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International Law Genocide
by
Christine Byron

Introduction

Genocide has been called the “crime of crimes” and the gravest violation of human rights it is possible to commit. It was developed as an international crime in reaction to the Nazi Holocaust and intended to provide for the prosecution of those who sought to destroy entire human groups. The word “genocide” was coined by a Polish lawyer, Raphael Lemkin, in his book Axis Rule in Occupied Europe (1944) to provide a legal concept for this unimaginable atrocity. The word is a hybrid of the Greek word genos, meaning race, nation, or tribe, and the Latin suffix cide, meaning killing. Although genocide is often spoken of in the same breath as war crimes and crimes against humanity, it is not the same thing. War crimes refer to violations of the law of armed conflict, while crimes against humanity, of which genocide is often seen as a more serious subset, require a widespread or systematic attack against a civilian population. Unlike war crimes, the crime of genocide does not have to take place during an armed conflict (although it often does), and unlike crimes against humanity, it may also be perpetrated against soldiers or prisoners of war from the targeted group (if it happens to take place during an armed conflict). Additionally, crimes against humanity do not have to be perpetrated against a specific human group, as is the case with genocide, but simply against a civilian population. While the concept of genocide was developed after World War II, it is unfortunately true that the mass killing of human groups is much older than the legal expression; indeed, the first genocide of the 20th century is widely thought to have been the German genocide of the Herero and Nama in German South West Africa (modern-day Namibia) between 1904 and 1907. The Genocide Convention of 1948 (officially the Convention on the Prevention and Punishment of the Crime of Genocide) declared that “genocide, whether committed in time of peace or in time of war, is a crime under international law which they, the contracting parties, undertake to prevent and to punish.” Nevertheless, the real development of systematic international trials and punishment for the crime of genocide waited for the end of the 20th century: the ad hoc tribunals for the former Yugoslavia and Rwanda and the inclusion of the crime of genocide in the Rome Statute of the International Criminal Court.

General Overviews

For a concept that was only legally named after World War II, there is abundant scholarship on the topic of genocide, including how it is or should be understood as well as how a fairly short treaty can be turned into a usable tool to prosecute individuals for the worst of atrocities. In legal terms, one of the most comprehensive discussions of genocide is Schabas 2009, in which William Schabas discusses the history, drafting, and interpretation of the Genocide Convention in the light of modern-day trials and events. Another general legal overview is Henham and Behrens 2007, which considers the history, case studies, and prosecution of genocide and also considers sentencing for the crime of genocide. Quigley 2006 also considers the entire ambit of the Genocide Convention, including techniques of genocide and genocide by states. A more theoretical approach is taken by Totten and Bartrop 2009, an edited work in which consideration is given to alternative definitions and theories of genocide and to intervention when a genocide is in progress. The other main overview of genocide, Jones 2006, considers it from an interdisciplinary perspective. Jones 2006 is intended to be comprehensive and examines case studies of seven genocides (some of which rely on a rather loose interpretation of the term). The work also covers social science perspectives on genocide.

  • Henham, Ralph, and Paul Behrens, eds. The Criminal Law of Genocide: International, Comparative, and Contextual Aspects. Aldershot, UK: Ashgate, 2007.

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    A well-structured edited book with pertinent chapters by some well-known names in the field dealing with a range of concepts from the responsibility to protect and genocide to a European perspective on extraterritorial jurisdiction over genocide.

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  • Jones, Adam. Genocide: A Comprehensive Introduction. New York: Routledge, 2006.

    DOI: 10.4324/9780203347447Save Citation »Export Citation »E-mail Citation »

    This is intended as a book for higher-level undergraduate students and postgraduate students. It is written in an accessible style with suggestions for further study after each chapter. Those who prefer a stricter interpretation of genocide may not agree with all of Jones’s conclusions in his case studies, but his section on social science perspectives is a useful introduction to the wider study of genocide.

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  • Quigley, John B. The Genocide Convention: An International Law Analysis. Aldershot, UK: Ashgate, 2006.

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    A consideration of the legal aspects of the treatment of genocide. The approach of extremely short chapters may be off-putting to some readers and perhaps gives the impression of a superficial coverage of the topic, but the book is well structured and refers in some depth to the case law of both national courts and the ad hoc tribunals.

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  • Schabas, William. Genocide in International Law: The Crime of Crimes. 2d ed. Cambridge, UK: Cambridge University Press, 2009.

    DOI: 10.1017/CBO9780511575556Save Citation »Export Citation »E-mail Citation »

    A comprehensive and detailed text that works through the mental and physical elements of the crime of genocide with exhaustive reference to the travaux préparatoires (preparatory works) of the Genocide Convention and through post–World War II trials, national trials, and the decisions of the ad hoc tribunals. Schabas also considers state responsibility for genocide and the problems involved in preventing genocide.

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  • Totten, Samuel, and Paul R. Bartrop, eds. The Genocide Studies Reader. New York: Routledge, 2009.

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    This work has contributions from some of the experts in this field and covers issues such as alternative definitions, theories of genocide, and intervention when genocide is occurring. Each chapter is relatively short, but they are well organized under group headings. This would be useful for someone who just wanted to dip into the book to look at one aspect of genocide.

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Textbooks

General international law textbooks do not tend to include a chapter on genocide. Instead, general texts on international criminal law or on the ad hoc tribunals or the International Criminal Court (ICC) often include a chapter on genocide. Zahar and Sluiter 2008 focuses on the problems of proving intention in genocide and on participation in the crime. Cassese 2008 considers problems with interpreting the Genocide Convention, such as how to identify a protected group and whether a plan or a policy is a necessary part of genocide. The Oxford Companion to International Criminal Justice (Cassese 2009) is also useful not so much for the short entry on genocide but in its coverage of cases, many of which are relevant for anyone researching genocide. Mettraux 2005 focuses on the prosecution of the crime of genocide by the ad hoc tribunals, and McGoldrick, et al. 2004 includes a chapter on genocide under Article 6 of the Rome Statute.

  • Cassese, Antonio. International Criminal Law. 2d ed. Oxford: Oxford University Press, 2008.

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    Includes a fairly brief chapter covering the basics of genocide from the 1948 convention through to genocide in Article 6 of the Rome Statute of the International Criminal Court. Incitement to genocide is covered in the chapter on other modes of liability.

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  • Cassese, Antonio, ed. The Oxford Companion to International Criminal Justice. Oxford: Oxford University Press, 2009.

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    This large volume has short entries on complicity in genocide, incitement to commit genocide, and genocide in Part B, and usefully it also includes case notes on a comprehensive list of cases in Part C, many of which involved prosecutions for the crime of genocide.

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  • McGoldrick, Dominick, Peter Rowe, and Eric Donnelly, eds. The Permanent International Criminal Court: Legal and Policy Issues. Oxford: Hart, 2004.

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    Christine Byron wrote the chapter on genocide in this edited work, and she analyzes Article 6 of the Rome Statute by considering the origins of the crime of genocide, how it has been developed in recent years, mainly through the jurisprudence of the ad hoc tribunals, and how the elements of crime may affect the interpretation of this crime by the International Criminal Court.

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  • Mettraux, Guénaël. International Crimes and the Ad Hoc Tribunals. Oxford: Oxford University Press, 2005.

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    Part 4 of this book concentrates upon the crime of genocide and considers the mental and physical elements of the crime with extensive reference to the case law of the ad hoc tribunals. Also briefly discusses the different types of participation in the crime of genocide.

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  • Zahar, Alexander, and Göran Sluiter. International Criminal Law. Oxford: Oxford University Press, 2008.

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    Contains a fairly short but clear chapter viewing the International Criminal Tribunal for Rwanda (ICTR) case of Prosecutor v. Jean-Paul Akayesu as a turning point in the understanding of genocide. The chapter also critiques the ICTR Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, and Hassan Ngeze judgment on direct and public incitement of genocide.

