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

40 introduction to the international criminal court
Yugoslav Tribunal extended the approach to cover men of military age. 52
Some judgments have also established that ‘in part’ means the crime may
be committed in a very small geographic area against a group defined by its
borders, such as the Muslim population of the town of Srebrenica, which
was attacked by Bosnian Serb forces in July 1995. 53
The destruction must be directed at one of the four groups listed in the
definition: national, ethnical, racial or religious. The enumeration has often
been criticised because of its limited scope. In effect, proposals to include
political and social groups within the definition were rejected in 1948 and,
again, during the drafting of the Rome Statute. But dissatisfaction with
the narrowness of the four terms was reflected in the first conviction for
genocide by the International Criminal Tribunal for Rwanda. It stated that
the drafters of the Genocide Convention meant for the definition to apply to
all ‘permanent and stable’ groups, a questionable interpretation because it
so clearly goes beyond the text. 54 The four terms themselves are not easy to
define. Moreover, the common meaning of such concepts as ‘racial groups’
has changed considerably since 1948. Taken as a whole, the four terms
correspond closely to what human rights law refers to as ethnic or national
minorities, 55 expressions that themselves have eluded precise definition.
The description of the crime of genocide concludes with the puzzling
words ‘as such’. These were added in 1948 as a compromise between States
that felt genocide required not only an intentional element but also a motive.
The two concepts are not equivalent. Individuals may commit crimes intentionally,
but for a variety of motives: greed, jealousy, hatred and so on. Proof
of motive creates an additional obstacle to effective prosecution, and it is
for this reason that several delegations opposed requiring it as an element
of the crime. To date, courts interpreting the definition have simply avoided
the question.
The definition of the mental element or mens rea of the crime of genocide,
found in the chapeau of the provision, is followed by five paragraphs
listing the punishable acts of genocide. The list is an exhaustive one, and
52 Prosecutor v. Krstic (Case No. IT-98-33-T), Judgment, 2 August 2001, para. 595.
53 Ibid., para. 590.
54 Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1998 (1998) 37 ILM
1399, para. 515. But in other cases before the Rwanda Tribunal, this approach has not been
adopted: Prosecutor v. Kayishema and Ruzindana (Case No. ICTR-95-1-T), Judgment, 21 May
1999, para. 94. See also: Prosecutor v. Rutaganda (Case No. ICTR-96-3-T), Judgment, 6 December
1999.
55 Prosecutor v. Krstic (Case No. IT-98-33-T), Judgment, 2 August 2001, para. 556.