INTERNATIONAL CRIMINAL LAW

GROUP 9
1. PETER OCHIENG LAW/M/1360/09/21
2. TAABU DEBRA BOSIBORI LAW/MG/1459/09/20
3. BRIAN KIPCHIRCHIR LAW/MG/2258/09/21
4. BRIAN KIPKORIR LAW/MG/1636/09/21
5. OBED NYAKEGO LAW/M/1515/09/21
6. RENE GEOFF LAW/M1090/09/21
7. GLEN KAHENYA LAW/MG/1105/09/21
8. AARON HILLARY LAW/M/2258/09/21
9. FREDRICK MUKOKO LAW/MG/1535/09/21

GENOCIDE
HISTORICAL DEVELOPMENT OF GENOCIDE
The word genocide is derived from the Greek prefix genos, signifying
race or tribe, and the Latin suffix cide, indicating killing. It was coined by
Polish legal scholar Raphäel Lemkin in 1944, as a reaction to the
systematic extermination of Jewish individuals by the Nazis during the
Holocaust, and also as a response to historical occurrences involving
targeted actions directed at the annihilation of specific groups of people.
The inclination toward genocide might have existed as long as there has
been organized authority.1The Roman’s war against Carthage may the
first recorded incident of genocide, in 146 B.C. Rome launched a three-
year siege on the city and at least 150,000 Carthaginians perished, out of
a population of 2-400,000.2The Nazi Germany experience of genocide
stands out as the most notable and intentional, marked by thoroughness,
amounting up to the death of an estimated six million individual.
However, history offers additional instances of entire nations, as well as
ethnic and religious groups, facing destruction. Examples include the
wars of Islam and the Crusades leading to the destruction of religious
groups, the massacres of the Albigenses and the Waldenses.3 However
the Circassian Genocide or Tsitekun in the late 19th century is regarded as
1
Mahmood Mamdani, ‘A Brief History of Genocide’(2001), No.56, Transition
2
Ben Kiernan , ‘The First Genocide: Carthage, 146 BC’, (2004)
3
Raphael LemkinThe American Journal of International Law, Vol. 41, No. 1 (Jan., 1947), pp. 145-151
the most successful as it resulted in annihilation of 95-97% of the
Circassian population during the Russo-Circassian war.3 Although the
latter examples of genocide are not well known and presently are mostly
brought up in geopolitics.4
The Armenian genocide which occurred mostly during World War 1 by
the Turkish Led Ottoman Empire, is another major example of genocide
in the 20th century. In the early 20th century, the Ottoman Empire was
home to approximately 2.5 million Armenians, while they didn't make up
the majority in any specific region, they frequently inhabited
homogeneous settlements. Mass violence erupted multiple times in the
late 19th and early 20th centuries due to growing anti-Armenian
sentiments. In 1894, when Armenians in the Sasun region resisted an
oppressive tax, Ottoman forces and Kurdish tribesmen executed
thousands of Armenians. The fall of 1895 witnessed another wave of
mass killings, triggered by the Ottoman authorities' brutal suppression of
an Armenian demonstration in Istanbul, turning it into a massacre.
Between 1894 and 1896, hundreds of thousands of Armenians lost their
lives in these atrocities, later known as the Hamidian massacres.
Additionally, around 20,000 more Armenians faced death in urban riots
and pogroms in Adana and Hadjin in 1909.2

The extermination of the Herero in 1904 was the first genocide of the
twentieth century.5 In 1904, German Southwest Africa, present day
Namibia, experienced a political turmoil. The fate of the colony became
uncertain as the Herero, a modest agricultural community consisting of
around a thousand individuals, rose up in arms to protect their land and
livestock from German settlers. General Lothar von Trotha, who was
chosen by the Kaiser to replace the then governor stated that,“I believe
that the nation as such should be annihilated, or, if this was not possible
by tactical measures, have to be expelled from the country by operative
means and further detailed treatment. This will be possible if the water-
holes are occupied. The constant movement of our troops will enable us
to find the small groups of the nation who have
moved back westwards and destroy them gradually. My intimate
knowledge of many

