GENOCIDE

Elective - 4 credits / Trigger warning.

JGLS / 2025

Juan Vallejo
 THE GENOCIDE CONVENTION - 1948
• GC text – 1948

• William Schabas text

• Advisory Opinion 28.May.51 – ICJ

• The Crime of Crimes text. Chaps 2, 3, 4, 5:

• Drafting
• Protected Groups
• Mens Rea
• Actus Reus
 …Late 1946
• Cuba, Panama, and India presented a
draft resolution to the GA aiming to:

• Include peacetime genocide (IMT

failure)

• Consider the possibility of Universal

Jurisdiction (no personal, territorial link
needed)

• Draft was rejected.

 GA Resolution 96 of Dec. 1946
• Provisions against nullum crimen sine lege at Nürnberg.

• It is silent on universal jurisdiction and “peacetime genocide”.

• Eliminates any nexus with armed conflict

• Included political groups

• NOT binding

• Opinio Juris – Customary Law

• Makes genocide a Crime and recommends the drafting of a convention.

 Genocide Convention
• Ratified by 149 States (as of January 2018).

• International Customary Law – ICJ

• Jus Cogens – ICJ

• Principles of CN – Scholars.
 Drafting the GC
1. The UN Secretariat composed a draft
text (Lemkin R. participated too).

2. Ad Hoc Committee set up by the

Economic and Social Council reworked
the draft.

3. Sixth Committee of the GA reworked,

negotiated and agreed to the draft.

4. GA approved.
 Preamble
The Contracting Parties ,

Having considered the declaration made by the General Assembly of the United Nations in its
resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law,
contrary to the spirit and aims of the United Nations and condemned by the civilized world,

Recognizing that at all periods of history genocide has inflicted great losses on humanity, and

Being convinced that, in order to liberate mankind from such an odious scourge, international
co-operation is required,

Hereby agree as hereinafter provided

 Art. I
The Contracting Parties confirm that genocide,
whether committed in time of peace or in time of
war, is a crime under international law which they
undertake to prevent and to punish.

- States as main subjects of International Law.

- Clarifies IMT Chart and Nüremberg trials on

“Peacetime Genocide.”

- Imposes prevention obligations.

 “Prevention and Punishment”

• Deterrent effects of punishment

• AND autonomous scope, which is “normative and

compelling.”

• Prevention scope is not completely clear in the plain of

I.HH.RR.L

• ICJ Bosnia and Herzegovina v. Serbia and Montenegro

(26.Feb.2007)
 Art. II
• In the present Convention, genocide means any of the following acts
(Actus Reus) committed with intent to destroy (Mens Rea), in whole or in part,
a national, ethnical, racial or religious group, as such:

• (a) Killing members of the group; (although not necessary)

• (b) Causing serious bodily or mental harm to members of the group;
• (c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part (Remember Armenia? –
Forced migrations);

• (d) Imposing measures intended to prevent births within the group (e.g.
forced sterilizations);

• (e) Forcibly transferring children of the group to another group.

 “Cultural Genocide” excluded by the
Sixth Committee
• Although it subsequently
agreed to include “(e) Forcibly
transferring children of the
group to another group.”

• Slogan of native and

indigenous communities
worldwide (USA, Canada,
Latam).
 “Ethnic Cleansing”
• No precise definition.

• It is NOT an independent crime.

• Context of the 1990’s conflict in the former

Yugoslavia (but remember Armenia).

• Serbo-Croatian expression “etničko čišćenje”.

• Used in resolutions of the Security Council, the

UNGA, and the ICTY.

• William Schabas argues it is NOT genocide.

