Extermination is the intentional and massive homicide of an entire group of persons. The international law of armed conflict specifically establishes that it is forbidden to attack civilians (GCIV Art. 32, API Art. 51.2, and APII Art. 13); to murder or exterminate the wounded or sick, the shipwrecked, prisoners of war, and civilians (GCI and GCII Art. 12, GCIII Art. 13, GCIV Art. 32, API Art. 10, and APII Art. 7); or to order that there shall be no survivors (API Art. 40).
The Statute of the International Criminal Court, adopted in July 1998 and entered into force in July 2002, includes extermination in the crimes against humanity over which it will have jurisdiction. It defines extermination as “includ[ing] the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population” (Art. 7.2.b).
Extermination may also fall under the qualification of genocide if the group in question is being targeted on the basis of national, ethnic, racial, or religious grounds.
The Elements of the Crime of Extermination
The exact meaning of this crime is listed in a separate document adopted by the Assembly of State Parties to the ICC and called the “Elements of Crime.” The crime of extermination requires that:
- The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population;
- The conduct constituted, or took place as part of, a mass killing of members of a civilian population;
- The conduct was committed as part of a widespread or systematic attack directed against a civilian population;
- The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
In the Akayesu Case (2 September 1998), the ICTR Trial Chamber considered the elements of the crime of extermination (paras. 591–92). The Chamber explains that extermination “is a crime which by its very nature is directed against a group of individuals. Extermination differs from murder in that it requires an element of mass destruction which is not required for murder.” The Chamber defined the essential elements of extermination as the following (para. 592):
the accused or his subordinate participated in the killing of certain named or described persons;
the act or omission was unlawful and intentional;
the unlawful act or omission must be part of a widespread or systematic attack;
the attack must be against the civilian population; and
the attack must be on discriminatory grounds—namely, national, political, ethnic, racial, or religious.
Regarding discrimination and the group concerned, extermination is different from genocide as its criteria regarding the group targeted are more flexible. In particular, they include groups that are more difficult to identify, such as political groups.
Regarding the material element, the Trial Chamber of the ICTR considered, in the Rutaganda Case (6 December 1999), that extermination is constituted by acts or omission (para. 84) aiming at mass destruction, in contrast with murder (para. 82). See also the Niyitegeka Case (16 May 2003, para. 450) and the ICTY Trial Chamber Krstic Case (2 August 2001, para. 503) and Vasiljevic Case (29 November 2002, para. 229).
Regarding the mental element of the crime of extermination, the ICTR Trial Chamber considered ( Kayishema and Ruzindana Case , 21 May 1999, para. 144) that the actor participated in the acts or omissions having intended the killing, or being reckless, or grossly negligent as to whether the killing would result, and being aware that his acts or omissions formed part of a mass killing event. The ICTY Trial Chamber confirmed this in the Vasiljevic Case (29 November 2002, para. 229).