresic et al (Judgment) IT-95-16 (14 January 2000)
Prosecution v Bagilishema (Judgment) ICTR-95-1A-T (7 June 2001)
Prosecutor v Krstic (Judgment) IT-98-33-T (2 August 2001) paragraph 580
Prosecutor v Nahimana et al (Judgment) ICTR-99-52-T (3 December 2003)
Prosecution v Nikolic (Judgment) IT-94-2 (18 December 2003)
UNSC Res 1820 (19 June 2008)
UNGA Rome Statute of the International Criminal Court (17 July 1998)