Genocide - (2) - The elements of the offence

An earlier post looked at the basics of the offence of Genocide as defined by the 1948 Convention.

This post considers the elements of the offence in greater detail. Links to some decided cases are provided to assist those who wish to delve more deeply into this subject.

*** The elements of the offence of Genocide ***

The elements of genocide can be considered under the headings Objective Elements and Subjective Elements. 

* Objective Elements *

The conduct that may amount to genocide is set out by the 1948 Convention under 5 headings -

(i) KILLING members of a PROTECTED GROUP, namely a national or ethnical. racial or religious group.

Killing is interpreted as voluntary or intentional killing - essentially, murder

(ii) Causing SERIOUS BODILY or MENTAL HARM to members of a protected group

It is clear that the harm may include acts of bodily or mental torture, sexual violence, and persecution.

The harm need not be permanent or irremediable.

(iii) Deliberately inflicting on the group CONDITIONS OF LIFE CALCULATED TO BRING ABOUT ITS PHYSICAL DESTRUCTION in whole or in part

This includes subjecting a group to a subsistence diet, expelling them from their homes, reducing essential medical services below minimum requirements, deprivation of resources indispensable for survival.

Creating circumstances likely to bring about a slow death is also covered - e.g. failure to provide proper housing, clothing or requiring excessive work or physical exertion.

(iv) imposing MEASURES INTENDED TO PREVENT BIRTH within the group

Such measures include sexual mutilation, sterilization, forced birth control, separation of the sexes and prohibition of marriages

(v) FORCIBLY TRANSFERRING CHILDREN of the group to another group.

* Subjective Elements *

The Genocide Convention refers to INTENT to destroy , in whole or in part, a national, ethnical, racial or religious group.

It follows that the intent required goes beyond that required for the underlying offence (e.g. murder). It is said that there is a dolus specialis or aggravated criminal intention. In the AKAYESU case, the Rwanda tribunal held that genocide required such a special intent.

The existence of the required intent can be inferred from all the acts and utterances of the accused, or from the general context in which other culpable acts were perpetrated systematically against the same group, regardless of whether such other acts were committed by the same perpetrator or even by other perpetrators.

This intepretation has been followed in other cases - e.g. Kayishema and Ruzindana, in Rutaganda, and in Musema.

Cases -

The elements of the offence have been considered in a number of cases including -

AKAYESU - International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania -  Akayesu - Asser Institute (internationalcrimesdatabase.org)

KAYISHEMA and RUZINDANA - International Criminal Tribunal for Rwanda - Kayishema & Ruzindana - Asser Institute (internationalcrimesdatabase.org)

KRSTIC - Krstić (IT-98-33) | International Criminal Tribunal for the former Yugoslavia (icty.org)

BLAGOJEVIC and JOKIC - Blagojević & Jokić (IT-02-60) | International Criminal Tribunal for the former Yugoslavia (icty.org)

BRDANIN - Brđanin (IT-99-36) | International Criminal Tribunal for the former Yugoslavia (icty.org)

RUTAGANDA - International Criminal Tribunal for Rwanda - Rutaganda - Asser Institute (internationalcrimesdatabase.org)

MUSEMA - ICTR-96-13 | United Nations International Criminal Tribunal for Rwanda (irmct.org)

Discussion -

Jean-Paul Akayesu Case | Tackling Violence against Women (lse.ac.uk)

Krstic- the case that saved genocide – Ascott legal blog (wordpress.com)

Further issues -

Three further issues concerning genocide are considered in Past 3 on this topic. They are (i) identifying the protected group or groups, (ii) whether acts of genocide always require an underlying genocidal policy by a state or organized authority, (iii) how to discern genocidal intent.

Previous post -

Watching the Law: Genocide - (1) - Basic details

Watching the Law: Genocide - (3) - Further points

10 April 2022