8.1 General Considerations
8.1.1 Special intent as a characteristic feature of genocide
Under the Genocide Convention and customary international law, the definition of the crime of genocide consists of two core elements:
(i) a prohibited act amounting to one of the listed offences in Article II of the
Convention
(ii) committed with the intent to destroy, in whole or in part, a (national, ethnical, racial, or religious) group, as such.
It is the ultimate purpose that the perpetrator intends to achieve, rather than the nature of the underlying act, which is central to crime. By his conduct, the perpetrator must have intended to contribute to the destruction, in whole or in part, of a protected group. This particular element of intent is what makes genocide a unique crime and what triggers the application of the law of genocide.
This special intent and the associated concern for the protection of certain groups are what give the crime of genocide its particular currency. This requirement also distinguishes genocide from other international crimes, including other discrimination-based crimes such as the crime against humanity of persecution.
The law of genocide does not require that an intent to destroy a group be the sole or primary purpose of the perpetrator.10 In Ntakirutimana, the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) rejected the accused’s suggestion that the Trial Chamber had erred when finding that refugees were targeted ‘solely’ for their Tutsi ethnicity because the definition of genocide does not contain such a requirement and it was therefore immaterial whether the refugees were targeted solely on the basis of their ethnicity or whether they were targeted for their ethnicity in addition to other reasons. A perpetrator could therefore be found guilty of genocide even if his personal motivation went beyond the criminal intent to commit genocide. Evidence of unrelated motives explaining his actions will not preclude a finding that he also possessed the requisite genocidal intent.
8.1.2 Meaning and content
Tlie commission of an act of genocide requires an element of intent that is twofold: the perpetrator must have intended to commit the underlying act which forms the underlying basis of the charges (e.g., killings; causing serious bodily harm); and he must have done so with the special intent to destroy the group to which the victim of his act belongs. The first element, which attaches to the underlying conduct, will be addressed later in this book. The present section focuses exclusively on the element of special genocidal intent—an ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such’—which has been described variously as special intent, specific intent, dolus specialis, particular intent, and genocidal intent.
Intent must be understood here as the ultimate aim of the perpetrator. He must intend, through his action or culpable omission, to contribute to the destruction of a group or part of a group. Mere negligence or indifference to the result of one’s conduct falls short of the requisite level of intent. It is therefore not enough that the perpetrator simply knew that the underlying crime would inevitably or most likely result in the destruction of the group. He must intend such destruction.
Temporally, the special intent must be shown to have been present at the moment of the commission of the criminal act that forms the basis of the charges against him. However, it is not necessary to establish exactly when the dolus specialis was formed in the mind of the perpetrator, as long as it is shown to be present at the time of com¬ mission of the underlying act.
8.1.3 Lowered mens rea standard for certain forms of participation
Proof of genocidal intent is required in order to establish the commission of a punishable act of genocide. However, this does not mean that all those who participated or contributed in the commission such an offence must necessarily share that intent. Instead, customary international law recognizes different modes of liability based on which a participant may be charged for his role in the commission of an act of genocide each of which provide for its own requirements of mens rea.
As a general proposition, all of the acts listed in Article III of the Genocide Convention require proof of the presence of the specific genocidal intent on the part of the perpetrator of the act. Proof of genocidal intent is therefore necessary to establish not just the commission of an act of genocide, but also conspiracy, direct and public incitement, and attempt to commit genocide as well as complicity in genocide.
Furthermore, some of the modes of liability applicable to genocide under customary law require proof that an accused charged under one of these modes of liability acted with the requisite special intent. Thus, where the accused is charged with having committed, ordered, instigated, or planned an act of genocide, or where his liability is alleged under the doctrine of joint criminal enterprise, proof that he possessed the requisite genocidal intent must be established if customary law is applicable to the case.
In contrast, other modes of participation recognized by customary international law do not require the accused to share the genocidal intent of other perpetrators. Thus, as a matter of customary law, responsibility for aiding and abetting genocide would not require proof that the accused possessed the dolus specialis. It would be enough that the accomplice knew of the principals genocidal intent.26 He would therefore not need to share the intent of the principal perpetrator whom he is said to have assisted. Similarly, responsibility as a superior demands a showing that the accused ‘knew or had reason to know’ (or, as far as the International Criminal Court (ICC) is concerned for military superiors, ‘should have known’27) of his subordinates’ genocidal intent. Where a superior is charged in relation to genocidal crimes of sub¬ ordinates, a court could therefore hold that superior responsible for such acts without having established that he shared his subordinates’ intent. Liability under the third category of joint criminal enterprise responsibility would likewise be established if a crime (in this case, genocide) was reasonably foreseeable to the accused in light of the agreed upon criminality, regardless of the accused having intended to commit genocide.
Outside the context of customary international law, domestic legislation and par¬ ticular normative regimes—such as the one applicable before the ICC—may provide for different mens rea requirements than those outlined earlier. In particular, such regimes could allow for the possibility of an accused being convicted for genocide under a certain mode of liability without proof that he possessed the genocidal intent. In all cases, however, proof that acts of genocide were committed must first be established, and proof of that fact requires a showing that the perpetrator of the underlying crime acted with the requisite special intent.
8.1.4 Premeditation not required
Although it will often exist in practice, premeditation does not constitute an element of the crime of genocide, but may serve as proof of the presence of the requisite intent. Where established, premeditation on the part of the accused may also constitute an aggravating factor for the purpose of sentencing if convicted.
