Genocide

The term genocide has been created in 1944 by the lawyer Raphael Lemkin (1900-1959) to better grasp and describe specific type of crime committed against minority groups as such. It intended to complement crimes against humanity that covers mass crimes against civilians. It is composed of a Greek part “genos” referring to race or clan and a Latin part “cide” referring to killing.

The term is publicised for the first time in 1944 in Lemkin book “axis rule in occupied Europe. Despite this, genocide is not included in the list of international crimes prosecuted by the Nuremberg tribunal in 1945. However, the UK prosecutor at Nuremberg trial, H. W. Shawcross referred to genocide in its accusation as an aggravated type of crime against humanity when committed during an armed conflict.

Since 1948, genocide is recognised as an international crime that is forbidden, both in times of peace and of war under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (known as the Genocide convention).

The Genocide convention was adopted by the General Assembly (GA) of the United Nations (UN) on 9 December 1948 (GA Resolution 260 A [III]) and entered into force in 1951. As of April 2026, 154 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 ICJ that recognised 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 (ICTY) in which he recalled that the Convention was part of customary law (Report S/25704 of 3 May 1993). This was reaffirmed by the UN Security Council, which approved the report in its Resolution 827 (5 May 1993).

The Genocide convention provides a definition requiring a specific intent and conditions that are different from the ones required for other war crimes and crimes against humanity (I). It creates various obligations for States to prevent (II) and punish (III) acts of genocide. The decisions of the International Court of Justice (III) and those of the international criminal tribunals (V) clarify certain specific elements concerning the definition, prevention, and punishment of this crime.

The mechanism initially provided for in the Convention has failed in many respects to prevent and punish genocide and is still under evolution.

Attempts to apply the Genocide Convention have raised several issues concerning, on the one hand, the interpretation of the definition of genocide and, on the other hand, the weakness of the sanctions mechanism as initially envisaged.

The International Court of Justice (ICJ) plays an important role in the prevention and punishment of genocide and has been seized on several occasions by States in cases involving the interpretation and implementation of the Genocide Convention in specific situations. The ICJ's case law has clarified the interpretation of certain important legal issues concerning the interpretation of the convention and the international responsibility of States for this crime.

From 1948 until 1995, there were no international criminal courts with jurisdiction to try individuals accused of genocide. The establishment of two ad hoc international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) partially and temporarily filled this gap.

Since 1998, the possibilities for international criminal sanctions against individuals accused of genocide have been strengthened. Genocide is an international crime under Article 6 of the Statute of the International Criminal Court (ICC), which defines the crime of genocide in the same terms as the 1948 Convention. The ICC therefore has jurisdiction under certain conditions to try individuals suspected of genocide, crimes against humanity, and war crimes. The crime of genocide differs from war crimes and crimes against humanity, such as massacres, persecution, extermination, and other deliberate attacks against civilians, in that it requires proof of specific conditions of intent .

I. The definition of genocide

The definition of genocide differs from that of other crimes such as crimes against humanity or war crimes, and in particular from crimes of persecution, extermination or ethnic cleansing.

➔ List of States Party to International Human Rights and Humanitarian Conventions (no. 22. Convention on the Prevention and Punishment of the Crime of Genocide; 31. Rome Statute).

The definition of the crime of genocide brings together several elements that may be controversial and require interpretation such as:

• The nature of acts leading to the partial or total destruction of the group (1),
• The criteria defining the targeted group as such (2),
• The criteria relating to the partial destruction of the group (3) and
• The concept of specific intent of the perpetrator to destroy the group as such (4). (For more detailed case law elements, see the end of this chapter.)

Clarification regarding those elements can be found in the travaux préparatoires [preparatory work] (our translation) of the 1948 Convention and those of the 1998 Rome Statute, creating the ICC . The decisions of the International Court of Justice and those of the ICTR and ICTY also provide important elements of jurisprudential clarification. These decisions are presented in greater detail below (III and V).

➔ International Court of Justice (ICJ), International Criminal Court (ICC); International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICT)

1. Immediate or eventual biological destruction

Acts of genocide is not limited to acts of murder. It also includes actions that may not result in an immediate death but that will eventually lead to the disappearance of a group as such. These are deliberate acts that aim to destroy—immediately or eventually—a group as such. Consequently, the following acts may also constitute genocide: 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).

2. Criteria constituting the group as such

The definition requires that the acts be aimed at destroying 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, International criminal tribunals have interpreted them as follow given the specific intent required for the crime of genocide: “the acts must be directed towards a specific group on these discriminatory grounds [national, ethnical, racial or religious]. A racial group is based on hereditary physical traits often identified with geography. A religious group includes denomination or mode of worship or a group sharing common beliefs. An ethnic group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (self-identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others).” It is interesting to note that tribunals have accepted that the definition of the group can be based on subjective criteria according to which those who committed the crimes identified and stigmatised the members of the group. Such criteria include what the perpetrators perceived as being “national, ethnic, racial, and religious species aspects of the group concerned” (Kayishema et al. case, Trial Judgment, 21 May 1999, para. 98). (See also, ICTY: Jelisić case, Appeals Judgment, 5 July 2001, paras. 45-47; Stakić case, Appeals Judgment, 22 March 2006, para. 25).

