Genocide Project

9.1 Evidential Challenges

Lon Fuller pointed out that ‘if intention is a fact, it is a private fact inferred from out¬ ward manifestations. External manifestations of intent might be particularly rare and hard to detect in a criminal context where those concerned have an interest in keeping their acts and their intentions shielded from view. ‘This is the reason why’, the Akayesu Trial Chamber found, ‘in the absence of a confession from the accused, his intent can be inferred from a certain number of presumptions of fact’.

The evidential challenge generally involved in establishing an accused’s intent is accentuated in the case of genocide by a number of factors specific to that offence. First, the requisite genocidal intent is eminently specific and evidentially demanding. It requires proof of three discrete sub-elements: an intent, to destroy, a group as such. In effect, these three elements imply not one level of special intent, but two—one in regards to the ultimate target of his action, the group, and one in regards to the intended fate of the group, that is, its physical or biological destruction.4 This double level of special intent itself comes in addition to the necessary ‘general intent’ that the accused must have possessed to commit the underlying act which forms the basis of the charges.

Second, an intent to destroy a group of human beings is rarely publicized and is often dissimulated by the perpetrators. In such cases, the culpable intent will have to be inferred from what might have trickled from the words and actions of the accused and others involved in the commission of the crime. The available evidential indicators will often offer a variety of possible narratives, some of which might be criminal but not necessarily genocidal. These narratives will have to be reduced to a single one that dispels any ambiguity regarding the state of mind of the accused and leaves no reasonable doubt about his intentions? This challenging exercise has been well summarized by a Judge of the Yugoslav Tribunal:

Proving intent, in particular intent to destroy a part of a protected group, is difficult. Evidence of utterances of the physical perpetrators suggesting such intent is rare. There is an inherent and complex evidentiary issue with regard to establishing the intent vis-i-vis the fate of the group as such, where the physical perpetrators act in a limited geographic area and at a relatively low level of hierarchy and responsibility. As is often the case when analysing mens re a, the mental state of the physical perpetrators must be determined based on inferences from their acts and omissions. In this respect, it is insufficient to rely on the fact that the physical perpetrators committed murder, extermination, or persecution. The acts as established by the Trial Chamber were horrendous, widespread, and systematic. However, the only question here is whether the only reasonable inference to be drawn from their acts and omissions is that the physical perpetrators intended to physically or biologically destroy a part of the protected group as such.

9.2 Standard of Proof and Drawing of Inferences

In the absence of direct evidence of genocidal intent, the special intent of the accused may be circumstantially inferred from his actions and words. However, because of the presumption of innocence, an inference based on circumstantial evidence must be the only reasonable inference that can be drawn from the evidence.

9.3 Holistic Approach to Assessment of Evidence

9.3.1 Evidence to be considered as a whole and in context

To evaluate whether the accused possessed the requisite mens reat the court must consider the overall factual picture within the context in which the accused’s acts occurred, rather than each individual incident or alleged genocidal act. Said differently, when assessing the evidence of genocidal intent, one should consider whether ‘all of the evidence, taken together, demonstrates a genocidal mental state’, instead of considering whether the accused intended to destroy a protected group through each of the separate relevant acts that form the basis of the charge. This assessment will require the court to consider the acts and words of the accused, not in isolation, but within the context of the overall criminal picture to which they belong or with which they are associated.

9.3.2 Nature and quality of the evidence

What evidence may be relevant to establishing the accused’s genocidal intent will vary from case to case. The law of genocide does not limit the kind of evidence that could be relevant to that determination, although practice has now identified certain categories of evidence that are a priori relevant to establishing such intent. In particular, a finding that the accused possessed the requisite genocidal intent may, in principle, be established by evidence of what occurred either before, during, or after the commission of the crime relevant to the charges. It might be based on evidence of various degrees of reliability, but the totality of the evidence must in all cases meet the requisite standard of proof. That the accused did not possess the same level of information about a genocidal venture than his fellow participants would thus not exclude a finding that he possessed the requisite mens rea if this can otherwise be established from the totality of the evidence.

9.3.3 Genocidal intent and reasoned opinion

When fulfilling its obligation to render a reasoned opinion in relation to charges involving allegations of genocide, a court must be mindful of the critical nature of its finding regarding the requirement of genocidal intent. Thus, the court is expected to ensure that it makes clear and detailed findings in relation to that ‘touchstone issue’.