8.1.5 Motives
Proof of motives is not an element of the offence of genocide. Motive and intent are two distinct notions. The intent refers to the goal, which the perpetrator seeks to attain through his actions, in this case the destruction of a group in whole or in part. A motive refers to the particular reason that may have led a person to engage in criminal conduct. The UN International Commission for Darfur illustrated the distinction between the two notions in relation to genocide in those terms:
For instance, in the case of genocide a person intending to murder a set of persons belonging to a protected group, with the specific intent of destroying the group (in whole or in part), may be motivated, for example, by the desire to appropriate the goods belonging to that group or set of persons, or by the urge to take revenge for prior attacks by members of that groups, or by the desire to please his superiors who despise that group. From the viewpoint of criminal law, what matters is not the motive, but rather whether or not there exists the requisite special intent to destroy a group.
Where established, personal motives explaining the conduct of the perpetrator would not prevent a finding that the perpetrator acted pursuant to the specific intent to commit genocide. Nor would it constitute a defence to allegations of genocide. In sum, the reason why an accused sought to destroy a group, or his motive for doing so, ‘has no bearing on [his] guilt’. For instance, the presence of political or personal motives will not negate the possibility that the accused acted with the intent to commit genocide if such intent is otherwise established.
The specific intent required for genocide must, therefore, be clearly distinguished from the reasons or motivations which may have caused the perpetrator to act. Indications of the perpetrator’s motives may, however, be relevant in some cases to an inference that he possessed the requisite genocidal intent,41 and, depending on their nature, could also constitute an aggravating factor for sentencing purposes.
8.2 Intent ‘To Destroy’
8.2.1 Destruction as an element of mens rea
8.2.1.1 Destruction must be intended; it does not need to have occurred
The perpetrator of an act of genocide must intend to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such. He must therefore have had ‘the intent to accomplish certain specified types of destruction’; that is, while committing or participating in one of the prohibited acts, the accused sought to contribute to the destruction, in whole or in part, of a national, ethnical, racial, or religious group, as such. The key factor is the perpetrator’s specific intent to destroy the group rather than the group’s actual physical destruction. In other words, while the destruction of a protected group (in whole or in part) must be intended, it does not need to have occurred.
While the actual destruction of a group in whole or in part is not an element of the offence, however, the fact that it has occurred in a given case could serve as evidence relevant to establishing whether an individual involved in those events intended to bring about that result.
8.2.1.2 Destruction of the group and killing of victims not the same
As discussed further at Section 8.2.2, ‘destruction’ in this context is to be understood as referring to the (intended) physical or biological elimination of a group (or part thereof). This should not be taken to mean that acts of genocide are limited to those causing the death of a person but may entail acts falling short of death. One must in¬ deed distinguish between what is intended in relation to the group (i.e., its physical or biological destruction) and individual victims. In relation to the latter, the perpetrator might intend to kill them, but might also intend to injure, sterilize or, in the case of a child, transfer them from one group to another.49 The perpetrator need not therefore have intended to ‘destroy’ the immediate victim of his actions for the act to constitute genocide. The intent to destroy need only exist in relation to the group itself.
8.2.1.3 Intent to destroy not limited to civilians
The intent requirement of genocide is not limited to instances where the perpetrator seeks to destroy a group of civilians. For the purpose of genocide, a targeted group is indifferent in principle to the civilian versus combatant distinction applicable under the laws of war; acts of genocide may therefore be directed at individuals who would qualify as civilians under the laws of war, but also at those who would be regarded as combatants or military personnel. A genocide conviction is thus possible ‘where the perpetrator killed detained military personnel belonging to a protected group because of their membership in that group’ provided the perpetrator intended to destroy the group to which these individuals belonged. Unlike crimes against humanity (and its focus on a ‘civilian’ population), the focus of the crime of genocide is not upon the civilian character of the targeted collectivity but upon the national, ethnical, racial, or religious characteristic of the group whose destruction is intended.
8.2.2 Intended physical or biological destruction
The sort of destruction that must be intended by the perpetrator of an act of genocide is the physical or biological destruction of a group or part of a group. The intent to destroy a group’s cultural, linguistic, or sociological features or symbols as opposed to its very physical existence would not qualify. In other words, it is the physical/ biological elimination of the group itself that must be intended, not its identity as a separate entity.55 Therefore, it would not be enough to establish that the perpetrator intended to destroy (or erase) any of those features (e.g., language, traditjons> cus_ toms) which characterize the group short of establishing that he intended the physical or biological destruction of the group itself. The interest protected by the prohibition on genocide is not the ethnicity, nationality, religion, or race of the group, but the physical existence of a group which is identifiable by reason of one or several of these characteristics.
8.2.2.1 Destruction versus discrimination, dissolution, and displacement
A mere intention to discriminate against members of a particular group would not alone meet the threshold set by the dolus specialist8 In addition to the implied element of discrimination, the perpetrator of an act of genocide must intend to contribute, through his actions, to the physical destruction of the group to which these members belong? This is the fundamental distinction between the crime of persecution and genocide.60 Similarly, an intent to terrorize a population would fall short of the requisite genocidal intent.61 Nor would it be sufficient to show that the perpetrators intended to destroy the social structure of the community in question or to dissolve it.
For the same reason, it is not enough for the perpetrator to intend to displace a group of people. That is because the Genocide Convention protects groups from physical or biological destruction, not geographical displacement. The line between destruction and displacement (including through ethnic cleansing’), is not, however, always plain. Additionally, acts of forcible displacement could provide evidence of an intention on the part of those carrying them out to destroy a group of people, in whole or in part.66 Thus, while the forced displacement of population does not in and of itself constitute a genocidal act, it is a relevant consideration in the overall factual assessment regarding the existence of genocide intent and it could also be regarded in given circumstances as a means by which to ensure the physical destruction of the protected group.67 Such acts may constitute an underlying genocidal act of causing serious bodily or mental harm, in particular where forcible transfer is conducted under inhumane conditions.68 In addition, where the accused has partaken in the commission of such acts, evidence of that fact, when considered together with other factors, could be relevant to establishing that he possessed the requisite genocidal intent.