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Judicial Decisions

Judicial decisions on genocide fall into three main categories. First are judgments of the International Court of Justice (ICJ) as to the obligations of states and their responsibility under the Genocide Convention, subject to Article IX of the Genocide Convention, which provides that the ICJ has jurisdiction to hear disputes between states parties relating to the “application, interpretation or fulfillment” of the convention at the request of any party to the dispute (although this article has been the subject of reservations by states). The two ICJ judgments on the Genocide Convention are International Court of Justice 1951 and International Court of Justice 2007, which deal with the issue of permissible reservations to the convention and an accusation of state-sponsored genocide, respectively. Second are decisions of national courts and tribunals on those accused of genocide, one of the best known being the prosecution of Adolf Eichmann, one of the architects of the Final Solution, by the attorney-general of the government of Israel (Attorney-General of the Government of Israel v. Adolf Eichmann). The third category includes decisions by international courts and tribunals, notably Prosecutor v. Jean-Paul Akayesu, which was the first international criminal trial of an individual accused of genocide; Prosecutor v. Clément Kayishema and Obed Ruzindana, which considered the question of evidence sufficient to infer genocide (both of these were heard before the International Criminal Tribunal for Rwanda [ICTR]); Prosecutor v. Goran Jelisić, the first time the International Criminal Tribunal for the Former Yugoslavia dealt with genocide in depth; and Prosecutor v. Radislav Krstić, which gave the same tribunal the first opportunity to consider the massacres of military-age Bosnian Muslims following the fall of Srebrenica. Within this third category is the pretrial second decision on a warrant of arrest in Prosecutor v. Omar Hassan Ahmad Al Bashir, which allowed the International Criminal Court (ICC) to interpret the crime of genocide under the Rome Statute and “Elements of Crimes” in light of the standard of evidence (reasonable grounds to believe that the accused may have committed the offense) necessary to issue an arrest warrant for the crime of genocide.

Creation and Development of the Concept of Genocide

Lemkin 1947 was instrumental in the development of the concept of genocide, and Raphael Lemkin’s efforts started to come to fruition with the General Assembly Resolution 96(1) (UN General Assembly 1946), which affirmed that genocide was a crime under international law. Further, prosecutors in some of the post–World War II tribunals started using the word “genocide” in their indictments, and some of the judgments also referred to this crime, many before the Genocide Convention was adopted (see UN War Crimes Commission 1947–1949). In particular, in the “Trial of Josef Altstötter and Others” (UN War Crimes Commission 1948b), a US military tribunal described the crime of genocide as an illustration of crimes against humanity, whereas the Supreme National Tribunal of Poland, in the trial of Hauptsturmführer Amon Leopold Goeth, Commandant of the Forced Labor Camp Near Cracow (UN War Crimes Commission 1948a) and the trial of Gauleiter Artur Greiser” (UN War Crimes Commission 1949), considered that genocide had taken place against both the Jewish and the Polish people in a physical and cultural sense. In the trial of Obersturmbannführer Rudolf Franz Ferdinand Hoess, Commandant of the Auschwitz Camp (UN War Crimes Commission 1948c), the same tribunal stated that the sterilization experiments at Auschwitz were made to lower or destroy the reproductive capacity of non-German nations considered by the Nazis as standing in the way of their world domination plans and so were preparatory to the crime of genocide.

  • Lemkin, Raphael. “Genocide as a Crime under International Law.” American Journal of International Law 41 (1947): 145–151.

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    Lemkin discusses his development of the concept of genocide and the significance of GA Res 96(1) 11 Dec 1946 (UN General Assembly 1946).

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  • UN General Assembly. The Crime of Genocide. Resolution 96(1); UN Doc A/res/96(1), UN General Assembly, 11 December 1946.

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    The resolution describes genocide as “a denial of the right of existence of entire human groups” and affirms it as a crime under international law. It set in motion action toward the development of a convention.

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  • UN War Crimes Commission. Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission. 15 vols. London: His Majesty’s Stationary Office, 1947–1949.

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    This fifteen-volume set contains reports of and comments upon the post–World War II trials held by national courts and military tribunals in various states. The entire collection is available online.

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  • UN War Crimes Commission. “Trial of Hauptsturmführer Amon Leopold Goeth, Commandant of the Forced Labor Camp Near Cracow: Supreme National Tribunal of Poland, Cracow, 27th–31st August and 2nd–5th September 1946.” In Law Reports Trials of War Criminals. Vol. 7. By UN War Crimes Commission, 1–10. London: His Majesty’s Stationary Office, 1948a.

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    The tribunal accepted that “the wholesale extermination of Jews and also of Poles had all the characteristics of genocide in the biological meaning of this term, and embraced in addition the destruction of the cultural life of these nations” (p. 8). Available online.

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  • UN War Crimes Commission. “Trial of Josef Altstötter and Others: US Military Tribunal, Nuremberg, 17th February–4th December 1947.” In Law Reports Trials of War Criminals. Vol. 6. By UN War Crimes Commission, 1–110. London: His Majesty’s Stationary Office, 1948b.

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    The tribunal held that genocide was a prime example of crimes against humanity (pp. 32, 48). Available online.

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  • UN War Crimes Commission. “Trial of Obersturmbannführer Rudolf Franz Ferdinand Hoess, Commandant of the Auschwitz Camp: Supreme National Tribunal of Poland, 11th–29th March 1947.” In Law Reports Trials of War Criminals. Vol. 7. By UN War Crimes Commission, 11–26. London: His Majesty’s Stationary Office, 1948c.

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    The tribunal described the sterilization experiments at Auschwitz as preparatory to the crime of genocide (p. 25). Available online.

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  • UN War Crimes Commission. “Trial of Gauleiter Artur Greiser: Supreme National Tribunal of Poland, 21 June-7 July 1946.” In Law Reports Trials of War Criminals. Vol. 13. By UN War Crimes Commission, 70–117. London: His Majesty’s Stationary Office, 1949.

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    The tribunal referred to both the deportation to concentration camps of Poles and Jews and the “Germanization of Polish children racially suited to it” as “physical and spiritual genocide” (p. 114). Available online.

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Creation of the Genocide Convention

The Genocide Convention went through several drafts, including the initial draft by the UN Secretariat’s human rights division, then, following comments by states, an Economic and Social Council Ad Hoc Committee draft, then, following a detailed discussion in the General Assembly’s Sixth Committee, the final draft submitted to the General Assembly. The convention was adopted unanimously in General Assembly Resolution 260(III) (UN General Assembly 1948). Much of the preparatory work to the convention is available in the Audiovisual Library of International Law entry Convention on the Prevention and Punishment of the Crime of Genocide. Early reviews of the convention are fairly brief, with Kunz 1949 commenting on the weaknesses of the convention and the Yale Law Journal article “Genocide: A Commentary on the Convention” 1949 considering the potential for US ratification. Lippman 1985 and Lippman 1994 discuss the drafting history of the convention in some depth and also propose some possible reforms to the convention, but perhaps the most authoritative early commentary to the travaux préparatoires (preparatory works) of the Genocide Convention is Robinson 1960.

  • “Genocide: A Commentary on the Convention.” Yale Law Journal 58.7 (1949): 1142–1160.

    DOI: 10.2307/792930Save Citation »Export Citation »E-mail Citation »

    An early short commentary on the Genocide Convention from an American point of view with reference to possible concerns of the United States in ratifying the convention.

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  • Kunz, Josef. “The United Nations Convention on Genocide.” American Journal of International Law 43.4 (1949): 738–746.

    DOI: 10.2307/2193262Save Citation »Export Citation »E-mail Citation »

    An early overview of the new convention, commenting on its “tentative character,” given that states could denounce it after ten years, and suggesting that Article 4 is “legally irrelevant,” as no international penal tribunal existed at that time.

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  • Lippman, Matthew. “The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.” Boston University International Law Journal 3 (1985): 1–65.

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    A thorough discussion of the history of the drafting of the Genocide Convention with a short appraisal of methods to improve its effectiveness.

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  • Lippman, Matthew. “The 1948 Convention on the Prevention and Punishment of the Crime of Genocide: Forty-Five Years Later.” Temple International and Comparative Law Journal 8 (1994): 1–84.

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    A thorough overview of the Genocide Convention, article by article, with reference to the travaux préparatoires (preparatory works), in-depth and relevant commentary, and a final section suggesting reforms to the convention.

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  • Robinson, Nehemiah. The Genocide Convention: A Commentary. New York: Institute of Jewish Affairs, 1960.

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    This is the first in-depth commentary on the Genocide Convention. It includes a history of the preparation of the convention, particular problems with respect to the application of the convention, and an article-by-article commentary on the text of the convention with reference to the travaux préparatoires (preparatory works).

