The Crime of Genocide

4 February 2019

Carola Lingaas

Associate Professor

VID Specialized University

carola.lingaas@vid.no

Challenging impunity (20 years of ICTR)

= crimes against humanity

= genocide

= war crimes

Most serious crimes of

concern to the international

community as a whole.

Include genocide, crimes against

humanity, war crimes and

aggression.

Acts are criminalized,

investigated and prosecuted both

nationally and internationally.

Is there a (moral or legal) hierarchy of international crimes?

How would it manifest itself? Stigma, higher sentences, other?

Genocide: The Crime of Crimes (?)

Historical background

1944: Raphael Lemkin coins the word “genocide”:

“genos” = race/ tribe (ancient Greek)

“cide” = to kill (from Latin caedere)

Response to still ongoing crimes

during the Holocaust.

1945: Nuremberg Trials

“They conducted deliberate and systematic genocide, viz., the

extermination of racial and national groups, against the civilian

populations of certain occupied territories in order to destroy particular

races and classes of people and national, racial or religious groups,

particularly Jews, Poles and Gypsies and others”.

Genocide not included

in the Charter of

Nuremberg, but

mentioned in the

indictment and in the

prosecution’s

statements.

9 December 1948:

Adoption of the Convention on

the Prevention and Punishment

of the Crime of Genocide

(Genocide Convention)

10 December 1948:

Adoption of the Universal

Declaration of Human Rights

(UDHR)

Article II Genocide Convention

In the present Convention,

genocide means any of the following acts

committed with intent to destroy, in whole

or in part, a national, ethnical, racial or

religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm

to members of the group;

(c) Deliberately inflicting on the group

conditions of life calculated to bring

about its physical destruction in whole

or in part;

(d) Imposing measures intended to

prevent births within the group;

(e) Forcibly transferring children of the

group to another group.

1948

1991-1995/2001:

Yugoslav Wars

April – June 1994:

Rwandan genocide

International Criminal Tribunal for

the Former Yugoslavia

(1993 – 2017)

International Criminal

Tribunal for Rwanda

(1995 – 2015)

Article II Genocide Convention

In the present Convention,

genocide means any of the following acts

committed with intent to destroy, in whole

or in part, a national, ethnical, racial or

religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm

to members of the group;

(c) Deliberately inflicting on the group

conditions of life calculated to bring

about its physical destruction in whole

or in part;

(d) Imposing measures intended to

prevent births within the group;

(e) Forcibly transferring children of the

group to another group.

Art. 4(2) ICTY Statute,

Art. 2(2) ICTR Statute

Genocide means any of the following acts

committed with intent to destroy, in whole

or in part, a national, ethnical, racial or

religious group, as such:

(a) killing members of the group;

(b) causing serious bodily or mental harm

to members of the group;

(c) deliberately inflicting on the group

conditions of life calculated to bring

about its physical destruction in whole

or in part;

(d) imposing measures intended to

prevent births within the group;

(e) forcibly transferring children of the

group to another group.

International Criminal Court (2002 - )

Article 6 Rome Statute

Genocide

For the purpose of this Statute, ‘genocide’ means any of the following

acts committed with intent to destroy, in whole or in part, a national,

ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to

bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

7 individuals were not charged with genocide

3 individuals

convicted for

genocide

(Krstić, Karadžić,

Mladić)ICTY

ICC: one individual charged with three counts of genocide

13

Article 6 Rome Statute

Genocide

For the purpose of this Statute, ‘genocide’ means any of the following

acts committed with intent to destroy, in whole or in part, a national,

ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to

bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Article 6 (a) Genocide by killing

Elements

1. The perpetrator killed one or more persons.

2. Such person or persons belonged to a particular national,

ethnical, racial or religious group.

3. The perpetrator intended to destroy, in whole or in part, that

national, ethnical, racial or religious group, as such.

4. The conduct took place in the context of a manifest pattern of

similar conduct directed against that group or was conduct that

could itself effect such destruction.

Elements of Crimes (EoC) Elements of Crimes_PDF

Objective elements (actus reus)

a) Killing of members: voluntary or intentional killing

b) Causing serious bodily or mental harm:

does not have to be permanent; incl. torture, rape, sexual violence,

inhuman/degrading treatment (EOC 6(b), footnote 3)

c) Inflicting conditions of life calculated to bring about its

physical destruction: e.g. minimum diet, systematic expulsion,

reduction of essential medical services (EOC Art. 6(c), footnote 4)

d) Imposing measures intended to prevent birth:

sexual mutilation, sterilization, forced birth control, separation

of the sexes and prohibition of marriages.

e) Forcible transfer of children.

Ethnic cleansing?

Subjective elements (mens rea)

Intent to commit an underlying offence (regular mens rea).

Perpetrator need not seek to destroy the entire group.

Must view the targeted group as a distinct entity he intends to eliminate.

+ special intent to destroy the group (dolus specialis).

«in part»: How many people constitute a part?

Is one victim sufficient? Links to intent.

quantitative: «substantial» number (ICJ Application case, 2007)

or «reasonably significant number» (Karadžić and Mladić)

or qualitative: «representative fraction of the group, such as its

political leaders, religious leaders, or its intellectuals»

(Jelisić).

Cannot stand alone (scale of acts committed against

the victim group is still important).

“in whole or in part, a national, ethnical, racial or religious group,

as such”

Geographically limited part of the group can be targeted.

