The crime of genocide is any of the following acts (conducts) committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.
Contextual common elements
The following are elements common to all offences of genocide that need to be proven by the Prosecution:
(1) Such person or persons belonged to a particular national, ethnical, racial or religious group;
(2) The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such;
(1) Belonging to a particular national, ethnical, racial or religious group population.
Existence of a particular national, ethnical, racial or religious group and belonging of the victims to that group(s)
= here we have to decide if NATIONAL or ETHNIC ? OBJ and/or SUBJ approach (both are OK here)
1.1.1. OBJECTIVE evidence of the existence of a protected group.
(« Stable and permanent group »)
- Evidence of the existence of a "national group".
= Evidence of :
official classification under national constitutions or laws.
members sharing a legal bond of common citizenship.
members sharing reciprocity of rights and duties.
distinctive identity in terms of nationality or national origin.
- Evidence of the existence of an "ethnical group".
= Evidence of :
official classification by identity cards.
members sharing a common language.
members sharing a common culture.
sedentary or nomadic character of the group.
- Evidence of the existence of a "racial group".
Evidence of :
members sharing hereditary physical traits.
members identifying themselves with a geographical region.
- Evidence of the existence of a "religious group".
= Evidence of :
members sharing the same religion.
members sharing the same denomination or mode of worship.
1.1.2. SUBJECTIVE evidence of the existence of a protected group.
- Evidence that a group is perceived as such by political or military leaders, or by the general public, or that a group is perceived as such by the perpetrators
- Evidence that a group is perceived as such by the members themselves.
(2) SPECIAL INTENT : The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such;
- Precisions on the the sufficiency of “circumstancial evidence”[1] to prove genocidal intent:
The following factors are consired relevant to prove the mens rea element of génocide[2] :
(a) The general and widespread nature of the atrocities committed;
(b) The general political doctrine giving rise to the acts;
(c) The scale of the actual or attempted destruction;
(d) Methodical way of planning the killings;
(e) The systematic manner of killing and disposal of bodies;
(f) The discriminatory nature of the acts;
(g) The discriminatory intent of the accused.
According to the International Criminal Tribunals[3] : "[a]s a proof of specific intent, it may, in the absence of direct explicit evidence, be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts."
Precisions regarding the distinction between Intent and Motive (only the first has to be proven, and the motive can not be used as a justification of the acts):
- According to the Appeals Chamber of the International Criminal Tribunals[4], it is necessary « to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit génocide ».
- The term « as such » clarifies the specific intent requirement. It does not prohibit a conviction for genocide in a case which the perpetrator was also driven by other motivations that are legally irrelevant in this context
2.1. The perpetrator "intended" to destroy that group.
- Evidence inferred from the words, deeds or position of the perpetrator OR others
- Evidence inferred from the existence of a plan or policy to destroy that group.
- Evidence inferred from the systematic or widespread character or the nature of the genocidal acts (see the Dublin Report related to the existence of Crimes Against Humanity)
2.2. The perpetrator intended to "destroy" that group.
- Evidence of intention to destroy by physical or biological means.
- !! Not sufficient per se: évidence of cultural génocide (destruction of cultural and religious buildings), nor "ethnic cleansing", nor displacement, nor acts intended to defeat rebels.
2.3. The perpetrator intended to destroy that group "in whole or in part".
2.3.1. Intention to destroy the group in part.
- Evidence of intention to destroy a numerically significant part of the group (« massive destruction »)
- Evidence of intention to destroy a geographical defined part of the group.
- Evidence of intention to destroy a part of the group consisting of its leadership or a part of the group that is otherwise significant (« sélective destruction »).
2.3.2. Evidence which is not required.
- Evidence of the actual destruction of the group, nor that a substantial part of the group was actually destroyed.
2.4. The perpetrator intended to destroy that group "as such".
2.4.1. Evidence inferred from the words or conduct of the perpetrator.
- Evidence of statements by the perpetrator.
- Evidence of conduct by the perpetrator.
- Evidence of victims belonging to the group.
2.4.2. Evidence inferred from the context in which the genocidal acts were committed.
- Evidence of widespread and systematic violence.
- Evidence of a general campaign of persecution.
- Evidence of the number of the victims belonging to the group.
- Evidence of statements by others.
- Evidence of prior separation or classification of victims.
- Evidence of the opinions of witnesses as to why victims were killed.
2.4.3. Exculpatory evidence.
- Evidence of different basis on which victims were targeted or evidence that members of the group were not mage the victim of genocidal acts.