However, destruction of a group based on grounds of political opposition are not considered as included in the definition of the crime of genocide. This has been clarified in decisions of the Extraordinary Chambers in the Courts of Cambodia (ECCC). This hybrid tribunal (establishment of Extraordinary Chambers within the existing court structure of Cambodia) has been set up through an agreement between the UN organisation and the government of Cambodia to prosecute crimes committed between 1975 and 1979 in Cambodia by the Khmer Rouge authorities. However, judges did not endorse the “auto-genocide” theory (which is not outlined in the Genocide convention or in other sources of international criminal law). This “auto-genocide” concept was elaborated to qualify as genocide the killing of a quarter of the Cambodian population (including some victims from the ethnic Khmer majority) by the Khmer Rouge authorities. The ECCC judges have limited the charges that qualify as genocide in Cambodia to cover only the crimes committed by the Khmer Rouge against two decimated ethnic groups: the Cham Muslims and Vietnamese minorities. (See Office of the Co-Investigating Judges, Closing order, Case No. 002/19-09-2007-ECCC-OCIJ, 15 September 2010, paras. 1335, 1545, 1546, 1548, 1549, 1551, 1552, 1554, 1556, 1559 and 1563; Trial Chamber, Decision on additional severance of case 002 and scope of case 002/02, Case No. 002/19-09-2007-ECCC/TC, 4 April 2014, p.12, second conclusion).

3.Total or partial destruction of the group

Under the definition, 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 behind the destruction. This issue is partly linked to the question of the nature of the group. According to case law of the international criminal tribunals, the intent to destroy must exist in respect of a substantial part of the targeted group. This may be measured by quantitative criteria (number of victims in relation to the total size of the group) or qualitative criteria, such as for instance the destruction of all males in the targeted group or the stature of the victims within the group (Jelisić case, 14 December 1999, Trial Judgment, para. 82 and 5 July 2001, Appeal Judgment, para. 47) and should be assessed with regard to what happened to the rest of the group (Krstić case, Appeal Judgment, 19 April 2004, para. 8). Indeed, some acts that amount to genocide do not necessarily cause immediate death but will make it impossible for the group to survive in the short or medium term.

4. Proof of specific genocidal intent (dolus specialis)

One of the difficulties in defining genocide lies in the fact that the acts in question must go beyond the proof of intentional mass murder and demonstrate a specific intent to destroy a group as such It is not enough to show that the perpetrator has committed a particular act; it must also be shown that he or she intended the ultimate result of the crime —the destruction, in whole or in part, of a particular group (Kambanda case, Trial Judgment and Sentence, 4 September 1998, para. 16; Kayishema and Ruzindana case, Trial Judgment, 21 May 1999, paras. 91 and 96). According to jurisprudence, such intent can be evidenced by an existing policy of genocide or by the actions of those carrying out the orders. The existence of a genocide policy may be inferred from a broader plan. Similarly, the specific intent to destroy a protected group may be inferred in certain cases and under certain conditions, from public statements made by the authorities, from the scale and nature of the crimes committed, and from the specificity of the planning surrounding the commission of the crimes.

The ICTY faced the same difficulties in establishing proof of a concerted plan and genocidal intent in the crimes committed in Srebrenica and other locations. In its judgment of November 22, 2017, against Ratko Mladic, the court recognized the existence of a joint criminal enterprise whose main objective was the elimination of Bosnian Muslims from Srebrenica through the killing of men and boys and the forced displacement of women, young children, and elderly persons. However, in the same case, the ICTY acquitted Ratko Mladic of charges of genocide for similar crimes committed in other locations in Bosnia. The ICTY did not consider in this case that the only reasonable inference from these crimes was that the perpetrators had the required intent to destroy a substantial part of the protected group of Bosnian Muslims.

The document on the Elements of Crimes adopted by the ICC provides that intent and knowledge may be inferred on a case-by-case basis. However, the International Court of Justice has set limits on the possibility of proving specific intent to commit genocide by inference. In its judgment of February 26, 2007, in the case of Bosnia and Herzegovina v. Serbia and Montenegro, the Court ruled that in order to infer proof of dolus specialis from a pattern of conduct, it must be the only inference that can reasonably be drawn from the acts in question (para. 373). The ICJ confirmed this position in a subsequent judgment in 2015 (Case of Croatia v. Serbia, Judgment of February 3, 2015, para. 440). See Infra III. This position was also confirmed by subsequent decisions of the ICTY, in particular the judgment of Ratko Mladic of November 22, 2017, concerning the recognition of his guilt in the genocide committed in Srebrenica and his acquittal on charges of genocide committed in other localities. (see Infra V)

II. The obligation of prevention of genocide convention

Article I of the Genocide convention provides that all States Parties recognise genocide as a crime under international law and undertake to prevent and punish it .

In addition to this individual obligation of each State Party, the Genocide Convention also provides for two international prevention mechanisms. The first is optional and refers to the UN system, including through the role of the Special Adviser on the Prevention of Genocide (1). The second is mandatory and refers to the mandate and decisions of the International Court of Justice (2).

These two international prevention mechanisms are based on Articles VIII and IX of the Convention, which provide that:

• All States Parties may “refer the matter to the competent organs of the United Nations for the exercise, in accordance with the Charter of the United Nations, of such action as they deem necessary to prevent and suppress [such acts]" (Article VIII).
• All disputes between States Parties concerning the interpretation, application or implementation of the Convention, including those relating to the responsibility of a State for genocide, may be brought before the ICJ and shall automatically fall within the jurisdiction of the ICJ in respect of all States Parties to the Genocide Convention (Article IX).

1. Recourse to UN bodies and the Special Adviser on the Prevention of Genocide

The Genocide Convention allows states to refer situations of genocide to UN bodies for prevention and response. Article VIII of the Convention does not mention the names of these bodies. Given the gravity of this crime, the Security Council (UNSC) or the UN General Assembly may be involved under their mandate on threats to international peace and security.

