The Crime of Genocide
4 February 2019
Carola Lingaas
Associate Professor
VID Specialized University
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