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ELEMENT OF GENOCIDE

TABLE OF CONTENTS

Acknowledgment.......................................................................................................................3
Introduction................................................................................................................................4
The Requisite Standard of Mens Rea.........................................................................................8
Dolus Specialis.......................................................................................................................8
intended...............................................................................................................................9
to destroy...........................................................................................................................10
in whole or in part..............................................................................................................10
The Determination of the Dolus Specialis...............................................................................12
Selective Targeting...............................................................................................................14
The Presumption of Mens Rea.................................................................................................15
The Effect on Culpability.........................................................................................................15
Conclusion................................................................................................................................16
Bibliography.............................................................................................................................17

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ACKNOWLEDGMENT
I 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

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INTRODUCTION
International 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 others1. Although murder has also been included in
this definition2, 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 Lemkin3.
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 reus4. This project aims to examine this mens
rea element and hopes to analyse the position of law that now stands concerning the same.

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

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
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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 1970s5. 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)6. The Nuremberg Charter did not explicitly make a reference to the
term genocide but it was referred to in principle 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


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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 1990s8. 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 crime9 and to lay down elements that are required to be
proven in order to prove Genocide10. However, there has been merely one situation in which
the ICC has taken cognizance of Genocide 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.
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
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


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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.12
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 provided13. The conduct must be directed against
a particular national, ethnic, racial or religious group14 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 15. It might also be worthwhile here to mention
the high level of presumption of innocence16and the favour granted to the accused in cases of
a doubt in interpretation of the Elements of Crime17.

12 Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T

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


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THE REQUISITE STANDARD OF MENS REA


Dolus Specialis
As 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.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. 19 As held in
Akayesu20 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.
The crime must be committed with intent to destroy, in whole or in part, a protected group, as
such21. It is interesting here to note the various components of the definition sought to be
established. These are:
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
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1. intended
2. to destroy
3. in whole or in part
intended
As has been observed above, the Genocide requires an additional level of mens rea as
opposed to a municipal charge of murder 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 23. The facts of the Akayesu case24 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 killings25. 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.
21Art.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;

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
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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 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.
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 standard27 and prefer the specific intent standard instead28.
to destroy
The ICTY judgments held that the destruction referred to under the Genocide Convention
only implies a physical or biological destruction and does not cover cultural destruction29.

26 The Prosecutor v. Georges Ruggiu, Case No. ICTR-97-32-I, at 20 (2000) [Hereinafter


cited as Ruggiu]

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]
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in whole or in part
This phrase used in the element denotes that the accused need not have sought to destroy the
entire group but merely a part of that group30. 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 group31. 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 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 genocide33.
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.

29 Prosecutor v. Radislav Krstic, Case No.: IT-98-33-T (2001) at 580 [Hereinafter cited as
Kristic] ; Jelisic at 78-83

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
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THE DETERMINATION OF THE DOLUS SPECIALIS


As 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 arisen34, 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.
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 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. 36 The Trial Chamber
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

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.
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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. 37
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. 38At 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.
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.'

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.40 While military necessity may justify 'wanton destruction of cities, towns or
37 Prosecutor v. Karadzic and Mladic IT-95-5/18

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.

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.


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villages, or devastation', it 'extends neither to killing of civilians nor to their deportation to


concentration camps- actions that are never justified'.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.42
Selective Targeting
The 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. 43 The
genocide must be with a discriminatory mind-set, victims must be selected because of their
membership in the group whose destruction is sought44.

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)

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

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THE PRESUMPTION OF MENS REA


Although 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 Jelisic45the 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 Ruggiu46 case, it seems logical that if
the surrounding geo-political context so requires it, then a presumption may be present.
THE EFFECT ON CULPABILITY
As above, there is no settled position of law as to the effect on culpability. However, it may
be interesting to note that in Ruggiu47 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.

45 Supra Note 28

46 Supra Note 26

47 Ibid.
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CONCLUSION
The 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.

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BIBLIOGRAPHY
1.
2.
3.
4.

Malcolm N. Shaw, International Law, Cambridge International Press, Ed. 6


Antonio Cassese, International Criminal Law, Oxford University Press.
Reid Griffith Fontaine, The Mind of the Criminal, Cambridge University Press
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 1996-1997
6. Freda Kabatsi, Defining or Diverting Genocide: Changing the Comportment of
Genocide, 5 Int'l Crim. L. Rev. 387 2005
7. Genocidal Intent before the ICTY, 52 Int'l & Comp. L.Q. 447 2003
8. Paul Starkman, Genocide And International Law: Is There A Cause Of Action? 8
ASILS Int'l L.J. 1 1984
9. Peter Quayle, Unimaginable Evil: The Legislative Limitations of the Genocide
Convention, 5 Int'l Crim. L. Rev. 363 2005
10. R. Lemkin, Genocide as a Crime under International Law, 41 AJIL 145
11. 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.l
16. 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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