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  • Schabas, William A. Convention on the Prevention and Punishment of the Crime of Genocide. UN Audiovisual Library of International Law, 2008.

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    A very useful resource with links to documents relating to the creation of the Genocide Convention, including the UN Secretariat’s draft convention, the report of the Economic and Social Council Ad Hoc Committee draft convention, the report of the Sixth Committee of the General Assembly, and the verbatim records of the General Assembly plenary meetings at which the delegates discussed the Sixth Committee report and adopted the Genocide Convention.

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  • UN General Assembly. Prevention and Punishment of the Crime of Genocide. Resolution 260(III); UN General Assembly, 9 December 1948.

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    The final text of the Genocide Convention as adopted by the General Assembly unanimously on 9 December 1948.

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The Mental Element of Genocide

The required element of intention for the crime of genocide, the “intent to destroy, in whole or part, a group as such,” has caused much controversy. Among the arguments are whether this requires proof of a motive on the part of the perpetrator, and the Final Report of the Commission of Experts on Yugoslavia (UN Security Council 1994) states the orthodox view that “motive and intent may be closely linked, but motive is not mentioned in the Convention” (paragraph 97). A more contentious issue is what exactly “intent” means, and in this respect Triffterer 2001 argues in favor of an interpretation that the accused must merely accept that his or her act in all probability might have this consequence. Vest 2007, however, argues for the threshold of knowledge of the destruction as a practical certainty while recognizing that most jurisprudence of the ad hoc tribunals requires proof of volition to destroy the group. Another contentious issue with respect to the mental element of genocide is the meaning of the expression “intent to destroy . . . in part.” Proposals for interpretation of this expression discussed in LeBlanc 1991 and Schabas 2001 revolve around whether this necessitates an intention to destroy a substantial or significant part of the group and exactly how this should be interpreted. Given that prosecutors of most modern genocides do not have the benefit of extensive documents stating the intentions of the perpetrators, Alonzo-Maizlish 2002, Jørgensen 2001, and Aptel 2002 discuss how genocidal intent may be proven.

  • Alonzo-Maizlish, David. “In Whole or in Part: Group Rights, the Intent Element of Genocide, and the ‘Quantitative Criterion.’” New York University Law Review 77 (2002): 1369–1403.

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    Argues that the concept of genocide is premised on a group-held right to exist and therefore that a quantitative criterion to infer the intent for genocide is contrary to the object and purpose of the Genocide Convention. The author further proposes that the inference of intent should be based simply on whether or not the defendant intended to destroy the group.

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  • Aptel, Cécile. “The Intent to Commit Genocide in the Case Law of the International Criminal Tribunal for Rwanda.” Criminal Law Forum 13.3 (2002): 273–291.

    DOI: 10.1023/A:1023344825934Save Citation »Export Citation »E-mail Citation »

    Questions whether there needs to be a policy to commit genocide but comments that the ad hoc tribunals have clearly stated that the existence of such a plan would be strong evidence of the specific intent for genocide.

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  • Jørgensen, N. H. B. “The Definition of Genocide: Joining the Dots in the Light of Recent Practice.” International Criminal Law Review 1.3–4 (2001): 285–313.

    DOI: 10.1163/15718120121002630Save Citation »Export Citation »E-mail Citation »

    Suggests a practical solution for inferring genocidal intent, a two-stage test, demonstrating knowledge of the broader pattern of conduct and inferring the special intent from all the evidence, including that related to knowledge.

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  • LeBlanc, Lawrence J. The United States and the Genocide Convention. Durham, NC: Duke University Press, 1991.

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    The author fears that the question of what a substantial part of a group is could degenerate into a “numbers game” and discusses the United States implementing legislation for the Genocide Convention, the Proxmire Act, and the US interpretation of what constitutes a substantial part of a group.

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  • Schabas, William. “Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia.” Fordham International Law Journal 25.1 (2001): 23–53.

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    Considers that the problem of the “significant” part approach is that it results in value judgments about how important one or another group may be to the survival of the community and comments, in the context of the Srebrenica massacre of military-aged men, that to the extent that the genocidal technique is incomplete and illogical, “this will cast doubts on whether or not real genuine intent was present” (p. 47).

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  • Triffterer, Otto. “Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such.” Leiden Journal of International Law 14.2 (2001): 399–408.

    DOI: 10.1017/S0922156501000206Save Citation »Export Citation »E-mail Citation »

    Discusses the intention required for the crime of genocide. Civil law and German law concepts are emphasized in coming to the contentious conclusion that the “particular” intent of genocide requires that a prosecutor need only show that the accused merely accepted that his or her act would most probably have the consequence of destroying the group in whole or part.

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  • UN Security Council. Final Report of the Commission of Experts, Established Pursuant to Security Council Resolution 780 (1992). UN Doc. S/1994/674, 27 May 1994.

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    The commission stated that “the intent to destroy the fabric of a society through the extermination of its leadership, when accompanied by other acts of elimination of a segment of society,” can be deemed genocide (paragraph 94).

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  • Vest, Hans. “A Structure-Based Concept of Genocidal Intent.” Journal of International Criminal Justice 5.4 (2007): 781–797.

    DOI: 10.1093/jicj/mqm036Save Citation »Export Citation »E-mail Citation »

    The assumption underlying this article is that usually an individual accused of genocide will have taken part in a mass action against the group. In this context, the “specific” intent of genocide could be understood as the individual attacking some members of the group with a practical certainty of the basic features of the intended campaign and its results.

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The Concept of Auto-Genocide and the Negative Definition of Groups

Certain aspects of the mental element of genocide have become particularly contentious. It seems accepted that the group targeted for destruction need not be a minority, and indeed Hannum 1989 notes that it is not unknown for a state to be politically or militarily controlled by a minority of its population that may be ethnically distinct from the majority. However, whether the concept of “auto-genocide,” when the majority population self-destructs, is covered by the Genocide Convention is more contentious. Although Whitaker 1985 notes that the definition “does not exclude cases where the victims are part of the violator’s own group” and Simon 1996 comments that “group suicide is not beyond the ‘logic’ of genocide,” the more mainstream genocide scholars, such as William Schabas, view this as stretching the definition too far (Schabas 2001). The other contentious issue is whether the group targeted for destruction must be defined positively, as a particular group, or negatively, when all groups except the perpetrator’s own group are targeted. Despite the approach of the Yugoslavia Commission of Experts (UN Security Council 1994) and the International Criminal Tribunal for the Former Yugoslavia (ICTY) trial judgment in Prosecutor v. Goran Jelisić to the effect that this negative definition is an acceptable approach to determining the mental element of genocide, more recent decisions, including the ICTY Appeals Chamber judgment in Prosecutor v. Milomir Stakić and the International Court of Justice’s conclusions in Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (International Court of Justice 2007), have interpreted the Genocide Convention literally, holding that there must be a positive targeting of a specific group for destruction.

Groups Protected

There are two main issues that have been analyzed with respect to the definition of the groups protected by the Genocide Convention. First, how “national, ethnical, racial or religious” should be interpreted, an issue that has been relatively noncontentious, although a brief glance at Ruhashyankiko 1978, Shaw 1989, and Prosecutor v. Jean-Paul Akayesu demonstrates the differing views on the definition of national groups, and whether the concept of “religious groups” includes atheists. Second, the question of whether such groups must have an objective existence or whether, as the cases of Prosecutor v. Goran Jelesić and Prosecutor v. Georges Anderson Nderubumwe Rutaganda, suggest, a subjective approach by the perpetrator can be taken into account. Verdirame 2000 reviews the move toward a subjective interpretation of international courts in a historical perspective.

  • Prosecutor v. Georges Anderson Nderubumwe Rutaganda. ICTR-96-3-T, Trial Chamber Judgement, 6 December 1999.

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    Comments that the victim is either perceived as belonging to a group by the perpetrator of genocide or may perceive himself or herself as belonging to the group (paragraph 55).

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    • Prosecutor v. Goran Jelesić. IT-95-10-T, Trial Chamber Judgement, 14 December 1999.

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      Considers the perils of trying to determine objectively national, ethnic, or racial groups and holds that the stigmatization of a group by the community allows a determination of whether it constitutes a particular group in the eyes of alleged perpetrators (paragraph 70).

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      • Prosecutor v. Jean-Paul Akayesu. ICTR-96-4-T, Trial Chamber Judgement, 2 September 1998.

