Element of genocide

Table of Contents

Acknowledgment3Introduction4The Requisite Standard of Mens Rea8Dolus Specialis8intended9to destroy10in whole or in part10The Determination of the Dolus Specialis12Selective Targeting14The Presumption of Mens Rea15The Effect on Culpability15Conclusion16Bibliography17

AcknowledgmentI take this opportunity to express my gratitude and personal regards to Mrs. X for inspiring and guiding me during the course of this project work.I also owe my sincere thanks to the library staff, friends and my parents for the corporation, support and facility extended from time to time during the progress of my project work.

P Kumar

IntroductionInternational Criminal Law recognises a number of actions as criminal and as being crimes against humanity as such. These include - extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity among others[footnoteRef:1]. Although murder has also been included in this definition[footnoteRef:2], the mass murder of individuals based on a particular common characteristic that they shared, whether ethnic, religious, racial or national, has been defined separately as a specific crime. This crime has been defined as the crime of Genocide by Raphael Lemkin[footnoteRef:3]. [1: Art. 7 of the Rome Statute of the International Criminal Court [Hereinafter cited as The Rome Statute]] [2: Art. 7 (1) (a) of The Rome Statute] [3: R. Lemkin, Genocide as a Crime under International Law, 41 AJIL 145]

As with most conduct that is deemed to be criminal, the crime of Genocide also requires a guilty mind or mens rea in addition to the actus reus[footnoteRef:4]. This project aims to examine this mens rea element and hopes to analyse the position of law that now stands concerning the same. [4: Art 6(a) (3) of the ICC Elements of Crime United Nations Doc. PCNICC/2000/1/Add/2(2000) [Hereinafter cited as the ICC Elements of Crime]; Art II of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, 78 UNTS 227]

Before delving into the actual specific intent requirement, it would be worthwhile to examine the jurisprudence surrounding the crime of Genocide itself to get a comprehensive understanding of the crime in itself. Modern history recalls many instances where a mass murder of people belonging to the same race has taken place with a view to eliminate the race. These include destruction of the Armenians by the Ottoman Empire during WWI, the holocaust of the Jews by the Nazis and the killing of millions of Cambodians by the Khmer Rouge regime in Cambodia in the mid 1970s[footnoteRef:5]. To provide an estimate of the gravity of the crime it must be noted here that by the modern definition of Genocide that exists today, these can be broadly classified as instances of genocide but the position of criminal law existing then, did not allow for such (the position regarding the activities that took place in Cambodia is however still debated)[footnoteRef:6]. The Nuremberg Charter did not explicitly make a reference to the term genocide but it was referred to in principle[footnoteRef:7] in the charter. The actual evolution of the autonomous nature of Genocide as criminal conduct was first recognised by the United Nations General Assembly when it passed the Convention on the Prevention and Punishment of the Crime of Genocide, 1948. [5: H. Fein (ed.), Genocide Watch (Yale University Press, 1992) as cited in Kriangsak Kittichaisaree, International Criminal Law (Oxford University Press, Oxford, 2001) at p.67 [Hereinafter cited as International Criminal Law]] [6: See for instance Beth van Schaack, The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot, The Yale Law Journal, Vol. 106, No. 7 (May, 1997), pp. 2259-2291.] [7: International Criminal Law at p. 67]

Subsequent developments took place in Rwanda and Yugoslavia that caught the worlds attention, bringing into the forefront the crime of Genocide again. The ICTR and the ICTY constituted specifically to deal with offences committed during that period borrowed significant principles from the Genocide Convention. The ICTR delivered the first judgment on Genocide only in the late 1990s[footnoteRef:8]. In the interim, however there was not much progress in the jurisprudence relating to Genocide except academic writings based on the Genocide Convention as such. In the year 1998, the Rome Statute of the International Criminal Court was agreed upon by certain signatory countries that again brought Genocide into more clarity than existed before. It was able to define successfully by consent of signatory countries a mutually acceptable definition of the crime[footnoteRef:9] and to lay down elements that are required to be proven in order to prove Genocide[footnoteRef:10]. However, there has been merely one situation in which the ICC has taken cognizance of Genocide[footnoteRef:11]. The wealth of jurisprudence however originates from the ICTY and the ICTR decisions. Although the decisions are not significant in number, they do provide a settled position of law, which will be presented here in this project. [8: The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, (Sept. 2, 1998) [Hereinafter cited as Akayesu] ] [9: Art. 6 of The Rome Statute] [10: Art. 6(a) to 6(e) of the ICC Elements of Crime] [11: The Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09]