25
Mahmood Mamdani, ‘A Brief History of Genocide’(2001), No.56, Transition
6
Ibid
central African tribes has everywhere convinced me of the necessity that
the Negro does not respect treaties but only brute force.”
The extermination of the Herero is deeply connected to the Jewish
holocaust that would become the most infamous case of genocide, as it is
in Africa that Germans had developed their technique. 6 Furthermore,
when General Trotha sought to diffuse responsibility for the genocide, he
accused the missions of, “inciting the Herero with the blood curling
history of the Jewish Old Testament." And it was in the Herero
concentration camps that the German geneticist Eugene Fischer (who
would later be appointed by Adolf Hitler as the rector of the University of
Berlin).Fischer first studied the concept of racial mixing, conducting
experiments on both the Herero people and the offspring of Herero
women with German heritage. Fischer contended that individuals of
mixed Herero-German ancestry, referred to as "mulattos," were deemed
physically and mentally inferior to their German progenitors. Hitler,
during his time in prison, read Fischer's work, titled "The Principle of
Human Heredity and Race Hygiene" (1921). Notably, one of Fischer's
influential disciples was Josef Mengele, who later oversaw the gas
chambers at Auschwitz.1
The term genocide is widely associated with the Jewish holocaust,
although the Nazi Germans were indicted of the crime of genocide during
the Nurembug trials, “They (the defendants) conducted deliberate and
systematic genocide, 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, Gypsies and others”,2 the first
person to be convicted of the crime would be the crime would be Jean-
Paul Akayesu, almost 5 decades later. 3
In the aftermath of the second world war all the offenses tried by the
Nuremberg Tribunal and its immediate successors were categorized as
having links to warfare, this restriction made it necessary to recognize the
crime as a separate international crime. Another argument forwarded for
categorizing the crime separately as an internationally crime Treating
genocide as a national crime would be unfeasible, given that it typically
involves actions by the state or influential groups with state support. It's
37
Mahmood Mamdani, ‘A Brief History of Genocide’(2001), No.56, Transition
8
Raphael LemkinThe American Journal of International Law, Vol. 41, No. 1 (Jan., 1947)
9
Ibid
unlikely for a government to prosecute a crime that it either initiated or
supported.2
Genocide was first recognized as an international crime by United
Nations the General Assembly Resolution 96(1) of 11 December 1946. It
was officially codified as a distinct criminal offense through the 1948
Convention on the Prevention and Punishment of the Crime of Genocide,
commonly known as the Genocide Convention. As of April 2022, 153
countries have ratified the Convention.
In 1951 the International Court of Justice declared that the prohibitions in
the conventions constituted customary international law. This implies that
regardless of whether States have officially approved the Genocide
Convention, they are all legally obligated to recognize genocide as a
prohibited crime under international law. The International Court of
Justice (ICJ) has further emphasized that the prohibition of genocide
peremptory norm of international law in international law, and as such,
no exceptions or deviations from this prohibition are permissible.
Article VI of the convention provides that “Individuals accused of
genocide or any of the offenses listed in article III will undergo trial
either in a capable court within the state where the crime occurred or
before an international criminal tribunal with jurisdiction over the
contracting parties that have agreed to its authority”. This became a
reality by the establishment of the International Criminal Tribunal for the
Former Yugoslavia in 1993 by UN Security Council resolution 827 and
International Criminal Tribunal for Rwanda in 1994 by UN Security
Council via Resolution 955.

The Rwandan genocide of 1944 is another infamous case of genocide.