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        Considers national groups as citizens of a state; ethnic groups as those who “share a common language or culture”; racial groups as “based on the hereditary physical traits often identified with a geographical region”; and religious groups as groups “whose members share the same religion, denomination or mode of worship” (paragraphs 512–515).

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        • Ruhashyankiko, Nicodème. Study of the Question of the Prevention and Punishment of the Crime of Genocide. UN Doc. E/CN.4/Sub.2/416. New York: UN Economic and Social Council, Sub-Commission on the Promotion and Protection of Human Rights, 4 July 1978.

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          The Ruhashyankiko Report views the concept of national groups as relating to national minorities rather than with respect to citizenship of a state, and it takes ethnic and racial groups together, commenting that writers have found it difficult to distinguish between them. With respect to religious groups, the report is unclear whether atheists are protected or not.

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        • Shaw, M. N. “Genocide and International Law.” In International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne. Edited by Yoram Dinstein, 797–820. Dordrecht, The Netherlands: Martinus Nijhoff, 1989.

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          Shaw does not definitively decide whether “national groups” refers to nationality or to national minorities. He considers it preferable to consider ethnic and racial groups together to cover relevant cases and views “religious groups” as excluding atheists.

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        • Verdirame, Gugliemo. “The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals.” International and Comparative Law Quarterly 49.3 (2000): 578–598.

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          Recounts the change in approach in international courts from an objective criteria when determining the nature of a group toward a more subjective approach in the ad hoc tribunal decisions.

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        Exclusion of Political Groups from the Definition of Genocide

        While some ad hoc tribunal judgments, as in Prosecutor v. Jean-Paul Akayesu, have treated the groups protected by the Genocide Convention as an ejusdem generis (of the same kind) list; others, such as Prosecutor v. Radislav Krstić, have strictly confined the Genocide Convention to the four named groups. However, even the judgment in Prosecutor v. Jean-Paul Akayesu does not suggest that political groups are protected by the convention, and although Whitaker 1985 discusses the problems and benefits of protection of political groups and proposes an optional protocol to the Genocide Convention to extend the protection to them, only Van Schaack 1997 suggests that political groups are already protected under the definition of genocide under customary international law as jus cogens (compelling law). Supporting this argument, the trend of some national jurisdictions to include political genocide is discussed by Tiba 2007 and Shneider 2010. Tiba 2007 discusses the recent Mengistu judgment in Ethiopia, in which the definition of genocide as including political groups is applied, and Shneider 2010 discusses Spanish and Latin American jurisprudence on genocide and compares decisions in these areas to those of the ad hoc tribunals.

        Acts Constituting Genocide in Article 2 of the Genocide Convention

        The actus reus (guilty act) of genocide is set out in Article 2 of the Genocide Convention from paragraphs a to e, giving five methods of carrying out the intention to destroy a group. Robinson 1960, a commentary on the convention, works through the five acts fairly rapidly, concentrating upon the interpretation given to these phrases during the travaux préparatoires (preparatory works), whereas International Law Commission 1996 emphasizes that, given the exclusion of the concept of cultural genocide from the convention, each act referred to in Article 2 must amount to physical or biological genocide. Cases before the ad hoc tribunals have considered the elements of the actus reus of genocide in a more technical manner, with the tribunal in Prosecutor v. Jean-Paul Akayesu preferring the French expression meurtre (murder) as more precise than the English “killing” and in Prosecutor v. Milomir Stakić ruling out deportation from Article 2 (c). Comments on the physical act of genocide by academics have often either concentrated on the approach of one state to the convention, as in LeBlanc 1991, which explains the concerns of the United States over ratifying the Genocide Convention, or have applied the actus reus of genocide to a particular atrocity, as in Webb 1993 and Tatz 1999.

        • International Law Commission. Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May–26 July 1996. UN Doc. A/51/10. New York: International Law Commission, 1996.

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          In particular, the report comments that bodily or mental harm “must be of such a serious nature as to threaten its destruction in whole or part” and that Article 2 (c) could include deportation if carried out with the specific intent of genocide.

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        • LeBlanc, Lawrence J. The United States and the Genocide Convention. Durham, NC: Duke University Press, 1991.

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          In chapter 5 the author looks at the concerns of the United States with respect to the five physical elements of Genocide, such as whether discrimination against the black population in the United States could be considered to amount to mental harm. This led to the US understanding of the Genocide Convention “that the term ‘mental harm’ in article II (b) means permanent impairment of mental faculties through drugs, torture or similar techniques.”

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        • Prosecutor v. Jean-Paul Akayesu. ICTR-96-4-T, Trial Chamber Judgement, 2 September 1998.

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          Emphasizes that Article 2 (b), “causing serious bodily or mental harm,” does not require that the harm is “permanent and irremediable” and follows the Attorney General of Israel v. Eichmann case in holding that serious bodily or mental harm includes “acts or torture, be they bodily or mental, inhumane or degrading treatment, or persecution” (paragraphs 502–504).

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        • Prosecutor v. Milomir Stakić. IT-97-24-A, Appeals Chamber Judgement, 22 March 2006.

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          Particularly concentrating on Article 2 (c), the court held that, as cultural genocide was specifically excluded from the definition of genocide, the “expulsion of a group or part of a group does not in itself suffice for genocide” (paragraphs 517–519), a finding which was upheld on appeal.

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        • Robinson, Nehemiah. The Genocide Convention: A Commentary. New York: Institute of Jewish Affairs, 1960.

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          Explains the background discussions of the convention, noting that the expression “mental harm” in Article 2 (b) was to take into account the Chinese-Indian amendments to cover acts committed through the use of narcotics and that Article 2 (e) on forced transfer of children was the only survivor of the concept of cultural genocide.

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        • Tatz, Colin. “Genocide in Australia.” Journal of Genocide Research 1.3 (1999): 315–352.

          DOI: 10.1080/14623529908413964Save Citation »Export Citation »E-mail Citation »

          Concentrates on the practice of forcible transfer of Aboriginal children from their families to white families or to children’s homes in Australia from 1880 to 1970 and considers whether this practice amounted to genocide under Article 2 (e).

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        • Webb, John. “Genocide Treaty—Ethnic Cleansing—Substantive and Procedural Hurdles in the Application of the Genocide Convention to Alleged Crimes in the Former Yugoslavia.” Georgia Journal of International and Comparative Law 23 (1993): 377–408.

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          Considers the extent to which ethnic cleansing in the former Yugoslavia can be said to be genocide, particularly commenting on Article 2 (b) that mental harm “need not be permanent, nor particularly brutal to constitute the requisite ‘act’ so long as the group can be effectively destroyed through psychological destruction” (p. 393).

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        Sexual Violence

        Since the decision in Prosecutor v. Jean-Paul Akayesu in 1998, it has become a generally accepted part of international law that sexual violence can amount to one of the five physical acts of genocide and, if carried out with the specific intent to destroy the group in whole or part, could amount to genocide. Most recently this modern orthodoxy was confirmed in the pretrial decision of the International Criminal Court in Prosecutor v. Omar Hassan Ahmad Al Bashir. Academic works, such as Karagiannakis 1999 and Fein 1999, have reviewed the ad hoc case law and taken a historic view of the use of rape in genocide, and de Londras 2007 suggests that the theory of intersectionality, if used by a prosecutor, could assist in providing effective remedies for victims of genocidal gender abuse. Only Zahar and Sluiter 2008 questions whether the Akayesu judgment demonstrated that systematic rapes could destroy a group in whole or in part.

        • de Londras, Fiona. “Telling Stories and Hearing Truths: Providing an Effective Remedy to Genocidal Sexual Violence against Women.” In The Criminal Law of Genocide: International, Comparative, and Contextual Aspects. Edited by Ralph Henham and Paul Behrens, 113–124. Aldershot, UK: Ashgate, 2007.

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          Discusses the role of rape and gender violence within genocide and proposes that the theory of intersectionality can be effectively invoked to provide the effective remedy sought by victims of sexual abuse as part of genocide.

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        • Fein, Helen. “Genocide and Gender: The Uses of Women and Group Destiny.” Journal of Genocide Research 1 (1999): 43–63.