Keep overall context in mind (Srebrenica).

Not protected: political or cultural groups.

No definition of the four categories.

“in whole or in part, a national, ethnical, racial or religious group, as

such”

“as such”: victim is targeted not for being an individual, but for being a

member of a specific group.

The perpetrator targets the group for being the group it is.

dolus specialis (intent to destroy)

Self-identification vs. identification by others?

a national group is (…) a collection of people who are perceived to share a

legal bond based on common citizenship (…).

an ethnic group is (…) a group whose members share a common language

or culture.

a religious group is one whose members share the same religion,

denomination or mode of worship.

The conventional definition of racial group is based on the hereditary

physical traits often identified with a geographical region (…).

Akayesu (1998):

http://unictr.unmict.org/sites/unictr.org/files/case-documents/ictr-96-4/trial-judgements/en/980902.pdf (pp. 132-134)

«permanent and stable»-approach

Tutsi: are they a protected group?

Group membership: objective vs. subjective approach I

ICTR Akayesu (1998): Objective determination of group membership.

ICTR Kamuhanda (2003):

«[M]embership of a group is (…) a subjective rather than an

objective concept [where] the victim is perceived by the perpetrator

(…) as belonging to a group slated for destruction. A determination

of the categorized groups should be made (…) by reference to

both objective and subjective criteria»

Group membership: objective vs. subjective approach II

ICTY Jelisić (1999):

«to define a (…) group today using objective and scientifically

irreproachable criteria would be a perilous exercise whose result

would not correspond to the perception of the persons concerned by

such categorisation».

ICTY Brđanin (2004):

«subjective criterions of the stigmatization of the group, notably by the

perpetrators of the crime, on the basis of its perceived national, racial,

ethnical or religious characteristics».

Group membership approaches

Subjective approach

(perpetrator)

Subjective approach (victim)

Objective approach

Fig.: ICTR, ICTY and Darfur Commission’s approaches to defining group membership (case and year)

Subjective

approach

(perpetrator)

Subjective approach (victim)

Objective approach

Jelisić (1999)

Nikolić (1995)

Krstić (2001)

Akayesu (1998)

Bagilishema (2001)

Kayishema &

Ruzindana (1999)

Rutaganda (1999)

Kajelijeli (2003)

Musema (2000)

Ndindabahizi (2004)

Nahimana (2007)

Tolimir (2012)

Stakić (2006)

Semanza (2003)

Muvunyi (2006)

Kamuhanda (2004)

Brđanin (2004)

Seromba (2006)

Gacumbtsi (2004)

Blagojević & Jokić (2005)

Darfur (2005)

Genocidal process

Othering: ‘us’ versus ‘them’.

Genocide is, per definition, an identity-based crime.

The perpetrator identifies, singles out, stigmatizes, dehumanizes and

ultimately destroys his victims because of their group membership.

20. January 2019

The Special Intent: An Issue of Proof

Muhimana (2005):

«The Prosecution (…) has the burden of proving either that the victim

belongs to the targeted ethnic, racial, national, or religious group or that

the perpetrator believed that the victim belonged to the group»

Jelisić, who called himself the “Serb Adolf”, pleaded guilty to 31 counts of

crimes against humanity and war crimes in Luka camp in the summer of

1992.

He was convicted of 12 murders, although he had boasted to his prisoners

of killing at least 83 and that he enjoyed killing people before drinking his

morning coffee.

ICTY Jelisić (1999): an issue of proof

The Trial Chamber concluded

that the Prosecutor had failed

to prove that genocide was

committed.

https://create.kahoot.it/k/e458ed81-e3d7-43c3-8df8-be65247c3372

Cambodia

(1975-1979)

ECCC Summary of Judgement

Case 002-02 (published 16

November 2018):

26. The Chamber finds that during the Democratic Kampuchea period there

existed a policy to target the following groups, in order to establish an atheistic

and homogenous society without class divisions by abolishing all ethnic,

national, religious, racial, class and cultural differences: Cham, Vietnamese,

Buddhist and former Khmer Republic officials (including civil servants and

military personnel) and their families.

30. The Chamber thus finds that the crime of genocide and the crimes against

humanity of murder, extermination, imprisonment, torture, persecution on

political and religious grounds, (…) were committed with respect to the

Cham.

28. In addition, the Chamber finds that Cham people suffered

discrimination as they (…) were forced to eat pork and were prevented

from worshiping and speaking their native tongue.

29. Chamber is satisfied that perpetrators at (…) Security Centres

demonstrated a genocidal mental state toward the Cham found to have

been killed in those locations.

https://www.phnompenhpost.com/national/case-made-genocide-

verdict

32. These deliberate killings occurred on a massive scale, were

systematically organised and directed against the Vietnamese. In each

case, Vietnamese were targeted not as individuals but based on their

membership of the group and their perceived ethnicity.

34. The Chamber thus finds that the crime of genocide and the crimes

against humanity of murder, extermination, deportation and persecution on

racial grounds were committed regarding the Vietnamese.

https://www.youtube.com/watch?v=yRnWtbZv83w

Yazidi minority (Iraq) - ISIS (2013-)

Nadia Murat’s Nobel Peace prize lecture:

https://www.youtube.com/watch?v=CqB0cMvGnIk

Armenia (1915) http://www.vox.com/2015/4/22/8465257/armenian-genocide