1.

1 The Elements of the Crime

Since it is not the primary aim of the essay to examine the material and mental elements, only
a brief examination of these elements will be made. The purpose here is to give the reader a
basic understanding of what is required by the definition of genocide for the act to have been
committed. The different groups that receive protection from the Convention will be
discussed first, with the material and mental elements coming thereafter.

1.1.1 The Protected Groups

Not every group is protected by the Genocide Convention. Article 2 of the Convention states
that the intention to destroy is required to be directed at one of these four groups: national,
ethnic, racial and religious groups. The narrow definition of protected groups has been
debated since 1948.37 What has created some of this debate is the wording of the General
Assembly Resolution 96(1) which included the phrase “other groups” when referring to what
groups could be protected.38 This phrase was not included in the Convention’s definition or
the Statute of the Tribunals. Other groups were discussed during the drafting of the
Convention, such as social and political groups, but those attempts were obviously
unsuccessful, and the list should, in its current textual interpretation, be considered
exhaustive.39

Critique has been raised since there does not seem to be any internationally recognized defini-
tion of each of the groups.40 However, the ICTR has tried to define each of them.41 To give
each group a clear definition may not be for the best since it may risk not being able to fit a
specific group into one of the given definitions and that group, therefore, not receiving the
protection it otherwise would have gotten. Instead, it has been argued that the different groups
help define each other. This has been described as creating a ‘four corners’ approach that
“delimit an area within which a myriad of groups covered by the Convention find
protection”.42 This approach has been followed by the ICTY Trial Chamber in a case where
the Tribunal stated that attempt- ing to differentiate the groups on scientific objective criteria
would not correspond with the object and purpose of the Convention itself.43

However narrow and lacking in definition of the groups as Article 2 may be, there seem to be
reasons for it, first from the object and purpose of the actual Convention and later from inter-
national courts when deciding on cases of genocide.

1.1.2 The Physical Elements

As with the protected groups above, not every act committed with the required intent will lead
to a conviction for genocide. Only those acts that are mentioned in Article 2 of the
Convention can form the actus rea, the physical elements required for genocide. Article 3 of
the Convention

37
William A. Schabas, Genocide in International Law: The Crime of Crimes, (2nd edn, Cambridge 2009) 117.
38
UNGA Res. 96(1) (n 26) 188-189.
39
Schabas (n 37) 150-151.
40
Cryer (n 13) 211.
41
Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96-4-T (2 September 1998) [98] & [512]-[515].
42
Schabas (n 37) 129-130.
43
Prosecutor v Radislav Krstic (Judgment) IT-98-33-T (2 August 2001) [555]-[556].
mentions the different modes of participation in a crime of genocide, modes that are not dis-
cussed here; instead, only the actual physical acts themselves in Article 2 receive a brief
assess- ment.

Killing members of the group

The act of killing members of any of the protected groups is prohibited by Article 2(a) and has
been described as the ‘paradigmatic example’ of the conduct element of genocide.44 The refer-
ence in the act to “members of the group” raises questions about the scope required. However,
international tribunals have answered this by stating that, in theory, there only needs to be one
victim for the act to be sufficient. 45 Killing has been interpreted as both voluntarily and inten-
tionally causing death.46

Causing serious bodily or mental harm to members of the group

Other acts than outright killing can be considered genocidal acts, and Article 2(b) covers
situa- tions where serious bodily or mental harm is caused to members of the group. What
harm would qualify as serious was explained by the ICTR as an element that had to be
decided on a case- by-case basis.47 The ICC Elements of Crimes gave examples which
included but were not ex- clusive to rape, sexual violence or inhuman or degrading
treatment.48 Other acts could qualify as causing serious harm as well. It is worth noting that
the harm seems to require going beyond what could be temporary embarrassment or
humiliation; it must be graver.49

Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part

Measures that consist of deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part are prohibited by Article 2(c). This part
of the crime has been described as “slow death measures”. 50 The ICC Elements of Crime also
gave examples for this act: “deliberate deprivation of resources indispensable for survival,
such as food or medical services, or systematic expulsion from homes”. 51 If a perpetrator
commits such an act, he does, therefore, not aim to immediately kill the victims but by
prolonging certain acts, he may cause the group’s destruction anyway at a later time.

