Abstract
Article 6 of the Rome Statute of the International Criminal Court incorporates the provisions of Article II of the Convention on the Prevention and Punishment of Genocide. While genocide has given rise to an abundance of international jurisprudence, in particular before the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia, it has only been a matter to incidental debates within the Pre-Trial Chamber of the International Criminal Court when issuing arrest warrants. If the jurisprudence of the International Criminal Court remains to come, particularly in the consistent interpretation of the Statute and the Elements of Crimes, genocide is articulated in three components. A contextual element that remains to be confirmed and, if need be, circumscribed; an intentional element that jurisprudence now distinguishes by analysing two facets, one general and the other special; and a material element that appears to be fixed but that could accommodate new forms of underlying criminality.
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Notes
- 1.
Lemkin 1944, p. 79.
- 2.
Babeuf 2008. In his book, initially released in 1794, Babeuf used many terms including “populicide” (p. 125), “plébéicide” (p. 140) or “nationicide” (p. 219).
- 3.
See, e.g., Cambon 1795.
- 4.
1948 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS. 277 (hereinafter 1948 Genocide Convention), Article 6.
- 5.
1998 Rome Statute of the International Criminal Court, 2187 UNTS. 90 (hereinafter Rome Statute).
- 6.
Prosecutor v. Georges Rutaganda, Appeals Chamber, Judgement, Case No. ICTR-97-21-A, 26 May 2003 (Rutaganda Appeal Judgement), para 590.
- 7.
Von Hebel and Robinson 1999, p. 89.
- 8.
Reservations to the convention of the Prevention and Punishment of Genocide, ICJ, Advisory Opinion of 28 May 1951 at para 1.5. This was confirmed in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ, Judgment of 26 February 2007, Judgment (Bosnia and Herzegovina v. Serbia and Montenegro Judgement), p. 43.
- 9.
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June–17 July 1998, Part 2, Jurisdiction, Admissibility and Applicable Law: Bureau Proposal, Committee of the Whole, UN Doc. A/CONF.183/C.1/L.59, Article 5. It has been a matter of concern to maintain a consistent definition of genocide and avoid any risk of fragmentation, see, e.g., Fronza 2000. Even more so since the international criminal Tribunals had already produced a significant amount of case law on genocide.
- 10.
See Rome Statute, Article 25(1).
- 11.
A system of dual responsibility is contemplated in Bosnia and Herzegovina v. Serbia and Montenegro Judgement, paras 163 and 173.
- 12.
Decisions Taken by the Preparatory Committee at its Session Held from 11 to 21 February 1997, UN Doc. A/AC.249/1997/L.5, p. 3, footnote 3.
- 13.
Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09-95, 12 July 2010 (Al Bashir Second Arrest Warrant).
- 14.
Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I, Decision on the Prosecution's Request for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09-34, 4 March 2009 (Al Bashir Decision on the Prosecution's Request for a Warrant of Arrest), para 113.
- 15.
See Sect. 46.3.
- 16.
See Sect. 46.4.
- 17.
1948 Genocide Convention, Article I.
- 18.
Annex on Definitional Elements for Part Two, Crimes: Proposal Submitted by the United States of America, 19 June 1998, UN Doc. A/CONF.183/C.1/L.10, p. 1.
- 19.
Draft Elements of Crimes: Proposal Submitted by the United States of America, 4 February 1999, UN Doc., PCNICC/1999/DP.4, pp. 5–6.
- 20.
Schabas 2009b, p. 146.
- 21.
Article 6, The Crime of Genocide: Discussion Paper Proposed by the Coordinator, 25 February 1999, UN Doc. PCNICC/1999/WGEC/RT.1.
- 22.
Al Bashir Decision on the Prosecution's Request for a Warrant of Arrest, paras 119–120.
- 23.
Prosecutor v. Vidoje Blagojević & Dragan Jokić, Trial Chamber, Judgement, Case No. IT-02-60-T, 17 January 2005 (Blagojević & Jokić Trial Judgement), para 656.
