Genocide

Question 1

How can genocide be distinguished from other crimes?

Answer 1

The intention to destroy a group = ‘the crime of crimes’

Question 2

Where is genocide defined in ICC Statute?

Answer 2

Art 6

Question 3

Who first termed coin of genocide?

Answer 3

Rafael Lemkin to describe the Holocaust.

Question 4

Was genocide defined as a crime in Nuremberg IMT?

Answer 4

• Never mentioned in Nuremberg judgment. Seen as sub-category of crimes against humanity and also, all crimes had connection with war.
• However, ICTR later said holocaust was constitutive of genocide but term wasn’t defined until later.

Question 5

Where can genocide be found in ICTR Statute?

Answer 5

Art 2

Question 6

Where can genocide be found in ICTY Statute?

Answer 6

Art 4

Question 7

Where is definition of genocide in Genocide Convention?

Answer 7

Art 2

Question 8

How is genocide different from crimes against humanity?

Answer 8

• Intent to destroy the whole or part of a group.
• Protects the rights of certain groups to survival, but the crime against humanity protects groups from discrimination.
• Doesn’t include any objective requirement of scale. Gravity marked not by objective circumstantial element, but by subjective mens rea (intent to destroy).

Question 9

What does Art 2 of the genocide convention set out?

Answer 9

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

Question 10

OBJECTIVE ELEMENT (S):

Answer 10

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

Question 11

SUBJECTIVE ELEMENT:

Answer 11

Special intent to destroy national, ethnic, racial or religious groups

Question 12

CONTEXTUAL ELEMENT:

Answer 12

Manifest pattern of similar conduct. (ICC Elements of Crimes)

Question 13

Can it be genocide if it is carried out by individual?

Answer 13

Yes
- Jelisic: Killings by single perpetrator = material element + subjective element

Risk

• Over expansion of genocide and damaging the mobilising power of the term.
• Should be not diluted (Karadzic and Mladic (ICTY))

However, realistic? If assessing one individual:
- Intent: organised and widespread plan to exterminate a group. Must know commission would further implant the plan.

• Context: ‘A manifest pattern of similar conduct’ (This rules out most situations of isolated crimes)

Question 14

What is risk of applying genocide to acts of individuals?

Answer 14

• Over expansion of genocide
• Effacing the profound stigma and mobilising power of the term.
• ‘Genocide should not be diluted or belated by too broad an interpretation’ (Karadzic and Mladic, ICTY).

Question 15

Where could the act of an individual fall short of genocide?

Answer 15

Contextual element: Manifest pattern of similar conduct.

Question 16

How is a national group defined? (Akayesu)

Answer 16

Sharing legal bond of common citizenship, coupled with reciprocity of rights and duties.

Question 17

How is ethnic group defined? (Akayesu)

Answer 17

Members share common language or culture

Question 18

How is racial group defined? (Akayesu)

Answer 18

Based on hereditary physical traits.

Question 19

How is religious group defined? (Akayesu)

Answer 19

Members share same religion, denomination…

Question 20

How was ‘group’ defined in Akayesu?

Answer 20

Issue: were Tutsi a protected group?

Law:
- A group is constituted in a permanent fashion and membership of which is determined by birth.

• Common criterion of four groups: membership is ‘not challengeable’ by its members who belong to it automatically by birth.

Applied:
- Where ethnic definition couldn’t be used to separate Tutsis from Hutu, relied on their identification cards to indicate ethnicity.

• Any stable and permanent group were covered by Convention.

Question 21

What approach did ICTR used in Akayesu to define group?

Answer 21

OBJECTIVE APPROACH

• Stable and permanent threshold: objectivity

Question 22

What are disadvantages of objective approach?

Answer 22

• Expands definition of genocide.
• Akayesu judgment breached principle of legality.
• Omits subjective aspect of ethnicity: ethnic groups are composed of individuals who conceive themselves as being alike…’
• Dominant groups may also assign ethnic labels with aim of denying them participation.

THEREFORE: excludes certain groups.

Question 23

Was approach in Akayesu followed subsequently?

Answer 23

No, subsequent move to subjective.

• Cryer: All evidence is that list was intended to be exhaustive.
• Not supported by case law except Akayesu and not by state practice or opinio juris.

Question 24

What did ICTY say about objective criteria?

Answer 24

Using objective criteria would be:

• a ‘perilous exercise’
• whose result would not correspond to the perceptions of the persons concerned.

Question 25

What approach was taken in Rutaganda?

Answer 25

SUBJECTIVE and OBJECTIVE:

• assessed in light of particular political, social and cultural context. (Objective)
• Perception of perpetrator/ perception of victim. (Subjective)

Question 26

What approach was taken in Semanza (ICTR)?

Answer 26

MIXED:

• Objective: given social or historical context
• Subjective: perceptions of perpetrators

Question 27

What did Trial Chamber in Krstic set out?

Answer 27

• Looked at drafter’s intentions
• List is describing a single phenomenon = ‘national minorities’ rather than to several distinct prototypes of human groups
• Differentiating on basis of scientific objective criteria would be inconsistent with objective and purpose of convention.

Question 28

What level of intent is required?

Answer 28

Dolus specialis (Special intent)

Question 29

How is special intent defined?

Answer 29

The specific intention, which demands that the perpetrator clearly seeks to produce the acts charged.

Question 30

How was intent established in Krstic?

Answer 30

Defence: Purpose of killings was not to destroy the group but to remove a military threat. Evidence: men of military age had been targeted.

Issue: What constitutes intention to destroy?

Law: Seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals.

Even if not entire group, must view the part of group they wish to destroy as a distinct entity which must be eliminated.

Applied: Selective destruction of group would have a lasting impact.
- Killing all military aged men, alongside forcible transfer of women, children and elderly = physical disappearance of BM population in Srebencia.

Question 31

What was intention to destroy in Krstic?

Answer 31

1) Seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals.
2) Even if not entire group, must view the part of group they wish to destroy as a distinct entity which must be eliminated.