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

crimes prosecuted by the court 41
cannot properly be extended to other acts of persecution directed against
ethnic minorities. Such atrocities – for example ‘ethnic cleansing’, as it is
now known – will for this reason probably be prosecuted as crimes against
humanity rather than as genocide. 56
Killing is at the core of the definition and is without doubt the most important
of the five acts of genocide. The ad hoc tribunals have held that the term
killing is synonymous with murder or intentional homicide 57 (although
the Elements of Crimes say that the term ‘killing’ is ‘interchangeable’ with
‘causing death’, which seems to leave room for unintentional homicide).
The second act of genocide, causing serious bodily or mental harm, refers
to acts of major violence falling short of homicide. In the Akayesu decision,
the Rwanda Tribunal gave rape as an example of such acts. The Elements are
even more detailed, stating that such conduct may include ‘acts of torture,
rape, sexual violence or inhuman or degrading treatment’. 58 The third act
of genocide, imposing conditions of life calculated to destroy the group,
applies to cases like the forced marches of the Armenian minority in Turkey
in 1915. But none of the acts defined in Article 6 consists of genocide if
they are not accompanied by the specific genocidal intent. In cases where
the intent falls short of the definition, prosecution may still lie for crimes
against humanity or war crimes.
Crimes against humanity
Although occasional references to the expression ‘crimes against humanity’
can be found dating back several centuries, the term was first used in its contemporary
context in 1915. The massacres of Turkey’s Armenian population
were denounced as a crime against humanity in a declaration of three Allied
powers pledging that those responsible would be held personally accountable.
59 But, in the post-war peace negotiations, there were objections that
this was a form of retroactive criminal legislation and no prosecutions were
ever undertaken on an international level for the genocide of the Armenians.
56 Note, for example, that the Prosecutor of the International Criminal Tribunal for the Former
Yugoslavia indicted Slobodan Milosevic for crimes against humanity and not genocide with
respect to allegations of ‘ethnic cleansing’ in Kosovo during 1999: Prosecutor v. Milosevic et al.
(Case No. IT-99-37-I), Indictment, 22 May 1999.
57 Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1998, paras. 228–9.
58 Elements of Crimes, Art. 6(b), para. 1, n. 3.
59 United Nations War Crimes Commission, History of the United Nations War Crimes Commission
and the Development of the Laws of War, London: His Majesty’s Stationery Office, 1948, p. 35.