- 24.
Prosecutor v. Clément Kayishema & Obed Ruzindana, Trial Chamber, Judgement, Case No. ICTR-95-1-T, 21 May 1999 (Kayishema & Ruzindana Trial Judgement), para 276.
- 25.
Prosecutor v. Goran Jelisić, Appeals Chamber, Judgement, Case No. IT-95-10-A, 5 July 2001 (Jelisić Appeal Judgement), para 48; Prosecutor v. Radislav Krštić, Appeals Chamber, Judgement, Case No. IT-98-33-A, 19 April 2004 (Krštić Appeal Judgement), para 225.
- 26.
Jelisić Appeal Judgement, para 48; Prosecutor v. Radoslav Brđanin, Trial Chamber, Judgement, Case No. IT-96-36-T, 1 September 2004 (Brđanin Trial Judgement), para 705.
- 27.
Al Bashir Decision on the Prosecution's Request for a Warrant of Arrest, para 133.
- 28.
Al Bashir Decision on the Prosecution's Request for a Warrant of Arrest, Separate and Partly Dissenting Opinion of Judge Anita Usacka, para 17.
- 29.
Ibid., para 18.
- 30.
Al Bashir Decision on the Prosecution's Request for a Warrant of Arrest, para 123.
- 31.
Al Bashir Decision on the Prosecution's Request for a Warrant of Arrest, Separate and Partly Dissenting Opinion of Judge Anita Usacka, para 19.
- 32.
Ibid., footnote 26.
- 33.
Ibid., para 19. The footnote refers to Oosterveld and Garraway 2001, p. 46.
- 34.
Al Bashir Decision on the Prosecution's Request for a Warrant of Arrest, para 124.
- 35.
Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09-73, Appeal Chamber, Judgement on the appeal of the Prosecutor against the “Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, 3 February 2010.
- 36.
- 37.
Prosecutor v. Radislav Krštić, Trial Chamber, Judgement, Case No. IT-98-33-T, 2 August 2001 (Krštić Trial Judgement), para 682.
- 38.
Ambos 2014, p. 17. The author refers to an abundant literature in the bibliography.
- 39.
Jelisić Appeal Judgement, para 48, and ICTY, Prosecutor v. Goran Jelisić, Trial Chamber, Judgment, Case No. IT-95-10-T, 14 December 1999 (Jelisić Trial Judgement), paras 100–101; Krštić Trial Judgement, para 225; Prosecutor v. Popović et al., Trial Chamber, Judgement, Case No. IT-05-88, 30 January 2015, para 830; Prosecutor v. Clément Kayishema & Obed Ruzindana, Appeals Chamber, Judgement (Reasons), Case No. ICTR-95-1-A, 1 June 2001 (Kayishema & Ruzindana Appeal Judgement), para 138 and Kayishema & Ruzindana Trial Judgement, para 276; Prosecutor v. Aloys Simba, Appeals Chamber, Judgement, Case No. ICTR-01-76, 27 November 2007, para 260.
- 40.
Bosnia and Herzegovina v. Serbia and Montenegro Judgement, para 373.
- 41.
Cassese 2013, p. 124.
- 42.