8.3 In Whole or In Part
8.3.1 Alternative objects—a group as a whole or a part thereof
The Genocide Convention makes it clear that genocide could be committed where the perpetrator intends to destroy an entire group, but also where his intent is directed at the destruction of a part’ of a group. This view is now accepted as forming part of customary international law. The requirement of genocidal intent can therefore be met by either of two alternatives: the perpetrator intended to destroy a protected group ‘in whole’ or ‘in part’. Each scenario will be considered in turn.
8.3.2 ‘In whole’
8.3.2.1 A sufficiently distinct and cohesive group
When seeking to establish an intent to destroy a group as ‘a whole’, it is not necessary to prove that the perpetrator intended to achieve the complete annihilation of a group throughout the world and wherever members of that group may be located. The intent to destroy a multitude of individuals belonging to a particular group may amount to an intent to destroy the group ‘in whole’ even though a large number of these individuals are concentrated in a particular geographical location but mem¬ hers of their group can be found in other places. However, the law and the juris¬ prudence are not entirely clear on the question of how broadly or narrowly a group can be defined before a collectivity of individuals ceases to constitute a ‘whole’ group for the purpose of the Genocide Convention and where it would only constitute a part’ of a broader group. A ‘group’ may not simply consist of a random collective of human beings; it must in all cases be a sufficiently distinct and cohesive entity. Under that understanding, European Jews or Bosniaks (i.e., Bosnian-Muslims) residing in Bosnia-Herzegovina would constitute a group ‘in whole’, regardless of the fact that there are Jews and Bosniaks in other parts of the world. These groups are sufficiently distinctive (both by reason of their identity and geographical location) and numerous enough to be said to constitute a sufficiently distinct, coherent, and easily identifiable collectivity. Before the International Criminal Tribunal for the former Yugoslavia (ICTY), the group as a ‘whole1 that was said to be relevant to allegations of genocide was (generally76) described as the Bosnian-Muslims, that is, Muslims from the whole of Bosnia-Herzegovina. The ICTR held that the group ‘in whole’ for the purpose of its proceedings was the Tutsi group in Rwanda. Before the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Cham and Vietnamese residing in Cambodia at the relevant time were said to constitute two protected groups ‘in whole’.
8.3.2.2 Importance of identifying the group as a whole
Identifying the group as a ‘whole’ is relevant to a number of issues. First, the destructive intent of the accused must be directed at a protected group, in whole or in part. If alleged to have intended the destruction of a group as a whole, that whole must be clearly identified so that the accused’s mens rea may be connected thereto. Identifying the group as a whole is also relevant where the accused is alleged to have intended to destroy a part of a group. That is because what may be said to constitute a ‘part’ of the group is established in light of the group as a whole, as it must constitute a ‘substantial’ part of the group as a whole.
8.3.3 ‘In part’
8.3.3.1 Meaning
8.3.3.1.1 A ‘substantial’ part of a group
Where it cannot be established that the perpetrator intended to destroy the group as a whole, it maybe shown, in the alternative, that he intended to destroy a group ‘in part.’ Thus, had Nazi leaders been prosecuted at Nuremberg for genocide, it would have been enough to show that they intended to destroy European Jews or European Jews in Germany and occupied lands, rather than Jews wherever located.
In 1985, the United Nations Expert Study on Genocide defined the expression ‘in part’ as ‘a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership’. The notion was later refined and it is now accepted that to meet the requisite threshold, the perpetrator must have intended to destroy at least a substantial part of a protected group. This does not require that a specific numeric threshold be reached.83 The number of would-be victims as well as the proportion of the targeted individuals relative to the size of the group as a whole would be factors relevant to making that evaluation.84 However, numerical considerations alone are not the only relevant criteria to making that substantiality assessment. The specific nature, prominence, and composition of those targeted are also relevant to the question of whether they were a ‘substantial’ part of the group to which they belong. Thus, quantitative as well as qualitative factors are relevant to making that assessment. The number of victims as well as their prominence and importance to the community may therefore be pertinent. When taken together, all relevant considerations would have to show that the individuals concerned comprise a significant portion to have an impact on the group as a whole. In other words, the (intended) destruction in part must be of a substantial nature so that, if carried out, it would be capable of affecting the entirety of the group.
What must be verified in each case is the potential effect of the intended destruction of that section of the group upon ‘the fate of the rest of the group’. The Genocide Convention is intended to protect groups as such, and only those parts whose destruction could endanger the group as a whole would fall within its ambit.90 However, proof that crimes directed at these individuals had an actual impact upon the group need not be established.91 Stated otherwise, the law of genocide does not import a requirement of group impact regarding the actus reus of the offence.
The ‘part’ of the group that is relevant to the law of genocide cannot simply be made up of the accumulation of isolated individuals. The intent to destroy a group or part of a group means seeking to destroy a distinct and sufficiently identifiable entity as opposed to isolated individuals within it Thus, although perpetrators of genocide need not seek to destroy an entire group, they must view the targeted part of the group as a distinct entity that they intend to destroy. The systematic elimination of members of a geographically limited collectivity could thus constitute a substantial part of the group if they represent a clearly distinct entity.
While the subjective views and beliefs of the perpetrators regarding the substantiality of a part of a group are factors to be considered when making that assessment, a tribunal would ultimately have to establish that a substantial part of the group was in fact the intended object of the impugned conduct forming the basis of the charges. In other words, the subjective perception of victims and perpetrators cannot be the sole consideration to determine that a collectivity can be regarded as a ‘part’ of a group for the purpose of the law of genocide.
