An Introduction To The International Criminal Court - Institute for ...

38 introduction to the international criminal court
of the group; imposing conditions on the group calculated to destroy it; preventing
births within the group; and forcibly transferring children from the
group to another group. The definition has been incorporated in the penal
codes of many countries, although actual prosecutions have been rare. The
1961 trial of Adolf Eichmann in Israel was conducted under a legal provision
modelled on Article II of the Genocide Convention. Only in late 1998,
after the adoption of the Rome Statute, were the first significant judgments
of the ad hoc tribunals issued dealing with interpretation of the norm.
It is often said that what distinguishes genocide from all other crimes is
its dolus specialis or ‘special intent’. In effect, all three crimes that are defined
by the Rome Statute provide for prosecution for killing or murder. What
sets genocide apart from crimes against humanity and war crimes is that
the act, whether killing or one of the other four acts defined in Article 6,
must be committed with the specific intent to destroy in whole or in part
a national, ethnical, racial or religious group as such. As can be seen, this
‘special intent’ has several components.
The perpetrator’s intent must be ‘to destroy’ the group. During the debates
surroundingtheadoptionoftheGenocideConvention,theformsofdestruction
were grouped into three categories: physical, biological and cultural.
Cultural genocide was the most troublesome of the three, because it could
well be interpreted in such a way as to include the suppression of national
languages and similar measures. The drafters of the Convention considered
that such matters were better left to human rights declarations on the rights
of minorities and they actually voted to exclude cultural genocide from the
scope of the definition. However, it can be argued that a contemporary interpreter
of the definition of genocide should not be bound by the intent of the
drafters back in 1948. The words ‘to destroy’ can readily bear the concept of
cultural as well as physical and biological genocide, and bold judges might
be tempted to adopt such progressive construction. Recent judgments of
the International Criminal Tribunal for the Former Yugoslavia 44 and of the
German Constitutional Court 45 suggest that the law is evolving in this direction.
In any event, evidence of ‘cultural genocide’ has already proven to be
an important indicator of the intent to perpetrate physical genocide. 46
44 Prosecutor v. Krstic (Case No. IT-98-33-T), Judgment, 2 August 2001, para. 580.
45 Nikolai Jorgic, Bundesverfassungsgericht(Federal Constitutional Court), Fourth Chamber, Second
Senate, 12 December 2000, 2 BvR 1290/99, para. (III)(4)(a)(aa).
46 Prosecutor v. Karadzic and Mladic (Case No. IT-95-5-R61, IT-95-18-R61), Consideration of the
Indictment within the Framework of Rule 61 of the Rules of Procedure and Evidence, 11 July
1996, para. 94.