 “Ethnic Cleansing”
• WHAT IS IT? "… rendering an area ethnically homogeneous by using force or intimidation to
remove persons of given groups from the area.“ (S/25274) “… a purposeful policy designed by
one ethnic or religious group to remove by violent and terror-inspiring means the civilian
population of another ethnic or religious group from certain geographic areas.” Final report
S/1994/674 (UN Commission of Experts former Yugoslavia)

• ACTS. Murder, torture, arbitrary arrest and detention, extrajudicial executions, rape and sexual
assaults, severe physical injury to civilians, confinement of civilian population in ghetto areas,
forcible removal, displacement and deportation of civilian population, deliberate military
attacks or threats of attacks on civilians and civilian areas, use of civilians as human shields,
destruction of property, robbery of personal property, attacks on hospitals, medical personnel,
and locations with the Red Cross/Red Crescent emblem, among others. (UN Commission of
Experts former Yugoslavia)

• SO? “Ethnic cleansing acts can constitute WC, CAH or even Genocide” (UN Commission of
Experts former Yugoslavia)…
 Expansion of CAH
• Exhaustive list? It seems so…

• “Genocide” has remained closed, while CAH has expanded to include more
events.

• Remembers the seriousness of “the crime of crimes.” (Remember the French

legislation)

• There is NOT an impunity gap.

• Schabas William sees this as something positive.

 Art. III
The following acts shall be punishable:

• (a) Genocide;

• (b) Conspiracy to commit genocide;

• (c) Direct and public incitement to commit genocide; (Hate speech could qualify. See

Rwanda)

• (d) Attempt to commit genocide; (inchoate offences)

• (e) Complicity in genocide. (Remember the IMT Charter and the Nüremberg Trials)
 Art. IV
Persons (not states or businesses) committing genocide or any of
the other acts enumerated in article III shall be punished, whether
they are constitutionally responsible rulers, public officials or private
individuals.

• Remember IMT Charter and Nüremberg Trials? (No immunities)

• Legislators, heads of state, businessmen (Rwandan case), and others.

 Art. V
The Contracting Parties undertake to enact, in accordance with their respective
Constitutions, the necessary legislation to give effect to the provisions of the
present Convention, and, in particular, to provide effective penalties for persons
guilty of genocide or any of the other acts enumerated in article III.

• Subsidiarity and Complementarity of ICL and I.HH.RR.L

• India? Signed and ratified but did NOT enact domestic law. So? – Monist (No Law
necessary) / Dualist (domestic law necessary).

• Special law – Is it necessary? It depends… “Homicide” is enough? It differs from

country to country.

• Common Law vs. Civil Law countries. Judicial Activism could determine the issue.
 Workshop
1. Can Indian Courts prosecute Genocide?

2. Explain the difference between monism and dualism in the context of India’s approach to
international treaties.

3. Are India’s existing hate speech laws sufficient for addressing genocidal speech under the
Genocide Convention?

4. What role does the ICJ’s ruling in the Bosnian Genocide case play regarding the duty to
prevent genocide?

5. How should India address the gaps in its legislative framework concerning the prevention and
prosecution of genocide?

https://voelkerrechtsblog.org/how-indias-legislation-risks-impunity-for-genocidal-speech/
 Art. VI
Persons charged with genocide or any of the other acts enumerated in
article III shall be tried by a competent tribunal of the State in the territory
of which the act was committed, or by such international penal tribunal as
may have jurisdiction with respect to those Contracting Parties which
shall have accepted its jurisdiction.

• Explicitly rejected UJ

• Israel found UJ authorized by CIL (Eichmann´s)

• There was not an ICC at the time, but the GA also adopted in 1948 a resolution
directing its creation.
 Workshop
1. What is universal jurisdiction, and how does it differ from other forms of jurisdiction such as
territoriality or active/passive personality?

2. Which international treaties establish or support the application of universal jurisdiction for
grave crimes, and why is this principle considered essential for global justice?

3. What are the main criticisms against universal jurisdiction, and how does the text refute
claims that it is being "abused" for political purposes?

4. How have various countries implemented universal jurisdiction in practice, and what
measures have they taken to ensure fair trials and due process?