8.3.3.1.2 Substantial part versus significant part
The use of the adjectives ‘substantial’ for one purpose and ‘significant’ for another risks confusion between the elements to which each of these adjectives pertain. The two notions are distinct but not entirely unconnected. To constitute a ‘part’ of a group for the purpose of the law of genocide, those being targeted must constitute a substantial’ part of the group as a whole, as defined earlier. The ‘significance’ of those being targeted within the group relates to their importance to the group as a whole. For instance, if the victims are the political leaders of the group or emblematic cultural figures, this would be one of potentially many considerations relevant to establishing the general requirement of substantiality’.
8.3.3.1.3 ‘In part* and actual victimization
The requirement that the accused must have intended to destroy a group ‘in whole or in part’ should not be confused with a requirement that the accused must be shown to be responsible for a large number of crimes or deaths. It is the accused’s mind that must reflect intent to destroy a collectivity of individuals. At the actus reus level, the perpetrator need not have been personally involved in a large number of crimes or a pattern of criminal conduct to incur liability for genocide.101 Nor does the law set a minimum number of victims that must have been affected by his conduct. A single criminal act, if carried out with the requisite intent, could thus qualify as an act of genocide.
8.3.3.2 Relevant evidential factors
8.3.3.2.1 Number of victims
When considering whether the targeted individuals constitute a substantial part of a group, the evidentiary starting point will generally be the number of individuals that were the intended target of the violence. That number should be evaluated not only in absolute terms but also relative to the overall size of the group as a whole. The individuals taken into account in this numerical assessment include any member of the targeted group regardless of status, including civilians and/or military personnel.
Furthermore, in undertaking that computation, consideration should be given not just to the immediate victims of the crimes but also to those who indirectly, but personally, have been affected by these crimes. That acts of genocide may have affected some individuals more severely or directly than others does not mean that the latter would be irrelevant to that evaluation. For instance, in Tolimir, the ICTY explained that whilst the forcible transfer of Bosnian-Muslims from the city of Zepa did not establish that acts carried out against them specifically were sufficiently serious to constitute genocide, this did not mean that they could not be victim of genocide as members of the group that was otherwise being targeted for extinction. Thus, the Yugoslav Tribunal said, all members of the part of the group relevant to the case—that is, the Bosnian-Muslim population of Eastern Bosnia and in particular, those of the enclaves of Srebrenica, Zepa, and Gorazde—were to be regarded as victims of genocide by virtue of being ‘within the targeted part of the protected group’. In saying so, the Appeals Chamber clearly distinguished between the actus reus and mens rea elements of the offence and made it clear that an individual could be among the ‘ultimate victims of [a] genocidal enterprise’ (as a member of the targeted group) without that individual being personally the victim of a genocidal crime. The Chamber also clarified in that context that the evaluation of whether the part of a group being targeted was substantial enough to meet the relevant standard is not limited to those against whom genocidal crimes have been committed. It includes all those who belong to the group (or part of the group) in relation to which the genocidal intent has been established.
8.33.2.2 Other factors
In addition to the (absolute and relative) number of targeted individuals, other nonexhaustive considerations might be relevant to establishing whether the targeted individuals were a substantial part of a group. These include: the importance of the targeted individuals as members of the group, in particular their prominence within that group, or their leadership role; the strategic importance of the targeted individuals; the reach of the perpetrators, in particular the opportunity presented to them to target members of the group and the perpetrators’ area of activity and control, the impact that the disappearance of the victims could have on the group’s chance of survival; the systematic, orderly, and methodical manner of execution of victims and lack of or limited amount of randomness in their targeting. Furthermore, the part could be ‘substantial1 enough even if only some but not all members of the group are targeted. This could be the case, for instance, where only male (or only female) members of the group are targeted.
8.3.3.2.3 Case-by-case assessment
Whilst the number of targeted individuals might suffice to meet the substantiality threshold, the applicability of the factors listed earlier and the relative weight afforded to each relevant consideration must be analysed on a case-by-case basis. Such an assessment would provide the tribunal with some discretion when determining whether a collectivity of individuals may be said to constitute ‘a part of a group. However, such discretion has to be exercised in a spirit consonant with the object and purpose of the Genocide Convention.
8.3.3.3 Geographically circumscribed group of individuals
The commission of an act as genocide is possible even when it occurs only in a particular geographical area. The ICTY thus held that the ‘part’ of a group with respect to genocide charges before it were Bosnian-Muslims of Eastern Bosnia or, even more narrowly, Bosnian-Muslims of the town of Srebrenica. However, in such a case, the group or part of a group being targeted must still be characterized by one or more of the relevant—national, racial, ethnic, or religious—features as the prohibition on genocide protects groups not on account of their constituting a territorial unit, but based on those characteristics.
Furthermore, the geographical area of relevance to this assessment cannot be reduced at will. This would result in creating artificially small, ‘theoretical’ groups of individuals. In Brdanin, for instance, a case having to do with allegations of genocide in the Autonomous Region of Krajina (ARK) of Bosnia-Herzegovina, the prosecution argued that a protected group ‘in whole’ could be defined by reference to that relatively limited geographical area. The targeted ‘part’ of that group was, in turn, an even smaller section of that entity. However, contrary to the Prosecution’s submissions, the Trial Chamber rejected this position and took the view that the Bosnian-Serb political leadership viewed the totality of the Bosnian-Muslims and Bosnian-Croats in the entire country as specific national, ethnical, racial, or religious groups. It added that ‘no national, ethnical, racial or religious characteristic makes it possible to differentiate the Bosnian Muslims and Bosnian Croats residing in the ARK, at the time relevant to the Indictment, from the other Bosnian Muslims and Bosnian Croats’. The only distinctive criterion was their geographical location, the Chamber noted, ‘not a criterion contemplated by the Genocide Convention’. In addition, pointing to the subjective element of the notion of group, the Chamber added that the Prosecution had not sub¬ mitted any evidence that the Bosnian-Muslims and Bosnian-Croats residing in the ARK at the time relevant to the indictment considered themselves a distinct national, ethnical, racial, or religious group among the Bosnian-Muslims and Bosnian-Croats respectively. As described earlier, the group and its relevant part must constitute a sufficiently coherent and distinctive entity to form an identifiable unit relevant to the law of genocide. The Chamber therefore rejected the contention that Bosnian Muslims or Bosnian-Croats of the ARK could be regarded as a distinct group for the purpose of the law of genocide.