In order to develop a comprehensive understanding of the matter at hand, it is also necessary to examine the actus reus element of the crime. Although Art.6 (a) to (e) defines various kinds of conduct that may be considered Genocidal, the wealth of jurisprudence exists on Art.6 (a) which is Genocide by killing members of a group which will be focused on mainly in this project. Commission is the broadest form of perpetration and includes both the actual execution of a crime and culpable omissions leading to it, with the requisite mental state.[footnoteRef:12] [12: Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T]

The threshold for the number of people affected in order for it to be counted as Genocide is low. In fact, even if the Genocidal conduct is directed against one single individual, it may qualify to be Genocide as per the definition provided[footnoteRef:13]. The conduct must be directed against a particular national, ethnic, racial or religious group[footnoteRef:14] and besides being qualified by the requisite mens rea element must be part of a manifest pattern of attacks against a group as opposed to mere sporadic attacks of violence[footnoteRef:15]. It might also be worthwhile here to mention the high level of presumption of innocence[footnoteRef:16]and the favour granted to the accused in cases of a doubt in interpretation of the Elements of Crime[footnoteRef:17]. [13: Akayesu at 521; Art.6 (a) (1), (b) (1), (c) (1), (d) (1), (e) (1) of the ICC Elements of Crime] [14: Art.6 (a) (2), (b) (2), (c) (2), (d) (2), (e) (2) of the ICC Elements of Crime] [15: Art.6 (a) (3) of the ICC Elements of Crime] [16: Art.66 of The Rome Statute] [17: Art.22 (2) of The Rome Statute]

The Requisite Standard of Mens ReaDolus SpecialisAs has been presented before, Genocide invites analysis under two headings: the prohibited underlying acts and the specific genocidal intent or dolus specialis. The coordinators discussion paper, submitted at the conclusion of the February 1999 session of the Working Group on Elements of Crimes, contained the following: 'The accused knew or should have known that the conduct would destroy, in whole or in part, such group or that the conduct was part of similar conduct directed against that group.[footnoteRef:18] The specific intent necessary for a conviction of genocide is even more demanding than that required for murder. In Kambanda, the Trial Chamber observed: 'The crime of genocide is unique because of its element of dolus specialis (special intent) which requires that the crime be committed with the intent to destroy in whole or in part, a national, ethnic, racial or religious group as such.[footnoteRef:19] As held in Akayesu[footnoteRef:20] the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act. [18: 'Discussion Paper Proposed by the Co-ordinator, Article 6: The Crime of Genocide', UN Doc. PCNICC/1999/WGEC/RT.l] [19: Prosecutor v. Kambanda Case No. ICTR 9723-S; See also Prosecutor v. Rutaganda Case No. ICTR 963-T] [20: Akayesu]

The crime must be committed with intent to destroy, in whole or in part, a protected group, as such[footnoteRef:21]. It is interesting here to note the various components of the definition sought to be established. These are: [21: Art.6 (a)(3) of the ICC Elements of Crime; Otto Triffterer, Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such, Leiden Journal of International Law, Vol 14, No 2 (2001), p. 400;]

1. intended2. to destroy3. in whole or in partintendedAs has been observed above, the Genocide requires an additional level of mens rea as opposed to a municipal charge of murder[footnoteRef:22]. There are two standards, by which judicial bodies have interpreted the specific intent requirement that is essential to be proved in order to establish a crime of Genocide. The first standard would be that of proving that the accused clearly sought to produce the act charged[footnoteRef:23]. The facts of the Akayesu case[footnoteRef:24] were that the accused was the mayor of the commune of Taba where a widespread massacre of the Tutsis were taking place and as the mayor he had the requisite knowledge that the said acts were being committed and took no steps to stop these activities and to the contrary actively took part in these killings[footnoteRef:25]. It must be therefore noted here that the accused was in a sense directly linked to the genocide of the Tutsis in the Taba commune. Therefore his specific intent or dolus specialis was considered by the court and he was convicted. [22: Genocidal Intent before the ICTY, 52 Int'l & Comp. L.Q. 447 2003, at p. 450] [23: Akayesu at 583; The Prosecutor v. Clment Kayishema and Obed Ruzindana, Case No.: ICTR-95-1-T at 87 [Hereinafter cited as Kayeshima]] [24: Akayesu at 179] [25: Akayesu at 182]