The following terms have been employed: ‘special intent’ (Prosecutor v. Jean Paul Akayesu, Trial Chamber, Judgement, Case No. ICTR-96-4-T, 2 September 1998 (Akayesu Trial Judgement), para 498; Prosecutor v. Athanase Seromba, Trial Chamber, Judgement, Case No. ICTR-2001-66-I, 13 December 2006, paras 175, 319); ‘dolus specialis’ (Akayesu Trial Judgement, para 498; Prosecutor v. Juvénal Kajelijeli, Trial Chamber, Judgment and Sentence, Case No. ICTR-98-44A-T, 1 December 2003 (Kajelijeli Trial Judgement), para 803; Kayishema & Ruzindana Trial Judgement, para 91; Prosecutor v. George Rutaganda, Trial Chamber, Judgement and Sentence, Case No. ICTR-96-3-T, 6 December 1999 (Rutaganda Trial Judgement), para 59; Prosecutor v. Ignace Bagilishema, Trial Chamber, Judgement, Case No. ICTR-95-1A-T, 7 June 2001 (Bagilishema Trial Judgement), para 55; Prosecutor v. Alfred Musema, Trial Chamber, Judgement and Sentence, Case No. ICTR-96-13-T, 27 January 2000 (Musema Trial Judgement), para 164); ‘genocidal intent’ (Kayishema & Ruzindana Trial Judgement, para 91); ‘specific intent’ (Kajelijeli Trial Judgement, para 803; Kayishema & Ruzindana Trial Judgement, para 91; Bagilishema Trial Judgement, para 55); ‘specific genocidal intent’ (Bagilishema Trial Judgement, para 55); ‘exterminatory intent’ (Jelisić Trial Judgement, para 83); ‘specific intention’ (Akayesu Trial Judgement, para 498; Rutaganda Trial Judgement, para 59). This terminological variety did not end with the Jelisić Appeals Chamber’s preference for the term ‘specific intent’ (Jelisić Appeal Judgement, para 45). The Chamber stressed that it does not attribute to this term any meaning it might carry in national jurisdictions. See also Brđanin Trial Judgement, para 695. For an interchangeable use of ‘dolus specialis’ and ‘specific intent’, see Prosecutor v. Milomir Stakić, Trial Chamber, Judgement, Case No. IT-97-24-T, 31 July 2003 (Stakić Trial Judgement), para 520.
- 43.
- 44.
- 45.
Schabas 2009a, p. 270.
- 46.
- 47.
- 48.
Jessberger 2009, p. 105; Krštić Appeal Judgement, para 134; Jelisić Appeal Judgement, paras 46, 50; Rutaganda Appeal Judgement, para 524; Akayesu Trial Judgement, para 520.
- 49.
Jessberger 2009, pp. 106–107. See Draft of Genocide Convention Prepared by the Secretary-General in pursuance of Economic and Social Council Resolution dated 28 March 1947, UN Doc. E/447, 26 June 1947, p. 5, Article I(2). ‘In this Convention, the word “Genocide” means a criminal act directed against any one of the aforesaid groups of human beings, with the purpose of destroying it in whole or in part, or of preventing its preservation or development’.
- 50.
Akayesu Trial Judgement, para 498.
- 51.
Blagojević & Jokić Trial Judgement, para 656.
- 52.
Akayesu Trial Judgement, para 523.
- 53.
- 54.
Park 2010, p. 152; Cryer et al. 2018, p. 222; Evans 2018, pp. 747–748. See e.g., Prosecutor v. Siméon Ncamihigo, Trial Chamber, Judgement, Case No. ICTR-01-63-T, 12 November 2008, para 331; Prosecutor v. Athanase Seromba, Appeals Chamber, Judgement, Case No. ICTR-2001-66-A, 12 March 2008 (Seromba Appeal Judgement), paras 177–182.
- 55.
- 56.
- 57.
Krštić Appeal Judgement, Partial Dissenting Opinion of Judge Shahabuddeen, para 54.
- 58.
- 59.
Yearbook of the International Law Commission. 1989. Volume 2, part 2, Report of the Commission to the General Assembly on the work of its 41st session, UN Doc. A/CN.4/SER.A/1989/Add.1 (Part 2), p. 102, para 4.
- 60.
Evans 2018, p. 748.
- 61.
Krstić Trial Judgement, para 580; Krštić Appeal Judgement, para 25.
- 62.
Bosnia and Herzegovina v. Serbia and Montenegro Judgement, para 344.
- 63.
Bosnia and Herzegovina v. Serbia and Montenegro Judgement, para 344.
- 64.
Cryer et al. 2018, p. 211.
- 65.
Schabas 2009a, p. 277.
- 66.
- 67.