8.3.3.4 Targeting of multiple groups
Perpetrators will sometimes target members of several groups distinct from their own. This was the case, for instance, with the targeting of Bosnian-Croats and Bosnian-Muslims by Bosnian-Serb forces during the 1990s war in Bosnia Herzegovina. In such cases, when evaluating whether those being targeted constitute a “substantial’ part of a group, each one of the groups concerned must be considered individually and not collectively. In the example given, the tribunal would thus have to conduct this evaluation both in relation to Bosnian-Muslims and, separately, in relation to Bosnian-Croats. Different targeted groups cannot therefore be amalgamated for the purpose of establishing that they constituted a group or a part thereof.
8.4 A National, Ethnic, Racial, or Religious Group
8.4.1 The group as protected interest
The prohibition of genocide is based on the fundamental principle that groups of people, rather than people as individuals, should be protected and that their intended destruction is a crime under international law. In other words, the object of the Genocide Convention and of its underlying prohibitions is to safeguard ‘the very existence of certain human groups’. The identification of One of these groups as the ultimate victim of the proscribed acts is thus one of the required components of the crime of genocide and a prerequisite to the establishment of this crime.
For the purpose of the law of genocide, a group is to be understood as a section of the population ‘whose members have common characteristics distinguishing them from other members of society’.
Both the Genocide Convention and customary international law protect four categories of groups, which are characterized by certain features common to their members: nationality, ethnicity, race, or religion. The crime of genocide thus pertains to the intended destruction in whole or in part of a group with a particular positive identity that is characterized by one or more of these features. It does not concern itself with the destruction of people lacking such a distinctive identity. This focus on the protection of groups is also reflected in the mens rea of the offence, which demands proof that the perpetrator acted pursuant to an intent to destroy a group characterized by one (or more) of the listed features and that victims were selected accordingly.
8.4.2 Existence and composition
8.4.2.1 General considerations
The determination that a group of individuals constitutes a national, ethnical, racial or religious group under the law of genocide is an exercise fraught with difficulties. First, such a determination could hardly claim to be scientific in nature. it js based on the perception of the identity of the group and of its membership supported by certain objective features that attach to the group. A number of factors, some objective others subjective, will thus be relevant to that evaluation.
8.4.2.2 Objective and subjective factors
Although the existence of certain groups and membership therein must be objectively ascertainable, there is also a subjective dimension in that evaluation. A group ‘may not have precisely defined boundaries and there may be occasions when it is difficult to give a definite answer as to whether or not a victim was a member of a protected group’. In other words, in a given situation, objectively ascertainable factors, such as the exercise of a particular religion, and a commonly shared perception of one’s or another’s membership in a group might be relevant to establishing the existence of a protected group. In all cases, however, a group must have some sort of objective reality so that purely imagined entities would not, in principle, come within the scope of protection of the Convention. The existence of a group protected under the Genocide Convention cannot therefore be based entirely on the subjective assessment of the victims and/or perpetrators. In line with this, tribunals have thus generally approached the question of the existence of a protected group and of its membership using a com¬ bination of objective and subjective factors.
8.4.2.3 Subjective considerations
The subjective perception of both victims and perpetrators is a relevant factor in the determination of the existence and composition of a protected group. Evidence may suggest, for instance, that the victims perceived themselves as belonging to a distinct group. In other cases, the perpetrator’s view of the targeted group might be relevant to determine that a protected group was being targeted.
8.4.2.4 No necessary legal assessment from the perpetrator
It is not necessary to establish that the accused was aware that the group in question was a protected group under the Genocide Convention. It is sufficient that he was generally aware of the facts and circumstances upon which the characterization was made and the victims targeted.
8.4.2.5 Form and structure of the group
Under the law of genocide, a ‘group’ need not be structured or organized in any particular way to come within the scope of the law, nor does it need to possess any particular institutional features. Thus, a ‘tribe’—in the sense of group linked by language, culture, or history in a traditional society—could constitute a group for the purpose of the definition of genocide.
8.4.2.6 Targeting based on membership in protected group
That the victims have a common nationality, ethnicity, religion, or race is not enough to conclude that they were victims of genocide. That feature must further be shown to have been the reason or one of the reasons why the victims were targeted. Thus, the European Court of Human Rights concluded that Lithuanian ‘partisans’, who were characterized by their resistance to the Soviet presence in the country, did not come within the ordinary meaning of a ‘national’ or ‘ethnic’ group. The Court noted that victims did not possess national or ethnic features which would have distinguished them from the perpetrators, and that they were being targeted not for reasons associated with their nationality or ethnicity, but by reason of their political resistance to the occupying power. Political groups do not constitute a recognized category of protected group under the law of genocide so that partisans’ could not be said to constitute a protected groups under the law of genocide.
8.4.3 Positive definition of protected group
A national, ethnical, racial, or religious group must consist of a collection of individuals with a particular group identity? The protected group must therefore be defined positively and possess distinguishing—national, racial, religious, or ethnic characteristics? In other words, to be relevant to this prohibition, the group in question must have a particular, distinct—national, ethnic, racial, or religious— identity and be defined by its common characteristics rather than a lack thereof. It is not sufficient to define a protected group exclusively by reference to negative factors.158 As a result, a group could not be characterized solely by opposition to the perpetrator’s group (e.g., non-Khmer Rouge; non-Nazis). This led the ICTY to determine that a protected group of individuals, which factually consisted of Bosnian-Croats and Bosnian-Muslims, could not be described negatively as ‘non-Serbs’ for the purpose of the prohibition on genocide as ‘non-Serbs’. Instead, the Tribunal made it clear that it is the positive and common—national, ethnical, racial, or religious—feature or features of each group, which would characterize a protected group (i.e., in this case, Bosnian-Muslims and Bosnian-Croats).