          DOI: 10.1080/14623529908413934Save Citation »Export Citation »E-mail Citation »

          Considers both the history of female sexual abuse during genocides and gender aspects of genocides in the 20th century, viewing the escalation from toleration to encouragement and sanction to institutionalization (as with the “comfort” women in World War II) and finally to instrumentalization as a tactic serving strategic war aims (as in Bosnia and Rwanda).

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        • Karagiannakis, Magdalini. “Case Analysis: The Definition of Rape and Its Characterization as an Act of Genocide: A Review of the Jurisprudence of the International Criminal Tribunals for Rwanda and the Former Yugoslavia.” Leiden Journal of International Law 12.2 (1999): 479–490.

          DOI: 10.1017/S0922156599000230Save Citation »Export Citation »E-mail Citation »

          Reviews the case law of the ad hoc tribunals on the issue of rape as genocide.

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        • Prosecutor v. Jean-Paul Akayesu. ICTR-96-4-T, Trial Chamber Judgement, 2 September 1998.

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          The Trial Chamber held that rape and sexual violence can constitute genocide provided that the specific intention to destroy the group is present. In particular with respect to imposing measures intended to prevent births, the tribunal commented that measures to prevent births may be mental as well as physical “when the person raped refuses subsequently to procreate” (paragraph 508).

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          • Prosecutor v. Omar Hassan Ahmad Al Bashir. ICC-02/05-1/09, Second Decision on the Prosecution’s Application for a Warrant of Arrest, 12 July 2010.

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            The Pre-Trial Chamber of the International Criminal Court (ICC) accepted that with respect to genocide, by causing serious bodily or mental harm to members of the group, the material element “may include acts of torture, rape, sexual violence or inhuman or degrading treatment” (paragraph 26).

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            • Zahar, Alexander, and Göran Sluiter. International Criminal Law. Oxford: Oxford University Press, 2008.

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              In their consideration of genocide in chapter 5, the authors argue that the five acts of genocide must be limited to acts that could destroy a group, and they question whether the Akayesu judgment demonstrated that fact with respect to systematic rapes.

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            Distinctions from Crimes Against Humanity

            While genocide and crimes against humanity can be seen as separate crimes, the fact that they clearly have some aspects in common has caused some academics to question whether particular situations of atrocities amount to genocide or “only” crimes against humanity. In a brief section of Cassese 2008 the author clearly explains the similarities and the differences between the two crimes. However, a modern example of the atrocities in the Darfur region of Sudan demonstrates the impassioned debate about the nature of such crimes, with International Commission of Inquiry on Darfur 2005 finding that the situation did not amount to genocide and the Pre-Trial Chamber of the International Criminal Court (ICC), in Prosecutor v. Omar Hassan Ahmad Al Bashir, following instructions from the Appeals Chamber, issuing an arrest warrant for genocide. Schabas 2005 suggests that the impassioned arguments are due to the “popular perception that genocide is the ‘crime of crimes,’ and any description that falls short of genocide amounts to betrayal of the victims” (p. 881). Both Schabas 2005 and Quayle 2005 take the approach that neither the massacre following Srebrenica nor the killings in Darfur amounted to genocide. On the other hand, both Byron 2005 and Trahan 2007 point to the similarities with Srebrenica in determining that genocide may have been committed in Darfur.

            • Byron, Christine. “Comment on the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General.” Human Rights Law Review 5.2 (2005): 351–360.

              DOI: 10.1093/hrlr/ngi020Save Citation »Export Citation »E-mail Citation »

              Critically reviews the commission’s report and suggests, in reliance on the International Criminal Tribunal for the Former Yugoslavia (ICTY) judgment in Prosecutor v. Radislav Krstić (cited under Judicial Decisions), that killing of the males may amount to genocide and that the severe conditions in the internally displaced persons camps, combined with harassment and obstruction of aid workers, may evince an intention to destroy part of the African population rather than simply displace it.

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            • Cassese, Antonio. International Criminal Law. 2d ed. Oxford: Oxford University Press, 2008.

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              A short section titled “Genocide and Crimes against Humanity” clearly explains the similarities between the two crimes and the differences, in particular that crimes against humanity may be committed against groups not protected by the Genocide Convention and that genocide may be committed against combatants, in addition to explaining the difference in the mental element between the two crimes.

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            • International Commission of Inquiry on DarfurReport of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004. Geneva, Switzerland: International Commission of Inquiry on Darfur, 25 January 2005.

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              A detailed account of the atrocities in Darfur finding that genocide had not occurred on the basis of a perceived lack of genocidal intent on the part of the militias and government forces who selectively killed young men rather than exterminating the whole population and that humanitarian agencies had been allowed to provide relief in the internally displaced persons camps (paragraphs 513–515).

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            • Prosecutor v. Omar Hassan Ahmad Al Bashir. ICC-02/05-1/09, Second Decision on the Prosecution’s Application for a Warrant of Arrest, 12 July 2010.

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              In this decision the Pre-Trial Chamber of the ICC applied the “Elements of Crimes,” including the contextual element, in coming to the conclusion that it would issue a warrant of arrest for Al Bashir for alleged criminal responsibility for genocide under Article 6 (a), (b), and (c) of the Rome Statute (identical in wording to Article 2 (a), (b) and (c) of the Genocide Convention).

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              • Quayle, Peter. “Unimaginable Evil: The Legislative Limitations of the Genocide Convention.” International Criminal Law Review 5.3 (2005): 363–372.

                DOI: 10.1163/1571812054940120Save Citation »Export Citation »E-mail Citation »

                Argues for restoring the integrity of the Genocide Convention by using crimes against humanity for situations such as Darfur and returning genocide to its integral place as an “unimaginable” crime.

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              • Schabas, William. “Current Legal Developments—Darfur and the ‘Odious Scourge’: The Commission of Inquiry’s Findings on Genocide.” Leiden Journal of International Law 18.4 (2005): 871–885.

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                Approves of the commission’s finding that summary execution of military-aged men did not establish genocide, finding this approach preferable to that of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Radislav Krstić (cited under Judicial Decisions), and suggests that as crimes against humanity are now actionable under the ICC, there is no need to stretch the concept of genocide.

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              • Trahan, Jennifer. “Why the Killing in Darfur is Genocide.” Fordham International Law Journal 31.4 (2007): 990–1041.

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                Basing her argument on the decisions of the ad hoc tribunals, Trahan strongly denies that the atrocities in Darfur are “only” crimes against humanity.

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              The Duty to Prevent and Punish Genocide

              Article 1 of the Genocide Convention confirms that genocide is a crime under international law that states parties “undertake to prevent and to punish,” and Article 6 requires that those responsible for genocide be tried by a competent tribunal of the state in which the crime occurred or by an international penal tribunal. In the Bosnia and Herzegovina case (International Court of Justice 2007), the International Court of Justice (ICJ) held that the duty to prevent genocide includes a duty to exercise the influence a state has over other entities outside its territory who may be about to commit genocide, although Van Schaack 2005 emphasizes that Article 1 does not authorize humanitarian intervention by states in other territories. The ICJ accepted that, according to Article 6, a state is required to punish genocide only when it occurs on its territory, but it found a duty for states to cooperate with an international tribunal prosecuting the crime of genocide. In light of this finding, Sluiter 2010 argues that the warrant of arrest for Omar Hassan Ahmad Al Bashir on genocide charges created an obligation for Sudan and other contracting parties to the convention to arrest and surrender him to the International Criminal Court, while Steven 1999 argues that, owing to the status of genocide as a jus cogens norm, all states are bound to prosecute or extradite those accused of genocide that they find on their territory.

              Modern Prosecutions

              Article 6 of the Genocide Convention requires that those responsible for genocide be tried by a competent tribunal of the state in which the crime occurred or by an international penal tribunal. Prosecution by national courts where the crime occurred is only likely to take place following a regime change, given that in most cases the state is involved in the very crimes it is required to prosecute and punish. Additionally, given the failure to create an international penal tribunal during the years of the Cold War, this part of Article 6 remained a dead letter until the creation of the ad hoc tribunals at the end of the 20th century. However, their restricted geographical and temporal jurisdiction meant that a true international penal tribunal as envisaged by Article 6 had to wait for the International Criminal Court, which came into force in 2002 and is already considering situations of alleged genocide.

