Genocide is forbidden, in times of peace and in times of war, by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (known as the Genocide Convention).
Article 2 of the Genocide Convention defines genocide
as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
Article 3 also provides that the following acts shall be punishable:
- Conspiracy to commit genocide;
- Direct and public incitement to commit genocide;
- Attempt to commit genocide;
- Complicity in genocide.
The Genocide Convention was adopted by the General Assembly of the UN on 9 December 1948 (GA Resolution 260 A [III]) and entered into force in 1951. As of June 2015, 146 States have ratified the Convention. However, the provisions of the Genocide Convention are applicable even to States that have not ratified it, following a ruling by the International Court of Justice that recognized the Genocide Convention as codifying customary international law (Advisory Opinion of 28 May 1951), which is binding on all States. This was reinforced by the report of the Secretary-General of the UN on the establishment of the International Criminal Tribunal for the Former Yugoslavia, in which he recalled that the Convention was part of customary law (Report S/25704 of 3 May 1993). This was reaffirmed by the Security Council, which approved the report in its Resolution 827 (5 May 1993).
The crime of genocide is also defined in the same terms in Article 6 of the Statute of the International Criminal Court, adopted in Rome in July 1998. The Court has jurisdiction over crimes against humanity, war crimes, and genocide. The crime of genocide is different from the notions of massacres, persecutions, and deliberate attacks against civilians—which qualify as crimes against humanity.
The application of the Genocide Convention raised several problems regarding the definition of the crime and the weakness of the enforcement mechanism as it was initially set up.
Interpretation of the Definition of Genocide
The definition of the crime of genocide brings together several elements that appear controversial. The travaux préparatoires of the Convention and the decisions of the International Criminal Tribunals for the Former Yugoslavia and Rwanda are helpful to frame if not to solve these problems.
Genocide is peculiar when compared to other crimes against humanity or war crimes on several points: the acts covered, the category constituting the targeted group, and the specific intent of the offender ( mens rea ). (For more detailed case law elements see the end of this entry.)
- Immediate or eventual biological destruction: The acts covered go beyond murder. They cover actions that may not imply immediate death but that will eventually lead to disappearance of the group as such. These are deliberate acts that aim to destroy—immediately or eventually—a group as such. Consequently, the following are covered: acts deliberately inflicting on the group conditions of life calculated to bring about its destruction as well as imposing measures intended to prevent birth within the group, forcible transfer of children, and causing serious bodily or mental harm to members of the group (including rape).
- Destruction of a group as such: The acts covered by the definition are those that target an individual not as such, but because he or she is a member of a national, racial, ethnic, or religious group. The Convention lists objective criteria according to which one belongs to one of these groups, but they are neither legally nor scientifically clearly defined. Therefore the International Criminal Tribunals have to interpret them. According to the Tribunals, the existence of a group may also be based on subjective criteria according to which those who committed the crimes identified and stigmatized the members of the group. Such criteria include what the perpetrators perceived as being national, ethnic, racial, and religious species of the group concerned (ICTR: Kayishema Case , 21 May 1999; Ruzindana Case , May 21, 1999; ICTY: Jelisic Case , 5 July 2001; Susica Camp Case [ Prosecutor v. Nicolic , 4 February 2005]).
- Destruction in whole or in part: Acts must have been committed with intent to destroy the group in whole or in part. Interpretation of this clause raises the issue of whether the requirement of destruction “in whole or in part” only concerns the destruction or also the intent. This issue is partly linked with the question of the nature of the group. According to case law of the International Criminal Tribunals, the intent to destroy must exist with regard to a substantial part of the targeted group. This may be measured by quantitative (number of victims in comparison to the group) or qualitative criteria (stature of the victims within the group) ( Jelisic Case , ICTY, 5 July 2001) and should be assessed with regard to what happened to the rest of the group ( Krstic Case , ICTY, 19 April 2004). Indeed, some acts that amount to genocide do not necessarily provoke immediate death but will make it impossible for the group to survive in the short or middle term.