Although a group cannot be defined negatively, the fact that a group is different from the perpetrator’s group and is targeted for that reason may be relevant as evidence that destructive intent existed in relation to one or more protected groups. This would be the case, for instance, if the evidence established (i) a pattern of similar criminal conduct, or (ii) a coherent approach and method on the part of the perpetrators which might provide evidence of their dolus specialis in relation to each or some of these groups. In such a case, however, the protected character of the targeted groups must be verified and established in relation to each group.161 An illustration would consist, for instance, of the targeting of Bosnian-Muslims and Bosnian-Croats by Bosnian-Serb force, with each and both of these groups being targeted for destruction.
8.4.4 National, ethnic, racial, or religious character of group
8.4.4.1 General considerations
8.4.4.1.1 From ‘national minorities’ to national, ethnical, racial, and religious groups
Article II of the Genocide Convention is applicable to four categories of groups: national, ethnical, racial, and religious groups. The same list of protected groups has since been replicated in the statutory instruments of international criminal tribunals with jurisdiction over the crime of genocide. As a whole, this set of protected groups effectively reflect a single phenomenon which had been historically—but quite misleadingly—described as ‘national minorities’. The Trial Chamber in the Krsttf case thus pointed out that ‘the preparatory work of the Convention shows that setting out such a list was designed more to describe a single phenomenon, roughly corresponding to what was recognised, before the second world war, as “national minorities”, rather than to refer to several distinct prototypes of human groups’. The Krstic Chamber added that ‘[t]o attempt to differentiate each of the named groups on the basis of scientifically objective criteria would thus be inconsistent with the object and purpose of the Convention’. The notion of protected group has now shed both its focus on nationality (embracing other features—racial, religious, and ethnic) and any requirement of minority’ status on the part of the protected group.
8.4.4.1.2 Overlapping character of protected groups
The four protected groups contemplated by the drafters of the Genocide Convention are not impermeable. They overlap to some extent and a targeted group may possess and be distinguishable on more than one of the listed grounds. The four terms also assist in contextualizing one another, operating in effect as ‘four corner posts that delimit an area within which a myriad of groups covered by the Convention find protection’.
This overlap, combined with the rather uncertain nature of some of these notions, might help explain why a number of jurisdictions have determined that victims were part of a protected group without specifying which type of group. In the Krstic case, for instance, the Trial Chamber took such a course; it concluded that the Bosnian Muslims of Srebrenica constituted a protected group pursuant to Article 4 of the ICTY Statute, but refrained from saying which sort of group it was or what characteristics made it a discrete ‘group’ for the purpose of this provision.169 It is questionable whether such a generic sort of finding satisfies the Chamber’s obligation to give a reasoned opinion and whether such an approach is in fact supported in law. It is the case, however, that a tribunal would be permitted to find that a group of individuals protected under the law of genocide comes within the terms of more than one of the protected groups.
Furthermore, the notions of nationality, ethnicity, race, and religion are not fixed notions capable of scientific proof. For present purposes, these are ‘legal’ concepts that are subject to interpretative nuances and differing subjective perceptions. At the ICTR for instance, Hutus and Tutsis have been found to constitute two different ‘ethnic’ groups within the meaning of the Genocide Convention. The Akayesu Trial Chamber noted in that respect that while the Tutsis did not have their own language or a distinct culture when compared to Hutus—two factors generally central to the definition of an ‘ethnic’ group—a number of objective and subjective indicators pointed to a ‘distinct [ethnic] identity’. In particular, the Trial Chamber pointed to the fact that Rwandan identity cards of the time included an indication of each individual’s ‘ethnicity,’ the ethnic group being Hutu, Tutsi, or Twa, and that the Rwandan Constitution and Civil Code in force at the time also identified Rwandans by reference to their ethnic group. Moreover, the Chamber noted that both victims and perpetrators understood and regarded each other as distinct ethnic groups. As for the ICTY, it characterized Bosnian-Muslims, Bosnian-Serbs, and Bosnian-Croats as different ‘national’ groups—although at times it also described these groups in ethnic’ or ‘religious’ terms. Several factors informed the Tribunal’s conclusion that Bosnian-Muslims were a distinct ‘national’ group; the most dispositive being the recognition by the 1963 Yugoslav Constitution of Bosnian-Muslims as a ‘nation’ and the fact that Bosnian-Muslims were regarded and treated by the Serbian leadership as a distinct nation.
8.4.4.1.3 Context-specific determination of character of the group
A group’s characteristics ‘must be identified within the socio-historic context which it inhabits’ and ‘by using as a criterion the stigmatization of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics.’ Thus, factors which could be relevant in one context to establish the existence and membership in a group may not necessarily be relevant or carry the same weight in another.
8.4.4.1.4 ‘Auto-genocide’
Genocide does not require the perpetrator and his victims to belong to different groups. The killing of members of one’s own group could form part of a genocide if the act was committed in full knowledge of the status of the victim and with the requisite dolus specialis. The possibility is, however, more theoretical than real as the perpetrator would, in effect, have to intend to destroy the group to which he belongs. It is, therefore, more likely that this sort of criminality would be prosecuted as crimes against humanity.