9.4 Basis for Inference and Relevant Evidential Factors

9.4.1 General considerations

Where the accused is allegedly responsible for genocide, the prosecution must show that the accused possessed the requisite genocidal intent when he committed the underlying conduct relevant to the charges.18 A number of factors have been identified that are a priori relevant to—albeit not necessarily conclusive of—the question of whether an accused possessed the necessary genocidal intent.19 These factors include the following:

• deeds and utterances of the person to whom genocidal intent is attributed;
• the general context in which the acts were carried out;
• the accused/perpetrator’s personal circumstances, education, and position;
• the accused’s physical presence at relevant locations, in particular the crime scene;
• evidence of acquiescence with criminal acts;
• statements or acts inciting or encouraging the commission of crimes;
• evidence of national, racial, religious, or ethnic bias or prejudice;
• evidence of personal involvement in relation to certain actions central to the com¬ mission of the crimes;
• the perpetration of other culpable acts systematically directed against the same group;
• the scale and nature of the atrocities, including their general occurrence in a region or a country;
• proof of the accused’s state of mind with respect to the commission of the under¬ lying acts;
• knowledge of other people’s genocidal intent;
• the repetition of violent and discriminatory acts directed at the relevant commu¬ nity of individuals;
• attacks on religious and cultural objects and symbols;
• acts of deportation and forcible transfer of members of the targeted community;
• subjection of members of the group to inhumane living conditions;
• opportunistic killings;
• the prominence of the targeted individuals within their community;
• a ‘pattern of purposeful action’;
• the systematic targeting of victims on account of their membership of a particular group and modus operandi
• the fact that members of other groups were spared;
• the existence and repetition of discriminatory acts and practices;
• the number of people killed in absolute terms and relative to the overall size of the group;
• an awareness of incidents of mass killings;
• the means and methods used to carry out the crimes, in particular, the systematic and organized manner in which it was carried out;
• the methodical planning that went into the crimes and their implementation;
• the type and number of weapons employed to commit the crimes;
• the extent of bodily injuries caused;
• the use of derogatory language towards members of the group;
• the targeting of property belonging to members of the group;
• the area in which the perpetrator was active;
• the fact that the perpetrator may have targeted the same group during the commission of other criminal acts;
• the perpetrators demonstrated intent to kill his victims;
• the gravity of the act;
• the general political doctrine which gave rise to the acts;
• the fact that the crimes in question otherwise ‘violate the very foundation of the group’;
• statements or utterances by the accused/perpetrator relating to the fate of the group or the victims have used to help establish his criminal state of mind;
• efforts to dissimulate the crimes;
• steps taken to erase the existence of members of the group;
• the systematic detention of members of a group and associated death rate;
• the commission by physical perpetrators of other culpable acts;
• connections between physical perpetrators in terms of time, location, and composition of their group;
• proof of the existence of a plan or policy to commit the crimes;
• the display of genocidal intent through public speeches59 or at meetings.

Acts which might not qualify as acts of genocide per se because they fail to meet the elements of one of the recognized categories of genocidal crimes could still be relevant as evidence of the specific intent of a perpetrator if these acts provide indications of the perpetrator’s state of mind.61 This could be the case, for instance, of acts of forcible expulsion62 or attacks on cultural objects.

Other considerations could also be relevant insofar as they might, depending on the circumstances, provide evidence militating against a finding of genocidal intent. This category of evidence could include, for instance, the following: evidence of good deeds towards members of the targeted group;64 selectivity in the killing, which might suggest that considerations other than a genocidal intent determined the scope of victimhood; the crimes committed were neither widespread nor systematic; the crimes charged were not backed by an organization or a system;66 evidence of a disturbed personality which might explain the conduct of the perpetrator;67 randomness and contradictory nature of the acts of violence attributable to the accused; indications that the perpetrators had a different intention than the destruction of a group (e.g., the elimination of rebels or political opposition);69 the fact that the perpetrator(s) made no effort to eradicate surviving members of the group, thereby suggesting an absence of destructive mindset towards the group as such; conditions of life and treatment of victims incompatible with an intent to destroy; humanitarian efforts carried out to assist the concerned population; evidence that the acts were motivated only by goals other than the destruction of a group; absence of sufficient connections or affiliations between the disparate physical perpetrators of different crimes; surrounding facts and circumstances (including the relatively small number of victims from each prohibited act); insufficient evidence to determine the scale of the other culpable acts committed by the same perpetrators; speeches and statements reasonably understood to be propaganda or directed at a military enemy, rather than an expression of a genocidal intent, including speeches and statements reasonably consistent with a desire to separate communities rather than destroy one of them; evidence of an intent which falls short of an intent to destroy (such as an intent to displace or create ethnically homogeneous locations); misolated nature of the acts; and indications that the perpetrators intended to punish rather than destroy members of a group.

