Prosecuting International Crimes in Africa - PULP - University of ...

64 Chapter 3
evidentiary areas of international criminal justice, with particular focus on
those where the ICTR has pioneered the development of international law,
breaking new grounds and moving the law forward. Further, the chapter
addresses instances where the ICTR has offered important clarification or
elaboration of existing jurisprudence, or applied it to novel or challenging
factual circumstances.
2 Genocide: Group victims, physical and mental
elements
Since the adoption of the ground-breaking and first binding United
Nation’s (UN) international human rights and penal treaty, the
Convention on the Prevention and Punishment of the Crime of Genocide
(Genocide Convention) of 1948, 3 no international tribunal envisaged by
the Genocide Convention was established. The crime of genocide and
other acts of genocide which the Convention proscribes were neither
interpreted nor applied until the ICTR in 1998 adjudicated and issued
judgments in the Akayesu and Kambanda cases. As generally predicted in
academic and other efforts, for instance in the 1989 proceedings of
renowned experts in international law, 4 multiple difficulties would
confront the interpretation and application of the Genocide Convention.
In pioneering the adjudication, and being the first international
tribunal to find an accused guilty of genocide, the ICTR confronted and
addressed multiple issues relating to the group-victims of genocide (groups
protected by the Genocide Convention) and the physical and mental
elements of the crime of genocide.
Under article 2 of the ICTR’s Statute, which is a verbatim
reproduction of article 2 of the Genocide Convention (and is also similar
to the provisions of articles 4 and 6 and of the Statutes of the ICTY and the
International Criminal Court (ICC) respectively), certain enumerated acts
(actus reus) 5 constitute genocide if committed with the intent to destroy in
whole or in part a racial, national, ethnical or religious group as such. The
identified groups are the groups that the prevention, prosecution and
punishment of the crime of genocide are intended to protect – also called
the ‘group victims of genocide’. The ICTR Statute, like the Genocide
Convention, and Statutes of the ICTY and ICC, does not identify criteria
3 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December
1948 and entered into force on 12 January 1951.
4 C Bassiouni ‘Genocide: The convention, domestic laws and state responsibility,
prospects for implementation of the Genocide Convention under state laws’ (1989) 83
Proceedings of the American Society of International Law 314.
5 Namely: killing members of the group; causing serious bodily or mental harm to
members of the group; deliberately inflicting on the group conditions of life calculated
to bring about the group’s destruction; imposing measures intended to prevent births
within the group; and forcibly transferring children of the group to another group.