5. What role does the concept of official immunity play in universal jurisdiction cases, and how
has international law addressed attempts to shield individuals from accountability?

https://www.hrw.org/news/2009/10/19/basic-facts-universal-jurisdiction
 UJ
“Universal jurisdiction is the ability of the domestic judicial systems of a state to
investigate and prosecute certain crimes, even if they were not committed on its territory,
by one of its nationals, or against one of its nationals (i.e. a crime beyond other bases of
jurisdiction, such as territoriality or active/passive personality).” -
https://www.hrw.org/news/2009/10/19/basic-facts-universal-jurisdiction -

“The term “universal jurisdiction” refers to the idea that a national court may prosecute
individuals for serious crimes against international law — such as crimes against
humanity, war crimes, genocide, and torture — based on the principle that such crimes
harm the international community or international order itself, which individual
States may act to protect. Generally, universal jurisdiction is invoked when other,
traditional bases of criminal jurisdiction are not available. National courts can exercise
universal jurisdiction when the State has adopted legislation recognizing the relevant
crimes and authorizing their prosecution.” https://ijrcenter.org/cases-before-national-
courts/domestic-exercise-of-universal-jurisdiction/
 Art. VII
Genocide and the other acts enumerated in article III shall not be
considered as political crimes for the purpose of extradition. The
Contracting Parties pledge themselves in such cases to grant
extradition in accordance with their laws and treaties in force.

• Vague formulation (Schabas W.)

• Extradition procedures vary from country to country.
• State practice will be crucial
• Non-refoulment applies
 Art. VIII
• Any Contracting Party may call upon the competent organs of
the United Nations to take such action under the Charter of the
United Nations as they consider appropriate for the prevention
and suppression of acts of genocide or any of the other acts
enumerated in article III.

• Superfluous provition (Schabas W.)

• The right to seize the UN organs exists in any event.
• Invoked once by the USA in Sep. 2004
 Art. IX
• Disputes between the Contracting Parties relating
to the interpretation, application or fulfillment of
the present Convention, including those relating to
the responsibility of a State for genocide or for
any of the other acts enumerated in article III,
shall be submitted to the International Court of
Justice at the request of any of the parties to the
dispute.

• States can commit genocide (although criminal

prosecution is individual); and the ICJ can adjudicate
the issue – Bosnia and Herzegovina v. Serbia and
Montenegro (2007).
• Myanmar, Israel, and Russia have pending cases
before the ICJ.
 RESERVATIONS TO THE GC
AO - 28.May.1951
• The GC was silent on the subject of reservations

• Most of the reservations have concerned the jurisdiction of the

ICJ (Art IX).

• Referred for AO by the GA resolution of Nov.16.1950

• 7 vs. 5 votes.
 Vienna Convention on the Law of
Treaties - 1969
Art. 19. A State may, when signing, ratifying, accepting, approving
or acceding to a treaty, formulate a reservation unless:

(a) the reservation is prohibited by the treaty;

(b) the treaty provides that only specified reservations, which do
not include the reservation in question, may be made; or
(c) in cases not failing under subparagraphs (a) and (b), the
reservation is incompatible with the object and purpose of the
treaty.
Q/A 1.
Q/A 2.
Q/A 3.
 Art 36.2 ICJ Statute

It is also possible for the International Court of Justice to exercise

jurisdiction over States that are not parties to the Genocide
Convention, or those that are but that have made reservations
to Article IX, to the extent that such States have accepted the
general jurisdiction of the International Court of Justice in
accordance with article 36(2) of its Statute.

• William A. Schabas, ‘Genocide in International Law: The Crime of Crimes, Second Edition’, Genocide in
International Law: The Crime of Crimes, Second Edition, 1 January 2009, 491,
 PROTECTED GROUPS
• GA Resolution 96 of 1946 referred to “other groups.”

• “The wording of the Convention is so restrictive that not

one of the genocidal killings committed since its adoption
is covered by it” – Chalk and Jonassohn.

• Attempts to stretch / enlarge the Convention definition.

• For several decades, the Convention was the only

international legal instrument widely ratified.