The factors listed above are by no means exhaustive. Which factors are ultimately relevant in a particular case will depend on the specifics of that case.’ The assessment of all relevant circumstances would determine whether the only reasonable inference is that of genocidal intent, or not. A number of particularly important factors are considered in more detail in the following.

9.4.2 Evidence of conduct and statements of the accused

The accused’s participation in, and contributions to, acts of killing and other forms of abuse or mistreatment of members of a targeted group would provide critical indicia regarding the possible presence of the requisite intent. The accused’s role in planning, organizing, or implementing a murder operation or other types of violence against such individuals would be particularly relevant in that context. The number of incidents in which the accused was involved,86 as well as the continuous nature of his involvement in the commission of crimes against members of a group would also be relevant to such an inference.

However, the mere fact of an accused’s involvement in an operation in which acts of genocide were committed would not necessarily be sufficient, on its own, to draw the necessary inference that he possessed the genocidal intent. The scope and nature of his participation, as well as the information that would have been available to him as a result of his role, would be directly relevant to drawing an inference on that point89 His position and function in such an operation would also be an important factor.

Proof that the accused had the requisite intent to commit the underlying offence with which he is charged (killing, for example), may also serve as evidence from which to draw ‘the further inference that the accused possessed the specific intent to destroy [one of the protected groups]’. In other words, the commission of the actus reus of a crime of genocide could be relevant, though not necessarily conclusive, evidence of his having acted with the requisite dolus. The two elements of mens rea—that attaching to the underlying crime and the genocidal intent—are legally distinct, however, and both must be established in each case in relation to the accused.

Statements and utterances of the accused (in whatever form) might also be relevant. Orders to commit crimes or inciting and encouraging words intended to lead to the commission of crimes would provide relevant evidence of the accused’s state of mind.94 Implied calls to kill members of the targeted group could also constitute evidence of genocidal intent. The accused’s use of derogatory language to describe the targeted group or its member might also be relevant evidence of genocidal intent.

Similarly, the presence of the accused at relevant sites, particularly when combined with words or other forms of encouragement, could provide evidence from which the requisite intent could be inferred. However, mere presence at the scene of a crime would not in and of itself necessarily allow for the drawing of such an inference.

Evidence of acts and decisions attributable to the accused could also be relevant insofar as it would contradict the suggestion that he possessed the requisite intent. For instance, evidence of his refusal to carry out criminal orders or to take part in acts of killing could militate against an inference of genocidal intent.

9.4.3 Genocidal intent of third parties

An inference that the accused possessed the requisite genocidal intent will often be based on what he is shown to have known about other people’s state of mind.

Particularly important in that context is proof that the accused had knowledge that the perpetrators of underlying acts, for which he is allegedly responsible, possessed the requisite genocidal intent. This could be the case, for instance, in relation to subordinates of the accused, individuals above him in the hierarchy, or third parties operating ‘horizontally’ alongside him. In the context of a single hierarchical structure, such as a military hierarchy, the involvement of individuals who serve at different levels of the hierarchy in killing operations could also provide circumstantial evidence of genocidal intent of those involved.

The accused’s knowledge of other people’s genocidal intent might not be enough in all cases for the court to draw an inference that the accused possessed the requisite intent, although he might have acted alongside perpetrators who possessed that intent. What inference may ultimately be drawn from the accused’s knowledge of the acts and state of mind of others will ultimately depend on the nature, extent, and detail of what he knew and what he personally did. In every case, however, the special intent must be established in relation to the accused or perpetrator of the crime.

