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GENOCIDE:
Genocide, as General Assembly Resolution 96(1) declared, “is a denial of the right of existence of entire
human groups”. It is a crime simultaneously directed against individual victims, the group to which they
belong and human diversity.
The legal concept of genocide is narrowly circumscribed and many acts which do not constitute genocide
will constitute crimes against humanity.
The form of intent is a necessary element of crime, there should be intend to destroy group, and that
element distinguishes it from all other international crimes. This explains why genocide is regarded as
having a particular seriousness and the seriousness of the crime is underlined by the fact that its
prohibition has attained jus cogens status and erga omnes obligations on states.
The standard definition of genocide is contained in Art. 2 of the Genocide Convention which is adopted
verbatim in the statutes of the Ad Hoc Tribunals and of the ICC.
Article 2 of 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.
The Protected Groups: Not all groups of people are protected by the Genocide Convention. The
Convention lists only national, ethnic, racial and religious groups and the list is a closed one. During the
negotiations of the Convention attempts were made to include others, such as social and political
groups, but these failed.
Material Elements:
– The prohibited acts: Not every act committed with the intention to destroy, in whole or in part,
a protected group will lead to a conviction for genocide. Only those which are mentioned in Art.2
of the Genocide Convention may form the actus reus of genocide. Although all of the undelying
crimes are defined by reference to victims in the plural, the ICC elements state that even one
victim sufÏces, if the relevant act is committed with the necessary intent. This is a controversial
conclusion in relation to subparagraph (c) of Art.2, which refers to inflicting conditions of life on
the group.
– The contextual element: The ICC Elements have an additional material element, which was
introduced to avoid the problem that isolated hate crimes could fall within the Convention
definition, reducing the seriousness of the term ‘genocide’. In relation to each prohibited act the
element requires that: 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.
The first part of this element reflects the more likely situation, where the individual accused is
acting within a broader context in which others are also commitÝng acts of genocide against the
targeted groups.
The second part applies where the conduct in question could itself effect such destruction.
Although it is less likely, this could occur where a group is particularly small or where the accused
has access to powerful means of destruction with genocidal intent. In such a case, there is no
need for a pattern of similar conduct since the accused is in a position to pose a real threat to a
protected group.
In the ICC, a majority in a Pre-Trial Chamber has taken the view that the contextual provision in
the Elements is not inconsistent with the ICC Statute which includes the Genocide Convention
definition and therefore it has applied it. The Chamber took the view that the contextual
element was fully consistent with the traditional consideration of the crime of genocide as the
‘crimes of crimes’. Indeed if genocide is to be seen as a particularly serious crime, some
threshold of objective ‘scale and gravity’ must be maintained and the ICC elements provision
offers a formulation which has been accepted and adopted by consensus by the international
community.
However, after Krstic the Tribunals will not be accepting the contextual element within their own
jurisprudence.
Mental Elements: The mental elements of genocide comprise both the requisite intention to commit the
underlying prohibited act(such as killing) and the intent special to genocide. It is the special intent to
destroy in whole or in part as such that distinguishes genocide from the other crimes. But the meaning to
be attributed to this intent requirement is a matter of some difÏculty. There are four aspects to be
considered and they are interconnected.
1) to destroy: There must be an intent to destroy. The destruction specified here is physical or
biological. Social assimilation or cultural loss, in the absence of physical or biological destruction,
does not amount to genocide.
2) In whole or in part: There must be an intent to destroy the protected group in whole or in part.
This aspect of the intention is quite controversial. This is because the ambit of the protections
granted by the prohibition of genocide is quite heavily dependent on how broadly or narrowly
the relevant group is conceptualized. According to ICJ, it is widely accepted that genocide may be
found to have been committed where the intent is to destroy the group within a geographically
limited area. Moreover, the case law of the Tribunals has established that it is not genocide if the
intention is to target a part which is less than substantial.
3) As such: There must be an intent to destroy the group or part of it ‘as such’. During the
negotiation of the Convention there were those who wanted to include motive as a necessary
element of genocide. Others did not. The compromise which allowed agreement to be reached
was to exclude any explicit reference to motive but to include the word as such. The
discriminatory nature of genocide seems to require a motive; the victims are singled out not by
reasons of their individual identity but because of their membership of a national, ethnic, racial
or religious group. It is not surprising therefore that the decisions of the Ad Hoc Tribunals have
sometimes used the language of motive, referring to the need for the accused to seek or aim at
the destruction of group. If it is possible to untangle the sometimes apparently conflicting case
law of the Tribunals, it can be said that the Tribunals distinguishes between motive and
genocidal intent-personal motivation for the perpetrator’s participation in the crime is not
relevant- but having a discriminatory purpose for the crime is intrinsic to the special intent.
4) Intent: Unlike the crime of aggression, genocide is not a crime that may be committed only by
those who lead and plan the campaign of destruction. The rank and file may also be principal
perpetrators of genocide, provided they have the requisite intent. The special intent required for
genocide necessitates each individual perpetrator, whether leader or foot soldier, having the
intention to destroy the group or part of it when commitÝng any of the prohibited acts. It is
different from the normal intent in criminal law, as exemplified in Art.30 of the ICC Statute. That
article provides that in relation to conduct, the individual must mean to engage in the conduct
and in relation to consequence the individual must mean to cause that consequence or is aware
that it will occur in the ordinary course of events. That is a less stringent requirement than what
is now regarded as constituting the special intent for genocide and subject to what is said below
the intent requirement of Art.30 will therefore not be applicable in the ICC genocide cases.
