Definition and Elements of the crime

Since it was initially formulated in 1948, in article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, the definition of the crime has remained substantially the same. It can be found in article 6 of the Rome Statute of the ICC, which defines the crime of genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. The definition is followed by a series of acts representing serious violations of the right to life and the physical or mental integrity of the members of the group. The Convention also provides that not only the acts themselves are punishable, but also conspiracy to commit genocide, direct and public incitement to commit genocide, the attempt to commit genocide and complicity in genocide.⁹²⁴ It is the specific intention to destroy an identified group, either in whole or in part, that distinguishes the crime of genocide from a crime against humanity. Essentially, the crime of genocide requires evidence of three distinct elements:

a) The commission of a listed act (such as murder or serious injury to body or physical health); b) Directed against a national, ethnic, racial or religious group; c) With the specific intention to destroy the protected group, as such, either in whole or in part.

1. Listed acts

Of the five listed acts included in the definition of the crime of genocide, the following three have been used based on the inventory of incidents in the preceding chapters:

• Murder of members of the group;
• Causing serious bodily or mental harm to members of the group;
• Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

2. Directed against a national, ethnic, racial or religious group

The victims must belong to a national, ethnic, racial or religious group. “National groups” refer to people who have a distinct identity in terms of nationality or national origin. “Ethnic groups” would include people sharing the same language and with common traditions or a common cultural heritage.⁹²⁵ The actual definition of groups used by the courts, however, is one that takes more account of the sense of belonging to a specific group than to its actual existence, applying the subjective criterion of the perception of other people and an individual’s own perception as regards membership of the group.⁹²⁶

3. With the specific intention to destroy the protected group, as such, either in whole or in part

The specific intention to destroy the protected group, as such, either in whole or in part, is the key element in the crime of genocide, which is often described as a crime of intent, requiring a specific aggravated criminal intent (dolus specialis).⁹²⁷ This second element can be split into three distinct parts: firstly, the intention to destroy, then in whole or in part, and finally, the group as such. The intention to destroy assumes that the perpetrator knowingly wanted the prohibited acts to cause the destruction, in whole or in part, of the group as such and knew that their acts would destroy the group as such either in whole or in part.⁹²⁸ It implies that the perpetrator of the crime must have acted with the specific intention of destroying the protected group, either in whole or in part. Intention is not synonymous with motivation. The personal motive of the perpetrator of genocide, for example, may be the prospect of personal economic benefit, political advantages or a particular form of power. The existence of a personal motive does not mean that the perpetrator may not also have the specific intention of committing genocide.⁹²⁹ The intention to destroy a named group, even in part, is sufficient to constitute a crime of genocide provided that it is the group or “a distinct fraction of the group” that is targeted and not “a multitude of isolated individuals belonging to the group”.⁹³⁰ Furthermore, the section of the group targeted must be substantial and thus reflect “both the mass nature of the genocide and the concern expressed in the Convention as to the impact that the destruction of the section of the group targeted would have on the survival of the group as a whole.”⁹³¹ Its substantial nature is established on the basis “not only of the numerical size of the fraction of the group targeted but also its position within the group as a whole.”⁹³² Finally, the intention must be to destroy the group as such, either in whole or in part. As a result, victims “must be targeted as a result of their membership of a group”;⁹³³ it is therefore the group itself that is targeted, through the victim. Proof of the intention to destroy a group as such, either in whole or in part, the key element in genocide, is without doubt the element that causes most difficulties. Whilst, in general, in criminal law, intention is rarely subjected to direct proof, but instead relies on inferences drawn from the facts and circumstances of the crime, proof of a specific intention, a “dolus specialis” is even more stringent insofar as it must establish the existence of the specific aim the perpetrator had in mind in committing the crime. Clearly, in the case of genocide, which is seen as the “crime of crimes”, any inference as to an intention to destroy a group in whole or in part must be made very prudently.⁹³⁴ As the Appeals Chamber of the ICTY has stated: “Genocide is one of the most abhorrent of all crimes, and the corollary of its gravity is the strict requirement to show a specific intention. A defendant can only be declared guilty of genocide if such an intention is clearly established.” ⁹³⁵ In the same way, a similar inference or deducing of the existence of such an intention on the part of the defendant “must be the only reasonable possibility in light of the evidence gathered.”⁹³⁶ Amongst the factors, facts and circumstances used by the international courts to infer or deduce a genocidal intention are: the general context, the perpetration of other reprehensible acts systematically directed against the same group,⁹³⁷ the scale and number of atrocities committed,⁹³⁸ the fact of targeting certain victims systematically because of their membership of a particular group, the fact that the victims had been massacred with no regard for their age or gender,⁹³⁹ the consistent and methodical manner in which acts were committed,⁹⁴⁰ the existence of a genocidal plan or policy and the recurrence of destructive and discriminatory acts.⁹⁴¹