              National Trials

              An early national trial for genocide, the Attorney-General of the Government of Israel v. Adolf Eichmann case was unusual, as it was not tried by a competent tribunal of the state in which the crime occurred, as envisaged by Article 6 of the Genocide Convention, but by a state that did not even exist at the time of the atrocities forming the basis of the charge of genocide (see Attorney-General of the Government of Israel v. Adolf Eichmann). The Israeli courts asserted jurisdiction under the protective and universal principles, an issue considered critically by Fawcett 1962. Landsman 2005 gives useful background to the trial and some extracts from it. Schabas 2009 comments both on the Eichmann case and on other national trials that have taken place since World War II, though he notes, “The most determined and uncompromising example of domestic prosecution is surely Rwanda” (pp. 417–418). The initial attempts of Rwanda to try those accused of genocide are discussed in Ferstman 1997, and the later approach to deal more rapidly with the accused in Gacaca courts is discussed in Megwalu and Loizides 2010, which presents the results of a survey of Rwandan attitudes to these courts. Trahan 2009 critically analyzes the recent prosecution of those high-profile Iraqis of the Baathist regime who were accused of genocide in the Anfal campaign.

              • Attorney-General of the Government of Israel v. Adolf Eichmann.” International Law Reports 36 (1968): 277–342.

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                This is a translation of the 1962 Israeli Supreme Court judgment, which was originally in Hebrew. The judgment is important both for its findings on jurisdiction, including that the principle of universality applies in such cases, and in its dismissal of the defenses of act of state or superior orders with respect to the crime of genocide.

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              • Fawcett, J. E. S. “The Eichmann Case.” British Yearbook of International Law 38 (1962): 181–215.

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                Considers whether Israel exceeded the limitations of state jurisdiction in the capture and trial of Adolf Eichmann and considers Eichmann’s defenses of superior orders and act of state.

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              • Ferstman, Carla J. “Domestic Trials for Genocide and Crimes against Humanity: The Example of Rwanda.” African Journal of International and Comparative Law 9 (1997): 857–877.

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                An early review of the system set up for national prosecutions of those accused of genocide and of the challenges that the legal system faced in terms of the large numbers awaiting trial, the lack of judges (given that most of them had been killed in the genocide), and the lack of defense lawyers.

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              • Landsman, Stephan. Crimes of the Holocaust: The Law Confronts Hard Cases. Philadelphia: University of Pennsylvania Press, 2005.

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                Chapter 2 considers the trial of Adolf Eichmann with reference to the views taken by the prosecutors and the defense counsel as well as comments made by the judges and includes some extracts from the trial.

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              • Megwalu, Amaka, and Neophytos Loizides. “Dilemmas of Justice and Reconciliation: Rwandans and the Gacaca Courts.” African Journal of International and Comparative Law 18.1 (2010): 1–23.

                DOI: 10.3366/E0954889009000486Save Citation »Export Citation »E-mail Citation »

                Reviews the benefits and problems of the Gacaca courts initiated in 2001 as a method of dealing more quickly with the over 100,000 detainees awaiting trial in prisons built for less than half that number. Presents a preliminary survey of attitudes to the Gacaca trials by 227 Rwandans.

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              • Schabas, William. Genocide in International Law: The Crime of Crimes. 2d ed. Cambridge, UK: Cambridge University Press, 2009.

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                In a section titled “Post–Second World War Prosecutions by National Jurisdictions,” the author discusses national genocide prosecutions in such states as Ethiopia, Kosovo, Iraq, and Rwanda.

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              • Trahan, Jennifer. “A Critical Guide to the Iraqi High Tribunal’s Anfal Judgment: Genocide against the Kurds.” Michigan Journal of International Law 30 (2009): 305–412.

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                Critically analyses the Iraqi High Tribunal Anfal judgment concentrating on five of the defendants charged inter alia with genocide but excluding discussion of Saddam Hussein.

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              The Ad Hoc Tribunals

              The Yugoslavia and Rwanda tribunals were the first international penal tribunals with jurisdiction to hear crimes of genocide. They were not quite as envisaged in Article 6 of the Genocide Convention, since their jurisdiction was limited geographically to the area of the former Yugoslavia and Rwanda, respectively, and limited temporally from 1991 onward in the case of the former Yugoslavia (although the tribunal is now winding down) and limited to genocide and other atrocities taking place in the year of 1994 for the Rwanda tribunal. Both Commissions of Experts reports (UN Security Council 1994a and UN Security Council 1994b) discuss the crime of genocide as it happened in these territories, and the sections on cases on the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda websites are invaluable resources for the case law of the two tribunals. Both Shraga and Zacklin 1994 and Akhavan 1996 give basic introductions to the establishment of the ad hoc tribunals and their jurisdiction over the crime of genocide, whereas van den Herik 2005 and Jones 2010 consider the case law of the International Criminal Tribunal for Rwanda (ICTR) on genocide in particular depth.

              The International Criminal Court

              The International Criminal Court (ICC) has not yet reached the stage of final judgments, and so to understand the approach it will take to genocide it is necessary to consider the documents available on the website International Criminal Court, such as the “Elements of Crimes” and the decisions of the Pre-Trial Chamber interpreting the crime of genocide in light of those elements to decide on the warrant of arrest for Omar Hassan Ahmad Al Bashir (Prosecutor v. Omar Hassan Ahmad Al Bashir). UN Security Council 2005, which refers the situation in Darfur to the ICC, does not predetermine which crimes have occurred and thus does not assist the court in the definition of genocide. Previous conjecture as to the interpretation of genocide that may be taken by the ICC can be seen in nongovernmental organization (NGO) documents on the website Coalition for the International Criminal Court and in the analysis of academics, such as Schabas 1999 and Byron 2004. Critical analysis of the first decision of the Pre-Trial Chamber in the Al Bashir case is in Kress 2009.

              • Byron, Christine. “The Crime of Genocide.” In The Permanent International Criminal Court: Legal and Policy Issues. Edited by Dominick McGoldrick, Peter Rowe, and Eric Donnelly, 143–177. Oxford: Hart, 2004.

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                Analyzes the crime of genocide under Article 6 of the Rome Statute, considering each part of the crime with reference to the travaux préparatoires (preparatory works) of the Genocide Convention, the development in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and the wording of the “Elements of Crimes.”

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              • Coalition for the International Criminal Court.

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                Useful for links to documents on a variety of topics related to the ICC from governments and NGOs as well as official ICC documents.

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              • International Criminal Court.

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                A very useful resource giving access to documents on the ICC and its decisions that will eventually include all the judgments of the court.

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              • Kress, Claus. “The Crime of Genocide and Contextual Elements: A Comment on the ICC Pre-Trial Chamber’s Decision in the Al Bashir Case.” Journal of International Criminal Justice 7.2 (2009): 297–306.

                DOI: 10.1093/jicj/mqp031Save Citation »Export Citation »E-mail Citation »

                Critically analyses the first decision of the Pre-Trial Chamber on the arrest warrant for Al Bashir and comments on how the contextual elements of genocide are also relevant with respect to this decision.

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              • Prosecutor v. Omar Hassan Ahmad Al Bashir. ICC-02/05-1/09, Second Decision on the Prosecution’s Application for a Warrant of Arrest, 12 July 2010.

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                Considers whether there is reason to believe that the crime of genocide under Article 6 of the Rome Statute and its associated “Elements of Crimes” have been satisfied with respect to Al Bashir. The court follows its earlier decision with respect to the lack of irreconcilable contradiction between the definition of the crime of genocide in the statute and the contextual element provided in the “Elements of Crimes” (paragraph 13).

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                • Schabas, William. “Article 6: Genocide.” In Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article. Edited by Otto Triffterer, 27–36. Baden-Baden, Germany: Nomos Verlagsgesellschaft, 1999.

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                  Reviews Article 6 on the crime of genocide in the Statute of the ICC with a brief reference to the history of the crime and taking into account the discussions in the diplomatic conference at Rome.

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                • UN Security Council. Resolution 1593 (2005). UN Doc. S/RES/1593, 31 March 2005.

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                  Refers the situation of Darfur to the ICC although it does not predetermine which offenses have been committed in that area of Sudan.

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                Modes of Participation

                In addition to the commission of genocide itself, the Genocide Convention added four other methods of committing genocide, three of which are inchoate offenses. Conspiracy, incitement, and attempt are incomplete steps toward genocide and may be committed whether or not the actual full offense of genocide is committed. Complicity in genocide is a form of secondary participation in the crime of genocide and thus can only be charged if genocide has actually occurred. Although not included in the Genocide Convention, command responsibility for genocide may be added to this list and has been the subject of judgments of the Yugoslavia and Rwanda ad hoc tribunals.