This must be distinguished from the following. The second standard would be to examine whether a systematic scheme to eradicate a particular ethnic group was present or not and if so, infer the required the specific intent from the same[footnoteRef:26]. In the Ruggiu case, the accused was a journalist who had actively taken up the cause of spreading propaganda against the RPF through the radio. Although his clear involvement with the Genocidal activities in Rwanda may not be ascertained, the court looked into the circumstances prevailing in Rwanda at that period of time and the specific state of mind of the accused who had left his home country because he agreed politically with the views of the Rwandan government and convicted him. [26: The Prosecutor v. Georges Ruggiu, Case No. ICTR-97-32-I, at 20 (2000) [Hereinafter cited as Ruggiu]]

As to whether the intention referred to in this Element can be satisfied by a standard of knowledge, constructive or actual seems to have been rejected by Criminal Tribunals as a necessary, but not sufficient standard[footnoteRef:27] and prefer the specific intent standard instead[footnoteRef:28]. [27: Article 30(1) of the Rome Statute which states that, Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge; Genocidal Intent before the ICTY, 52 Int'l & Comp. L.Q. 447 2003, at p. 453] [28: Prosecutor v. Goran Jelisic, Case No.IT-95-10-T at 66, (1999) [Hereinafter cited as Jelisic]]

to destroyThe ICTY judgments held that the destruction referred to under the Genocide Convention only implies a physical or biological destruction and does not cover cultural destruction[footnoteRef:29]. [29: Prosecutor v. Radislav Krstic, Case No.: IT-98-33-T (2001) at 580 [Hereinafter cited as Kristic] ; Jelisic at 78-83]

in whole or in partThis phrase used in the element denotes that the accused need not have sought to destroy the entire group but merely a part of that group[footnoteRef:30]. A quantification of how much of a part of a group when eradicated would lead to Genocide has followed three approaches. Firstly, a simple comparison of the number of people killed as opposed to the total number of people in the group[footnoteRef:31]. Secondly, The Jelisic case also laid down the substantial part standard that says that if a part of a group is emblematic to a group or to its survival, then an attack against that group would amount to an attack on the ethnic group as such[footnoteRef:32]. Thirdly, the geographical locality standard, which states that the elimination of a part of the group from a particular geographic locality or municipality with a distinct perception of the part as an entity as opposed to the multitude of individuals qualified as genocide[footnoteRef:33]. [30: Genocidal Intent before the ICTY, 52 Int'l & Comp. L.Q. 447 2003, at p. 459; The Prosecutor v. Duko Sikirica, Damir Doen and Dragan Kolundija at 61] [31: Jelisic at 82] [32: Kristic at 589] [33: Kristic at 590]

The requisite standards of intent that is required to be established have been mentioned above. The determination of this intent will be dealt with in detail below.

The Determination of the Dolus SpecialisAs with most cases dealing with International Law, cases before Criminal Tribunals also have significant problems regarding the interpretation of facts. This is primarily because the courts themselves are of such a character that they have been constituted either long after the cause of action has arisen[footnoteRef:34], or is so far removed from the activities that occurred that the facts are not often clearly interpreted by the court. This is also coupled with the fact that most if the evidence in a trial is circumstantial and that the element of intent is so specific yet so subjective. In these circumstances, the court, in the interests of justice has followed certain approaches to determine specific intent. [34: Consider for example, the first judicial pronouncement of the ICTR(the Akayesu case) on Genocide occurred 5 years after the cause of action in 1998]