• Imprecise concepts – Interpretation needed

 “Groups”
• Lemkin intended to protect “minority groups”

• “Groups” appears in other HH.RR. instruments (ICCPR,

ICESCR, UDHR, ICEAFRD, CRC).

• “Group” is more useful, flexible, and accepted than

“minorities” (pejorative, Apartheid case)

• Even Lemkin R. changed his mind at different times

about the categories of groups.

• Determination of the relevant protected group should be

made on a case-by-case basis, referring to both
objective and subjective criteria
 “Stable and permanent” groups?
• Trial Chamber of the ICTR,
2.September.98 – Akayesu Case.

• Problematic: too restrictive or too

broad.

• Never contested

• ICL? – Maybe.
 National Groups
“What characterizes a nation is not only a
community of political destiny, but, above
all, a community marked by distinct
historical and cultural links or features. On
the other hand, a “territorial” or “state”
link (with the State) does not appear to
me to be essential.” – Stéfan Glaser.
 Racial groups
• “Human races” itself problematic – Colonialism and others.

• Anachronic language

• Anthropology, social psychology, biology, history.

• “Race” is a fallacy – Anthropologist Ashley Montagu

• Phenotype (instead of genotype). Biological perceived traits

• Observable traits

• Social Construction

• ICEAFRD and ICSPCA (Apartheid) use the term “Race”.

 Ethnical groups
• “Cultural traits”? – Seems to be understood broader than “Race.”

• Several States said they saw no difference between ethnical and racial. (drafts). Redundancy?

• “Ethnic” – “Ethnical”? – Sometimes used interchangeably

• “It is probably preferable to take the two concepts together (R and E)” – Shaw Malcolm

• ‘An ethnic group is one whose members share a common language and culture” – Trial Chamber Akayesu /
Rwanda 94.

• “The better view is to take the concept as being largely synonymous with the other elements of the
enumeration, encompassing elements of national, racial, and religious groups within its scope.”
–Schabas W.
 Rwanda – Ethnic groups
• Rwandan Tutsis and Hutus speak the same language, practice the same religions
and have essentially the same culture. Mixed marriages are common.
Distinguishing between them was so difficult that the Belgian colonizers
established a system of identity cards, and determined what Rwandan law calls
‘ethnic origin’ based on the number of cattle owned by a family

• After initially deliberating over the point, Trial Chambers of the International
Criminal Tribunal for Rwanda have now taken judicial notice of the fact that the
Tutsi, as well as the Hutu and the Twa, were ethnic groups within Rwanda at the
time of the 1994 genocide.

• Prosecutor v. Kajelijeli (Case No. ICTR-98-44A-T), Judgment, 1 December 2003, para. 241.
 Religious groups
• Some post-WWI treaties protecting minorities.

• Remember Armenia?

• “Sects”? – No, according to the ECHR – 1993 decisión Kokkinakis v. Greece.

• Identifying a “religious group” involves identifying a religion. – Schabas W.

• “Encompass both theistic, non-theistic, and atheistic communities united by a single

spiritual ideal” – Lippman Matthew.
 Other groups?
• Should it? - Different opinions

• Gender – Race or other

• Linguistic - Ethnic

• Political – Religious?

• Economic – Other?

• Try to include them when interpreting the Convention (strategy)

• GC. Art 2 / subparagraphs
ACTUS REUS

• Extended to state responsibility

• ½ Elements of the offense – Intime conviction / reasonable doubt.

• “techniques of genocide in various fields” – Axis Rule in Occupied Europe,

Lemkin R (1944).

• Exhaustive list!

• a, b, and e require proof of the result

• Commission or omission
 Art. II
(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

 Omission
“Jean Kambanda acknowledges that on 3 May 1994,
he was personally asked to take steps to protect
children who had survived the massacre at a hospital
and he did not respond. On the same day, after the
meeting, the children were killed. He acknowledges
that he failed in his duty to ensure the safety of the
children and the population of Rwanda.”
Prosecutor v. Kambanda (Case No. ICTR 97-23-S), Judgment and Sentence, 4 September
1998, para. 39(ix).