- Proof of specific intent to destroy: As noted above, one of the difficulties of the definition of genocide is that the acts concerned must show a specific intent to destroy, beyond particular individuals, a group as such. It is not enough that the offender has committed the act; it must be proved that he was aiming at the final result of the crime—the destruction, in whole or part, of a specific group (ICTR: Kambanda Case , 19 October 2000; Kayishema Case , 21 May 1999; Ruzindana Case , 21 May 1999). According to jurisprudence, such intent could emerge from an existing genocide policy or from those following the orders. The existence of a genocide policy may be inferred from a wider plan. Similarly, the specific intent to destroy a protected group may be inferred in particular cases from public statements made by the authorities, from the scale and nature of the crimes committed, and from the preciseness of planning surrounding the perpetration of crimes. According to the Elements of Crimes of the International Criminal Court, the existence of intent and knowledge may be inferred on a case-by-case basis.
It is too early to delineate into this case law the elements carrying general value with regard to the definition of the crime and the ones with more limited procedural weight focusing mainly on the level and method of proof accepted by international judges in ad hoc cases.
Prevention and Enforcement Provisions in the 1948 Genocide Convention
- The prohibition on genocide is to be enforced at all times, whether during peace or war.
- The Convention provides for not only the act of genocide to be punished but also any conspiracy, direct and public incitement, attempt to commit, or complicity in committing genocide (Art. 3 of the Genocide Convention).
- All persons who commit such acts must be punished, whether they are “constitutionally responsible rulers, public officials or private individuals” (Art. 4). No matter what a person’s official position may be, he or she cannot benefit from any form of immunity.
- States Parties recognize genocide as a crime against international law and undertake to prevent and punish this crime (Art. 1) and to enact legislation instituting effective penalties for the individuals who commit these crimes and enabling unconditional extradition of the accused toward the requesting countries (Arts. 5, 7).
- The International Court of Justice may exercise its jurisdiction on a controversy between States regarding the interpretation of the Convention (Art. 9).
- All States Parties may “call upon the competent organs of the UN to take such action as they consider appropriate for the prevention and suppression of [such acts]” (Art. 8).
- According to Article 6 of the Convention, the courts that have jurisdiction over the crime are those of the State on whose territory the act was committed and the International Criminal Court—whose creation was initially discussed in 1948.
However, history has shown that domestic courts are reticent to punish such crimes, the very nature of which implies the involvement of national authorities. The provisions for punishment in the 1948 Convention are thus not adapted to reality, since courts of countries in which the crime of genocide is committed are unlikely to prevent or punish these acts within any reasonable time frame. This explains why genocide usually goes unpunished and why the Convention has never been enforced by national courts, whether in Cambodia in 1975 or in Rwanda in 1994. It is interesting to note that Rwanda fell short of its obligation under Article 1 of the 1948 convention to make genocide a crime punishable under its own domestic law. It has updated its own legislation only after the 1994 genocide of the Rwandan Tutsis (Organic Law No. 08/96 of 30 August 1996 on the Organization of Prosecutions for Offences Constituting the Crime of Genocide or Crimes against Humanity Committed since 1 October 1990).
As for the notion of an international criminal court, it received no more support from States during fifty years until the adoption in 1998 of the Rome Statute setting up the International Criminal Court.
Other Existing Enforcement Mechanisms
Because of the historical failure of any national courts to punish individuals who commit acts of genocide, it was crucial that the Statutes of the ad hoc International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), as well as the recently adopted Statute of a permanent International Criminal Court (ICC), included the crime of genocide in the list of crimes over which they have jurisdiction (Art. 4 of ICTY Statute, Art. 2 of ICTR Statute, and Art. 6 of ICC Statute). They all retained the definition of genocide from the 1948 Convention, which does not include any reference to extermination of political groups.
