Genocide

The core crimes

• ICL ‘as’ the four core crimes – why these? Do they make sense today?
• Genocide (Art. 6)
• Crimes Against Humanity (CAH) (Art. 7)
• War Crimes (Art. 8)
• Aggression (Art. 8bis)
• Similarities but all distinct

Genocide
• What is it?
• Background
• Definition
• External Element (the act)
• Protected Groups
• Internal Element
• Challenges

Genocide? What is it?

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Created by Polish Jewish Lawyer, Raphael Lemkin in 1944. Shock re. coordinated killing of
Armenians by Ottoman Empire during WWI

He wrote:
“Genocide is directed against the national group as an entity, and the actions involved
are directed against individuals, not in their individual capacity, but as members of the
national group.” Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation,
Analysis of Government, Proposals for Redress, 2nd ed. (Clark, NJ: Lawbook Exchange,
2008), 79.
Of Nuremberg… “In brief, the Allies decided a case in Nuremberg against a past Hitler—
but refused to envisage future Hitlers.” Raphael Lemkin, Totally Unofficial: The
Autobiography of Raphael Lemkin, ed. Donna-Lee Frieze (New Haven, CT: Yale University
Press), 118
UN General Assembly UN Res. 96(1) 1946 “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.”

Background
• Response to the Holocaust but not prosecuted as a crime at Nuremberg
• Genocide needed to be recognised as a distinct international crime – the Genocide
Convention 1948, and recognised as a reflection of custom by ICJ
• First prosecution not until 1998, Akayesu, ICTR
• Rwanda. 1990-1994 Civil War. President assassinated 6 April 1994. 7 April – 15 July
1994: 800,000 Tutsi (minority) were killed. Est. 20% of population.

Genocide – Crime of Crimes?

• Nature of genocide
• Scale and Scope
• Lone actors?
• Collective Plans?
• What is it’s aim and purpose?
• Preventative
• Punishment
• Who?
Genocide: Definition
Article 2 Genocide Convention and Article 6 Rome Statute
“For the purpose of this statute, ‘genocide’ means any of the following acts committed with
the 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.”
 Elements: Actus Reus (External Element)

Article 2 Genocide Convention and Article 6 Rome Statute

“For the purpose of this statute, ‘genocide’ means any of the following acts committed with
the 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.”

Prosecutor v Krstić, Judgment, IT-9-33-T, 2 August 2001; para 580

“the Trial Chamber is aware that it must interpret the Convention with due regard for the
principle of nullum crimen sine lege. It therefore recognises that, despite recent
developments, customary international law limits the definition of genocide to those acts
seeking the physical or biological destruction of all or part of the group. Hence, an
enterprise attacking only the cultural or sociological characteristics of a human group in order
to annihilate these elements which give its own identity distinct from the rest of the
community would not fall under the definition of genocide.”

Definition is limited but contentious

• Killing Members of the Group
• Murder/muertre? Broadly the same for Genocide. The MR of the underlying
act is intentional but not necessarily pre-meditated (Kayishema, ICTR; also
see Baliglishema, ICTR)
• Causing serious or mental harm
• ‘by the enslavement, starvation, deportation and persecution of people ... and
by their detention in ghettos, transit camps and concentration camps in
conditions which were designed to cause their degradation, deprivation of
their rights as human beings and to suppress them and cause them inhumane
suffering and torture’ (Eichmann)
• Sexual violence and rape (Akayesu)
 • More than minor or temporary impairment of mental faculties (Semanza,
ICTR)
• Case-by-case basis (Baliglishema)

Deliberately Inflicting on the Group Conditions Calculated to Bring About its Physical
Destruction in Whole or in Part
Akayesu, “subjecting a group of people to a subsistence diet, the systematic expulsion from
homes and the reduction of essential medical services below minimum requirements”
 
Elements of crimes “may include, but is not necessarily restricted to, deliberate deprivation of
resources indispensable for survival, such as food or medical services, or systematic
expulsion from homes.”
• Forcible migration may not constitute genocide if ‘only’ to remove from territory
(Eichmann) and
• Bosnian Genocide case
“…deportation or displacement of the members of a group, even if effected by force, is not
necessarily equivalent to destruction of that group, nor is such destruction an automatic
consequence of the displacement.” para 190

Imposing measures intended to prevent births within the group

Sexual mutilation, sterilization, forced birth control, separation of the sexes and
prohibition of marriages (Akayesu)
“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…” Akayesu ICTR T. Ch. I 2.9.1998 para. 507
Can be mental as well as physical e.g. Rape where V refuses to procreate as a result of
the trauma

Forcibly transferring children of the group to another group

Little judicial consideration
ICC Elements of crimes Art 6(e)
“The term ‘forcibly’ is not restricted to physical force, but may include threat of force or
coercion, such as that caused by fear of violence, duress, detention, psychological oppression
or abuse of power, against such person or persons or another person, or by taking advantage
of a coercive environment.”
Included as a compromise for the lack of cultural consideration in the groups

Protected Groups: What?