In 2004, UN Secretary-General Kofi Annan developed a five-point plan of action for the prevention of genocide, which included the creation of a Special Adviser on the Prevention of Genocide. Since August 2025, the Acting Special Adviser on the Prevention of Genocide is Mr. Chaloka Beyani from Zambia. He  replaces Ms. Alice Wairimu Nderitu of Kenya, who was appointed on November 10, 2020, to replace Mr. Adama Dieng of Senegal, who had served in this position since its creation. The Special Adviser serves as an early warning mechanism for the Secretary-General and the UNSC, raising awareness among the highest levels of the UN of situations involving a risk of genocide. He or she also makes recommendations to the UNSC on how the UN could prevent such events.

2. The role of the International Court of Justice in the application of the Genocide Convention

In addition to the possible criminal punishment for the crime of genocide, Article IX of the 1948 Convention conferred an extended jurisdiction to the ICJ.

The ICJ thus has compulsory jurisdiction to interpret the Convention and to settle disputes between States concerning the application of the Genocide Convention. This role enables the Court to clarify legal concepts relating to the interpretation of the definition of genocide, to examine compliance with the application of the Convention in specific situations of violence against populations, and to establish the responsibility of States for possible violations of the Convention. The role of the ICJ is distinct from that of international criminal justice and national courts, which judge and punish individuals guilty of this crime.

These preventive measures have fuelled the debate about the legitimacy of the use of force by States to prevent or stop genocide either under UN authority or on their own initiative. The ancient legal doctrine of “just war” or the most recent concept of “responsibility to protect,” developed within the UN in the 2000s, has been used in the past to provide a “moral basis” for the use of national or international armed forces to stop genocide.

However, past experiences of using of using international armed forces to prevent or stop genocide have ended in failure. These UN initiatives are no longer the subject of multilateral consensus since the excesses of the UN-authorized intervention in Libya in 2011.

Furthermore, international law does not recognize the legality of unilateral use of armed force by a State to prevent or stop genocide.. Indeed a unilateral decision by a State to use armed force must clearly comply with the provision of the UN Charter limiting it to situations of self-defence. This was confirmed by the ICJ in its preliminary ruling in case 182, Ukraine v. Russia, which recalled that a State’s unilateral decision to use armed force must clearly comply with the provision of the UN Charter limiting it to situations of self-defence. It rejected the legality of a State’s unilateral use of force on the grounds of preventing or stopping genocide.

In this context, ICJ rulings have clarified the appropriate interpretation and application of the Genocide convention in specific situations.

III. The ICJ case law on genocide  

Five major cases relating to the Convention on the Prevention and Punishment of the Crime of Genocide have been brought before the ICJ:

• Bosnia and Herzegovina v. Serbia and Montenegro referral of March 20,1993 with the ICJ Judgment on 26 February 2007.
• Croatia v. Serbia, referral of July 2, 1999, and judgment of the ICJ of February 3, 2015
• The Gambia v. Myanmar, referral of November 11, 2019, with the ICJ Order on provisional measures on 23 January 2020 and the Judgment on 22 July 2022.
• Ukraine v. Russian Federation, referral of February 26, 2022, with the ICJ Order on provisional measures on 16 March 2022.
• Afrique du Sud c. Israel, Affaire relative à l’application de la convention pour la prévention et la répression du crime de génocide dans la bande de Gaza. Saisine du 23 décembre 2023 avec ordonnances de la CIJ sur les mesures conservatoires en date du 26 janvier 2024, du 12 février 2024, du 6 et 28 mars 2024 et du 24 mai 2024.

Of these five cases, two have reached the final judgment stage and the other three remain at initial stage of proceedings. They will strengthen the content of the ICJ's jurisprudence on genocide for the future. It can already be seen that in all these cases, the ICJ has taken provisional measures without waiting for a final judgment enabling it to decide whether the situation before it constitutes genocide within the meaning of the Convention. Given the seriousness of the consequences of such situations and the length of time required to reach a judgment, the States requested the Court to order immediate provisional measures.

They based their request on the obligation to prevent genocide, and the risk of genocide contained in the Convention, without waiting for the ICJ to rule on the merits of the case.

In all these cases, the respondent State, unsuccessfully raised a preliminary objection to the jurisdiction of the ICJ.

In each instance, the ICJ judges were almost unanimous in upholding the Court’s jurisdiction, with the Russian judge voting against in the Ukraine and Bosnia cases and the Chinese judge voting against in all three cases.

1. On the jurisdiction of the ICJ

The ICJ has repeatedly reaffirmed that the Genocide convention sets out principles that form part of general customary international law and are therefore binding -even on the 40 UN member States that have not ratified it. These customary principles include the prohibition of genocide, and the obligation to prevent and punish the crime of genocide. They also include the Court’s automatic jurisdiction toward all States Parties under article IX of the convention. The Court has also clarified on numerous occasions that the non-participation of a party to the dispute does not exclude the Court’s jurisdiction and proceedings:

• by judgment of 11 July 1996 in the case 91, Bosnia and Herzegovina v. Yugoslavia submitted to the ICJ on 20 March 1993, the Court dismissed the preliminary objection raised by Yugoslavia and declared itself competent on the basis of art. XI of the Genocide convention (paras. 32-34).
• by judgment of 18 November 2008 in the case 118, Croatia v. Serbia submitted to the ICJ on 2 July 1999, the Court dismissed the same preliminary objection and declared itself competent based on the Genocide convention (para. 136). by judgment of 22 July 2022 in the case 178, Gambia v. Myanmar, submitted to the ICJ on 11 November 2019, the Court dismissed preliminary objections raised by Myanmar and declare itself competent on the basis of the Genocide convention (paras. 89-92).
• by its order of 16 March 2022 in the case 182, Ukraine v. Federation of Russia, submitted to the ICJ on 26 February 2022, the Court dismissed Russia preliminary objection and declare itself competent based on the Genocide convention and despite the non-participation of Russia to the ICJ case paras. 43-48)

2. On the extraterritorial application of the Genocide convention and the violation by a State of its obligation to prevent and punish genocide

