Destruction of A Group: 39 HE Aw of The Nternational Riminal Ribunal For The Ormer Ugoslavia AND Wanda 40

43
Rwanda also noted this difficulty. Their Report suggested that the necessary element of
intent can be inferred from sufficient facts, such as the number of group members
affected.39 The Chamber finds that the intent can be inferred either from words or deeds
and may be demonstrated by a pattern of purposeful action.40 In particular, the Chamber
considers evidence such as the physical targeting of the group or their property; the use of
derogatory language toward members of the targeted group; the weapons employed and
the extent of bodily injury; the methodical way of planning, the systematic manner of
killing. Furthermore, the number of victims from the group is also important. In the
Report of the Sub-Commission on Genocide, the Special Rapporteur stated that “the
relative proportionate scale of the actual or attempted destruction of a group, by any act
listed in Articles II and III of the Genocide Convention, is strong evidence to prove the
necessary intent to destroy a group in whole or in part.”41
94. It is also the view of the Chamber that 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 such a plan, or organisation. Morris and Scharf note that “it is virtually
impossible for the crime of genocide to be committed without some or indirect involvement
on the part of the State given the magnitude of this crime.”42 They suggested that “it is
unnecessary for an individual to have knowledge of all details of the genocidal plan or
policy.” The Chamber concurs with this view.
Destruction of a Group
95. The perpetrator must intend to destroy a group in whole or in part. This begs the
question of what constitutes the “destruction of a group.” The Prosecution suggests that
the term should be broadly interpreted and encompass acts that are undertaken not only
with the intent to cause death but also includes acts which may fall short of causing
39
Cited in Bassiouni, in THE LAW OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA,
p. 524, and UN AND RWANDA, 1993-6, p. 432, para. 166.
40
Wisconsin International Law Journal, 243 (1996).
41
UN Doc. E/CN.4/Sub.2/1985/6, p. 16, para. 29.
42
Morris & Scharf, supra, p. 168.
ICTR-95-1-T
44
death.43 In the Akayesu Judgement, acts of sexual violence, which occurred in Taba
Commune were found to form an integral part of the process of destruction, specifically,
targeting Tutsi women and contributing to their destruction and the destruction of the
Tutsi as a group.44 The Trial Chamber concurs with this view and that of the International
Law Commission (ILC) which stated that “it is not necessary to intend to achieve the
complete annihilation of a group from every corner of the globe.”45
Whole or in Part
96. Another aspect for consideration is that the intent to destroy the group must be “in
whole or in part.” The ILC stated that “the crime of Genocide by its very nature requires
the intention to destroy at least a substantial part of a particular group.”46 In the Report of
the Sub-Commission on Genocide, the Special Rapporteur stated that “in part” would
seem to imply a reasonably significant number, relative to the total of the group as a
whole, or else a significant section of a group such as its leadership. Hence, both
proportionate scale and total number are relevant.47
97. The Trial Chamber opines, therefore, that “in part” requires the intention to destroy
a considerable number of individuals who are part of the group. Individuals must be
targeted due to their membership of the group to satisfy this definition.
A National, Ethnical, Racial or Religious Group

98. The intent must exist to “destroy a national, ethnical, racial or religious group, as
such.” Thus, the acts must be directed towards a specific group on these discriminatory
grounds. An ethnic group is one whose members share a common language and culture;
or, a group which distinguishes itself, as such (self identification); or, a group identified
as such by others, including perpetrators of the crimes (identification by others). A racial
43
Prosecutor’s Brief, 9 Oct. 1998, p. 30.
44
Akayesu Judgement, para. 731.
45
ILC Draft Code of Crimes, p. 42, para. 8.[ Throughout the text, page citations to the International Law
Commission (ILC) Report 1996 may refer to the Internet version at
http://www.un.org/law/ilc/reports/196/chap02.htm]
46
Ibid.
47
Mr. Whitaker, in UN Doc. E/CN.4/Sub.2/1985/6, p. 16, para. 29.
ICTR-95-1-T
45
group is based on hereditary physical traits often identified with geography. A religious
group includes denomination or mode of worship or a group sharing common beliefs.
Destroying in whole or in part a National, Ethnical, Racial or Religious Group as Such

99. This phrase speaks to specific intent (the requisite mens rea). The “destroying” has
to be directed at the group as such, that is, qua group, as stipulated in Article 2(2) of the
Statute.
4.1.2 Actus Reus
100. Article 2(2)(a) to (e) of the ICTR Statute and Article II (a) to (e) of the Genocide
Convention lists acts which, if committed with the specific intent, amount to genocide.
Killing Members of the Group

101. Article 2(2)(a) of the Statute, in the English language version, states that genocide
means the act of “killing” committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such. The French language version refers
to meurtre, a term that requires the additional mental element of intent.
102. The Parties in their closing remarks addressed the differences between the English
and French versions. The Prosecutor submitted that the term meurtre has a legal meaning
in French law, that is, a deliberate homicide, whereas the term “killing” is merely the act
of causing the death to another.48 The Prosecutor contended that the language used in the
English version is more flexible and would permit, if the need arises, a broadening of the
meaning or interpretation.49 The Defence teams submitted that “meurtre” should be
applied, as it was in the Akayesu Judgement. The Defence submitted that where doubt
exists then, as a general principle of criminal law, that doubt should be interpreted in
favour of the accused.
103. The Trial Chamber agrees that if a doubt exists, for a matter of statutory
interpretation, that doubt must be interpreted in favour of the accused. Therefore, the
48
Trans., 21 Oct. 1998, p. 91.
49
Ibid.
ICTR-95-1-T

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43

A National, Ethnical, Racial or Religious Group

Destroying in whole or in part a National, Ethnical, Racial or Religious Group as Such

4.1.2 Actus Reus

Killing Members of the Group

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