9.4.4 Motives and inference of special intent

Proof that the accused acted pursuant to certain motives may, in some circumstances, be relevant to drawing inferences regarding his intentions.108 Thus, for instance, proof of racist motivations or his support for an extremist political agenda may support a finding that the accused possessed the requisite genocidal intent if it can be shown that these motivations are consistent with or indicative of the accused’s genocidal intent. In contrast, motives or, rather, an explanation for why the accused may have acted in a particular way, could rebut the suggestion that he possessed the requisite dolus specialist0 In all cases, however, the fact that the accused may have had certain reasons to commit a crime is not in itself conclusive of his having had the required mens rea.iu Conversely, the fact that the accused may have had particular motives unrelated to a genocidal enterprise, such as a desire to avenge some old family feud or to eliminate political or military resistance, does not necessarily negate the presence of such intent.

9.4.5 Method used

The method by which the crime is carried out is not, in principle, determinative of the question of whether genocide has been committed or whether the perpetrator acted with genocidal intent. The fact, for instance, that a perpetrator did not choose the most efficient of means to carry out his deeds is not dispositive of the question of whether he acted with genocidal intent. Even where the method selected proves in¬ capable of implementing the perpetrator’s goal of group destruction, a court may still find that he acted with that intention. It is the case, however, that certain methods— such as mass killings—might provide strong evidence of the possible presence of such an intent. It should be reiterated that there are a number of ways to seek to physic¬ ally destroy a group or a part thereof, and even though the killing of members of the group is the most direct way towards achieving that goal, there are other methods which, individually or in combination, could contribute to that result and which may reflect a genocidal intent. This is already reflected in the variety of punishable acts recognized under Article II of the Genocide Convention, which includes not just acts of killing but also other forms of non-lethal violence towards members of the group.

9.4.6 Initial steps in a genocidal process

An intent to destroy a group might not be immediately apparent from the initial steps taken by the perpetrators towards that goal. The adoption of discriminatory laws or discriminatory practices such as the compulsory wearing of identifiable signs might not, at the time, have been clear indications of an intent to destroy a group. When considered in context, however, such acts could provide evidence of just such an intention. Similarly, the creation of inhumane living conditions or the systematic denial of rights on discriminatory grounds to members of a particular group could be indications of the presence of genocidal intent towards this group. To determine the evidential relevance of certain actions for the purpose of inferring the presence of genocidal intent, one must therefore look beyond the immediacy which may exist be¬ tween a particular conduct and the consequences of that conduct upon the targeted group or its members. This state o

f affairs is now formally acknowledged by the Elements of Crimes, which provide that the term ‘in the context of’ would include ‘the initial acts in an emerging pattern’.

Also relevant in this context is the inchoate crime of conspiracy to commit genocide. One of the principal reason for the inclusion of this notion in the Genocide Convention was to provide an important normative tool capable of criminalizing the early stages of a genocidal process.

9.4.7 Other contextual factors

A great many contextual factors could be relevant to establishing the presence of genocidal intent and many have been mentioned earlier. This section will address only a few of these factors.

9.4.7.1 Scale and number ofcrimes committed

An important contextual factor is the scale, scope, nature, and intensity of the criminality directed at members of a particular group. Proof of widespread criminality aimed at members of a particular group would be relevant to at least two aspects of an accused’s mens rea.ni First, large-scale violence directed at members of a given group would weaken an accused’s claim that he had no knowledge of the commission of these crimes. Second, this sort of criminal occurrence would almost necessarily reflect a commonality of goals by different actors, which would at least be consistent with the purpose of destroying the group, though not necessarily conclusive. The fact, however, that crimes are committed on a wide scale and that the accused participated in their planning or commission does not necessarily result in the necessary conclusion that the crimes were driven by an intent to destroy a group or that the accused possessed that intent.

Conversely, the small number of members of a particular group who were targeted relative to the size of the group might militate against a finding of genocidal intent. The fact that incidents are few or isolated may also weigh against the suggestion that genocide was intended. One should, however, guard against a suggestion that the limited number of crimes is always and necessarily an indication of the absence of genocidal intent as destruction only needs to be intended and genocide can be, and often is, an evolving process where crimes targeting members of a group might increase over time.