The organized mass killing in Rwanda between April and July 1994,
known as the planned genocide, was orchestrated by extremist factions
within the majority Hutu community. Their intent was to eliminate the
minority Tutsi population and anyone opposing these genocidal plans.
Around 200,000 Hutu individuals, influenced by propaganda from
different media sources, actively participated in the genocide. Tragically,
over 800,000 civilians, mainly Tutsi but also moderate Hutu, lost their
lives during this horrific campaign. It is a peculiar case in that it marked
the first conviction of an individual for the crime of genocide.
CAN A SINGLE ACT AMOUNT TO GENOCIDE
Article 2 of the Genocide Convention provides for the legal definition for
the crime of genocide.
In accordance with that definition, the crime of genocide consists of 5
specific enumerated acts.
The Article also states that the acts in question must be carried out with a
specific intent, which is to destroy in whole or in part, ‘a national,
ethnical, racial or religious group as such’.
The acts are:
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 2 of the Genocide Convention is commended for having
provided a legal definition to the ‘crime without a name’, as it had been
so called by Prime Minister Winston Churchill, while he had been
speaking of the mass killing of the Jews by the Nazis. It is however,
difficult to understand why genocide can be carried out only through one
of the enumerated acts in the Genocide Convention, since there may be
other acts that can be resorted to with a view to destroying one of the
protected groups.
In light of this definition, key considerations when prosecuting genocide
include;
1. However serious the crime it is narrowly defined and many mass
killings cannot per se be considered a genocide
2. Genocide is a crime against a group even if it involves harming an
individual
3. It also requires the perpetrator to have a very specific mental state
while committing the crime.
One element of Genocide is specific intent which has to be realistic to the
perpetrator. He/she must believe that the intended goal can be achieved
through the commission of one of the acts. In the Mpambara case, an
ICTR Trial Chamber stressed that ‘even a single instance of one of the
prohibited acts’ can amount to genocide, ‘provided that the accused
genuinely intends by that act to destroy at least a substantial part of the
group’.
In Prosecutor v Bagilishema the chamber considered that a crime of
genocide is proven if it is established that one of the acts 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.
Relatively in the Akayesu case in paragraph 497 the chamber provided
that crime of genocide does not imply actual extermination of group In its
entirely, but is understood as such once any of the acts mentioned in
article 2 of the Genocide convention is committed with specific intend to
destroy in whole or in part a national, ethnical, racial or religious group.
In the Radislav Krstic case the prosecution accused the defendant of
Genocide of a part of Bosnian Muslim men 7000-8000 men. The trial
chamber held that he had the intent to commit the genocidal act and thus
these acts qualified as genocide.
PROTECTED GROUPS IN RELATION TO THE CRIME OF
GENOCIDE
Article 2 of the convention on the prevention and punishment of the
crime of genocide provides the following: “In the present convention,
genocide means any of the following acts committed with the intent to
destroy, in whole or in part, a national, ethnical, racial or religious group,
as such”
As such is used I with great significance in that article to show that the
offence requires intention to destroy a collection of people who have a
particular group identity. The groups here being:
1. The national
2. The ethnical
3. The racial
4. The religious group
Definition of genocide can also be found in article 6 of the Rome statute,
Article 4 of the ICTR
Article 2 of the ICTY
Group Membership
The crime of genocide differs from other international crimes in that it
protects a group of people and not the individual
The killing or harming of the individual is a means to an end as a result
the victim is the group as a whole and not the individual himself
As described earlier the term ‘as such’ is used in the statutes to mean a
group with a common identity.
Akayesu case
This was the first ever case where an individual was convicted for
genocide and therefor gives important precedents on the definition of the
outlined protected groups
a. The definition of a national group
The ICTR in Akayesu defined a national group strictly as a collection of
people who are perceived to share a legal bond based on common
citizenship coupled with reciprocity of rights and duties
b. The definition of an ethnical group
In the same case it defined an ethical group as a group whose members
share a common language or culture. The tribunal determined that that the
Tutsi victims were an ethnic group. This definition was however vacated
and ethnical group came to be defined as groups composed of individuals
who conceive themselves as being alike by virtue of their common
ancestry, real or fictious and who are so regarded by others
c. The definition of a Religious group
The Akayesu case defined a religious group as one whose members share
the same religion, denomination or mode of worship. It is also defined as
a community united by a single, spiritual ideal
d. The definition of a Racial group
The tribunal defined a racial group as: the hereditary physical traits often
Identified with a geographical region, irrespective of linguistic, cultural,
national or religious factors
The objective and subjective approach in defining the protected
groups
While Akayesu employed and objective approach nearly all later
judgements chose to rely on a subjective approach. This shift was
correctly recognized by the ICTY in the case of Jelisic:
To attempt to define a national, ethnical, racial or religious group using
objective irreproachable criteria would be a perilous exercise.
The perpetrator’s perception of the group thereby becomes the defining
element for the crime of genocide but this perception cannot go beyond
the four categories provided for by the convention
Cases post Akayesu
The ICTY pronounced two judgments that gradually distanced
themselves from the objective approach by Akayesu. One being
Rutaganda. It highlighted that:
The concept of national, religious, racial and ethnic groups has been
researched and no one definition is generally accepted it must be
informed on a case by case analysis.
Rutaganda therefor allowed for either a perpetrator or a victim based
approach
Positive and Negative definition of a protected group
A positive approach would be the perpetrators of the crime distinguishing
a group by the characteristics which they deem to be particular to a
nation, ethnic, racial or religious group. A negative approach would be
identifying individuals as not being part of the group that the perpetrators
consider themselves being part of
In the Brdanin case in the ICTY it did not allow for the group
identification by exclusion this was affirmed in the case on the
application of the genocide convention