In the Bosnia and Herzegovina v. Serbia and Montenegro case, the ICJ concluded that the obligation to prevent the crime of genocide contained in article I of the Genocide convention is extraterritorial in scope (para. 183, Bosnia and Herzegovina v. Serbia and Montenegro, case 91, Judgment, 26 February 2007). This means that States with the capacity to influence others have a duty to use all means reasonably available to them to prevent the crime of genocide, even when acts are committed outside of their borders (para. 443, Bosnia and Herzegovina v. Serbia and Montenegro, case 91, Judgment, 26 February 2007). Thus, with regard to the genocide committed by Bosnian Serb militias in Srebrenica in July 1995, the ICJ ruled that Serbia itself had not committed the acts of genocide but that it had violated its obligation to prevent genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (para. 471(5), Bosnia and Herzegovina v. Serbia and Montenegro, case 91, Judgment, 26 February 2007). This is the first time that the ICJ has condemned a State based on its obligation to prevent genocide.

3. On the interest of States to act before the ICJ

In the case of Gambia v. Myanmar, Myanmar contested the existence of a dispute with Gambia which justify a referral to the ICJ. The Court recognised that Gambia’s application to the ICJ was admissible even though Gambia was not a direct victim of, or in an open conflict with Myanmar over the application of the Genocide convention. The basis for Gambia’s right to refer the matter to the ICJ could be a legal dispute, and it was considered sufficient for a referral to the ICJ, that diverging views on the convention have been publicly expressed (paras. 63-65, 73, 77 and 93-114, Gambia v. Myanmar, case 178, Judgment, 22 July 2022). The Court recalled its consistent position since its Advisory Opinion of 28 May 1951 on reservations to the Convention on the Prevention and Punishment of the Crime of Genocide: under such a convention, the contracting States have no interests of their own; they only have, each and every one of them, a common interest, which is to preserve the accomplishment of the high purposes of this convention which are its raison d’être (Gambia v. Myanmar, case 178, Judgment, 22 July 2022, paras. 107-108, and Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide, case 12, Advisory Opinion, 28 May 1951, p. 23).

4. On the right of States to use force to prevent genocide

In the Ukraine v. Russian Federation case, Ukraine asked the ICJ to protect its right “not to be subject to a false claim of genocide” and “not to be subjected to another State’s military operations on its territory based on a brazen abuse of Article I of the Genocide Convention”. In its initial decision of 16 March 2022 on provisional measures, the Court clarified the scope of article I of the Genocide convention, by which all States have undertaken to prevent and punish the crime of genocide. The Court considered that this obligation to prevent and punish must be implemented by States in good faith, taking into account other parts of the convention, in particular articles VIII and IX, which provides for action within the framework of the UN or a referral to the ICJ (para. 56, Ukraine v. Russian Federation, case 182, Order, 16 March 2022.) The Court also recalled that measures taken by a State to prevent genocide must respect international law, and in particular the UN Charter (para. 56, Ukraine v. Russian Federation, case 182, Order, 16 March 2022).

Without ruling at this stage on the merits of the case, the Court held that it was doubtful whether in the light of its purpose, the convention authorised the unilateral use of force by a contracting State party on the territory of another State, for the purpose of preventing or punishing an alleged act of genocide (para. 59, Ukraine v. Russian Federation, case 182, Order, 16 March 2022). In the absence of evidence to support the Russian Federation’s claim that allegation that genocide had been committed on Ukrainian territory, the Court also considered that Ukraine had a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide on Ukrainian territory (para. 60, Ukraine v. Russian Federation, case 182, Order, 16 March 2022).

5. On the proof of the required specific intent to commit genocide

In its judgment of 26 February 2007 in the case 91, Bosnia and Herzegovina v. Serbia and Montenegro referred to the ICJ in 1993, the Court found that what is commonly referred to as “ethnic cleansing” does not in itself constitute a form of genocide. Acts of ethnic cleansing may constitute an element of the implementation of a genocidal plan, provided that there is an intention to physically destroy the targeted group and not merely to forcibly transfer it (para. 190). It found that the massacres and other atrocities committed during the conflict throughout the territory of Bosnia and Herzegovina were not accompanied by the specific intent (dolus specialis) that defines the crime of genocide, namely the intent to destroy the protected group in whole or in part (para. 277). These atrocities therefore constitute war crimes and crimes against humanity.

The Court found that the specific intent to destroy the group in whole or in part must be established convincingly by reference to particular circumstances, unless there is conclusive evidence of the existence of a general plan to that effect; and for a pattern of conduct to be considered evidence of such intent, it should be such that it can only indicate the existence of such intent (para. 373). Thus, the Court accepted the possibility of proving genocidal intent indirectly by inference. However, in order to infer the existence of a dolus specialis from a pattern of conduct, it is necessary that this be the only inference that can reasonably be drawn from the acts in question.

In the light of its examination of the factual evidence presented to it concerning the atrocities committed in Bosnia and Herzegovina between 1991 and 1995, the Court concluded that, with the exception of the events in Srebrenica in July 1995, the specific intent required for the crime of genocide to be constituted had not been conclusively established for each individual incident (para. 370). Indeed, the Court ruled that the massacres in Srebrenica in July 1995 were committed with the specific intent to partially destroy the Bosnian Muslim population in that area, and that what happened in Srebrenica was indeed genocide (para. 297).

In its judgment of 3 February 2015 in the case 118, Croatia v. Serbia brought before the ICJ on 2 July 1999, the Court rejected Croatia’s application and Serbia’s counterclaim under the Genocide convention. It held that despite the reality of the killings of Croatian nationals or ethnic groups, it had not been sufficiently established that the acts in question reflected genocidal intent (para. 440). The Court found that Croatia had not established that “the only reasonable inference to be drawn from the pattern of conduct on which it relies was an intent to destroy, in whole or in part, the Croat group. The acts constituting the actus reus of genocide within the meaning of Article II (a) and (b) of the Convention were not committed with the specific intent required for them to be characterised as acts of genocide” (paras. 143-148, 440-441 and 510-511).