8.4.4.2 National
A national’ group has been defined as ‘a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties’. This definition must be applied with caution as citizenship and legal bonds do not appear to have been a core consideration behind the adoption of that term in the Convention. Furthermore, the strict application of such requirements might disqualify the very groups that the Convention seeks to protect. The notion of nationality’ in this context must not, therefore, be construed too narrowly and cannot be reduced to a question of citizenship or legal status. The ICTY has thus held that Bosnian-Muslims were a national group distinct from other fellow Bosnians (Bosnian Serbs and Bosnian-Croats) who shared a common (Bosnian) citizenship.188 Similarly, the ECCC applied this notion broadly and found that Cambodians of Vietnamese ethnicity were a distinct national group within Cambodia.
8.4.4.3 Ethnic(al)
The category of ethnical’ groups was introduced in the Convention pursuant to a proposal from Sweden. The introduction of this category was intended to avoid any confusion between a ‘national* and ‘political* group and to account for the fact that a minority might be distinguished by its language. If a linguistic group did not coincide with the state, it was thought that it would be protected as an ‘ethnical’ rather than a ‘national’ group.
An ‘ethnic(al)’ group has been defined as ‘a group whose members share a common language or culture’. Such a definition has limitations. First, it is extremely vague and provides little guidance about the sort of groups relevant to this notion. Furthermore, this definition could fail to capture the very sort of ethnic’ groups that the Convention had in mind. The fact that individuals share a common language (such as, for instance, the English language for many Nigerians and Australians), or a common culture (as with Bosnian-Serbs and Bosnian-Muslims, in most relevant respects) seems barely sufficient to suggest that, on that basis alone, they may be said to constitute a single ‘ethnic’ group for the purpose of the Genocide Convention. Instead, as outlined at 8.4.4.1.2 infra, groups with a common language and culture (e.g., Rwanda’s Tutsis and Hutus, and Cham and Vietnamese Cambodians) have been said to constitute distinct ‘ethnic’ groups. It therefore appears that ‘ethnicity’ in its contemporary understanding would reflect a mixture of objective linguistic, religious, and cultural peculiarities which result in the subjective perception of ethnic’ differences between different groups. Such a nuanced approach would help explain how Tutsis have been said to constitute a distinct ‘ethnic’ group in the Rwandan context, despite the fact that they objectively shared a great deal of cultural, linguistic, and religious characteristics. Relying upon a similar approach, the ECCC has determined that the Cham and Vietnamese minorities in Cambodia could both be regarded as ‘ethnic’ groups.196 In relation to the Darfur situation, a Pre-Trial Chamber of the ICC determined that three targeted tribes (the Fur, the Masalit, and the Zaghawa) could be regarded as distinct ethnic groups having first established that there were no reason¬ able grounds to believe that these groups were distinct by reason of nationality, race, and/or religion. Bosnian-Serbs and Bosnian-Muslims have also been said to constitute distinct ethnic* groups for the purpose of the prohibition on genocide despite the great cultural and linguistic overlap between the two groups.
8.4.4.4 Racial
A ‘racial* group is one that ‘is based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors’. As with other categories of protected groups, the perception of victims and perpetrators of their own, and the other’s, race may be relevant in establishing that a grouping of individuals indeed constitutes a ‘racial’ group for the purpose of the Genocide Convention.
Regarding the practice of international(ized) criminal tribunals, it has not been sug¬ gested that either Tutsis and Hutus on the one hand or Serbs, Croats, or Bosniaks on the other constituted different races. In contrast, the ECCC has hinted at the view that Vietnamese victims of the Khmer Rouge could be characterized as a specific ‘race’ for the purpose of genocide. As reiterated throughout this chapter, the inquiry is intensely context-sensitive and the determinations are legal in character, not scientific.
8.4.4.5 Religious
A ‘religious’ group is ‘one whose members share the same religion, denomination or mode of worship’. The UN Economic and Social Council also defined groups quite broadly as ‘any religious community united by a single spiritual ideal’. This definition of religion’ is generic and circular, as the attribute of the group (as a ‘religious’ group) is defined by the exercise of those features which makes the group a distinct religious group (for instance, its mode of worship). In most cases differences in religion between two or more groups of individuals will be self-evident, as for instance between Bosnian-Muslims and Bosnian- (Christian Orthodox) Serbs. Sometimes, it may be less so, as in the case of a sect or the extremist expression of a given religion. The Human Rights Committee has suggested that ‘religion’ should not be limited to ‘traditional religions or to religions and beliefs with institutional characteristics analogous to those of traditional religions. It is also clear that the notion of religion has been interpreted quite broadly in the present context and could include spiritual beliefs that might not possess all the typical features of traditional religions.
In the practice of international(ized) criminal tribunals, the ECCC has suggested that the Cham (Muslim) minority could be said to constitute a religious group for the purpose of the Convention. Interestingly, the ICTY did not describe Bosnian Muslims as a ‘religious’ group under the Convention, although the Prosecution had argued in a number of cases that Bosnian-Muslims (and Bosnian-Croats) should be regarded as, inter alia, a ‘religious’ group under the Convention. In contrast, the State Court of Bosnia-Herzegovina has sometimes described the Bosnian-Muslim group in religious terms.
8.4.4.6 Exhaustiveness of the list of protected groups?
8.4.4.6.1 The Convention and customary law
The Convention exhaustively provides for only four, distinct, categories of protected groups. The Travaux Preparatories suggest that, besides these four, no other group was to be protected under the Convention. The statutory instruments of international(ized) criminal tribunals with jurisdiction over the crime of genocide list the same four groups. Similarly, it is generally accepted that customary international law protects only these four groups.
8.4.4.6.2 ‘Stable and permanent’ groups
In two successive judgments, Trial Chamber I of the ICTR (composed of the same judges) suggested that the notion of genocide could extend beyond these four protected groups and may include all ‘stable and permanent’ groups. Whilst the Chamber thus seemingly sought to expand the reach of the crime of genocide, its holding is supported by little evidence of state practice and hardly any indication of opinion juris. As such, it is difficult to support the proposition that groups outside the list of protected groups in the Genocide Convention are recognized by the customary international law of genocide.