Mental and Material elements of the crime of genocide

Mental element
The first key element in the definition of genocide is the specific intent to
destroy a protected group in whole or in part. This subjective element is
not only what differentiates genocide from other serious crimes; it is also
what makes it an international offence. The implication of the
requirement of this mental element is that the perpetrator does not
necessary need to succeed in his attempt to destroy the entire protected
group. What is required for genocide to be considered as committed is
merely that a prohibited act committed against a substantial part of the
protected group aimed at the destruction of that group; even if, in the end,
nothing actually happened to the group in question. The part of the group
aimed at may be substantial either in size (in terms of numbers) or in
quality (in terms of its prominence or in terms of the leading role it plays
within the protected group as a whole; persons concerned in this category
may include, intellectuals, spiritual leaders, leaders of opinion, scientists,
etc.).
Absent the specific ‘intent to destroy’, the crime committed would merely
amount to either mass murder or crimes against humanity. The specific
intent to destroy a group is the qualitative element that transforms into
genocide a conduct that would otherwise amount to an act of crime
against humanity or mass murder. Such intent constitutes, therefore, the
essence of genocide. When it is present, the conduct itself does not need
to be completed to constitute genocide, as we shall see later when
discussing the act of ‘attempt’ to commit genocide. In addition, to
‘destroy’ in the sense of Genocide Convention Article II connotes a
physical or biological annihilation of the protected group.

Requiring that the genocidal intent be directed against a national, ethnic,

racial or religious group ‘as such’, means that the victim is chosen not on
account of his individual characteristics or identity, but rather because of
his membership to at least one of these groups.

However, the most common problem associated with the determination of

the mental element of the crime of genocide is that, in practice, its
presence is difficult to prove. In many cases, genocidal intent is inferred
from the general context of the crime itself.

Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber),

September 2, 1998, para. 498, 517-522: “Genocide is distinct from other
crimes insomuch as it embodies a special intent or dolus specialis.
Special intent of a crime is the specific intention, required as a
constitutive element of the crime, which demands that the perpetrator
clearly seeks to produce the act charged. Thus, the special intent in the
crime of genocide lies in ‘the intent to destroy, in whole or in part, a
national, ethnical, racial or religious group.’” The Chamber found that
“the offender is culpable only when he has committed one of the offences
charged under Article 2(2) . . . with the clear intent to destroy, in whole or
in part, a particular group. The offender is culpable because he knew or
should have known that the act committed would destroy, in whole or in
part, a group.” See also Musema, (Trial Chamber), January 27, 2000,
para. 164
Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 91: “It
is this specific intent that distinguishes the crime of genocide from the
ordinary crime of murder. The Trial Chamber opines that for the crimes
of genocide to occur, the mens rea must be formed prior to the
commission of the genocidal acts.”
Material Elements
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 Article 2 of the Genocide Convention may form
the actus reus of genocide. They are;
i. Killing
The act must be intentional but not necessarily premeditated.
According to Article 30 of the Rome Statute, genocidal killings
must be intentional in proceedings before the ICC. If there is doubt
about the intention to kill, rather than the intention to cause serious
harm, it is of course possible to charge the defendant pursuant to
Article 2(b) of the Convention for the conduct that led to the death.
ii. Causing serious bodily or mental harm to members of the
group
In A-G of Israel v. Eichmann (1968) 36 ILR 5 (DC)
340(Eichmann case), the District Court of Jerusalem said that
serious bodily and mental harm could be caused ‘by the
enslavement, starvation, deportation and persecution of people ...
and by their detention in ghettos, transit camps and concentration
camps in conditions which were designed to cause their
degradation, deprivation of their rights as human beings and to
suppress them and cause them inhumane suffering and torture’.
The ICTR in the Akayesu case broke new ground in deciding that
acts of sexual violence and rape can constitute genocide; sexual
violence was found to be an integral part of the process of
destruction in the Rwanda genocide.
Serious mental harm does mean more than minor or temporary
impairment of mental faculties, but neither mental nor physical
harm need be permanent or irremediable.
The term ‘serious’ is one which involves a value judgment, there
will be differing views on what treatment is included. In
Kayishema case, it was decided that decisions on what is meant by
 serious bodily or mental harm should be made on a case-by-case
basis.
iii. Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part
Comprises methods of destruction whereby the perpetrator does
not immediately kill the members of the group, but which seek to
bring about their physical destruction in the end.
The ICC Elements of Crimes interpret the term ‘conditions of life’
as including but ‘not necessarily restricted to, deliberate
deprivation of resources indispensable for survival, such as food or
medical services, or systematic expulsion from homes’. Unlike the
two previous categories, this is not a result-based form of the
crime, but it requires that the conditions are ‘calculated’ to achieve
the result.
Forced migration of people, commonly known ‘ethnic cleansing’,
has been considered under the head of deliberate infliction of
conditions of life. This practice, when committed by the Serbs to
eliminate the Muslim presence in large parts of Bosnia-
Herzogovina, was regarded by ad hoc Judge Lauterpacht in the ICJ
provisional measures ruling of 13 September 1993 as constituting
genocide.
But ethnic cleansing does not necessarily constitute genocide. In
the case of Eichmann the District Court of Jerusalem found that,
before 1941, Nazi persecution of the Jews was aimed at persuading
them to leave Germany. Only later did the policy develop into one
for their destruction. Since the court doubted that there was a
specific intent to exterminate before 1941, Eichmann was acquitted
of genocide for acts before that date. The fact of forced migration
alone is not enough for a court to deduce the special intent of
destruction of the group.
iv. Imposing measures intended to prevent births within the group
This provision was inspired by the Nazis’ practice of forced
sterilization before and during the Second World War. Examples of
these measures given by the ICTR Trial Chamber in Akayesu are
sexual mutilation, sterilization, forced birth control, separation of
the sexes and prohibition of marriages.
v. Forcibly transferring children of the group to another group
 The ICC Elements of Crimes, interprets children as being those
below 18 and noting that ‘[t]he term ‘‘forcibly’’ is not restricted to
physical force, but may include threat of force or coercion, such as
that caused by fear of violence, duress, detention, psychological
oppression or abuse of power, against such person or persons or
another person, or by taking advantage of a coercive environment’.
PROOF OF SPECIAL INTENT
The men rea for the crime of genocide encompasses the required
intention to commit the prohibited conduct (general intent) and a second
subjective element referred to as special, specific or ulterior intent. Both
the subjective elements must be determined separately.
Special intent is described as the intent to destroy in whole or in part a
protected group as such. This mental element is an essential part as it
gives genocide its specialty and distinguishes it from the ordinary crimes
and other international crimes4. This element requires that the perpetrator
clearly intended the result charged. In the case of genocide, the
perpetrator must intend that his or her actions will result in destruction, in
whole or in part, of a protected group5. The ICTR trial chamber in
Rutaganda case stated that for any acts charged to constitute genocide, the
said acts must have been committed against one or more person because
such person or persons were members of that specific group, and
specifically because of their membership in this group.6
A perpetrator of genocide must;
Intend to destroy
In whole or in part
A protected group
Intend to destroy
To destroy in this case means the physical and biological destruction of a
protected. As held by the ICTR;
Customary international law limits the definition of genocide to those
acts seeking the physical or biological destruction of all part of the group.
An enterprise attacking only the cultural or sociological characteristics of
a human group in order to annihilate these elements which gives that