In its order of 2 June 1999 in the case 105, Yugoslavia v. Belgium concerning the application of the Genocide convention to the North Atlantic Treaty Organisation (NATO) bombing in Kosovo, the ICJ reaffirmed that “the threat or use of force against a State cannot in itself constitute an act of genocide within the meaning of Article II of the Genocide Convention.” In this order, the ICJ rejected the request for provisional measure considering that “it does not appear at the present stage of the proceedings that the bombings which form the subject of the Yugoslav Application ‘indeed entai1 the element of intent, towards a group as such, required by the provisions’” of the Genocide convention (paras. 40, 41 and 51).

6. Subjecting members of the group to conditions of existence calculated to bring about its physical destruction in whole or in part

The order for provisional measures issued by the ICJ on May 24, 2024, in the case of South Africa v. State of Israel concerning the application of the Genocide Convention in the situation in Gaza established a link between the refusal to allow humanitarian relief to the civilian population of a besieged area and the risk of a genocidal act consisting in subjecting members of the group to conditions of existence intended to bring about their physical destruction in whole or in part. The ICJ ordered the State of Israel to take immediate and effective measures to allow the provision of basic services and humanitarian assistance required as a matter of urgency to remedy the difficult conditions of existence of the Palestinians in the Gaza Strip.

➔Immunity; International Court of Justice, International Criminal Court; International Criminal Tribunals; Non-applicability of statutory limitations; Universal jurisdiction; War crimes/Crimes against humanity

IV. The obligation to punish genocide 

The obligation to suppress genocide provided for in the 1948 Convention was based on criminal sanctions imposed by an international court and national courts (1). This system has recently been supplemented by ad hoc international criminal tribunals and the International Criminal Court (2), as well as by the universal jurisdiction of national courts (3). This system of criminal sanctions complements the work of the International Court of Justice, which focuses only the responsibility of States.

1. Criminal prosecution of genocide under the 1948 Genocide Convention

The 1948 Convention prohibits and punishes the crime of genocide committed in times of peace or war. It provides for the punishment of any act of genocide, as well as any conspiracy, direct and public incitement, attempt or complicity in genocide (Article III of the Genocide Convention).

All persons who commit such acts shall be punished, whether they are “governors, public officials or private individuals” (Article IV).

This means that, regardless of their official position, no one can enjoy any form of immunity.

The States Parties are required to adopt legislation providing for effective penalties for the perpetrators of these crimes and the unconditional extradition of accused persons to the requesting countries (Articles V and VII).

However, Article VI of the Convention stipulates that persons accused of genocide may only be prosecuted by the national courts of the State in whose territory the act was committed and by an international criminal court—the creation of which was envisaged in 1948 but which was not finally established until 1998 (adoption of the Rome Treaty establishing the ICC). Indeed, the idea of an international criminal court capable of prosecuting perpetrators of genocide did not receive significant support from States immediately after the adoption of the Genocide Convention.

History has shown that national courts in countries where genocide is committed are reluctant to punish such crimes, which by their very nature require the involvement of national authorities. This explains why the Convention has never been applied by national courts, either in Cambodia in 1975 or in Rwanda in 1994. It is also interesting to note that Rwanda had not fulfilled its obligation to incorporate genocide into its national criminal law in accordance with Article I of the 1948 Convention before the 1994 genocide against the Rwandan Tutsis. It was only after this tragedy that the country updated its legislation through Organic Law No. 08/96 of August 30, 1996, on the prosecution of offenses constituting the crime of genocide or crimes against humanity committed since October 1, 1990.

2. Criminal punishment for genocide by ad hoc international criminal tribunals and the ICC.

The failure of national courts to punish individuals who commit acts of genocide led to the inclusion of the crime of genocide in the list of crimes for which ad hoc international criminal tribunals (ICTY and ICTR) and the ICC have jurisdiction (Article 4 of the ICTY Statute, Article 2 of the ICTR Statute, and Article 6 of the ICC Statute). The founding texts of each of these courts adopted the definition of genocide contained in the 1948 Genocide Convention, which does not refer to the extermination of political groups.

The ICC Statute, adopted in Rome on July 17, 1998, and entered into force on July 1, 2002, provides that the ICC has jurisdiction to prosecute cases of genocide (Art. 6) as well as war crimes and crimes against humanity (Articles 7-8), provided that the crime was committed on the territory of or by a national of a State that has ratified the Rome Statute (Article 12). If the State where the crime was committed or the State of nationality of the accused has not ratified the ICC Statute, the UN Security Council (UNSC) is the only body with the power to impose the jurisdiction of the ICC (Art. 13(b)). Once the States concerned have accepted the jurisdiction of the Court, the ICC may be seized of such a case in three ways: referral to the Court: (1) by any State Party; (2) by the Prosecutor himself, on the basis of information concerning acts of genocide received from any reliable source; or (3) by the UN Security Council acting under Chapter VII of the UN Charter (actions taken in the event of a threat to or breach of peace).

The ICC's first case involving allegations of genocide was referred by the UNSC in March 2005 (UNSC Resolution 1593(2005)) in connection with an investigation into genocide, war crimes, and crimes against humanity committed in Darfur (Sudan) since July 1, 2002. The referral by the UNSC was necessary to overcome the fact that Sudan is not a State Party to the ICC. On March 4, 2009, and July 12, 2010, indictments and arrest warrants were issued against the President of Sudan, Omar Al Bashir. The indictment of July 12, 2010, included three counts of genocide: murder, serious injury to physical or mental integrity, and intentionally subjecting each targeted group to conditions of existence calculated to bring about its physical destruction. This was the first time that a sitting head of state had been charged with genocide. Since then, Sudan has challenged the ICC's jurisdiction by refusing to cooperate in the execution of the arrest warrants. The ICC's case law on genocide remains limited for the time being to indictments and arrest warrants in this single case.