Imposing measures intended to prevent birth within the group

The prohibition in Article 2(d) concerning measures that prevent births within the group has
been said to originate from the Nazi practice during World War II where they would force
sterilization on people, preventing them from ever giving birth. 52 To constitute this prohibited
act, the measure taken must aim to “prevent the biological reproduction of the group”.53 Both

44
Cryer (n 13) 215.
45
Prosecutor v Jean Mpampara (Judgment) ICTR-01-65-T (11 September 2006) [8].
46
Akayesu (n 41) [500]-[501].
47
Prosecutor v Clément Kayishema and Obed Ruzindana (Judgment (Reasons)) ICTR-95-1-A (1 June 2001)
[110].
48
ICC, Elements of Crimes, 2011, ISBN No. 92-9227-232-2, Art 6(b), footnote 3.
49
Krstic (n 43) [513].
50
Cassese (n 27) 116.
51
ICC Elements of Crimes (n 48) Art 6(c), footnote 4.
52
Cryer (n 13) 217.
53
Cassese (n 27) 116.
physical and mental measures may constitute this prohibited act, according to the ICTR.54
Phys- ical measures could be, as mentioned, forced sterilization, but mental measures may be
harder to contextualize. Mental measures may be any measures that result in the victim of, for
example, rape refusing to ever give birth.

Forcibly transferring children of the group to another group

The last physical act prohibited by the Convention as genocide is stated in Article 2(e):
forcibly transferring children of the group to another group. This form of genocide has not
received much legal consideration and was only included in the Convention as a compromise
because the Convention did not include cultural genocide.55 The ICC Elements of Crimes has
provided some guidance when stating that children are those under 18 years of age and that
the term forcibly “is not restricted to physical force, but may include the threat of force or
coercion, such as that caused by fear of violence, duress, detention, psychological oppression
or abuse of power”.56

Summary of physical acts

The murder of many people may generally be what is most common to think of as genocide.
While those acts certainly qualify as genocide, the crime encapsulates much more than just
high numbers of murders. Acts of genocide may not even result in any physical damage to
individ- uals; it may result in only mental damage and still constitute genocide. Whatever
issues these five physical acts may have, with what measures are included and the scale
required, any one of these physical acts must be present for genocide to have taken place.

1.1.3 The Mental Element

1.1.3.1 General Information

Genocide, when compared to other international crimes, is similar in many aspects. The
amount of damage done by acts of these crimes can reach the same level of horror. Also, the
physical acts of these crimes can overlap in certain situations. The physical acts mentioned
just above are one part of the crime of genocide. The Genocide Convention states in Article 2
one other demand for the crime, that the act must have been “committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such”, and this is
where genocide differs from the other crimes. The perpetrator of the crime must intend to
commit any of the physical acts and have a special intent for genocide. The special intent for
genocide is the in- tention to destroy any of the protected groups. This need of intent excludes
any possibility for genocide to be committed accidentally. 57 If any of the genocidal acts were
committed without the intention required, chances are those acts could still be prosecuted as
other crimes; but with- out the intention, there would be no genocide. Something that is also
worth making a point of is that genocide is not a crime only committed by those who plan and
lead an operation of large- scale destruction. The special intent required must be possessed at
all levels of the operation, for both the leaders and the foot soldier, for all individuals to have
committed genocide.58

54
Akayesu (n 41) [507]-[508].
55
Cryer (n 13) 218.
56
ICC Elements of Crimes (n 48) Article 6(e), element 5 & footnote 5.
57
Schabas (n 37) 241.
58
Akayesu (n 41) [498].
Proving that the special intent is present in any given situation can be difficult since direct
evidence supporting the claim of such intent may not be available. The ICTR has confirmed
this by stating that “intent is a mental factor which is difficult, even impossible, to
determine.59 The Tribunal stated in the same case that to prove intent, one may determine it by
examining the acts of others concerning the alleged perpetrator’s actions. 60 If the prosecution
lacks direct evidence, it may be necessary to assess a large number of factors and a large
number of evidence that may not be completely related, to determine intent. The ICTY
confirmed this, stating that when determining intent for genocide, it must examine all the
evidence together since viewing each piece of evidence separately may obscure the proper
inquiry.61

Even when assessing all the evidence together, difficulties may arise when a court is to deter-
mine genocidal intent. The ‘intent-based’ approach described here, where every individual
par- ticipating in the crime must have the prerequisite intent, has been criticized. The main
point of criticism has been that it is unrealistic to prove that every foot soldier possesses the
intent re- quired when often those individuals mainly follow orders coming from superiors. 62
This has led to some instead proposing a ‘knowledge-based’ approach. This approach, in
situations where a perpetrator is liable for a physical genocidal act, would only require the
intent to include knowledge and furtherance from the perpetrator of the campaign targeting
members of any protected group.63 The approaches are separated by the collective intent of the
campaign and the individual intent where, by this approach, the individual would only need
knowledge of his or her furtherance of the genocidal plans, not the entire special intent.64
Whichever approach is better and more suitable to the purpose of the Genocide Convention is
up for debate. However, the case law still favors the ‘intent-based’ approach in accordance
with the textual interpretation of the Convention.65