- Recognized in ICC, Rwanda and former Yugoslavia

statutes.
 a) Killing
• The victim is dead; AND the death resulted from an unlawful act omission of the
accused or a subordinate. (Prosecutor v. Akayesu (Case No. ICTR-96-4-T), Judgment, 2 September 1998, para. 588)

• “Killed” interchangeable with “caused death” – Elements of Crimes RS

• Induced suicide could qualify (Prosecutor v. Krnojelac (Case No. IT-97-25-T), Judgment, 15 March 2002, para. 326)

• “The act would have constituted genocide had Victim V been a Tutsi, but, because
Victim V was Hutu, Akayesu could not be convicted of genocide for this particular act”
- Prosecutor v. Akayesu, note 39 above, para. 710.
 b) Causing serious bodily or mental harm

• Actual and serious (not necessarily permanent) harm must

result.

• Assault does not qualify.

• Result must be proven (1 or more victims)

• India is credited for introducing “serious” and “or mental harm”

 Causing serious bodily or mental harm

• “by the enslavement, starvation, deportation and persecution . . . and by their detention in
ghettos, transit camps and concentration camps in conditions which were designed to cause
their degradation, deprivation of their rights as human beings, and to suppress them and cause
them inhumane suffering and torture.” A-G Israel v. Eichmann (1968) 36 ILR 5 (District Court, Jerusalem), p. 340.

• “serious bodily or mental harm, without limiting itself thereto, to mean acts of torture, be they
bodily or mental, inhumane or degrading treatment, persecution.” “Harm that seriously injures
the health, causes disfigurement or causes any serious injury to the external, internal organs or
senses.” – Trial Chambers Rwanda, 2000.

• “understood to mean, inter alia, acts of torture, inhumane or degrading treatment, sexual
violence including rape, interrogations combined with beatings, threats of death, and harm that
damages health or causes disfigurement or injury. The harm inflicted need not be permanent
and irremediable.” - Prosecutor v. Stakic´ (Case No. IT-97-24-T), Judgment, 31 July 2003, para. 516
 …mental harm
• More problematic – Objective, subjective
scope.

• “Rape and sexual violence may constitute

genocide on both a physical and a mental
level.” – Akayesu judgment, Rwanda.

• Ex-Yugoslavia, Rwanda clarified the term

 …mental harm
The trauma and wounds suffered by those individuals who managed to survive the mass
executions . . . The fear of being captured, and, at the moment of the separation, the
sense of utter helplessness and extreme fear for their family and friends’ safety as well as
for their own safety, is a traumatic experience from which one will not quickly – if ever –
recover. Furthermore, the Trial Chamber finds that the men suffered mental harm having
their identification documents taken away from them, seeing that they would not be
exchanged as previously told, and when they understood what their ultimate fate was.
Upon arrival at an execution site, they saw the killing fields covered with bodies of the
Bosnian Muslim men brought to the execution site before them and murdered. After
having witnessed the executions of relatives and friends, and in some cases suffering
from injuries themselves, they suffered the further mental anguish of lying still, in fear,
under the bodies – sometimes of relative or friends – for long hours, listening to the
sounds of the executions, of the moans of those suffering in pain, and then of the
machines as mass graves were dug. - Prosecutor v. Blagojevic´ (IT-02-60-T), ICTY Judgment, 17 January 2005, para. 647. S
c) Deliberately inflicting conditions of life
calculated to destroy the group
“…the methods of destruction by which the perpetrator
does not immediately kill the members of the group, but
which, ultimately, seek their physical destruction. (. . . )
inter alia, subjecting a group of people to a subsistence
diet, systematic expulsion from homes and the reduction
of essential medical services below minimum
requirement…”

Trial Chamber - Prosecutor v. Akayesu. See also Prosecutor v. Rutaganda (Case No. ICTR-96-3-T), 6 December 1999.
“It is impossible to enumerate in advance the ‘conditions of life’ that
would come within the prohibition of Article II; the intent and probability
of the final aim alone can determine in each separate case whether an
act of Genocide has been committed (or attempted) or not.

