III) GENOCIDE (Article 4)

a) Statute

ICTY Statute, Article 4:

“1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.

2. Genocide means any of the following acts committed with 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.

3. The following acts shall be punishable:

(a) genocide;

(b) conspiracy to commit genocide;

(c) direct and public incitement to commit genocide;

(d) attempt to commit genocide;

(e) complicity in genocide.”

Krstic, (Trial Chamber), August 2, 2001, para. 550: “Genocide refers to any criminal enterprise seeking to destroy, in whole or in part, a particular kind of human group, as such, by certain means. Those are two elements of the special intent requirement of genocide: (1) the act or acts must target a national, ethnical, racial or religious group; (2) the act or acts must seek to destroy all or part of that group.”

Krstic, (Trial Chamber), August 2, 2001, para. 580: “[C]ustomary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group.”

Jelisic, (Trial Chamber), December 14, 1999, para. 62: “Genocide is characterised by two legal ingredients according to the terms of Article 4 of the Statute: [1] the material element of the offence, constituted by one or several acts enumerated in paragraph 2 of Article 4; [2] the mens rea of the offence, consisting of the special intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”

c) Mental state (mens rea): intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such

i) generally

Prosecutor v. Jelisic, Case No. IT-95-10 (Appeals Chamber), July 5, 2001, para. 46: “The specific intent requires that the perpetrator, by one of the prohibited acts enumerated in Article 4 of the Statute, seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such.”

Jelisic, (Appeals Chamber), July 5, 2001, para. 45: “The Statute itself defines the intent required: the intent to accomplish certain specified types of destruction. This intent has been referred to as, for example, special intent, specific intent, dolus specialis, particular intent and genocidal intent.”

ii) intent to destroy, in whole or in part

(1) requires an intentional attack against a group, and the intention to participate in or carry out the attack

Jelisic, (Trial Chamber), December 14, 1999, para. 78: “[T]he Trial Chamber will have to verify that there was both an intentional attack against a group and an intention upon the part of the accused to participate in or carry out this attack.”

(2) even if destruction was not original goal, it may become the goal

Krstic, (Trial Chamber), August 2, 2001, para. 572: “It is conceivable that, although the intention at the outset of an operation was not the destruction of a group, it may become the goal at some later point during the implementation of the operation.”

(3) destruction “in part”

Krstic, (Trial Chamber), August 2, 2001, para. 584: “[A]ny act committed with the intent to destroy a part of a group, as such, constitutes an act of genocide within the meaning of the [Genocide] Convention.”

Krstic, (Trial Chamber), August 2, 2001, para. 590: “[T]he intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such. . . . ”

(a) “substantial” part of group required

Krstic, (Trial Chamber), August 2, 2001, para. 634: “[A]n intent to destroy only part of the group must nevertheless concern a substantial part thereof, either numerically or qualitatively.”

Jelisic, (Trial Chamber), December 14, 1999, para. 82: “[I]t is widely acknowledged that the intention to destroy must target at least a substantial part of the group.”

(b) evidence of destruction of leadership may establish intent to destroy “in part”

Prosecutor v. Sikirica et al., Case No. IT-95-8 (Trial Chamber), September 3, 2001, para. 76-77: “[T]he intention to destroy in part may yet be established if there is evidence that the destruction is related to a significant section of the group, such as its leadership. . . . [T]he requisite intent may be inferred from the ‘desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such.’ The important element here is the targeting of a selective number of persons who, by reason of their special qualities of leadership within the group as a whole, are of such importance that their victimization within the terms of Article 4(2) (a), (b) and (c) would impact upon the survival of the group, as such.”

Jelisic, (Trial Chamber), December 14, 1999, para. 82: “Genocidal intent may . . . be manifest in two forms. It may consist of desiring the extermination of a very large number of the members of the group, in which case it would constitute an intention to destroy a group en masse. However, it may also consist of the desired destruction of a more limited number of persons selected [i.e. leadership of the group] for the impact that their disappearance would have upon the survival of the group as such. This would then constitute an intention to destroy the group ‘selectively.’”

(c) genocidal intent may be limited to a geographical zone

Jelisic, (Trial Chamber), December 14, 1999, para. 83: “[I]t is accepted that genocide may be perpetrated in a limited geographic zone.” The geographical zone in which an attempt to eliminate the group is made may be “limited to the size of a region or . . . a municipality.”

Krstic, (Trial Chamber), August 2, 2001, para. 590: “[T]he physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue.”

(d) application

Krstic, (Trial Chamber), August 2, 2001, para. 554: “The Chamber concludes that the protected group, within the meaning of Article 4 of the Statute, must be defined, in the present case, as the Bosnian Muslims. The Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia constitute a part of the protected group under Article 4.”

(4) no lengthy premeditation required

Krstic, (Trial Chamber), August 2, 2001, para. 572: “Article 4 of the Statute does not require that the genocidal acts be premeditated over a long period.”

(5) distinguish intent from motive

Jelisic, (Appeals Chamber), July 5, 2001, para. 49: The Appeals Chamber noted the “irrelevance” of motives in criminal law and highlighted “the necessity 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 genocide.”