1.1.3.2 Some issues of intent

Three parts of the text of the article prohibiting genocide have raised some issues of
interpreta- tion relating to the intent. The first issue relates to the phrase ‘to destroy’. Despite
some devel- opments in domestic law indicating a broader interpretation of what “destroy”
could include, the ICTY has clarified that only acts that seek the physical or biological
destruction of all or part of the group should be interpreted within the term. 66 The Tribunal’s
decision to include ‘biological’ destruction may be interpreted as also including the forcible
transfer of children if done on a large scale since it may biologically destroy a group.67
Whether or not the concept of ethnic cleansing and acts of such constitute genocide seems to
be up for debate. However, it can only be genocide if it is done with an intent to destroy that
group physically, and it cannot

59
ibid [523].
60
ibid.
61
Prosecutor v Milomar Stakic (Judgment) IT-97-24-A (22 March 2006) [55].
62
Harmen G. van der Wilt, ‘Genocide, Complicity in Genocide and International v. Domestic Jurisdiction’
(2006) 4 J Int’l Crim Just 239, 241–242.
63
Alexander K. A. Greenawalt, ’Rethinking Genocidal Intent: The Case for a Knowledge-Bases Interpretation’,
(1999) 99 Colum L Rev 2259, 2288.
64
Claus Kress, ’The Darfur Report and Genocidal Intent’, (2005) 3 J Int’l Crim Just 562, 576-577.
65
Guilfoyle (n 3) 284.
66
Krstic (n 43) [580].
67
Kress (n 22) 487.
be genocide if it simply results in splitting that group by transferring members away from
each other.68

Another phrase is ‘in whole or in part’. The intent to destroy must be directed at any protected
group in whole or in part. The ICJ has made several statements to clarify. First, the intent
must be directed at a substantial part of the group, and the targeted part must be significant
enough to impact the group as a whole.69 Secondly, the act must be done within a
geographically limited area, since it is not required to achieve this from every part of the
globe.70 The Court’s third statement was that even if a small percentage of the total group
were affected, it may still qualify if that small group was important or emblematic of the
entire group.71

The third phrase that has garnered some interest is ‘as such’. There must be an intent to
destroy a group, or part of it, as such. This brings in the distinction between intention and
motive. Mo- tive is not necessarily part of guilt in criminal law. While negotiating the
Genocide Convention, there were those that wanted to include motive as part of the textual
requirement, but those attempts were unsuccessful, and the phrase ‘as such’ was the
compromise.72 However, the mo- tive seems to be a requirement for genocide. The ICTR
stated that motive is part of the crime and supported it by stating that “it means that the
proscribed acts were committed against the victims because of their membership in the
protected group”.73 The proof of such motive can be difficult and may result in prosecution for
crimes against humanity rather than genocide if it cannot be proven that the crimes were
directed at the group ‘as such’.74

68
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, [190].
69
ibid [198].
70
ibid [199].
71
ibid [200].
72
Cryer (n 13) 227.
73
Eliézer Niyitegeka v The Prosecutor (Appeals Judgment) ICTR-96-14-A (9 July 2004) [53].
74
Guilfoyle (n 3) 286.
2. The Contextual Element of the Crime
This chapter provides an examination of the contextual elements of genocide and the status of
those contextual elements. An introduction to the contextual elements is the first part of the
chapter, discussing the phrase in general terms and what contextual elements could potentially
be regarding the crime of genocide. The second part of the chapter investigates if there is a
requirement for context. This is done by first examining the drafting history of the crime of
genocide and some of the debates surrounding the crime before looking at the ICC Elements
of Crimes and the potential issues it has caused. The Tribunals and their statements are
discussed to understand if there is a legal requirement for context.

The arguments on both sides of this issue are presented later in this chapter. Both arguments
of this issue are examined for the inclusion of context as an element and the arguments against
such inclusion, with the focus being on the opinion in the literature supporting each argument.
The last part of the chapter examines select cases from the Tribunals to understand what role
context plays and how the courts use context in practice.

2.1 General Information on the Contextual Element of Genocide

Context is a term that is not used exclusively in law. Many fields of science use context when
studying different matters. The concept of context, as mentioned above, is provided for in def-
initions of some international crimes. Since the concept is provided in the definitions, one
would assume that there is an agreed definition of the concept. There does not seem to be such
agree- ment and the assumption may be that context is an obvious concept not requiring
further defi- nition.75 However, further definition and clarification are necessary for
understanding contex- tual elements.