8.4.4.6.3 Groups not covered
Cultural, political, economic, and social groups, groups characterized by their opinion, professional groups, sexual or gender-based groups, linguistic groups, or groups defined simply as ‘a minority’ would fall outside the protected categories and are outside the scope of protection of the law of genocide. Thus, Hutus killed by Hutu extremists because of their political opposition were considered unprotected by the prohibition on genocide because they effectively qualified as a political group. For the same reason, the killing by members of one linguistic group (say, Swiss Germans) of members of another linguistic group (say, French-speaking Swiss) who otherwise share common national, ethnic, racial, and, for the most part, religious features would not come within the scope of the Convention absent a distinctive and relevant—national, racial, ethnic, or religious—element characterizing the targeted group.
That a genocidal mindset may be related to, and may in fact merge with, a particular political agenda would not necessarily negate a finding that the accused possessed the required genocidal intent, and may even reinforce it. For the same reason, while cultural and political groups are not protected by the prohibition of genocide, attacks on the cultural and political symbols of a national, racial, ethnic, or religious group could be evidence relevant to establishing a genocidal attack upon such groups and to establishing the genocidal intent of the perpetrators.
S.4.4.6.4 Domestic regimes
The fact that the Convention and customary law only provide for the protection of four groups does not create an obligatory international numerus clausus that would forbid a state from recognizing other groups as protected under its own definition of the notion of genocide.
8.5 As Such’
8.5.1 A protected group beyond the immediate victim
The expression ‘as such’ in the definition of the crime of genocide reflects and further underlines that ultimately it is the group to which the victim belongs that is the intended target of the offence. As pointed out by the International Court of Justice (ICJ), the intent of the perpetrator must relate to the group ‘as such’ in the sense that the crime requires intent to destroy a collection of people with a particular group identity. It will thus have to be demonstrated that it was the group itself that was targeted rather than only individual victims in their personal capacity.
The specific intent to destroy a group ‘as such’ illustrates the exceptional gravity of genocide resulting from the attack on a collectivity and that the perpetrator’s purpose is the destruction of that group. This expression also emphasizes that genocide is about more than mere discrimination and assists in distinguishing genocide from other serious crimes, including the crime against humanity of persecution.
8.5.2 Individual victims targeted because of membership in a protected group
8.5.2.1 Membership as reason for targeting
Reflecting the other side of the same coin, the expression ‘as such’ makes it clear that individual victims are selected by the perpetrators by reason of their membership in the protected group so that their elimination or mistreatment is seen as capable of achieving the intended purpose of the perpetrator to destroy their group.
Although necessary, mere knowledge that the victim is a member of a targeted group is insufficient to establish an intent to destroy the group as such. Genocide requires that the proscribed conduct is intentionally directed against members of the targeted group’, and that by targeting members of a protected group, that intention is ultimately directed at the group itself as a separate and distinct entity’.
8.5.2.2 Randomness in targeting
A degree of randomness in the selection of victims by a perpetrator does not ne¬ cessarily exclude an intention on his part to destroy a group as such.238 In many in¬ stances, the commission of such crimes involve an element of incoherence, be it in the form of unexpected mercy or by reason of pure opportunism.239 Thus, the ICTY Appeals Chamber said that the Trial Chamber should not have acquitted Goran Jelisic of genocide on the basis that his actions did not show an intent to destroy the group ‘as such’, simply because he spared a number of Muslim prisoners. The Trial Chamber should have ‘discounted the few incidents where he showed mercy as aberrations in an otherwise relentless campaign against [Bosnian-Muslims]’. However, in particular circumstances, a failure on the part of the accused to kill or mistreat more members of a group than he might otherwise have been able to could provide evidence contradicting the suggestion that he possessed the requisite genocidal mens rea. In such a case, one would have to inquire into the reasons for such selectivity with a view to ascertaining whether the evidence reflects certain reasons or a pattern of conduct that would be compatible or incompatible with an otherwise held genocidal intent.
8.5.2.3 Crimes committed against non-members
Can a crime committed against an individual who is not a member of the protected group—for example, an individual mistakenly believed to be a member of the targeted group or someone who protected members of the targeted group—constitute an act of genocide? The raison d’etre of the prohibition of genocide—the protection of certain groups—would tend to suggest that this could be the case where the killing of a third party is intended to contribute to the destruction of a protected group. However, the underlying acts provided in Article II of the Convention make it clear that, to come within the scope of that prohibition, the act must have been committed against members of the group’. This suggests that actual and potential victims of acts of genocide are limited to members of a targeted group. In Nahimana, for instance, the Appeals Chamber of the Rwanda Tribunal was seised of findings that suggested that the killing of Hutus who had protected Tutsis from harm or who politically opposed the perpetrators could constitute acts of genocide. The Appeals Chamber disapproved of these findings and held that ‘acts committed against Hutu political opponents cannot be perceived as acts of genocide, because the victim of an act of genocide must have been targeted by reason of the fact that he or she belonged to a protected group’. The Appeals Chamber added that even if the perpetrators of the Rwandan genocide believed that eliminating Hutu political opponents was necessary or useful to the for successful execution of their genocidal project against the Tutsi population, the killing of Hutu political opponents cannot constitute acts of genocide since they were not members of the protected Tutsi group. The same reasoning would perforce mean that a crime committed against an individual who is not a member of the targeted group in the mistaken belief that he was would not constitute an act of genocide. But whilst crimes committed against third parties cannot constitute acts of genocide, they may provide evidence of the perpetrators’ genocidal intent to the extent that they reflect an intention to harm and destroy a protected group.