1 Definition of Genocide in the Convention Article

1. Definition of Genocide in the Convention Article II of the Genocide Convention defines genocide as follows: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such: (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. Akayesu case (1998) was the first international conviction for the crime of genocide.

2. Enumerated Acts • • • killing members of the group; forcibly transferring children of the group to another group; causing serious bodily or mental harm to members of the group; conditions of life calculated to bring about the group’s physical destruction in whole or in part; measures intended to prevent births within the group Should such acts of “cultural destruction” be considered genocide? Krstic (2001) focus on physical destruction with a strong partial dissent by Judge Shahabuddeen. Jorgic v. Germany (2000) genocide did not require an intent to destroy a group in a physical or biological sense. Blagojevic (2005) reinforced a more relaxed view of genocide but did not go as far to include cultural genocide.

3. Protected Groups • In the Akayesu case (1998), the ICTR identified the distinctions between these various groups. The ICTR stated that: • A national group is a “collection of people who are perceived to share a legal bond of common citizenship, coupled with reciprocity of rights and duties” (para. 512); • an ethnic group is “a group whose members share a common language and culture” (para 513); • a racial group is “a group based on the hereditary physical traits often identified with a geographic region, irrespective of linguistic, cultural, national or religious factors” (para 514); • and a religious group is “a group whose members share the same religion, denomination or mode of worship. ” (para 515)

4. Protected Groups (cont’d) • The Tribunal in the Akayesu case (1998) stated: • …[A] common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner. … • [T]he question that arises is whether it would be impossible to punish the physical destruction of a group as such under the Genocide Convention, if the said group, although stable, and membership is by birth, does not meet the definition of any of the four groups expressly protected… In the opinion of the Chamber, it is particularly important to respect the intention of the drafters of the Genocide Convention, which…was patently to ensure the protection of any stable and permanent group.

5. Protected Groups (cont’d) • • In the Kayishema and Ruzindana case (1999), the ICTR Trial Chamber stated that: 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). • • In the Rutaganda case (1999), the ICTR Trial Chamber noted that: Moreover, the Chamber notes that for the purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept. The victim is perceived by the perpetrators of genocide as belonging to a group slated for destruction. In some instances, the victim may perceive himself/herself as belonging to the said group. • In the Semanza case (2003), the ICTY stated that whether a group is a protected one should be: Assessed on a case-by-case basis by reference to the objective particulars of a given social or historical context, and by the subjective perceptions of the perpetrators. •

6. Intent • Article II of the Genocide Convention also includes an intent requirement – that the act be committed “with intent of destroying, in whole or in part, a protected group as such. ” • It is a crime where the victim is NOT targeted on account of his or her individual qualities or characteristics, but ONLY because he or she is a member of a protected group. • Brdanin (2007) - “no reasonable trier of fact could have concluded that the inference drawn was the only reasonable inference that could be drawn from the evidence provided. ” Akayesu case - it is possible to deduce genocidal intent from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. •

7. Numbers (in whole or in part) • The ICTY stated in the Krstic case (2001): • Conversely, the killing of all members of the part of a group located within a small geographical area, although resulting in a lesser number of victims would qualify as genocide if carried out with the intent to destroy the part of the group as such located in this small geographical area. Indeed, the physical destruction may target only a part of the geographically limited part of the larger group because perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue.

8. Motive and Need for Change • Motives are irrelevant and personal motives do NOT exclude criminal responsibility for genocide. • The advantage is that the crime of genocide has been authoritatively codified in the Genocide Convention. • Genocide Convention represented a political compromise, aimed at securing the largest number of states signing on to the Convention. In certain senses the definition of genocide contained in the Convention was a product of the 1940’s.