Context as a term has been defined as “the situation in which something happens and that
helps you to understand it”.76 Element has in turn been defined as “a particular part of
something”.77 Criminal law focuses on the criminal prohibition of acts. Therefore, contextual
elements for criminal law would reasonably be any information, elements or facts that could
be used to de- scribe the background circumstances of the criminal act itself, and could give a
narrative or history of that act.78

It is important to understand what sort of elements in theory could constitute contextual ele-
ments. The definition of crimes against humanity in Article 7 of the Rome Statute explicitly
states that any of the prohibited acts must be committed “as part of a widespread or systematic
attack”. This phrase is what is often associated with some form of state involvement. Though
the same language is not used in the Genocide Convention, this is what a contextual element
of genocide would be: the idea that the physical acts themselves must have been committed
by an individual as part of something bigger. As said before, this is often associated with
organisa- tional conduct orchestrated by the state or a state-like entity. Contextual elements as
a term is used to describe the concept presented here while knowing many aspects may be
included.

75
Nasour Koursami, The Contextual Elements of the Crime of Genocide, (T.M.C. Asser Press 2018) 20.
76
‘context’, Oxford Learner’s Dictionaries, <https://www.oxfordlearnersdictionaries.com/definition/english/con-
text?q=Context> accessed 2 May 2023.
77
‘element’, Britannica Dictionary, <https://www.britannica.com/dictionary/element> accessed 21 April 2023.
78
Koursami (n 75) 21-22.
Since context now has been described in a general sense, let us move on to why these
potential elements have caused some problems for the crime of genocide.

2.2 Interpretation of the Genocide Convention

Before exploring the contextual element and before determining whether the Genocide Con-
vention requires contextual elements for the crime, it must be established how the Convention
should be interpreted. This is done by consulting the Vienna Convention on the Law of
Treaties (VCLT).79 The rules in the VCLT regarding interpretation are found in articles 31-33
and have been considered rules of customary international law, even though the entirety of the
VCLT has not been confirmed as customary law.80 The general rule of interpretation of
treaties is found in Article 31(1) of the VCLT, where this is stated:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object
and purpose.

To understand the contextual elements of genocide, it is necessary to examine the drafting his-
tory and the preparatory work for the Genocide Convention. Article 32 of the VCLT contains
rules for supplementary means of interpretation. The Article states that preparatory work, and
other supplementary means, can be used to confirm the meaning resulting from the
application of Article 31. To use preparatory work to confirm the meaning reached by
applying Article 31 is always permissible.81 Preparatory work can also be used to determine
the meaning after in- terpretation with Article 31(1) has either left the meaning ambiguous or
obscure or if it led to a manifestly absurd or unreasonable result.

2.3 The Possible Requirement for Contextual Elements for the Crime of Genocide

This part of the chapter is divided into three parts. First, the definition of genocide throughout
its drafting is explored, and then the ICC Elements of Crimes are discussed. The last part of
this chapter consists of an investigation into what the Tribunals have stated regarding the
potential requirement.

2.3.1 Contextual Elements in the Drafting of the Genocide Convention and Subsequent
Developments

The definition of genocide in the Convention does require the actions to have taken place in a
specific context as an element of the crime. Since the ICC, ICTY and ICTR, in their statutes,
copied the Convention’s definition, there are no differences in these courts' and tribunals’ def-
initions. Any involvement of a state or state-like entity in a widespread systematic attack is
not required by the textual interpretation of the definition. That is a possible conclusion to
make

79
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155
UNTS 331.
80
Richard Gardiner, Treaty Interpretation (2nd edn, Oxford 2015) 162-163.
81
ibid 354.
after interpreting the definition according to Article 31 of the VCLT. However, some still
argue that such an element is required for genocide. Even the ICC itself may have suggested
that context is required, a view that is investigated later. In order to understand the concept of
con- textual elements fully, it is necessary to investigate the drafting history of the Genocide
Con- vention and to mention some of the debate surrounding this concept leading up to the
drafting of the Convention. To use preparatory work to confirm the meaning of the definition,
that there is no requirement for context, is in line with what is permissible according to Article
32 of the VCLT.

