GENOCIDE

A targeted crime with specific intent

INTRODUCTION
 Term was given by Raphael Lemkin to characterize the Nazi regime
featuring destruction of racial and ethnic groups.
 It was not a crime within the jurisdiction of IMT though the term
was used by the prosecutors.
 It has assumed the form of international crime and finds place under
treaty law.
 Convention on Prevention and Punishment of the Crime of
Genocide was adopted in 1948 as a reaction to the Nazi Genocide.
 Prohibition on Genocide is Jus Cogens. Democratic Republic of
Congo v. Rwanda (2006), Krstic, ICTY Trial Chamber (2001)
DEFINITION OF GENOCIDE
 Article II : 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.
FEATURES OF DEFINITION

 Limited to protected groups without defining them

 Protected groups are exhaustive
 Cultural genocide is not included
 Dolus Specialis ‘as such’
 No Contextual requirement
 Lone genocidaire
SCOPE OF LIABILITY
 Article III : The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
Article IV : whether they are constitutionally responsible
rulers, public officials or private individuals.
PROTECTED GROUPS

 Confined to four groups and excluding other groups.

 Stable and Permanent Group, Akayesu, ICTR Trial Chamber (1998)
 The list is designed to describe single phenomenon roughly of
national minorities, Krstic, ICTY (2001), so called four corners
approach.
 Objective approach : Self – Identification or Identification by
Others
 Thus both Subjective and Objective (Observable Group
Characteristics) approaches are to be considered.
PROHIBITED ACTS

 Physical or Biological Destruction is involved

 Unplanned and Spontaneous acts will be excluded
 Mere Negligence or Recklessness not sufficient
 Serious Harm must go beyond temporary unhappiness and must
involve grave and long term disadvantage to ability to lead normal
life.
 Slow death measures are included
 Both Mental and physical measures to prevent births are prohibited.
MENTAL ELEMENT

 Emphasis is not on context but genocidal intent

 Existence of plan or policy would, however, prove the intent of
individual perpetrator. Jelisic, ICTY (2001)
 Certain acts by their very nature would require collective or
organized action and certain other acts may not require so. A
Cassese
 An isolated individual acting with specific intent can, through
individual conduct, be guilty of Genocide.
 Context of ‘Manifest pattern of similar conduct directed against the
group’ is required under the ICC elements of Crimes.
MENTAL ELEMENT

 The prohibited act must be carried out with special intent to destroy.
 Intent based approach or knowledge based approach against the
difficulty of proving the state of mind of subordinates.
 Thus, mens rea would be associated with the leader and actus reus
will belong to subordinates.
 Knowledge based approach received support by ILC.*
 However, intent based approach has been favoured in accordance
with the plain words of the Convention.
CONCLUSION
 Genocide must be carried out with the special intent to destroy a
protected group.
 There is no objective definition of the protected group and thus
subjective factors have to be considered
 Lone Genocidaire is possible where a single attack could wipe out
the significant part of a group as such.
 the prohibited acts entail the idea of physical or biological
destruction of the group, with ‘the focible transfer of children to
another group’ as exception in the nature of cultural genocide.