Genocidal intent before the icty

International and Comparative Law Quarterly

Volumn 52, Issue 2, 2003, Pages 447-462

  Tournaye, Cécile ^a  

^a NONE

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EID: 33748174299     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/52.2.447     Document Type: Article

References (62)

1. See, for instance, UN Doc AG/Res./47/121 of 18 Dec 1992, in which the United Nations General Assembly labelled ethnic cleansing as a form of genocide.
2. The Prosecutor v Radislav Krstić, IT-98–33-T (2 Aug 2001)
3. hereinafter the Krstić Trial Judgment.
4. Reservations to the Convention on the Prevention and Punishment of Genocide, Advisory Opinion, ICJ Report (1951), 23.
5. Otto Triffterer expresses these two levels of intent as follows: ‘there are two subjective elements required to establish criminal responsibility for genocide: the mens rea, as the pendant to the actus reus, and the ’intent to destroy […]’. The author emphasises that […] guarantee the rule of law and respect for the principle nullum crimen sine lege, the two ‘intents’ ought to be strictly separated when it comes to prove the facts necessary to establish the innocence or guilt of an accused’, in ‘Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such’, Leiden Journal of International Law, vol 14, no 2 (2001), 400.
6. Jelisić Appeal Judgment, para 46: ‘the specific intent requires that the perpetrator seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such’
7. Krstić Trial Judgment, para 561: ‘mere knowledge of the victims’ membership in a distinct group on the part of the perpetrators is not sufficient to establish an intention to destroy the group as such’.
8. Leiden Journal of International Law, para 60.
9. The ICTY thereby rejected the interpretation recently advocated by some commentators that genocide should comprise those acts whose foreseeable or probable consequence is the total or partial destruction of the group. See in particular Eric David, Droit des conflits armés (Bruylant, 1999), 615
10. Alexander KA Greenawalt, ‘Rethinking genocidal intent: the case for a knowledge-based interpretation’, Columbia Law Review, Dec 1999, 2259–2294
11. Alicia Gil Gil, Derecho penal internacional, especial consideracion del delito de genicidio (Tecnos: Madrid, 1999
12. Triffterer, Derecho penal internacional, especial consideracion del delito de genicidio, 14, no 2 (2001).
13. The ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (ICJ Reports, 1996, 240) also rejected a broad interpretation of intent.
14. It should be noted however that Judge Koroma has called for a broader understanding of intent in his dissenting opinion and deems that a situation should qualify as genocide if the consequences of the act could have been foreseen (ICJ Reports, 577).
15. The Prosecutor v Jean-Paul Akayesu, ICTR-96–4-T (2 Sept 1998), paras 497, 544–7
16. The Prosecutor v Clément Kayishema and Obed Ruzindana, ICTR-95–1-T (21 May 1999), para 91
17. The Prosecutor v Georges Anderson Nderubumwe Rutaganda, ICTR-96–3-T (6 Dec 1999), para 59
18. The Prosecutor v Alfred Musema, ICTR-96–13-T (27 Jan 2000), para 164
19. The Prosecutor v Kambanda, ICTR 97–23-S (4 Sept 1998), para 16.
20. Ad hoc Committee on Genocide, Economic and Social Council, UN. Doc E/794 (24 May 1948), 14.
21. ‘La théorie du génocide (…) déroge au droit commun en ce qu'elle englobe le mobile dans la constitution légale du délit.’ The author defines the motive as the fact that the crime is committed ‘en raison de la nationalité, de la race, de la religion, ou de l'opinion’. Henri Donnedieu de Vabres, ‘De la piraterie au génocide … les nouvelles modalités de la répression universelle’ Le droit privé français au milieu du XXème siècle: études offertes à Georges Ripert, Paris, 1950, Tome 1, 245.
22. See Leo Kuper, The Prevention of Genocide (New Haven, Conn.: Yale University Press, 1985), 12.
23. The Prosecutor v Goran Jelisić, IT-95–10-T (14 Dec 1999)
24. hereinafter ‘The Jelisić Trial Judgment’, para 67. Emphasis added.
25. Krstić Trial Judgment, para 561. Emphasis added.
26. The Prosecutor v Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, Vladimir Šantić, IT-95–16-T (14 Jan 2000), hereinafter ‘The Kupreškić Trial judgment’, para 636. Emphasis added.
27. Jelisić Appeal Judgment, para 49.
28. The trial judgment rendered on 15 Mar 2002 against Milorad Krnojelac (The Prosecutor v Milorad Krnojelac, Judgment, IT-97–25-T, 15 Mar 2002), departs from this reasoning and puts as a requirement that the accused ‘must consciously intend to discriminate’. It adds that [w]hile the intent to discriminate need not be the primary intent with respect to the act, it must be a significant one’. Pursuant to this judgment, the mere awareness of the discriminatory nature of the widespread or systematic attack would not be sufficient to find the accused guilty of persecution.