The omission of a requirement of contextual elements was a conscious decision by the

drafters of the Convention.82 The first resolution from the UN General Assembly regarding
genocide did not include a requirement for anything constituting a contextual element. 83 In
fact, in the first draft of the Convention, the UN Secretary-General even stated that “private
persons, that is to say, persons who are neither rulers nor officials, can also commit acts of
genocide (…) either by collective action (through a political group, league, or clandestine or
other associa- tion), or by an individual action”. 84 The Secretary-General’s statement did not
specifically ad- dress the question of whether genocide required a contextual element or not.
One of the experts that assisted in this draft thought genocide should be restricted to the
actions of rulers and thus requiring state involvement and in turn a contextual element. 85
However, this assumption was disregarded and has been used as evidence to show the
Secretary-General’s view that genocide did not require a contextual element and state
involvement.86

Before reaching a decision on the definition of genocide, there was a debate between states as
to how narrow or wide the definition should be. A proposal was made to add the words “with
the complicity of the government”, a proposal certain states agreed with.87 Other states argued
against that proposal stating that such an addition would unduly restrict genocide as a
concept.88 That argument continued stating that adding a requirement for state involvement
was based on a false conception that governmental authority was always effective and that
such an assump- tion was unrealistic.89 Even though states were aware that genocide in the
past had been com- mitted with either direct or indirect involvement of government, they
consciously decided against the inclusion of a strict requirement.90 Instead, in order to achieve
the goals stated in the preamble, the Convention opted for a wider definition of the crime and
left the contextual ele- ment outside the textual interpretation.

The view that genocide did not require a contextual element has been reiterated since the defi-
nition was adopted, as is shown later when discussing the Tribunals and their statements. The
definition in the Convention has been argued to be “widely accepted by the international com-
munity” and “the authoritative definition of this crime” by the ILC.91 This further proves the

82
Tilman Rodenhäuser, Organizing Rebellion: Non-State Armed Groups under International Humanitarian
Law, Human Rights Law, and International Criminal Law (Oxford 2018) 285.
83
UNGA Res 96(1) (n 26).
84
UN Secretary-General, Draft Convention of the Crime of Genocide (26 June 1947) E/447, 35.
85
ibid 35.
86
Rodenhäuser (n 82) 286.
87
United Nations Economic and Social Council, Ad Hoc Committee on Genocide: Summary Record of the
Fourth Meeting (15 April 1948) E/AC.25/SR.4, 3.
88
ibid 6.
89
ibid.
90
Rodenhäuser (n 82) 287.
91
ILC, ‘Draft Code of Crimes against the Peace and Security of Mankind (with commentary)’, ILC Ybk 1996
vol II pt 2, 44.
acceptance in the international legal community of the definition provided in the Convention.
Since nothing concerning contextual elements was stated in either the Convention or
subsequent statutes of courts and tribunals, it is not unreasonable to think no such element was
required.

2.3.2 The Role of the ICC Elements of Crimes

When the ICC was created as an international court, it based its work on the Rome Statute. As
previously mentioned, Article 6 of the Rome Statute provides the definition of genocide as it
was defined in the Genocide Convention. Nothing, therefore, was changed, and no contextual
elements were included in the Rome Statute. Alongside the Rome Statute were the ICC Ele-
ments of Crimes that were adopted by the assembly of state parties of the ICC. The Elements
of Crimes is a primary source of law for the Court according to Article 21(1)(a) of the Rome
Statute. Regarding the practical use of the Elements of Crime, this has been stated:

Sometimes the Elements merely repeat elements that are obvious enough from a
summary reading of the text in the Statute, but in other cases they provide further
detail with respect to a provision, occasionally amplifying its apparent scope, while
on other occasions reducing it.92

The Pre-Trial Chamber of the ICC has commented on the status of the Elements of Crimes:
“As a result, the majority considers that the Elements of Crimes and the Rules must be applied
unless the competent Chamber finds an irreconcilable contradiction between these documents
on the one hand, and the Statute on the other hand”. 93 This statement confirms that the
Elements of Crimes is important to the interpretation of the crimes in the Rome Statute.
Article 9 of the Rome Statute also states that the Elements of Crimes is to be used to assist in
interpreting and applying international crimes. Alongside Article 9, the VCLT must also be
consulted to see if it approves of the use of the Elements of Crimes when interpreting the
Rome Statute. Opposing views exist as to where the Elements of Crimes fit within the VCLT.
As part of the general rule of interpretation, Article 31(2) of the VCLT states this:

2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties
in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with
the conclusion of the treaty and accepted by the other parties as an instrument
related to the treaty.

The question then becomes where the Elements of Crimes fit within Article 31(2), either as an
agreement relating to the treaty which was made between all the parties in connection with the
conclusion of the treaty or as an instrument which was made by one or more parties in
connec- tion with the conclusion of the treaty. In his dissenting opinion, Judge Kaul described
the Ele- ments of Crimes as an agreement within the meaning of Article 31(2)(a). 94 However,
Judge Sang-Hyun Song, in a partly dissenting opinion, referred to Article 31(2)(b) and stated
that any instrument related to the treaty may be used to interpret the treaty when discussing
the Elements

92
William A Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd edn, Oxford
2016) 327.
93
The Prosecutor v Omar Hassan Ahmad Al Bashir (Decision) ICC-02/05-01/09 (4 March 2009) [128].
94
Situation in the Republic of Kenya (Decision) ICC-01/09 (31 March 2010) [39].
of Crimes.95 There are different opinions on where the Elements of Crimes fit within Article
31(2) of the VCLT. Regardless, when examining Article 9 of the Rome Statute and the
opinions of the judges mentioned, there seems to be no hindrance to the use of the Elements
of Crimes, regardless of whether it is to be considered as an agreement for Article 31(2)(a) or
as an instru- ment for Article 31(2)(b).