4
Prosecutor v Jean Kambanda, case No ICTR-97-5, 4 Sept 1998.
5
Georges A. N Rutaganda, case No.ICTR-96-3-T, Trial judgement, 6 Dec 1999 pg 59
6
Ibid, pg 60
group its own identity distinct from the rest of the community would not
fall under the definition of genocide7.
The specific intent of genocide therefore does not include;
Simply to harm the group or even to discriminate against the group, or
even to commit discriminatory killings, but rather the specific intention of
the perpetrator must be to destroy the protected.
Methods of material destructions of a group can include; forcible transfer,
destroying a significant section of a group such as the leadership,
systematic destruction of the male members of a part of a group which
has detrimental consequences for the survival of a group.
In whole or in part
To be convicted of genocide, a perpetrator must intend to destroy a
protected group entirely or in part. In part implies seeking to destroy a
distinct part of the group as opposed to an accumulation of isolated
individuals within it. The perpetrators must view the part of the group
they wish to destroy as a distinct entity which must be eliminated as
such8.
A perpetrator need not intend to annihilate the entire targeted group. In
part requires intention to destroy at least a substantial part group.9
Although the part targeted must be substantial it does not need to form
part of an important part of the group.10 There is no numeric threshold of
victims necessary to establish genocide however the numeric size of the
targeted part of the group can help to determine whether it is a substantial
part of the group as a whole.11 Part of the group can also be defined
geographically, that is, a specific identity located in a particular
location.12

7
Radislav Krystic, case No.IT-98-33-A, Appeal judgement, 19 April 2004, pg 25
8
Radislav Krystic, Case No. It-96-33-A, Trial judgement, 2 Aug. 2001
9
Ignace Bagilishema, case No ICTR-95-1A, Trial judgement, 7 June 2001.
10
Goran Jelisic, case No. IT-95-10T, Trial Judgement, 14 Dec 1999.
11
Krystic, Aj.
12
Krystic, Tj.