                Conspiracy to Commit

                The judgments of the International Criminal Tribunal for Rwanda in Prosecutor v. Alfred Musema and Prosecutor v. Juvénal Kajelijeli agree on the elements of conspiracy to commit genocide in that it is an inchoate offense that requires the agreement of two or more people to commit genocide but does not require genocide to have occurred as a result of their agreement. Schabas 2009 comments that the Trial Chambers have differed upon whether an accused may be convicted of both conspiracy to commit genocide and the crime of genocide itself if the conspiracy has resulted in genocide.

                • Prosecutor v. Alfred Musema. ICTR-96-13-A, Trial Chamber Judgement and Sentence, 27 January 2000.

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                  Defines conspiracy to commit genocide as an agreement between two or more persons to commit the crime, with a concerted intent to destroy a protected group, and confirms that conspiracy is punishable even if the substantive offense of genocide does not take place, as it is an inchoate offense (paragraphs 191–195).

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                  • Prosecutor v. Juvénal Kajelijeli. ICTR-98-44A-T, Trial Chamber Judgement and Sentence, 1 December 2003.

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                    Agrees with Prosecutor v. Alfred Musema on the definition of the crime but emphasizes that evidence must show that an agreement had been reached and that mere evidence that a negotiation was in progress will not suffice (paragraph 787).

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                    • Schabas, William. Genocide in International Law: The Crime of Crimes. 2d ed. Cambridge, UK: Cambridge University Press, 2009.

                      DOI: 10.1017/CBO9780511575556Save Citation »Export Citation »E-mail Citation »

                      On pp. 310–318 Schabas reviews the drafting history of the inclusion of conspiracy in the Genocide Convention, the inclusion of conspiracy in post–World War II cases, and the case law of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) on conspiracy.

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                    Direct and Public Incitement to Commit

                    The travaux préparatoires of the Genocide Convention give little guidance as to how to understand “public and direct” incitement. The two main cases before the International Criminal Tribunal for Rwanda have dealt with “public” both in terms of speaking at a meeting (in the case of Prosecutor v. Tharcisse Muvunyi) and by means of publishing a tabloid paper or by a radio broadcast (in the case of Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, and Hassan Ngeze). Both cases have also dealt with direct incitement that was less than explicit by acknowledging that it is necessary to view the “directness” of the incitement by the way it was understood by its intended audience. Zahar 2005, however, criticizes the Trial Chamber’s interpretation of radio broadcasts and tabloid papers in Nahimana, taking the view that the broadcasts showed contempt for Tutsis but not incitement to genocide.

                    Attempt to Commit

                    With very little case law on attempted genocide, Schabas 2009 concentrates on the border between innocent acts and attempts to commit genocide, whereas Arnold 2003 considers how to distinguish attempt from the full commission of genocide before the International Criminal Court (ICC) when, for example, killing one person with intent to destroy a protected group in whole or in part, in the context of a manifest pattern of similar conduct, would amount to genocide. Roberta Arnold sees very little scope for the concept of attempt in such a definition.

                    • Arnold, Roberta. “The Mens Rea of Genocide under the Statute of the International Criminal Court.” Criminal Law Forum 14.2 (2003): 127–151.

                      DOI: 10.1023/A:1026303731268Save Citation »Export Citation »E-mail Citation »

                      Considers the problem of attempt to commit genocide from another angle and questions where the line between full and attempted genocide is to be drawn in light of the Rome Statute of the ICC.

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                    • Schabas, William. Genocide in International Law: The Crime of Crimes. 2d ed. Cambridge, UK: Cambridge University Press, 2009.

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                      Observes that there have been no prosecutions for attempted genocide before the ad hoc tribunals and very few post–World War II cases and comments that the main problem is establishing the threshold at which the innocent preparatory acts become criminal. States that the International Law Commission, in its draft “Code of Crimes,” required a “significant step” toward completion for the crime of attempted genocide (pp. 334–339).

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                    Complicity

                    The notion of complicity in genocide, and whether it is the same thing as aiding and abetting genocide or something different, has taxed both judges in the ad hoc tribunals and academics. Despite the difference drawn between the two by the International Criminal Tribunal for Rwanda (ICTR) in Prosecutor v. Jean-Paul Akayesu, the more recent case law of both the ICTR (in Prosecutor v. Radislav Krstić) and the International Criminal Tribunal for the former Yugoslavia (ICTY) (in Prosecutor v. Radoslav Brđanin and Prosecutor v. Ilizaphan Ntakirutimana and Gérard Ntakirutimana) suggests that while complicity may be broader than aiding and abetting, the latter clearly comes within the ambit of the former. This interpretation is also taken up by Robinson 1960 in the author’s interpretation of the travaux préparatoires of the Genocide Convention. Eboe-Osuji 2005 attempts to draw a distinction between complicity and aiding and abetting based on the ad hoc tribunal statutes. May 2010, however, takes a broader look at complicity in the moral (in addition to legal) sense. The approach taken by the Rome Statute of the International Criminal Court reflects the latter case law of the ad hoc tribunals in that it does not include the equivalent of Article 3 of the Genocide Convention but assumes that Article 25, on individual criminal responsibility for all crimes (with a subsection prohibiting direct and public incitement of genocide) suffices.

                    • Eboe-Osuji, Chile. “‘Complicity in Genocide’ versus ‘Aiding and Abetting Genocide’: Construing the Difference in the ICTR and ICTY Statutes.” Journal of International Criminal Justice 3.1 (2005): 56–81.

                      DOI: 10.1093/jicj/3.1.56Save Citation »Export Citation »E-mail Citation »

                      Discusses the jurisprudence of the ICTR with respect to complicity in genocide under Article 2(3)(e) of the ICTR statute and Article 6(1) on forms of liability for crimes, including aiding and abetting. Attempts to draw a distinction between them in terms of Article 2(3)(e) nominating a substantive crime and Article 6(1) conferring a type of jurisdiction over the substantive crimes.

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                    • May, Larry. “Complicity and the Rwandan Genocide.” Res Publica 16.2 (2010): 135–152.

                      DOI: 10.1007/s11158-010-9112-4Save Citation »Export Citation »E-mail Citation »

                      Considers complicity in the Rwandan genocide in a broader moral sense as well as a legal one.

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                    • Prosecutor v. Ilizaphan Ntakirutimana and Gérard Ntakirutimana. ICTR-96-10-A and ICTR-96-17-A, Appeals Chamber Judgement, 13 December 2004.

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                      Follows the Prosecutor v. Radislav Krstić judgment in its key holdings on aiding and abetting and complicity.

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                      • Prosecutor v. Jean-Paul Akayesu. ICTR-96-4-T, Trial Chamber Judgement, 2 September 1998.

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                        Sets out the fact that for a charge of complicity, the crime of genocide needs to have been committed. However, the tribunal caused confusion in stating that an accomplice must knowingly aid and abet someone committing genocide but need not possess the specific intent of genocide and then in another paragraph stating that a person accused of aiding and abetting genocide must have the specific intent to destroy the group (paragraphs 525–548).

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                        • Prosecutor v. Radislav Krstić. IT-98-33-A, Appeals Chamber Judgement, 19 April 2001.

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                          States that the term “complicity” includes aiding and abetting, although it is broader in scope; that the mens rea of a person who aids and abets genocide is to assist the crime with knowledge of the intent behind the crime; and that this is the case even if the principal perpetrators are not tried or identified (paragraphs 135–144).

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                          • Prosecutor v. Radoslav Brđanin. IT-99-36-T, Trial Chamber Judgement, 1 September 2004.

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                            States that complicity and accomplice liability have the same meaning and essentially follows Prosecutor v. Radislav Krstić in stating that complicity includes aiding and abetting, although it can be wider in scope. Agrees that the mental element only requires knowledge that the acts of the accused assisted in the commission of genocide by the principal offender, with awareness of the principal’s state of mind, but not necessarily sharing the specific intent (paragraphs 722–730).

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                            • Robinson, Nehemiah. The Genocide Convention: A Commentary. New York: Institute of Jewish Affairs, 1960.