9.4.72 Unrealistic goals

That the destructive aim of the perpetrators might have been unrealistic does not necessarily negate the fact that the conduct in question might have been genocidal in character. Rather, that fact would be relevant to establishing whether it was truly carried out with the requisite intent.

9.4.73 Attacks on cultural and religious objects

The Genocide Convention prohibits the intended physical and biological destruction of a group, not attacks on cultural or religious objects or symbols of the group. However, while such actions cannot constitute the underlying acts of genocide, they may, in the circumstances of a given case, be considered evidence of an intent to physically destroy the group. The destruction, for instance, of religious buildings can help demonstrate genocidal intent on the part of those carrying out such acts insofar as this may illustrate the perpetrators’ efforts at erasing all traces of its existence. Ultimately, however, it is the intent to destroy the group physically or biologically which must be established so that a mere intent to erase a group’s culture or symbols would be insufficient to meet this requirement.

9.4.74 Acts of forcible displacement

Acts of forcible displacement alone are not sufficient to demonstrate an intent to destroy a group but, depending on the circumstances, might provide evidence relevant to establishing such intent.

9.4.75 Discriminatory acts

Evidence of discriminatory acts, which would not themselves be sufficient to constitute the actus reus of genocide, may constitute evidence relevant to establishing the presence of genocidal intent. However, discrimination against members of one group, even when implemented through the commission of serious criminal offences, does not necessarily imply that such acts were carried out with genocidal intent. They might, for instance, reflect the existence of an intent to deny rights otherwise guaranteed to others or to enforce discriminatory policies towards members of a particular community. Such acts could amount to persecution. Evidence of discrimination or discriminatory policies is thus not enough on its own to infer an intent to destroy, but it would be relevant, in principle, to establishing the presence of such an intent.

9.4.76 Plan or policy to commit crimes

Proof of the existence of a plan or policy underlying the acts is not a necessary legal ingredient of the crime of genocide. Nor will knowledge of such a plan or policy necessarily be sufficient to infer the presence of genocidal intent. Such an awareness will, however, be highly relevant to such an inference.

9.4.77 Commission of genocidal acts

Whilst one must take care not to fall for the temptation of hindsight, the fact that ‘a genocide’ has taken place in a particular area would be relevant to the inference that the court may be able to draw in relation to the acts of a particular defendant.

9.4.78 Mental disorder

That an accused suffered at the time of the events from a mental disorder will not, in principle, negate the possibility that he might have possessed the requisite intent. Thus, in relation to the accused Goran Jelisic, a lowly Bosnian-Serb camp guard whose mental fitness to stand trial had been questioned, the International Criminal Tribunal for the former Yugoslavia (ICTY) took the view that:

[There is] no per se inconsistency between a diagnosis of immature, narcissistic, dis¬ turbed personality on which the Trial Chamber relied and the ability to form an in¬ tent to destroy a particular protected group. Indeed, as the prosecution pointfed] out, it is the borderline unbalanced personality who is more likely to be drawn to extreme racial and ethnical hatred than the more balanced modulated individual without personality defects.

Jelisic was, nevertheless, acquitted of the charge of genocide because there was insuf¬ ficient evidence to establish that he possessed the requisite intent.

9.4.79 ‘Good deeds’

The fact that the accused saved or treated certain members of the targeted group humanely will not necessarily negate a finding that he possessed the genocidal mens rea, particularly where other reasons might explain his conduct. Similarly, statements of the accused that not all members of the targeted group are bad would not necessarily negate a finding that the accused possessed the genocidal intent.

Genocide might be committed by different individuals with varying degrees of commitment to the overall purpose of destroying another group. It is not necessary to establish that the accused was among the ‘hardline’ supporters of such a genocidal enterprise. It is sufficient to show that he adhered to the purpose of destroying a particular group and that he contributed thereto.

Finally, the fact that a number of members of the targeted group were spared and exchanged rather than killed does not necessarily negate a finding that acts of genocide were committed against members of their group. Instead, as is apparent, for in¬ stance, from both genocidal activities during the Second World War and during the Bosnian conflict, the physical removal of people from a particular geographical area could contribute to the perpetrators’ overall intent to destroy the group or the part of a group from that particular geographical area, and thus constitute evidence of the perpetrator’s overarching goal of destruction.