(6) intent may be inferred

Jelisic, (Appeals Chamber), July 5, 2001, para. 47: “As to 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.”

Compare Jelisic, (Trial Chamber), December 14, 1999, para. 78: “[T]he intention necessary for the commission of a crime of genocide may not be presumed even in the case where the existence of a group is at least in part threatened.”

(7) no policy or plan required, but may be important factor

Jelisic, (Appeals Chamber), July 5, 2001, para. 48: “[T]he existence of a plan or policy is not a legal ingredient of the crime. However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases. The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime.”

iii) “a national, ethnical, racial or religious group, as such”

(1) “as such”

(a) victims must be targeted by reason of their group membership

Krstic, (Trial Chamber), August 2, 2001, para. 561: “[T]he victims of genocide must be targeted by reason of their membership in a group. . . . The intent to destroy a group as such, in whole or in part, presupposes that the victims were chosen by reason of their membership in the group whose destruction was sought. Mere knowledge of the victims’ membership in a distinct group on the part of the perpetrators is not sufficient to establish an intention to destroy the group as such.”

Jelisic, (Trial Chamber), December 14, 1999, para. 67: “The special intent which characterises genocide supposes that the alleged perpetrator of the crime selects his victims because they are part of a group which he is seeking to destroy. Where the goal of the perpetrator or perpetrators of the crime is to destroy all or part of a group, it is the ‘membership of the individual in a particular group rather than the identity of the individual that is the decisive criterion in determining the immediate victims of the crime of genocide.’”

(b) the group must be targeted, not specific individuals

Sikirica et al., (Trial Chamber), September 3, 2001, para. 89: “The evidence must establish that it is the group that has been targeted, and not merely specific individuals within that group. That is the significance of the phrase ‘as such’ in the chapeau. Whereas it is the individuals that constitute the victims of most crimes, the ultimate victim of genocide is the group, although its destruction necessarily requires the commission of crimes against its members, that is, against individuals belonging to that group. This is what differentiates genocide from the crime against humanity of persecution. Even though they both have discriminatory elements, some of which are common to both crimes, in the case of persecution, the perpetrator commits crimes against individuals, on political, racial or religious grounds.”

Krstic, (Trial Chamber), August 2, 2001, para. 551: “[G]enocide must target not only one or several individuals but a group as such.”

Jelisic, (Trial Chamber), December 14, 1999, para. 79: “‘[T]he intention must be to destroy the group “as such,” meaning as a separate and distinct entity, and not merely some individuals because of their membership in a particular group.’ By killing an individual member of the targeted group, the perpetrator does not thereby only manifest his hatred of the group to which his victim belongs but also knowingly commits this act as part of a wider-ranging intention to destroy the national, ethnical, racial or religious group of which the victim is a member.”

(2) groups protected by Article 4

(a) national, ethnical, racial or religious groups

Krstic, (Trial Chamber), August 2, 2001, para. 554: “[T]he Genocide Convention does not protect all types of human groups. Its application is confined to national, ethnical, racial or religious groups.”

(b) not political groups

Jelisic, (Trial Chamber), December 14, 1999, para. 69: “Article 4 of the Statute . . . excludes members of political groups. The preparatory work of the [Genocide] Convention demonstrates that a wish was expressed to limit the field of application of the Convention to protecting ‘stable’ groups objectively defined and to which individuals belong regardless of their own desires.”

(c) destroying culture and identity insufficient to show genocide, but can help show intent to destroy the group

Krstic, (Trial Chamber), August 2, 2001, para. 580: “[A]n 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. [W]here there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group.”

(d) evaluate using subjective criterion: stigmatization by the community

Jelisic, (Trial Chamber), December 14, 1999, para. 70-71: “Although the objective determination of a religious group still remains possible . . . , 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 that group out from the rest of the community. The Trial Chamber . . . elects to evaluate membership in a national, ethnical or racial group using a subjective criterion. It is the stigmatisation of a group as a distinct national, ethnical or racial unit by the community which allows it to be determined whether a targeted population constitutes a national, ethnical or racial group in the eyes of the alleged perpetrators.” “A group may be stigmatised in this manner by way of positive or negative criteria. A ‘positive approach’ would consist of the perpetrators of the crime distinguishing a group by the characteristics which they deem to be particular to a national, ethnical, racial or religious group. A ‘negative approach’ would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group.”

d) Underlying offenses

i) killing members of the group

ii) causing serious bodily or mental harm to members of the group

Krstic, (Trial Chamber), August 2, 2001, para. 513: “[S]erious bodily or mental harm for purposes of Article 4 actus reus is an intentional act or omission causing serious bodily or mental suffering. [S]erious harm need not cause permanent and irremediable harm, but it must involve harm that goes beyond temporary unhappiness, embarrassment or humiliation. It must be harm that results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life. [I]nhuman treatment, torture, rape, sexual abuse and deportation are among the acts which may cause serious bodily or mental injury.”

iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

iv) imposing measures intended to prevent births within the group

v) forcibly transferring children of one group to another group

<<previous | index | next>>

February 2004