Proof of Special Intent: Direct evidence of genocidal intent may not be available. In the absence
of such, the Tribunals have been prepared to deduce intent from circumstantial evidence
including the actions and words of the perpetrator.
WAR CRIMES:
A war crime is a serious violations of the laws and customs applicable in armed conflicts(International
humanitarian law) which gives rise to individual criminal responsibility under international law. Unlike
crimes against humanity, war crimes have no requirement of widespread or systematic commission. A
single isolated act can constitute a war crime. For war crimes law, it is the situation of armed conflict that
justifies international concern.
The relationship between war crimes and IHL: War crimes law criminalizes a narrower subset of IHL. The
major question is that which of the rules of IHL constitutes a criminal offence when violated. Some
treaties such as the Geneva Conventions expressly criminalize violations of identified fundamental
provisions. War crimes may also be found in customary law even in the absence of a treaty provision
criminalizing the norm.
In the Tadic decision on jurisdiction, the Appeals Chamber confirmed that not every IHL violation
amounts to a war crime. The Appeals Chamber in Tadic set the following requirements for war crimes
within the jurisdiction of the Tribunal: 1) the violation must infringe a rule of IHL, 2) that rule must be
found in customary law or applicable treaty law, 3) the violation must be serious, in that the rule
protects important values and the breach involves grave consequences for victim, 4) the violation must
entail individual criminal responsibility.
The approach of recognizing serious violations of IHL as war crimes largely inspired the selection of
crimes in the ICC Statute.
The ICC Statute contains an extensive list of 50 offences, including grave breaches of the Geneva
Conventions, serious violations of common article 3 and other serious violations drawn from various
sources. Since the goal of the drafters was to reflect customary law rather than to create new law, many
provisions from previous instruments were excluded because of a lack of consensus on their customary
law status. The ICC Statute, while lengthy, does not include all war crimes recognized in the customary
law; an example often cited is the prohibition on the use of chemical or biological weapons. As expressly
noted in Art.10 of the Statute the absence of a provision in the ICC Statute does not affect its status as
existing or developing international law.
Common Issues:
–Armed Conflict: The essential element for any war crime is the nexus with armed conflict.
Distinguishing between international and internal armed conflicts:
!!!Proxy Forces: A seemingly internal conflict may be rendered international where it is
found that local armed groups are in fact acting on behalf of an external State. The majority
of the Trial Chamber in the Tadic case referred to the ICJ’s Nicaragua decision which had
adopted a stringent effective control test to determine whether acts of an armed band could
be attributed to a State. The Appeals Chamber clarified that for individuals or for groups not
militarily organized, instructions or ex post facto endorsement or approval from a third state
may be required; however, with respect to armed groups, the Chamber replaced the test of
effective control by that of overall control. Under the overall control test, it is not necessary
to produce evidence of specific orders or instructions relating to particular military actions. It
is sufÏcient to establish overall control going beyond the mere financing and equipping of
such forces and involving also participation in the planning and supervision of military
operations.
Distinguishing internal conflict from riots and disturbances: The general war crimes law
applies a single threshold for all crimes in internal armed conflict. This conclusion is based on
four propositions.
1) Intensity of the conflict and level of organization of the parties. This widely accepted test
was first provided in Tadic case.
2) The statement in AP II and Art.8(2)(d-f) of the ICC Statute that “situations of internal
disturbance and tensions, such as riots, isolated and sporadic acts of violence and other
acts of similar nature” do not constitute armed conflicts, is also implicit in armed
conflicts. The statement is simply the corollary of the requirements of intensity and
organization.
3) Additional restrictions appearing in AP II have not been absorbed into the general law of
war crimes. For example, AP II requires that one party to the conflict be a government,
whereas tribunal jurisprudence and ICC Statute recognize armed conflict entirely
between armed groups. In addition, control of territory was rejected as a requirement in
Tribunal jurisprudence and the ICC Statute.
4) Threshold in the ICC Statute can be interpreted constantly with Tribunal jurisprudence.
Indeed, Tribunal and ICC cases have referred each other. While the requirement of
protracted violence appears only in Art.8(2)(f) of the ICC Statute, the requirement is
inherent in the concept of armed conflict and hence applicable to all war crimes in
internal conflict.
–Nexus between conduct and conflict: In order to constitute a war crime conduct must be linked
to an armed conflict.
The Perpetrator: The law of war crimes does not govern only members of armed forces or
groups and their leaders. The fact that a perpetrator is a member of an armed force does
help to establish the nexus to armed conflict, but it is not a requirement. The conduct of
civilians can be a war crime even if it is not imputable to a party to the conflict, provided that
the nexus requirement is met. The ICC Elements of Crimes indicate that a person cannot be
convicted as a war criminal unless he or she has the necessary awareness of the factual
circumstances that make the conduct a war crime.
The victim or object of crime: The definitions of many war crimes include certain criteria with
respect to the victim or object of the crime.
The jurisdictional threshold in the ICC Statute: Art.8(1) of the ICC Statute provides that the
ICC shall have jurisdiction in respect of war crimes in particular when committed as part of a
plan or policy or as part of a large scale commission of such crimes. It must be emphasized
that this is not an element of a war crime and even a single isolated act can constitute a war
crime. This article is rather an indicator to the ICC as to how it ought to exercise its
jurisdiction, namely to focus its resources not on isolated war crimes but on the most serious
situations.
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