The Statute of the ICC was adopted on 17 July 1998 and entered into force on 1 July 2002. The ICC has the authority to prosecute cases of genocide (Art. 6) as well as war crimes and crimes against humanity, but only if the crime was committed on the territory of, or by a national of, a State that has ratified the Statute. If the State where the crime was committed has not ratified the Rome Statute, or if the State of nationality of the accused has not ratified it either, the Security Council is the only body that may trigger the ICC’s exercise of jurisdiction. If the relevant States have accepted the court’s jurisdiction, the ICC may be seized of such a case in three ways: referral of a situation to the Court (1) by any State Party; (2) by the prosecutor him- or herself, based on information concerning acts of genocide received from any reliable source; or (3) by the Security Council, acting under Chapter VII of the UN Charter (actions undertaken with respect to threats or breaches of the peace).
Being one of the worst crimes, genocide can also be prosecuted before any national court on the basis of the principle of universal jurisdiction, provided that the national penal system of the country has included this provision of competence for crimes committed by non-nationals outside the national territory.
On 17 July 2012, Secretary-General Ban Ki-moon appointed Adama Dieng of Senegal as his Special Adviser on the Prevention of Genocide. He acts as an early warning mechanism to the Secretary-General and the Security Council about potential situations that could develop into genocide and makes recommendations to the Council about how the UN can prevent these events.
The crime of genocide, whether committed in time of peace or war, is not subject to any statute of limitation, as established by the 1968 Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity. Judicial proceedings can therefore be initiated no matter how much time has passed since the crime was committed.
- Definition of Genocide
- General Elements
The ICTY Trial Chamber ( Krstic Case , 2 August 2001, para. 550) defines genocide as follows:
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; and 2) the act or acts must seek to destroy all or part of that group.
In the same judgment, it recognizes that customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. This was confirmed by the ICTR Trial Chamber in the Semanza Case (15 May 2003, para. 315). The ICTR Trial Chamber recalls that “the crime of genocide is considered part of international customary law and, moreover, a norm of jus cogens ” ( Kayishema and Ruzindana , 21 May 1999, para. 88; Rutaganda Case , 6 December 1999, para. 46; and Musema Case , 27 January 2000, para. 15).
- Interpretation of Article 2.2.b of the ICTR Statute: “Genocide means . . . causing serious bodily or mental harm to members of the group”
In the Semanza Case (15 May 2003, para. 320), the ICTR Trial Chamber found that “serious bodily or mental harm” encompasses torture, sexual violence including rape, as well as “non-fatal physical violence that causes disfigurement or serious injury to the external or internal organs or senses.” See also the Seromba Case (12 March 2008, para. 46) and Renzaho Case (14 July 2009, para. 762).
- No Numeric Threshold
In the Seromba Case (13 December 2006, para. 319), the ICTR Trial Chamber held that there is no numeric threshold of victims necessary to establish genocide. See also the Bagosora et al. Case (18 December 2008, para. 2115), Simba Case (13 December 2005, para. 412), Muvunyi Case (12 September 2006, para. 479), and Muhimana Case (28 April 2005, para. 514).
- Establishing the Genocidal Intent (Mens rea)
The ICTR Trial Chamber considers that “a crime of genocide is proven if it is established beyond reasonable doubt, firstly, that one of the acts listed under Article 2(2) of the Statute was committed and, secondly, that this act was committed against a specifically targeted national, ethnical, racial or religious group, with the specific intent to destroy, in whole or in part, that group.” It is this specific intent that distinguishes the crime of genocide from other crime such as large-scale murder of civilians ( Kayishema and Ruzindana Case , 21 May 1999, para. 91). Genocide, therefore, invites analysis under two headings: the prohibited underlying acts and the specific genocidal intent or dolus specialis ( Bagilishema Case , 7 June 2000, para. 55). See also the Akayesu Case (2 September 1998, paras. 498, 517–522).