29. The Trial Chamber, in support of its finding, mentions a German case arising from the Second World War in which the accused was found guilty of a crime against humanity for denouncing his wife to the Gestapo on the basis of her anti-Nazi remarks. The District court of Hamburg found that, whilst the accused did not necessarily act on the ground of racial hatred, he nevertheless knew that his act would fall within the general mass persecution of the Jews (OGHBZ, Decision of the District Court (Landgericht) Hamburg of 11 Nov 1948, STS 78/48, Justiz und NS-Verbrechen II, 1945–66, 491, 499
30. quoted in the Tadić Trial Judgment, para 658).
31. Krstić Trial Judgment, para 580
32. Jelisić Trial Judgment, paras 78–83
33. Sikirica et al Judgment on Defence Motion to Acquit, paras 63–86.
34. The case law however does make it possible to take into consideration attacks on the group's symbols, such as the cultural or religious buildings, as further evidence of the intent to target the group as a distinct entity. See The Prosecutor v Radovan Karadžić and Ratko Mladić, IT-95–5-R61, IT-95–18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, para 94.
35. The ICTY case law reiterated this principle of interpretation prevailing in criminal law on several occasions. See for instance The Prosecutor v Duško Tadić, IT-94–1-A (15 Oct 1998), para 73: ‘in applying these criteria, any doubt should be resolved in favour of the Defence in accordance with the principle in dubio pro reo’
36. The Prosecutor v Delalić et al IT-96–21-T (16 Nov 1998), para 413: ‘where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which canons of construction fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain this. This is why ambiguous criminal statutes are to be construed contra proferentem.’
37. See, for instance, Federal Constitutional Court, 2 BvR 1290/99, 12 Dec 2000, para (III)(4)(a)(aa): ‘the statutory definition of genocide defends a supra-individual object of legal protection, ie, the social existence of the group […] the intent to destroy the group […] extends beyond physical and biological extermination […] The text of the law does not therefore compel the interpretation that the culprit's intent must be to exterminate physically at least a substantial number of the members of the group’ (emphasis added).
38. Axis Rule in Occupied Europe, 79, 87–89.
39. Actes de la Vème Conférence internationale pour l'unification du droit pénal (Paris, 1935), 48–56.
40. Letter of Raphael Lemkin published in ‘Executive Sessions of the US Senate Foreign Relations Committee’, Historical Series 781–805 (1976), 370.
41. USA v Ulrich Greifelt et al, Trials of War Criminals, vol XIV (1948), 2: ‘The acts, conduct, plans and enterprises charged in Paragraph 1 of this Count were carried out as part of a systematic program of genocide, aimed at the destruction of foreign nations and ethnic groups, in part by murderous extermination, and in part by elimination and suppression of national characteristics.’
42. See also the judgments rendered by the Polish Supreme Court against Amon Leopold Goeth (Trials of War Criminals, vol VII, no 37, 8)
43. Rudolf Franz Ferdinand Hoess (Trials of War Criminals, vol VII, no 38, 24).
44. ILC Draft Code, commentary of Art 17, 106.
45. Tadić Appeal Judgment, IT-94–1-A, 15 July 1999, para 284.
46. See William Shabas, Genocide in International Law, the Crime of the Crimes (Cambridge: Cambridge University Press, 2000) 229–30, who considers that such interpretation is defendable, on the basis of the letter and objectives of the Genocide Convention as well as the need for a dynamic interpretation of legal instruments that protect human rights.
47. Akayesu Trial Judgment, paras 510–16.
48. Jelisić Trial Judgment, para 71.
49. Krstić Trial Judgment, para 560.
50. The designation of the group on the basis of its geographical existence has notably been advocated by Cherif Bassiouni. See ‘The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia’ 5 Criminal Law Forum, 323–4.
51. Krstić Trial Judgment, para 559.
52. The Prosecutor v Nikolić, Review of the Indictment pursuant to Rule 61, Decision of Trial Chamber I, 20 Oct 1995, IT-94–2-R61, para 27.
53. Jelisić Trial Judgment, para 70.
54. Krstić Trial Judgment, para 557.
55. Jelisić Trial Judgment, para 82
56. Krstić Trial Judgment, paras 590–1.
57. Jelisić Trial Judgment, para 82
58. Sikirica et al Judgment on Defence Motion to Acquit, para 65: ‘This part of the definition calls for evidence of an intention to destroy a reasonably substantial number relative to the total population of the group’
59. This is also consistent with the solution retained in the ‘Draft Statute for the International Criminal Court. Part 2. Jurisdiction, Admissibility and Applicable Law’, UN Doc. A/AC.249/1998/CRP.8, 2 n.1: ‘the reference to “intent to destroy, in whole or in part … a group, as such” was understood to refer to the specific intention to destroy more than a small number of individuals who are members of the group.’
60. Jelisić Trial Judgment, para 82
61. Sikirica et al Judgment on Defence Motion to Acquit, paras 76–7
62. Krstić Trial Judgment, paras 585–7.