Three recent cases relating to the application of the Genocide Convention brought before the ICJ are also the subject of criminal investigations by the ICC. These are the cases of Myanmar and Bangladesh concerning the fate of the Rohingya people, Ukraine and Russia, and the situation in Palestine and Gaza. However, the ICC's work in these contexts is at the investigation stage and the arrest warrants already issued do not target genocide but war crimes and crimes against humanity.

International criminal case law on genocide therefore stems mainly from the work of the ad hoc international criminal tribunals on the former Yugoslavia and Rwanda and, in a very embryonic form, from the ICC's indictments on Sudan. (infra V). It complements the international case law of the ICJ on this subject (supra III) and the decisions of national courts acting under universal jurisdiction.

3. Criminal punishment of genocide through the universal jurisdiction of national criminal courts

National courts acting within the framework of universal jurisdiction also contribute to the suppression of the crime of genocide.

The Genocide Convention does not provide for universal jurisdiction allowing criminal prosecution before the courts of any country. However, countries that have ratified the ICC Statute may exercise jurisdiction over crimes committed by foreign nationals outside their national territory, in accordance with the principle of complementarity with the ICC, provided that the country's domestic criminal law has been amended to that effect.

The disparities and gaps in national legislation on universal jurisdiction were highlighted by the inability of many countries to prosecute foreign criminals such as Rwandan genocidaires in their national courts. This situation has improved with the creation of the ICC, which has made it possible to incorporate a harmonized definition of genocide and a universal jurisdiction procedure into the national criminal law of each member state.

On this basis, the first conviction of a non-state armed group (member of Daesh) for genocide was handed down in Germany by the Frankfurt Higher Regional Court in November 2021. The conviction was recently upheld by the German Federal Court of Justice on January 17, 2023, following an appeal lodged by the Daesh member. The defendant had been sentenced to life imprisonment, which was upheld on appeal, and no further appeal is now possible. The Court confirmed that “the actions of the accused, which caused serious harm to Reda [and his mother], in conjunction with similar actions by other members [of Daesh], were likely to destroy the Kurdish religious group of the Yazidi faith.” It specified that "it was precisely the organized enslavement of women and girls, particularly in the context of religious re-education, that served to destroy the Yazidi religious minority in order to establish an Islamic caliphate. Overall, this approach was likely to result in [...] the (partial) destruction of this group as such." (German Federal Supreme Court, decision 3 StR 230/22, paras. 3, 5, 8, 15, 37 and 38).A second conviction for genocide followed in May 2022, and the latest and third conviction for genocide in Germany against a former Daesh member (both concerning Yazidi victims in Iraq) was handed down on June 21, 2023. In these cases, two women were found guilty of complicity in genocide for enslaving and abusing a young Yazidi woman in order to support Daesh's campaign to eradicate the Yazidi religious minority. They were sentenced to five and a half years and nine years and three months in prison, respectively.

➔ Universal jurisdiction

IV. Case law of International criminal law tribunals (ICC, ICTY and ICTR)

The decisions of international criminal tribunals seek to establish individual criminal responsibility for acts of genocide beyond reasonable doubt. Although they apply the same definition of genocide, their work differs from that of the International Court of Justice, which examines the responsibility of States with regard to their obligations under the Genocide Convention.

1. Definition of Genocide

a. General Elements

The ICTY Trial Chamber (Krstić case, Judgment, 2 August 2001, para. 550) defined 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 specific 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, the Trial Chamber recognised 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 (Judgment and Sentence, 15 May 2003, para. 315). The ICTR Trial Chamber recalled that “the crime of genocide is considered part of international customary law and, moreover, a norm of jus cogens” (Kayishema and Ruzindana, Trial Judgment, 21 May 1999, para. 88; Rutaganda case, Judgment and Sentence, 6 December 1999, para. 46; and Musema case, Judgment and sentence, 27 January 2000, para. 151).

b. 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 (Judgment and Sentence, 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 (Appeal Judgment, 12 March 2008, para. 46) and Renzaho case (Trial Judgment,14 July 2009, para. 762).

c. No Numeric Threshold

In the Seromba case (Trial Judgment, 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 (Judgment and Sentence, 18 December 2008, para. 2115), (Simba case (13 December 2005, para. 412), Muvunyi case (Judgment and Sentence, 12 September 2006, para. 479), and Muhimana case (Judgment and Sentence, 28 April 2005, para. 514).

2. Establishing the Genocidal Intent (Mens rea)

The ICTR Trial Chamber in its Judgment in the Bagilishema case concluded at paragraph 55 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 crimes such as large-scale murder of civilians (Kayishema and Ruzindana case, Trial Judgment, 21 May 1999, para. 91). Genocide, therefore, invites a two-pronged analysis: (1) the prohibited underlying acts, and (2) the specific genocidal intent, or dolus specialis (Bagilishema case, Trial Judgment, 7 June 2001, para. 55). See also the Akayesu case (Trial Judgment, 2 September 1998, paras. 498, 517–522).