The Elements of Crimes has provided new fodder in the discussion on contextual elements.
As mentioned, context is not required in the literal definition of the crime. However, the
Elements of Crimes requires that each physical act that constitutes genocide “took place in the
context of a manifest pattern of similar conduct directed against that group or was conduct
that could itself effect such destruction”.96 This statement does not explicitly require a state
plan or policy, but by its wording, it comes somewhat close and should be examined.

The first thing to note is that the statement provides two requirements where only one
seemingly needs to be met for genocide. The acts must either be committed in the context of
similar con- duct or have itself the potential to destroy a group. The second part seems to
allow the possi- bility for a single individual acting alone to commit genocide, a phenomenon
that will receive more attention later. Regarding the first part, it states that a context of a
“manifest pattern of similar conduct” is required. The Elements of Crimes identify that
‘manifest’ is an objective qualification and ‘manifest’ as a general term normally means that
something must be shown clearly.97 Even though it is supposed to be an objective
qualification it may not be a sufficient safeguard against subjectivity. 98 The meaning of
‘pattern’ is a particular way in which some- thing is done, is organised or happens. 99 The use
of these words by the Elements of Crimes as something that needs to be applied when
interpreting genocide could be argued to at least come close to requiring a contextual element.
Although the use of words such as ‘a state plan or policy’ is not used, and ‘manifest pattern’ is
instead included, there should only be semantic differences between them, and it has been
suggested that they should be interpreted as similar concepts.100

In the work leading to the agreement of the Elements of Crimes, it was proposed that it should
include the wording of “a widespread or systematic policy or practice”. 101 This proposal was
met with critique. Some of the arguments against that proposal were that it would go beyond
the crime’s definition and that the crime's emphasis should be on proving the special intent. 102
Nevertheless, the parties ultimately agreed on the wording that is now present in the Elements
of Crimes, including the phrasing “manifest pattern of similar conduct”. The provisions in the
Elements of Crimes have been said to be accepted by consensus by the international
community

95
Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v Thomas Lubanga Dyilo
(Judgment) ICC-01/04-01/06 (14 Match 2012), Partly Dissenting Opinion of Judge Sang-Hyun Song, ICC-
01/04-01/06-3121-Anx1 (1 December 2014) [3], footnote 5 and [5], footnote 6.
96
ICC Elements of Crimes (n 48) article 6, p 2-3.
97
‘manifest’, Cambridge Dictionary, <https://dictionary.cambridge.org/dictionary/english/manifest> accessed 24
April 2023.
98
Elements of Genocide, p 69.
99
‘pattern’, Cambridge Dictionary, <https://dictionary.cambridge.org/dictionary/english/pattern> accessed 24
April 2023.
100
William A. Schabas, ‘State Policy as an Element of International Crimes’ (2008) 98 J Crim L & Criminology
953, 967.
101
Draft elements of crimes: proposal / submitted by the United States of America (4 February 1999)
PCNICC/1999/DP.4, III. Article 6: Crimes of genocide, 5-6.
102
Proposal submitted by Colombia, Comments on the proposal submitted by the United States of America on
Article 6: the crime of genocide (PCNICC/1999/DP.4) (18 February 1999) PCNICC/1999/WGEC/DP.2, 2.
and should be evaluated as such.103 It has also been stated that if the Elements of Crimes
repre- sents a consensus in the international community, it reflects a certain way in which
genocide should be interpreted.104 This was said by a scholar regarding the intention of the
drafters of the Elements of Crimes:

There is no compelling indication that the drafters of the last common Element in-
tended to hereby amend the well-entrenched definition of the crime of genocide.
While there were differences as to the precise language and the best analytical way
to capture the underlying idea, there was no fundamental disagreement on the sub-
stance.105

The intention of the drafters, according to this scholar, was not to amend the definition but to
help in its interpretation and application. It has also been said that the reason for including this
element in the first place was to introduce a jurisdictional threshold.106 The addition of such an
element may have been motivated by a concern that genocide would otherwise be unduly di-
luted and that it could end up applying to a too broad range of scenarios.107