Specific act of genocide :
Killings (art. 2 (a) Convention 1948)
= Apart from the common elements mentioned above, two elements have to be proven by the Prosecution to establish the perpetration of an act of genocide by killing. First, with regard to the material element of the crime, the Prosecution has to prove that the perpetrator killed one or more persons (with direct or indorect methods). Then, with regard to the mental elements that must be satisfied for the crime, the intent to cause death and the intent to destroy the group, in whole or in part, (see Common Element 2, discussed above) must be established.
Serious bodily or mental harm (art. 2 (b) Convention 1948)
= Apart from the common elements mentioned above, two elements have to be proven by the Prosecution to establish the perpetration of an act of genocide by causing serious bodily or mental harm. First, the perpetrator caused serious bodily and mental harm to one or more persons. Second, the perpetrator meant to engage in conduct which caused serious bodily and mental harm to one or more persons.
= Important precision[5]:
“Causing serious bodily or mental harm' in sub-paragraph (b) is understood to mean, inter alia, acts of torture, inhumane or degrading treatment, sexual violence including rape, interrogations combined with beatings, threats of death, and harm that damages health or causes disfigurement or injury. The harm inflicted need not be permanent and irrémédiable ».
Deliberately inflicting conditions of life calculated to bring about physical destruction (art. 2 (c) Convention 1948)
= Important précisions :
1. « the expression deliberately inflicting on the group conditions of life calculated to bring about its physical destructions 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»[6].
2. « Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part' under sub-paragraph (c) does not require proof of a result. The acts envisaged by this sub-paragraph include, but are not limited to, methods of destruction apart from direct killings such as subjecting the group to a subsistence diet, systematic expulsion from homes and denial of the right to medical services. Also included is the creation of circumstances that would lead to a slow death, such as lack of proper housing, clothing and hygiene or excessive work of physical exertion »[7].
3. « Therefore the conditions of life envisaged include rape, the starving of a group of people, reducing required medical services below a minimum, and withholding sufficient living accommodation for a reasonable period, provided the above would lead to the destruction of the group in whole or in part »[8].
Measures intended to prevent birth (art. 2 (d) Convention 1948)
= « 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.
Furthermore, (…) 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 »[9].
Transferring children (art. 2 (e) Convention 1948)
= « (…) 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 »[10].
[1] ICTR, Prosecutor v. Nyiramasuhuko et al., "Judgement", ICTR-98-42-T, 24 June 2011, para. 5732 (footnote omitted). See also ICTR, Prosecutor v. Bizimungu et al, "Judgement", ICTR-99-50-T, 30 September 2011, para. 1958; ICTR, Prosecutor v. Ndahimana, "Judgement", ICTR-01-68-T, 30 December 2011, para. 804.
[2] ICTY, Prosecutor v. Sikirica et al., "Judgement on Defence Motions to Acquit", IT-95-8-T, 3 September 2001, para. 46-61.
[3] ICTY, Prosecutor v. Jelisić, "Appeals Judgment ", IT-95-10-A, 5 July 2001, para. 47. See also ICTR, Prosecutor v. Gatete, "Judgment", ICTR-2000-61-T, 31 March 2011, and para. 583.IT-95-10-A, 5 July 2001, para. 47.
[4] ICTY, Prosecutor v. Jelisić, "Appeals Judgement", IT-95-10-A, 5 July 2001, para. 49.
[5] ICTR, Prosecutor v. Stakić ("Prijedor"), "Judgement", IT-97-24-T, 31 July 2003, para. 516.
[6] ICTR, Prosecutor v. Akayesu, "Judgement", ICTR-96-4-T, 2 September 1998, paras. 505-506.
[7] ICTR, Prosecutor v. Stakić ("Prijedor"), "Judgement", IT-97-24-T, 31 July 2003, para. 517.
[8] ICTR, Prosecutor v. Kayishema and Ruzidana, "Judgement", ICTR-95-1-T, 21 May 1999, para. 116.
[9] ICTR, Prosecutor v. Akayesu, "Judgement", ICTR-96-4-T, 2 September 1998, para. 507-508.
[10] ICTR, Prosecutor v. Akayesu, "Judgement", ICTR-96-4-T, 2 September 1998, para. 509; as explicitly concurred within its entirety by ICTR, Prosecutor v. Kayishema and Ruzindana, "Judgement", ICTR-95-1-T, 21 May 1999, para. 118.