In the Seromba case (Appeal Judgment, 12 March 2008, paras. 175-176), the ICTR Appeals Chamber held that genocidal intent might be inferred by circumstantial evidence. The Chamber recalled that:

[T]he 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 (Judgment and Sentence, 4 September 1998, para. 16), Nahimana et al. case (Appeal Judgment, 28 November 2007, para. 524), Nchamihigo case (Judgment and Sentence, 12 November 2008, para. 331), Zigiranyirazo case (Judgment and Sentence, 18 December 2008, para. 398), Bikindi case (Trial Judgment, 2 December 2008, para. 420), Muvunyi case (Judgment and Sentence, 12 September 2006, para. 480), and Blagojević and Jokić case (Appeal Judgment, 9 May 2007, paras. 122–23).

In the Gacumbitsi case (Appeal Judgment, 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 (Judgment and Sentence, 22 January 2004, para. 625) and the Kayishema and Ruzindana case (Trial Judgment, 21 May 1999, para. 527).

In the Kayishema and Ruzindana case (Trial Judgment, 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.”

In the Simba case (Appeal Judgment, 27 November 2007, para. 266), the ICTR reversed the finding it had made in the Kayishema and Ruzindana 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 held in the Nchamihigo case (Appeal Judgment, 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 (Appeal Judgment, 28 November 2007, para. 480).

The ICTY faced the same difficulties in establishing proof of the existence of a joint criminal enterprise (concerted plan) based on genocidal intent in crimes committed during the war in the former Yugoslavia in Srebrenica and other locations, and in particular in distinguishing them from the crime of ethnic cleansing.

In the Mladic case (judgment of November 22, 2017), the ICTY Trial Chamber recognized the existence of a joint criminal enterprise whose main objective was the elimination of Bosnian Muslims from Srebrenica through the killing of men and boys and the forcible transfer of women, young children, and elderly persons. The members of this joint criminal enterprise were Radovan Karadžić, Radislav Krstić, Vujadin Popović, Zdravko Tolimir, Ljubomir Borovčanin, Svetozar Kosorić, Radivoje Miletić, Radoslav Janković, Ljubiša Beara, Milenko Živanović, Vinko Pandurević, and Vidoje Blagojević. The Chamber found that the only possible conclusion from all the circumstances was that the accused intended to destroy the Bosnian Muslim group in Srebrenica, which represents a substantial part of the protected group of Muslims in Bosnia and Herzegovina. However, in the same case, the ICTY acquitted Ratko Mladic of genocide charges for similar crimes committed in other locations in Bosnia. The ICTY did not consider in this case that the only reasonable inference from these crimes was that the perpetrators had the required intent to destroy a substantial part of the protected group of Bosnian Muslims.

In the Krstic case, the Appeals Chamber of the ICTY, in its judgment of April 9, 2004, reversed the judgment of the Trial Chamber of August 2, 2001, which had convicted General Radislav Krstic of the crime of genocide against the Bosnian Muslim group in Srebrenica. The Appeals Chamber distinguished between having knowledge of the genocidal intent of the perpetrators of the crimes and sharing that same intent as a co-perpetrator. The Appeals Chamber unanimously concluded that genocide had been committed in Srebrenica in 1995. It recognized that “Radislav Krstic knew that by allowing the use of the Drina Corps, he was contributing significantly to the execution of Bosnian Muslim prisoners.” Although the evidence presented suggests that Radislav Krstic did not support this plan, in his capacity as commander of the Drina Corps, he allowed the main staff to use the Corps' resources. The judges found that Radislav Krstic was aware of the genocidal intent of certain members of the main staff of the VRS. However, they found that it had not been sufficiently proven that Radislav Krstic shared that same intent. In these circumstances, the Appeals Chamber concluded that Radislav Krstic was criminally responsible not as a principal perpetrator of the crimes, but as an accessory to genocide for aiding and encouraging the various crimes that were committed.

In the Popovic et al. case, the Trial Chamber’s judgment of June 10, 2010, recognized the existence of a joint criminal enterprise concerning the genocide in Srebrenica involving the co-accused in that case, but it established different criminal responsibility for those co-accused who shared the genocidal intent and those who knew of it without necessarily sharing it. It therefore convicted Vujadin Popovic of genocide on the basis of his knowledge of and active participation in this joint criminal enterprise and his knowledge of the genocidal intent. The Court found that "Vujadin Popović knew that the intention of the Bosnian Serb forces was not simply to kill those who fell into their hands, but to kill as many as possible with the aim of destroying the entire group. His determined participation in all phases of this plan demonstrates that he not only knew of the destructive intent behind the project but also shared it. It did not convict Drago Nikolić of genocide but of complicity in genocide, considering that, in view of the evidence presented and the nature of Drago Nikolić's acts of participation, the personal circumstances in which he found himself and the position he held, the Trial Chamber was not convinced beyond reasonable doubt that he had shared the genocidal intent. The Trial Chamber concluded that he had participated in the joint criminal enterprise to kill with the intent to persecute, that he was aware of the genocidal intent of the other members of the enterprise, and that he had made a significant contribution to the genocide. (The Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Ljubomir Borovčanin, Radivoje Miletić, Milan Gvero, and Vinko Pandurević)

Membership of a political opposition group was not recognised as a constitutive criterion for the crime of genocide by the ECCC. Indeed, they rejected the notion of “auto-genocide” put forward by some to qualify the destruction of 20% of the population by the Khmer Rouge regime between 1975 and 1979. On the other hand, they retained the qualification of genocide for the crimes committed against two decimated ethnic groups, the Muslim Chams and the Vietnamese of Cambodia. (See Office of the Co-Investigating Judges, Closing order, Case No. 002/19-09-2007-ECCC-OCIJ, 15 September 2010, paras. 1335, 1545, 1546, 1548, 1549, 1551, 1552, 1554, 1556, 1559 and 1563; Trial Chamber, Decision on additional severance of case 002 and scope of case 002/02, Case No. 002/19-09-2007-ECCC/TC, 4 April 2014, p.12, second conclusion). 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) (Jelisić case, Appeal Judgment, 5 July 2001), and can also be assessed regarding what happened to the rest of the group. In the Krstić case (Appeal Judgment, 19 April 2004), the ICTY argued that the destruction of Muslim Bosnian males in Srebrenica threatened the biological reconstitution of the group, and thus threatening the group’s very existence.