If the accused accompanied or preceded the act with some sort of genocidal declaration or speech, its content may assist in establishing the special intent[footnoteRef:35]. The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia, in its Rule 61 hearing in the Karadzic and Mladic case, noted, that genocidal intent need not be clearly expressed, but that it may be implied by various facts, including the general political doctrine, giving rise to the criminal acts, or the repetition of destructive and discriminatory acts.[footnoteRef:36] The Trial Chamber concluded that genocidal intent can be deduced from the combined effect of speeches or projects laying the groundwork for and justifying the acts, from the massive scale of their destructive effect and from their specific nature, which aims at undermining what is considered to be the foundation of the group. For the Tribunal, the national Bosnian, Bosnian Croat and, especially, Bosnian Muslim groups were the targets of those acts. [footnoteRef:37] [35: Akayesu at 524] [36: M. Thieroof and E. A. Amley, 'Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61,' (1998) 23 Yale Journal of International Law, p. 231; Fa'iza Patel King, and Anne-Marie La Rosa, 'The Jurisprudence of the Yugoslavia Tribunal: 19941996', (1997) 8 European Journal of International Law, p. 123.] [37: Prosecutor v. Karadzic and Mladic IT-95-5/18]

Genocide cannot be committed without a degree of planning and preparation, and it is unlikely courts will convict in the absence of proof of a plan.[footnoteRef:38]At trial, proof of the plan, or at the very least the logical inference that a plan exists drawn from the actual conduct of the crime, will inevitably be an important element in the prosecution case. It has been held that 'for the crime of genocide to occur, the mens-rea must be formed prior to the commission of the genocidal acts. [38: M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia, Irvington-on-Hudson, NY: Transnational Publishers, 1995, p. 527.]

The individual acts themselves, however, do not require premeditation; the only consideration is that the act should be done in furtherance of the genocidal intent.' [footnoteRef:39] In Serushago, the International Criminal Tribunal for Rwanda noted that the crimes had been committed with premeditation, treating this as an aggravating factor in the determination of sentence.[footnoteRef:40] While military necessity may justify 'wanton destruction of cities, towns or villages, or devastation', it 'extends neither to killing of civilians nor to their deportation to concentration camps- actions that are never justified'.[footnoteRef:41] There is no denying that the discriminatory selection and targeting of members of a group with a view to its destruction is the gist of genocide and this process implies purposeful action. Moreover, the very scale of the ominous crime usually requires meticulous preparation and a preconceived plan.[footnoteRef:42] [39: Prosecutor v. Kayishema and Ruzindana (ICTR-95-1-T).The ICTR held that 'although a specific plan to destroy does not constitute an element of genocide, it would be difficult to commit genocide without such a plan or organization'. ] [40: Prosecutor v. Serushago Case No. ICTR-9839-S.] [41: Eser, 'Defences in War Crime Trials', p. 270; 'Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May-26 July 1996', note 2 above, pp. 789.] [42: Jelisic Appeals Chamber, at 49 and Judgment, Kayishema and Ruzindana (ICTR-95-1-A)]

Selective TargetingThe specific intent can also be understood from the fact of selective targeting of groups. Conventional wisdom has it that this 'intent to destroy' connotes a 'special intent', a purpose to annihilate the group. In other words, simple knowledge or awareness that the killings etc. would, could or even might result in the destruction of a group does not suffice.[footnoteRef:43] The genocide must be with a discriminatory mind-set, victims must be selected because of their membership in the group whose destruction is sought[footnoteRef:44]. [43: Jelisic (IT-95-10-A). 'the specific intent requires that the perpetrator seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such'.] [44: Kristic]

The Presumption of Mens ReaAlthough there exists no settled law as to whet her or not there exists a presumption of mens rea, it will argued with the help of a specific case as to how the courts have sort to deny such a presumption exists. In the case of Jelisic[footnoteRef:45]the court noticed as to how although there was a manifest pattern of killings of the Bosnian Muslims and that the accused was inclined on their destruction, the specific level of intent necessary in order to warrant a conviction was not found. This case was a typical example of how the surrounding circumstances should have led to an adverse inference of the existence of the requisite mens rea should have been presumed. However, the court did not consider such a presumption and instead noted the objective state of mind of the accused in which he was considered to not specifically target the Bosnian Muslims. As argued above however, in the Ruggiu[footnoteRef:46] case, it seems logical that if the surrounding geo-political context so requires it, then a presumption may be present. [45: Supra Note 28] [46: Supra Note 26]