Instances of Genocide that could come under subparagraph (c) are

such as placing a group of people on a subsistence diet, reducing
required medical services below a minimum, withholding sufficient
living accommodations, etc., provided that these restrictions are
imposed with intent to destroy the group in whole or in part”

Nehemiah Robinson’s commentary on the Convention

“The term “conditions of life” may
include, but is not necessarily
restricted to, deliberate deprivation of
resources indispensable for survival,
such as food or medical services, or
systematic expulsion from homes.”

-Art. 6(c) Elements of Crimes ICC, footnote 4

“…the detainees in Keraterm had been ‘systematically’
expelled from their homes and had been forced to endure
a subsistence diet. The medical care that they received –
if any – was below the minimal standards to ensure their
physical well-being. In short, the living conditions were
totally insufficient.”

Indictments ICTY - Prosecutor v. Sikirica et al. (Case No. IT-95-8-T), Judgment on Defence Motions to Acquit, 3 September 2001, para. 42.
 d) Imposing measures intended to prevent
births
• Result does not need to be proven

• The Supreme National Tribunal of Poland found the director of the Auschwitz camp
responsible for sterilization and castration, qualifying these acts as a form of
genocide. Poland v. Hoess, (1948)

• a United States Military Tribunal condemned Ulrich Greifelt and his associates for
sterilization and other measures aimed at restricting births, acts that it also
described as genocide. United States v. Greifelt et al., (1948)

• ‘The measure imposed need not be the classic action of sterilization; separation of
the sexes, prohibition of marriages and the like are measures equally restrictive and
produce the same results.’ -Robinson, Genocide Convention, 1996-
“…the measures intended to prevent births within the group, should be construed as
sexual mutilation, the practice of sterilization, forced birth control, separation
of the sexes and prohibition of marriages. In patriarchal societies, where
membership of a group is determined by the identity of the father, an example of a
measure intended to prevent births within a group is the case where, during rape, a
woman of the said group is deliberately impregnated by a man of another group,
with the intent to have her give birth to a child who will consequently not belong to
its mother’s group. Furthermore, the Chamber notes that measures intended to
prevent births within the group may be physical, but can also be mental. For
instance, rape can be a measure intended to prevent births when the person raped
refuses subsequently to procreate, in the same way that members of a group can be
led, through threats or trauma, not to procreate.”

Prosecutor v. Akayesu – Trial Chamber.

e) Forcibly transferring children
Heinrich Himmler:

“What happens to a Russian, a Czech, does not

interest me in the slightest. What the nations
can offer in the way of good blood of our
type, we will take. If necessary, by
kidnapping their children and raising them
here with us. Whether nations live in prosperity
or starve to death interests me only in so far as
we need them as slaves for our Kultur,
otherwise it is of no interest to me.”

France et al. v. Goering et al., (1946) 22 IMT

203 at 480
“The Inquiry’s process of consultation and
research has revealed that the predominant aim
of Indigenous child removals was the
absorption or assimilation of the children into
the wider, non-Indigenous, community so that
their unique cultural values and ethnic identities
would disappear, giving way to models of
Western culture . . . Removal of children with
this objective in mind is genocidal because it
aims to destroy the “cultural unit” which the
Convention is concerned to preserve.”

*Australian practice of forcible transfer of indigenous children to

non-indigenous institutions and families, Human Rights and
Equal Opportunities Commission, 1997.
 Workshop - AUS
1. What were the main objectives of the Bringing Them Home report, and how did it define the
policies of the stolen generations?

2. How did Florence Onus’s personal experience reflect the broader impact of the stolen
generations on Aboriginal and Torres Strait Islander families?

3. What were some of the long-term consequences of forced removals and institutionalization on
Indigenous communities, as described in the article?