In the Seromba Case (12 March 2008, paras. 175, 176), the ICTR Appeals Chamber held that genocidal intent might be inferred by circumstantial evidence. The Chamber recalls that
the specific intent of genocide may be inferred from certain facts or indicia, including but not limited to (a) the general context of the perpetration of other culpable acts systematically directed against that same group (consistent pattern of conduct), whether these acts were committed by the same offender or by others, (b) the scale and scope of atrocities committed, (c) their general nature, (d) their execution in a region or a country, (e) the fact that the victims were deliberately and systematically chosen on account of their membership of a particular group, (f) the exclusion, in this regard, of members of other groups, (g) the political doctrine which gave rise to the acts referred to, (h) the repetition of destructive and discriminatory acts and (i) the perpetration of acts which violate the very foundation of the group or considered as such by their perpetrators.
See also the Kambanda Case (19 October 2000), Nahimana et al. Case (28 November 2007, para. 524), Nchamihigo Case (12 November 2008, para. 331), Zigiranyirazo Case (18 December 2008, para. 398), Bikindi Case (2 December 2008, para. 420), Muvunyi Case (12 September 2006, para. 480), and Blagojević & Jokić Case (9 May 2007, paras. 122–23).
In the Gacumbitsi Case (7 July 2006, para. 40), the ICTR Trial Chamber added that intent can also be inferred from “the physical targeting of the group or of their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning and the systematic manner of killing.” See also the Kamuhanda Case (22 January 2004, para. 625) and the Kayishema and Ruzindana Case (21 May 1999, para. 527).
In the Kayishema and Ruzindana Case (21 May 1999, para. 91), the ICTR Trial Chamber held that “for the crime of genocide to occur, the mens rea must be formed prior to the commission of the genocidal acts.” Recently, in the Simba Case (27 November 2007, para. 266), the ICTR reversed this judgment, holding that the genocidal intent need not be formed prior to the commission of genocidal acts, but must be present at the time of the commission. Furthermore, the ICTR Appeals Chamber holds in the Nchamihigo Case (18 March 2010, para. 363) that proof of the existence of a “high level genocidal plan is not required in order to convict an accused of genocide or for the mode of liability of instigation to commit genocide.” See also the Nahimana et al. Case (28 November 2007, para. 480).
- Destruction of a Group as Such, in Whole or in Part
With regard to the notion of group, the ICTR Trial Chamber appears flexible. In the Rutaganda Case (6 December 1999), the ICTR Trial Chamber noted that “for the purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept.” The victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction. In some instances, the victim may perceive him- or herself as belonging to the said group (paras. 56–58). Nevertheless, the Chamber is of the view that a subjective definition alone is not enough to determine victim groups, as provided for in the Genocide Convention. It appears, from a reading of the travaux préparatoires of the Genocide Convention, that certain groups, such as political and economic groups, have been excluded from those protected because they are considered “mobile groups” that one joins through individual political commitment. That would seem to suggest, a contrario , that the Convention was intended to cover relatively stable and permanent groups (para. 58). “The Chamber holds that in assessing whether a particular group may be considered as protected from the crime of genocide, it will proceed on a case-by-case basis, taking into account both the relevant evidence proffered and the political, social and cultural context” (para. 373). See also the ICTR Trial Chamber, Musema Case (27 January 2000, paras. 160–63), and the ICTR Appeals Chamber, Seromba Case (13 December 2006, para. 318).
The 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, whether a national, ethic, racial, or religious group ( Susica Camp Case [ Prosecutor v. Nicolic ], 4 February 2005). 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 (ICTY Trial Chamber, Krstic Case , 2 August 2001, para. 561). See also the Jelisic Case (14 December 1999, para. 67).
The intent to destroy must exist with regard to a substantial part of the targeted group. This may be measured by quantitative (number of victims in comparison to the group) or qualitative criteria (stature of the victims within the group) ( Jelisic Case , ICTY, 5 July 2001), and can also be assessed with regard to what happened to the rest of the group; in the Krstic Case (19 April 2004), the ICTY argued that the destruction of Muslim Bosnian males in Srebrenica threatened the biological reconstitution of the group, thus threatening the very existence of the group.