a national, ethnical, racial or religious group
• ICTR attempted to define each in Akayesu (at paras. 512-515)
• ICTR determined groups should be ‘stable’ and “normally not challengeable by its
members, who belong to it automatically, by birth, in a continuous and often
irremediable manner”
• Legally problematic
• ICTY better approach – list is exhaustive but not given distinct meanings
• “The preparatory work of the Convention shows that setting out such a list was
designed more to describe a single phenomenon, roughly corresponding to what
was recognised, before the second world war, as ‘national minorities’, rather than
to refer to several distinct prototypes of human groups. To attempt to differentiate
each of the named groups on the basis of scientifically objective criteria would thus be
inconsistent with the object and purpose of the Convention.” Krštic´ ICTY T. Ch. I
2.8.2001 para. 556
a national, ethnical, racial or religious group
• Identification of membership is problematic
• Groups are often social constructs rather than facts
• Subjective and Objective test
“Although the objective determination of a religious group still remains possible, to attempt
to define a national, ethnical, racial or religious group today using objective and
scientifically irreproachable criteria would be a perilous exercise whose result would
not necessarily correspond with the perception of the persons concerned by such
categorisation. Therefore it is more appropriate to evaluate the status of a national, ethnical
or racial group from the point of view of those persons who wish to single out that group out
from the rest of the community.”
Prosecutor v Jelesić, Judgment, IT-95-10-T, 14 December 1999 para. 70
• Negative groups? Stakic vs Jelesic
Looks at ‘as such’ “for it shows that the offence requires intent to destroy a collection of
people who have a particular group identity. “
Prosecutor v. M. Stakić, Appeals Chamber 2006, at para. 20
 Elements: Mens Rea (Internal Element)

Article 2 Genocide Convention and Article 6 Rome Statute

“For the purpose of this statute, ‘genocide’ means any of the following acts committed with
the 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.”
with the intent to destroy
• Destroy is physical or biological
“An enterprise attacking only the cultural or sociological characteristics of a human group in
order to annihilate these elements which give to that group its own identity distinct from the
rest of the community would not fall under the definition of genocide.” (Krštic´ ICTY T. Ch.
I 2.8.2001 para. 580)
in whole or in part
• Can be geographically limited
• Must be a substantial part – case-by-case, can include consideration of the
prominence of the members and the numbers
• Dolus Specialis – distinguishing feature
• Intent to destroy in whole or in part
• Recklessness is insufficient
• Intent not knowledge
“Genocide is one of the worst crimes known to humankind, and its gravity is reflected in the
stringent requirement of specific intent. Convictions for genocide can be entered only where
that intent has been unequivocally established”
Krštic´ ICTY A. Ch. 19.4.2004 paras. 133
• Contested. At times inferred by the case law see e.g. Akayesu “the fact of deliberately
and systematically targeting victims on account of their membership of a particular
group”
Unique Characteristics
• The crime of crimes?
• Requires proof of special intent
• To destroy a specific group in whole or in part
• Peace or war
• Preventive obligations in Convention

Challenges
• Exhaustive list of groups
• Cultural, political groups excluded (and others – gender, sexual identity/orientation…
more?)
• Protected groups hard to define
• Requires ‘intent to destroy’ rather than ‘merely’ forced displacement
• Enforcement ineffective for decades
• What about now? Yazidis, Rohinga… others?

Genocide – Crime of Crimes?

• Nature of genocide
• Scale and Scope
• Lone actors?
• Collective Plans?
• What is it’s aim and purpose?
• Preventative
• Punishment
• Who?

Challenges
• Robert Cryer, Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst, An
Introduction to International Criminal Law and Procedure (Cambridge: CUP, 4th ed.,
2019) chapter 10
• W.A. Schabas, Genocide in International Law: Crime of Crimes (Cambridge: CUP,
2nd ed, 2009)
• Payam Akavan, Reducing Genocide to Law (Cambridge: CUP, 2012)
• Alexander Greenawalt, ‘Genocide: The Case for A Knowledge-Based Intent’ (1999)
99 Columbia Law Review 285
• Kai Ambos, ‘What does “Intent to Destroy” in Genocide Mean?’ (2009)91
International Review of the Red Cross 833 (available at
https://www.icrc.org/en/international-review/article/what-does-intent-destroy-
genocide-mean )
• R. Lemkin, “Genocide as a Crime Under International Law” (1947) 41 AJIL 145
• P. Akhavan, “Contributions of the International Criminal Tribunals for the Former
Yugoslavia and Rwanda to the Development of Definitions of Crime Against
Humanity and Genocide” (2000) 94 Proceedings ASIL 279
• Agnieszka Szpak, ‘National, Ethnic, Racial, and Religious Groups Protected against
Genocide in the Jurisprudence of the ad hoc International Criminal Tribunal’ (2012)
23:1 EJIL 155–173
• Robert Cryer, ‘International criminal law and Daesh’ (April 2016) OUPBlog at
https://blog.oup.com/2016/04/international-criminal-law-and-daesh/
• ICTR/ICTY case law database at https://www.icty.org/en/content/ictricty-case-law-
database
• https://www.genocidewatch.com/tenstages