The Effect on CulpabilityAs above, there is no settled position of law as to the effect on culpability. However, it may be interesting to note that in Ruggiu[footnoteRef:47] the sentence awarded to the accused was significantly reduced due to evidence that adduced as to how he had actually helped Tutsi children, thereby reducing his specific intent as required by the elements of Crime. This shows as to how the level of intent demonstrated has a significant bearing on the culpability and therefore the sentence awarded to the accused. [47: Ibid.]

ConclusionThe position of law, though not completely settled has been enumerated above. It is the opinion of the author that this high level of intent required has often killed the strength of the law relating to Genocide and rendered it a highly fickle toy at the hand of circumstance. The larger picture that is to be dealt with is the fact that a grave crime against humanity has been committed. Although it is noted that the presumption of innocence is a very important doctrine that may not be abrogated, it is hereby submitted that it must not be upheld at the cost of injustice.The author recognizes that considering the complex nature of the circumstances surrounding the facts and as to how difficult it may be for the criminal tribunals to decide the presence or absence of specific intent. Nevertheless, as has been demonstrated in the Jelisic case, this is often misused by the accused. The surrounding circumstances clearly attributed a specific intent to the accused and a number of witness testimonies further confirmed the same. However, he was granted the benefit of the high threshold and subjective nature of the crime of Genocide, and was not convicted of Genocide.It is the authors opinion that this high standard must be relaxed, especially in light of events happening in Libya, Uganda and Sudan to name a few, as this would hamper the proper execution of justice. There can be no reckless genocide. Moreover, as soon as a minimum level of intent may be determined, it must not be required to prove that the intent was specific so long as constructive knowledge is present.

Bibliography1. Malcolm N. Shaw, International Law, Cambridge International Press, Ed. 62. Antonio Cassese, International Criminal Law, Oxford University Press.3. Reid Griffith Fontaine, The Mind of the Criminal, Cambridge University Press4. Hans Kchler, Global Justice or Global Revenge? Indian Society for International Law through Manak Publications.5. Thomas W. Simon, Defining Genocide, 15 Wis. Int'l L.J. 243 1996-19976. Freda Kabatsi, Defining or Diverting Genocide: Changing the Comportment of Genocide, 5 Int'l Crim. L. Rev. 387 20057. Genocidal Intent before the ICTY, 52 Int'l & Comp. L.Q. 447 20038. Paul Starkman, Genocide And International Law: Is There A Cause Of Action? 8 ASILS Int'l L.J. 1 19849. Peter Quayle, Unimaginable Evil: The Legislative Limitations of the Genocide Convention, 5 Int'l Crim. L. Rev. 363 200510. R. Lemkin, Genocide as a Crime under International Law, 41 AJIL 14511. H. Fein (ed.), Genocide Watch (Yale University Press, 1992) 12. Kriangsak Kittichaisaree, International Criminal Law (Oxford University Press, Oxford, 2001) at p.67 13. See for instance Beth van Schaack, The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot, The Yale Law Journal, Vol. 106, No. 7 (May, 1997), pp. 2259-2291.14. Otto Triffterer, Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such, Leiden Journal of International Law, Vol 14, No 2 (2001), p. 400;15. 'Discussion Paper Proposed by the Co-ordinator, Article 6: The Crime of Genocide', UN Doc. PCNICC/1999/WGEC/RT.l16. M. Thieroof and E. A. Amley, 'Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61,' (1998) 23 Yale Journal of International Law, 17. Fa'iza Patel King, and Anne-Marie La Rosa, 'The Jurisprudence of the Yugoslavia Tribunal: 19941996', (1997) 8 European Journal of International Law.18. M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia, Irvington-on-Hudson, NY: Transnational Publishers, 1995.19. Eser, 'Defences in War Crime Trials', p. 270; 'Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May-26 July 1996', note 2 above.

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