4. What challenges remain in implementing the recommendations of the Bringing Them Home
report, particularly in terms of compensation and child placement policies?

5. How does intergenerational trauma manifest among the descendants of the stolen generations,
and what solutions does the Healing Foundation propose to address it?

https://www.theguardian.com/australia-news/2017/may/25/australias-stolen-generations-a-legacy-of-intergenerational-pain-and-broken-bonds
 MENS REA
• Accidental or negligent Genocide does NOT exist.

• Negligence is NOT the same as Omission

• Premeditation is NOT needed

• Motive? – No explicit reference. “As such” art. II GC - not relevant

• Levels of culpability = degrees of criminal sanction

• Knowledge + Intent

• Purpose-based vs. Knowledge-based approach

 Rome Statute Art. 30
Mental element

1. Unless otherwise provided, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court only if the material elements are
committed with intent and knowledge.

2. For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware
that it will occur in the ordinary course of events.

3. For the purposes of this article, "knowledge" means awareness that a circumstance
exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly"
shall be construed accordingly
 Premeditation?
“[T]he preparatory work of the Convention of 1948 brings out that
premeditation was not selected as a legal ingredient of the
crime of genocide . . . the drafters of the Convention did not
deem the existence of an organization or a system serving a
genocidal objective as a legal ingredient of the crime. In so doing,
they did not discount the possibility of a lone individual seeking to
destroy a group as such.”

Prosecutor v. Jelisic´ (Case No. IT-95-10-T), Judgment, 14 December 1999, para. 100.
 Premeditation?
“…the existence of a plan or policy is not a legal ingredient of the crime.
However, in the context of proving specific intent, the existence of a plan or policy
may become an important factor in most cases. The evidence may be consistent
with the existence of a plan or policy, or may even show such existence, and the
existence of a plan or policy may facilitate proof of the crime.”
Appeals Chamber’s. Prosecutor v. Jelisic´ (Case No. IT-95-10-A), Judgment, 5 July 2001, para. 48.

‘although a specific plan to destroy does not constitute an element of genocide, it

would appear that it is not easy to carry out a genocide without a plan or
organization’. . . ‘the existence of such a plan would be strong evidence of the
specific intent requirement for the crime of genocide’.

Prosecutor v. Kayishema and Ruzindana (Case No. ICTR-95-1-T), Judgment, 21 May 1999, para. 94.
 Intent - Complicity
“As a preliminary, the Chamber emphasises the need to distinguish between
the individual intent of the accused and the intent involved in the conception
and commission of the crime. The gravity and the scale of the crime of
genocide ordinarily presume that several protagonists were involved in its
perpetration. Although the motive of each participant may differ, the
objective of the criminal enterprise remains the same. In such cases of joint
participation, the intent to destroy, in whole or in part, a group as such must
be discernible in the criminal act itself, apart from the intent of particular
perpetrators. It is then necessary to establish whether the accused
being prosecuted for genocide shared the intention that a genocide be
carried out.”

Prosecutor v. Krstic´ (Case No. IT-98-33-T), Judgment, 2 August 2001, para. 549. N
 Knowledge of a plan / policy
“The extent of knowledge of the details of a plan or a policy to carry out the
crime of genocide would vary depending on the position of the perpetrator in
the governmental hierarchy or the military command structure. This does
not mean that a subordinate who actually carries out the plan or policy
cannot be held responsible for the crime of genocide simply because he did
not possess the same degree of information concerning the overall plan or
policy as his superiors. The definition of the crime of genocide requires a
degree of knowledge of the ultimate objective of the criminal conduct
rather than knowledge of every detail of a comprehensive plan or
policy of genocide.”

Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May–26 July 1996
 “Constructive knowledge”
“A subordinate is presumed to know the intentions of his superiors when he receives orders to
commit the prohibited acts against individuals who belong to a particular group. He cannot
escape responsibility if he carries out the orders to commit the destructive acts against victims
who are selected because of their membership in a particular group because he was not privy
to all aspects of the comprehensive genocidal plan or policy. The law does not permit an
individual to shield himself from criminal responsibility by ignoring the obvious. For
example, a soldier who is ordered to go from house to house and kill only persons who are
members of a particular group cannot be unaware of the relevance of the identity of the
victims and the significance of their membership in a particular group. He cannot be unaware
of the destructive effect of this criminal conduct on the group itself. Thus, the necessary
degree of knowledge and intent may be inferred from the nature of the order to commit the
prohibited acts of destruction against individuals who belong to a particular group and are
therefore singled out as the immediate victims of the massive criminal conduct.”

Report of the International Law Commission on the Work of Its Forty-Eighth Session, 6 May–26 July 1996
 Specific intent / Dolus specialis
Article II of the Genocide Convention requires a further mental element. It requires
the establishment of the ‘intent to destroy, in whole or in part . . . [the protected]
group, as such’ It is not enough to establish, for instance in terms of paragraph (a),
that deliberate unlawful killings of members of the group have occurred. The
additional intent must also be established, and is defined very precisely. It is often
referred to as a special or specific intent or dolus specialis . . . It is not enough that
the members of the group are targeted because they belong to that group, that is
because the perpetrator has a discriminatory intent. Something more is required.
The acts listed in Article II must be done with intent to destroy the group as such
in whole or in part.

ICJ, (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, para. 187.
 Proof of Intent
• ‘By its nature, intent is not usually susceptible to direct proof. Only the accused
himself has first-hand knowledge of his own mental state, and he is unlikely to
testify to his own genocidal intent. Intent thus must usually be inferred. Prosecutor v.
Gacumbitsi (Case No. ICTR-2001-64-A), Judgment, 7 July 2006

• Evidence of the context of the alleged culpable acts may help the Chamber to
determine the intention of the Accused, especially where the intention of a person
is not clear from what that person says or does. The Chamber notes, however,
that the use of context to determine the intent of an accused must be
counterbalanced with the actual conduct of the Accused. . . the Accused’s intent
should be determined, above all, from his words and deeds, and should be
evident from patterns of purposeful action. Prosecutor v. Bagilishema (Case No. ICTR-95-1A-
T), Judgment, 7 June 2001, para. 63
 Components of the specific intent
• Art. II

• Destroy the group

• The group to be destroyed

• Nationality, race, ethnicity, religion

 The Orlan Conflict and Allegations of Genocide

1. Identify the specific acts listed in the scenario that could constitute the actus reus of genocide under Article 6 of the
Rome Statute (Art. 2 of the Genocide Convention). Explain how these acts align with the legal definition.

2. How does Mens Rea apply in determining General Karov’s responsibility for genocide? What evidence from the
scenario supports a finding of genocidal intent?

3. The crime of genocide requires dolus specialis, or specific intent to destroy a protected group. Based on the evidence
provided, does the prosecution have a strong case that the accused possessed such intent? Why or why not?

4. What challenges might arise in proving genocide, as opposed to other crimes under international law (e.g., crimes
against humanity or war crimes), in this case?

5. If you were a defense lawyer representing General Karov, what arguments could you make to challenge the genocide
charge? What alternative charges might be more applicable?
 CREDITS AND BIBLIOGRAPHY
• https://www.un.org/en/genocideprev • GC text – 1948
ention/ethnic-cleansing.shtml

• William Schabas text

• https://cdnapisec.kaltura.com/index.p
hp/extwidget/preview/partner_id/250
3451/uiconf_id/43914941/entry_id/1_
et29yipm/embed/dynamic • Advisory Opinion 28.May.51 – ICJ

• https://australian.museum/learn/first- • The Crime of Crimes text. Chaps 2,

nations/unsettled/surviving-genocide/ 3, 4, 5:

• https://www.youtube.com/watch?v=Sl • Drafting
82VMuuKI0 (Bringing them home AUS • Protected Groups
33 min) • Mens Rea
• Actus Reus