At the time of writing, the ICC has not yet sentenced or acquitted anyone for genocide. How-
ever, the Court has dealt with genocide regarding the situation in Darfur and the case of Omar
Hassan Ahmad Al-Bashir. The Court issued a warrant for the arrest of Al Bashir in 2009. 108
The contextual element and the Elements of Crimes were discussed by the Court in that deci-
sion. The Court observed that the definition in the Genocide Convention, which was later
adopted by the Tribunals and the ICC itself, did not require contextual elements. 109 However,
the Court mentions that the Elements of Crimes requires such an element. 110 When trying to
decipher what that specific element means, the Court said this:

In the view of the Majority, according to this contextual element, the crime of
geno- cide is only completed when the relevant conduct presents a concrete threat
to the existence of the targeted group, or a part thereof. In other words, the
protection of- fered by the penal norm defining the crime of genocide - as an ultima
ratio mecha- nism to preserve the highest values of the international community - is
only triggered when the threat against the existence of the targeted group, or part
thereof, becomes concrete and real, as opposed to just being latent or
hypothetical.111

The court essentially interprets the wording of the element as requiring a concrete threat to the
existence of the protected group and it excludes situations where such a threat is only
hypothet- ical. The Court was aware of the controversy surrounding the recognition of
contextual ele- ments. The recognition of contextual elements was ultimately accepted by the
Court.112 One of the reasons for the acceptance is that Article 9 of the Rome Statute
specifically states that the

103
Cryer (n 13) 220.
104
Claus Kress, ‘The ICC’s First Encounter with the Crime of Genocide’ in Carsten Stahn (eds), The Law and
Practice of the International Criminal Court, (Oxford 2015) 677.
105
ibid.
106
Roy S. Lee (ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence
(Transnational 2001), 45-47; in Guénaêl Mettraux, International Crimes: Law and Practice: Volume I: Genocide
(Oxford 2019) 157.
107
Mettraux, 7 Contextual Element (n 106) footnote 17.
108
Al Bashir (n 93) [91]-[92].
109
ibid [117]-[118].
110
ibid [121].
111
ibid [124].
112
ibid [133].
Elements of Crimes shall assist in the interpretation of the provision against genocide. 113 The
Court also considered this view supported by the object and purpose of Article 9 of the Rome
Statute by providing a legal certainty when using the Elements of Crimes. 114 Therefore, the
Court found itself able to use the Elements of Crimes since its requirement of contextual ele-
ments was not an “irreconcilable contradiction” to the Rome Statutes definition of the
crime.115 Some have argued that relying on this phrasing by the Elements of Crimes to suggest
that gen- ocide requires a contextual element would be premature.116 However, as previously
stated, the Elements of Crimes has been said to express a consensus by the international
community and that genocide thus should be interpreted in line with what is stated in it. 117
There has been a difference in opinion as to whether the Elements of Crimes contradicts the
ordinary meaning of the words in the Genocide Convention’s definition.118 However
unresolved this issue may seem, the Elements of Crimes can serve as a clarification of what
contextual elements could be for genocide.

2.3.3 What the Tribunals Have Stated

As shown previously, the Convention and the Statutes of the ICC and Tribunals did not
provide a requirement for a contextual element for genocide. However, the ICC Elements of
Crimes has provided language that, depending on the reader, may result in a requirement for
context. As mentioned above, the ICC also discussed the issue. Since the ICTY and ICTR are
the only tribunals that have either sentenced or acquitted anyone of genocide, their case law is
the only source of a court or tribunal assessing this possible requirement. It is, therefore,
important to examine what has been stated on whether there is a requirement for a contextual
element in the case law of these two Tribunals.

The ICTR has confirmed that genocide, as it was defined in the Statute of the Tribunal, was a
reproduction of the crime’s definition in the Convention. 119 The same was confirmed by the
ICTY, that its Statute represented an identical prohibition on genocide as the Convention. 120
Genocide is its own international crime and is distinct from crimes against humanity. The es-
sential difference between these two crimes is that genocide requires a specific intent, which
we examined briefly earlier, and that crimes against humanity require a widespread or system-
atic attack.121 By stating these essential differences, the Tribunal has found that there may not
be a requirement for contextual elements and that courts and tribunals must work according to
the literal definition provided in their statutes. Since the definition does not provide such a
requirement and the two Tribunals' statements above mention that their statutes are copies of
the Convention, it is still important to examine if the Tribunals have made any definitive state-
ments on the possibility of a requirement.