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                              Comments that the term “complicity” originated in the ad hoc committee’s draft, where “it was understood to refer to accessorship before and after the act, and aiding and abetting in the commission of any of the crimes enumerated in the Convention” (p. 69).

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                            • Rome Statute of the International Criminal Court. UN Doc. A/CONF.183/9, 17 July 1998.

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                              Participation in the international crimes, including genocide, is dealt with in Article 25, which is a general article on individual criminal responsibility, and Article 25, paragraph 3(e), dealing with direct and public incitement to commit genocide.

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                            Command Responsibility

                            Almost all will agree that the doctrine of command, or superior responsibility, should apply with respect to a commander whose subordinates commit genocide, as it would if they committed crimes against humanity or war crimes. The main bone of contention has been whether it must be proven that the commander also possessed the specific intent of genocide or whether it is sufficient if he or she knew, or should have known, that subordinates were about to commit the relevant acts with the specific intent for genocide. The Trial Chambers in both Prosecutor v. Alfred Musema and Prosecutor v. Radoslav Brđanin have taken the latter approach, an interpretation approved of by Arnold 2003 and Strippoli 2009, which states, “when considering that the commander’s culpability lies in the dereliction of his duty to prevent or punish genocide committed by his underlings, it appears illogical to require that he had to hold a specific intent in neglecting his duties.”

                            • Arnold, Roberta. “The Mens Rea of Genocide under the Statute of the International Criminal Court.” Criminal Law Forum 14.2 (2003): 127–151.

                              DOI: 10.1023/A:1026303731268Save Citation »Export Citation »E-mail Citation »

                              Explains the reasoning behind not requiring the prosecution to prove the specific intent of a commander given that a superior is required “to answer for the failure to control people set under his or her supervision, rather than for the crimes committed.”

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                            • Prosecutor v. Alfred Musema. ICTR-96-13-A, Trial Chamber Judgement and Sentence, 27 January 2000.

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                              With respect to command responsibility, the judges make it clear that the commander or superior does not need to have the specific intent of genocide personally but must know or have reason to know that his or her subordinates were about to commit the acts or have done so and fail to take necessary and reasonable measures to prevent or punish (paragraph 894).

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                              • Prosecutor v. Radoslav Brđanin. IT-99-36-T, Trial Chamber Judgement, 1 September 2004.

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                                Comments that the absence of reference to superior responsibility in the Genocide Convention is not fatal to the determination that it applies under customary international law and, contrary to the earlier Prosecutor v. Milomir Stakić (cited under The Concept of Auto-Genocide and the Negative Definition of Groups), holds that the superior has to know or have reason to know of the subordinate’s specific intent but need not hold it personally (paragraphs 711–721).

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                                • Strippoli, Alfredo. “National Courts and Genocide: The Kravica Case at the Court of Bosnia and Herzegovina.” Journal of International Criminal Justice 7.3 (2009): 577–595.

                                  DOI: 10.1093/jicj/mqp036Save Citation »Export Citation »E-mail Citation »

                                  Criticizes the Court of Bosnia and Herzegovina for its refusal to determine whether the law of command responsibility requires a commander simply to be aware of the subordinates’ specific intent or to share it. Strippoli comments that the court inferred genocidal intent in the commander following “unconvincing reasoning” from his omissive conduct in order to demonstrate that the higher test was in any case met.

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                                Sentencing

                                Sentencing for genocide has generated less literature and fewer pages of judgments than the mental and physical elements of genocide. In a discussion on sentencing for genocide, Meernik 2004 comments that “international criminal law is still mostly in an embryonic state,” a fact that causes Sloane 2007 to call for greater use of comparative analysis, which would “contribute to the development of a fair, uniform and coherent penal jurisprudence.” It is interesting therefore that the judgment in Prosecutor v. Tharcisse Muvuyi does just that. Nevertheless, concerns about sentencing practice are still valid, particularly with respect to the impact of guilty pleas, an issue raised generally by Henham 2007 and, with respect to the Prosecutor v. Jean Kambanda (1998) case, by Jones 2010.

                                • Henham, Ralph. “The Normative Context of Sentencing for Genocide.” In The Criminal Law of Genocide: International, Comparative, and Contextual Aspects. Edited by Ralph Henham and Paul Behrens, 245–258. Aldershot, UK: Ashgate, 2007.

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                                  Comments on the effect of the retributive dynamic in the sentencing decisions of the international tribunals and considers the problem of sentencing reduction both for guilty pleas for genocide and for guilty pleas to lesser crimes when genocide was included in the indictment.

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                                • Jones, Nicholas A. The Courts of Genocide: Politics and the Rule of Law in Rwanda and Arusha. Oxford: Routledge, 2010.

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                                  In particular Jones discusses the guilty plea of Jean Kambanda to genocide, the fact that he recanted his guilty plea, and the comments of defense lawyers as to the fact that his case should have been tried (pp. 144–155).

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                                • Meernik, James. “Proving and Punishing Genocide at the International Criminal Tribunal for Rwanda.” International Criminal Law Review 4.1 (2004): 65–81.

                                  DOI: 10.1163/157181204773085948Save Citation »Export Citation »E-mail Citation »

                                  Considers the sentencing practice of the International Criminal Tribunal for Rwanda (ICTR) for genocide and comments that with respect to the gravity of the offense, there is no consistency in reduction of sentencing for indirect involvement but that statistics show higher sentences for those with the most command authority, as opposed to those lower down the power scale.

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                                • Prosecutor v. Tharcisse Muvunyi. ICTR-00-55A-T, Trial Chamber Judgement, 11 February 2010.

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                                  It is interesting that the International Criminal Tribunal for Rwanda (ICTR) considers the sentencing practice of the tribunal in particular for those convicted of direct and public incitement for committing genocide and eventually sentences Muvunyi at the high end of that range (paragraphs 138–153).

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                                  • Sloane, Robert. “Sentencing for the ‘Crime of Crimes’: The Evolving ‘Common Law’ of Sentencing of the International Criminal Tribunal for Rwanda.” Journal of International Criminal Justice 5.3 (2007): 713–734.

                                    DOI: 10.1093/jicj/mqm024Save Citation »Export Citation »E-mail Citation »

                                    Critically analyses the sentencing practice of the International Criminal Tribunal for Rwanda (ICTR), stating that in the main the few paragraphs devoted to sentencing analysis tend to be “highly formulaic, even perfunctory.”

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                                  State Responsibility

                                  The only decision on state responsibility for genocide to date is the International Court of Justice (ICJ) decision on the case brought by Bosnia and Herzegovina against Serbia and Montenegro (International Court of Justice 2007). Since the decision, academics have debated the scope of the Genocide Convention with relation to state responsibility. Indeed, Gaeta 2007 argues that such an obligation exists under customary international law and not under the Genocide Convention, an argument taken up by some of the dissenting judgments in the ICJ, as discussed by Turns 2007. The court’s decision on reparations is criticized by Milanović 2007, which finds no basis in customary law for the decision that absent a causative link there cannot be reparations. Gattini 2007 views the decision on reparations as contrary to the finding that Serbia had state responsibility to prevent genocide on the basis that state responsibility for omissions can only exist if there is a causative link between the omission and the resulting conduct. However, Loewenstein and Kostas 2007 compares the approach to attributing state responsibility of the ICJ and that of the Commission of Inquiry on Darfur and prefers the approach of the ICJ.

                                  Prevention

                                  A much-neglected area of genocide study is the prevention of genocide. The Whitaker Report (Whitaker 1985) suggested an early warning system and an international court to prosecute the crime of genocide. The genocide in Rwanda is a tragic example of how the world ignored the warnings that were given, as the interview with General Roméo Dallaire in Totten and Bartrop 2009 demonstrates. Nevertheless, there have been moves toward an effective early warning system, and the establishment of the special adviser to the secretary-general on the prevention of genocide (Office of the United Nations Special Adviser on the Prevention of Genocide) is discussed by the first special adviser, Juan E. Méndez, in Méndez 2007. Schabas 2006 acknowledges the work that has been done in preventing genocide both in establishing the Office of the Special Adviser and in the establishment of the International Criminal Court (ICC), an international court that is able to prosecute individuals for genocide and other serious international crimes, although William Schabas criticizes the failure of the ICC to consider state actors in genocide in addition to nonstate actors.

                                  LAST MODIFIED: 05/29/2014

                                  DOI: 10.1093/OBO/9780199796953-0035

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