The ICTY Trial Chamber specifies in the Jelisic Case (14 December 1999, para. 82) that 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 for the impact that their disappearance would have upon the survival of the group as such. Furthermore, the ICTY Trial Chamber recalls in the Jelisic Case (5 July 2001, para. 82) that it is widely acknowledged that the intention to destroy must target at least a substantial part of the group. This was confirmed by the ICTR in the Bagosora et al. Case (18 December 2008, para. 2115). See also the Karera Case (7 December 2007, para. 534), Muvunyi Case (12 September 2006, para. 479), Mpambara Case (11 September 2006, para. 8), Simba Case (13 December 2005, para. 412), and Muhimana Case (28 April 2005, para. 514).
In the Sikirica et al. Case (3 September 2001, paras. 76–77), the ICTY Trial Chamber explained that the 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. 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–c would impact upon the survival of the group, as such.
- Conspiracy to Commit Genocide
In the Nahimana et al. Case (28 November 2007, paras. 344, 894, 896), the ICTR Appeals Chamber recalled that the conspiracy to commit genocide is defined as “an agreement between two or more persons to commit the crime of genocide.” The Chamber found that “the crime of conspiracy as set forth in Article 2(3) (b) of the Statute comprises two elements, which must be pleaded in the indictment: (i) an agreement between individuals aimed at the commission of genocide ( actus reus ); and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such ( mens rea ).”
- Direct and Public Incitement to Commit Genocide
In the Seromba Case (12 March 2008, para. 161), the ICTR Appeals Chamber held that “committing genocide” is not limited to direct and physical perpetration and that other acts can constitute direct participation in the actus reus of the crime, notably aiding and abetting, as well as direct and public incitement to commit genocide.
In the Nahimana et al. Case (28 November 2007), the ICTR Appeals Chamber held that any person may be found guilty of the crime of direct and public incitement to commit genocide if he or she directly and publicly incited the commission of genocide (the material element or actus reus ) and had the intent directly and publicly to incite others to commit genocide (the intentional element or mens rea ) (para. 677). See also the Kalimanzira Case (29 June 2009, paras. 509–16) and the Bikindi Case (18 March 2010, para. 135).
- Difference between Instigation of Genocide and Direct and Public Incitement
It is necessary to make a distinction between instigation and public and direct incitement to commit genocide. Instigation is a mode of responsibility, which implies that an accused will engage its criminal responsibility “only if the instigation in fact substantially contributed to the commission of one of the crimes under Articles 2 to 4 of the Statute,” namely genocide, crimes against humanity, and violations of international law. By contrast, direct and public incitement to commit genocide under Article 2.3.c is in itself a crime, and therefore it is not necessary to demonstrate that it in fact substantially contributed to the commission of acts of genocide. Thus, “the crime of direct and public incitement to commit genocide is an inchoate offence, punishable even if no act of genocide has resulted therefrom.” This is confirmed by the travaux préparatoires to the Genocide Convention, “from which it can be concluded that the drafters of the Convention intended to punish direct and public incitement to commit genocide, even if no act of genocide was committed, the aim being to forestall the occurrence of such acts” ( Nahimana et al. Case , 28 November 2007, paras. 678, 679, 720).
- Difference between Hate Speech and Direct and Public Incitement to Commit Genocide
There is also a difference between hate speech in general (or “inciting discrimination or violence”) and direct and public incitement to commit genocide. Direct incitement to commit genocide assumes that the speech is “a direct appeal to commit an act referred to in Article 2(2) of the Statute; it has to be more than a mere vague or indirect suggestion.” In a lot of cases, direct and public incitement to commit genocide is preceded or accompanied by hate speech, but only direct and public incitement to commit genocide is prohibited under Article 2.3.c of the ICTR Statute ( Nahimana et al. Case , 28 November 2007, para. 692).
In conformity with the Akayesu Case (2 September 1998, paras. 557, 558, 700), the ICTR Appeals Chamber considered in the Nahimana et al. Case (28 November 2007, para. 698) that it is necessary to take into account Rwanda’s culture and language when determining whether a speech constituted direct incitement to commit genocide.
@ Office of the Special Advisor to Prevent Genocide: http://www.un.org/en/preventgenocide/adviser/index.shtml
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