The position that genocide ordinarily includes a certain gravity and scale and, thus, in
practice, requires the involvement of several individuals perpetrating the crime was
identified by the

113
ibid [129].
114
ibid [131].
115
ibid [132].
116
Rodenhäuser (n 82) 288.
117
Kress (n 104) 677.
118
Argument for contradiction, see Kai Ambos, Treatise on International Criminal Law (2nd edn, Oxford 2022)
17; Argument against contradiction, see Al Bashir (n 93) [128]-[133].
119
Kayeshema (n 47) [87].
120
Jelisic (n 23) [60].
121
Kayeshema (n 47) [89].
ICTY in one of its cases. 122 Later, in the same case, the Trial Chamber made a statement re-
garding contextual elements: “acts of genocide must be committed in the context of a manifest
pattern of similar conduct, or themselves constitute a conduct that could in itself effect the de-
struction of the group, in whole or in part, as such”.123 The Tribunal used the same phrasing as
the ICC Elements of Crimes. However, this was challenged by the Appeals Chamber in the
same case when it stated that “the offence of genocide, as defined in the Statute and in
interna- tional customary law, does not require proof that the perpetrator of genocide
participated in a widespread and systematic attack”. 124 The Appeals Chamber called the Trial
Chambers’ reli- ance on the Elements of Crimes “inapposite” and said that the definition in
the Elements of Crimes did not reflect customary law when the crimes were committed.125 The
Appeals Cham- ber concluded that the Trial Chamber thus could not use the Elements of
Crime to support its conclusion.126 The same Appeals Chamber also said that the Elements of
Crimes “are not bind- ing rules, but only auxiliary means of interpretation.127

Cases from the ICTR support the Appeals Chamber’s findings. For instance, the Trial
Chamber of the ICTR held that although it does not appear easy to carry out genocide without
a plan or organisation, such an element is not one of the constitutive elements of the crime,
and it does not need to be proven. 128 This view, that context is not a legal ingredient in
genocide has been repeated in the case law of the Tribunals. It was confirmed in the first case
of genocide by the ICTR in 1998 when the Trial Chamber listed the three elements that must
be committed: one of the listed physical acts needed to be committed, it had to be against a
specifically targeted group and it had to be done with the intent to destroy. 129 In a later case,
the ICTY found that the issue of the requirement of context was a settled manner and cited
cases from both Tribunals as support for that claim.130

Since the Tribunals have stated that contextual elements are not a legal ingredient and do not
need to be proven, it may make it possible for one individual acting alone to commit acts of
genocide, a concept known as the lone genocidaire. This possibility was confirmed by the
ICTY: “it is a priori possible to conceive that the accused harboured the plan to exterminate
an entire group without this intent having been supported by any organisation in which other
indi- viduals participated”.131 This possibility is also reflected in the second part of the
Elements of Crimes if the act were such “that could itself effect such destruction”.

However real this concept may be in theory, the Trial Chamber observed that it would be
diffi- cult to provide proof of a genocidal act without any state or state-like entity
involvement.132 The tribunals seem to be in agreement, to some degree at least, with the
definition in the Con- vention, that a contextual element is not a legal ingredient that needs to
be proven. If that defi- nition is followed, it should theoretically open the possibility for the
concept of the lone geno- cidaire.

122
Krstic (n 43) [549].
123
ibid [682].
124
Prosecutor v Radislav Krstic (Judgment) IT-98-33-A (19 April 2004) [223].
125
ibid [224]– [225].
126
ibid.
127
ibid, footnote 366, 72.
128
Kayeshema (n 47) [94].
129
Akayesu (n 41) [499].
130
Prosecutor v Vujadin Popovic (Judgment) IT-05-88-T (10 June 2010) [828].
131
Jelisic (n 23) [100].
132
ibid [101].
 2.3.4 Conclusion

The definition of genocide in the Convention does not include any mention of a requirement for
contextual elements and instead focuses on the criminalization of individual genocidal acts. The
decision to exclude such an element was a conscious one. Despite arguments from states for the
inclusion of context, it was unsuccessful, and the participating states ultimately decided on a broader
approach to the definition. After the definition was adopted in the Convention and in the Statutes of
the Tribunals, the ICC produced the Elements of Crimes that, in some aspects, have sparked a debate
as to whether context actually is an ingredient of genocide. The textual interpretation of the Elements
of Crimes suggests that context is a part of genocide that needs to be proven. However, differences in
opinion exist as to the status of the Elements of Crimes and if the Elements of Crimes contradicts the
definition in the Convention. The Tribunals have stated in large part that contextual elements are not
part of genocide and that it, in theory, could be possible for one isolated individual acting alone to
commit genocide. By examining what has now been brought up, it is easy to see that the issue of the
role or status of contextual elements for genocide is not a clear case. Different opinions and these
different arguments are the subjects of the next chapter.