3. Destruction of a group as such, in whole or in part

With regard to the notion of group, the ICTR Trial Chamber was flexible in its interpretation. In the Rutaganda case (Judgment and Sentence, 6 December 1999), the 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/ herself as belonging to the said group.” (para. 56). Nevertheless, the Chamber was 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. 57). […] 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 Musema case (Judgment and Sentence, 27 January 2000, paras. 160–163), and the Seromba case (Trial Judgment, 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 (Sušica Camp case [Prosecutor v. Nikolić], Judgment on sentencing Appeal, 4 February 2005). Mere knowledge by the perpetrators of the victims’ membership in a particular group is not sufficient to establish an intention to destroy the group as such (Krstić case, Trial Judgment, 2 August 2001, para. 561). See also the Jelisić case (Trial Judgment, 14 December 1999, para. 67).

The ICTY Trial Chamber in the Jelisić case (Trial Judgment, 14 December 1999, para. 82) specified that genocidal intent may manifest itself in two ways. The intent may be to destroy a very large number of members of the group, in which case it would be an intent to destroy a group en masse. However, intent may also consist of desiring the destruction of a more limited number of individuals, chosen because of the effect their disappearance would have on the survival of the group as a whole. Furthermore, the ICTY Trial Chamber recalled in the Jelisić case (Appeal Judgment, 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 (Judgment and Sentence, 18 December 2008, para. 2115). See also the Karera case (Judgment and Sentence, 7 December 2007, para. 534), the Muvunyi case (Muvunyi case (12 September 2006, 12 September 2006, para. 479), the Mpambara case (Trial Judgment, 11 September 2006, para. 8), the Simba case (Judgment and Sentence, 13 December 2005, para. 412), and the Muhimana case (Muhimana case,28 April 2005, para. 514).

In the Sikirica et al. case (Judgment on Defence Motions to Acquit, 3 September 2001, paras. 76–77), the ICTY Trial Chamber stated that the intention to destroy in part may still 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) to (c) would impact upon the survival of the group, as such.”On this issue see also the ICJ judgment of 26 February 2007 in case 91, Bosnia and Herzegovina v. Yugoslavia (paras. 190 and 373) and the ICJ judgment of 3 February 2015 in case 118, Croatia v. Serbia (paras. 132-148, 440-441 and 510-515).

In the Mladić case (judgment of November 22, 2017), the Chamber did not find the crime of genocide in its conviction for crimes committed outside Srebrenica. It concluded by a majority that the perpetrators of crimes committed in several municipalities in Bosnia and Herzegovina had the intention to destroy the Bosnian Muslims in those municipalities as part of the protected group. However, it concluded that the Bosnian Muslims targeted in each municipality formed a relatively small part of the protected group and did not, other than in terms of numbers, constitute a substantial part of it. Consequently, it was not convinced that the only reasonable inference was that the perpetrators were motivated by the required intent to destroy a substantial part of the protected group of Bosnian Muslims.

Membership of a political opposition group was not recognised as a constitutive criterion for the crime of genocide by the ECCC. Indeed, they rejected the notion of “auto-genocide” put forward by some to qualify the destruction of 20% of the population by the Khmer Rouge regime between 1975 and 1979. On the other hand, they retained the qualification of genocide for the crimes committed against two decimated ethnic groups, the Muslim Chams and the Vietnamese of Cambodia. (See Office of the Co-Investigating Judges, Closing order, Case No. 002/19-09-2007-ECCC-OCIJ, 15 September 2010, paras. 1335, 1545, 1546, 1548, 1549, 1551, 1552, 1554, 1556, 1559 and 1563; Trial Chamber, Decision on additional severance of case 002 and scope of case 002/02, Case No. 002/19-09-2007-ECCC/TC, 4 April 2014, p.12, second conclusion). 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) (Jelisić case, Appeal Judgment, 5 July 2001), and can also be assessed regarding what happened to the rest of the group. In the Krstić case (Appeal Judgment, 19 April 2004), the ICTY argued that the destruction of Muslim Bosnian males in Srebrenica threatened the biological reconstitution of the group, and thus threatening the group’s very existence.

4. Conspiracy to Commit Genocide

In the Nahimana et al. case (Appeal Judgment, 28 November 2007, paras. 344, 894 and 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: [T]he 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).

5. Direct and Public Incitement to Commit Genocide

In the Seromba case (Appeal Judgment, 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 (Appeal Judgment, 28 November 2007), the ICTR Appeals Chamber held that any person can 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 to directly and publicly incite others to commit genocide (the intentional element or mens rea) (para. 677). See also the Kalimanzira case (Trial Judgment, 29 June 2009, paras. 509–16) and the Bikindi case (Appeal Judgment, 18 March 2010, para. 135).

a. 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 be held criminally responsible “only if the instigation in fact substantially contributed to the commission of one of the crimes under Articles 2 to 4 of the [ICTR] 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) of the ICTR Statute is in itself a crime, and therefore it is not necessary to demonstrate that the incitement 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, Appeal Judgment, 28 November 2007, paras. 678-679 and 720).

b. 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, Appeal Judgment, 28 November 2007, para. 692).

In conformity with the Akayesu case (Trial Judgment, 2 September 1998, paras. 557, 558 and 700), the ICTR Appeals Chamber considered in the Nahimana et al. case (Appeal Judgment, 28 November 2007, para. 698) that it was necessary to take into account Rwanda’s culture and language when determining whether a speech constituted direct incitement to commit genocide.