Cryer et al. 2018, pp. 210–211. See e.g., Krštić Appeal Judgement, paras 6–8; Al Bashir Decision on the Prosecution's Request for a Warrant of Arrest, 4 March 2009, paras 134–137.
- 68.
Krštić Trial Judgement, paras 555–556.
- 69.
Schabas 2009a, p. 277.
- 70.
- 71.
Bosnia and Herzegovina v. Serbia and Montenegro Judgement, para 199. See Jelisić Trial Judgement, para 83; Krštić Trial Judgement, para 590; Prosecutor v. Sikirica et al., Judgement on Defence Motions to Acquit, Case No. IT-95-8-I, 3 September 2001, para 68; Report of the International Law Commission on the work of its 48th session, 6 May-26 July 1996. UN Doc. A/51/10, (hereinafter 1996 ILC Report), p. 125.
- 72.
1996 ILC Report, p. 125.
- 73.
- 74.
Bosnia and Herzegovina v. Serbia and Montenegro Judgement, para 198.
- 75.
- 76.
Krštić Appeal Judgement, para 12.
- 77.
Prosecutor v. Eliézer Niyitegeka, Appeals Chamber, Judgement, Case No. ICTR-96-14-A, 9 July 2004, (Niyitegeka Appeals Judgement), para 49; Prosecutor v. Elizaphan and Gérard Ntakirutimana, Appeals Chamber, Judgement, Case No. ICTR-96-10-A and ICTR-96-17-A, 13 December 2004 (Ntakirutimana Appeal Judgement), paras 304, 363; Cryer et al. 2018, p. 227; Schabas 2009a, p. 305; Berster 2014, p. 152.
- 78.
- 79.
Niyitegeka Appeals Judgement, para 49; Ntakirutimana Appeal Judgement, paras 304, 363.
- 80.
Berster 2014, p. 152; Niyitegeka Appeals Judgement, para 49; Ntakirutimana Appeal Judgement, paras 304, 363.
- 81.
Krštić Trial Judgement, para 545; Krštić Appeal Judgement, paras 45; Kayishema & Ruzindana Appeal Judgement, para 161; Prosecutor v. Milomir Stakić, Appeals Chamber, Judgement, Case No. IT-97-24-A, 22 March 2006, para 45; Jelisić Appeal Judgement, para 49.
- 82.
- 83.
- 84.
See Krštić Trial Judgement, para 550. The same five prohibited acts appear also in the Rome Statute for the purpose of the crime of genocide.
- 85.
- 86.
See Sect. 46.3. See also Application of the Convention on Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), ICJ, Judgment, 3 February 2015 (Croatia v. Serbia Judgment), para 149.
- 87.
Schabas 2009a, p. 179. Schabas 2000, p. 234. ‘No acceptable rationale can justify why an individual murder, if committed with the intent to destroy a group ‘in whole or in part’, should not be qualified as genocide.’; Kreß 2006, p. 480. For a different view, see Cassese 2003, p. 102: Werle 2005, pp. 62–64.
- 88.
ICC Elements of Crimes, Article 6(b)(1).
- 89.
Prosecutor v. Emmanuel Ndindabahizi, Trial Chamber, Judgement and Sentence, Case No. ICTR-2001-71-I, 15 July 2004, para 471; Musema Trial Judgement. ‘For any of the acts charged to constitute genocide, the said acts must have been committed against one or more persons because such person or persons were members of a specific group, and specifically, because of their membership in this group’; Rutaganda Trial Judgement, para 60; Prosecutor v. Laurent Semanza, Trial Chamber, Judgement and Sentence, Case No. ICTR-97-20-T, 15 May 2003 (Semanza Trial Judgement), para 316.
- 90.
ECCC, Case against Nuon Chea and Khieu Samphân, Trial Chamber, Case 002/2 Judgement, Case No. 002/19-09-2007/ECCC/TC, 16 November 2018, E465, para 796.
- 91.
However, the murder of a non-member of the targeted group within the context of genocide cannot be considered an act of genocide under the Convention definition, see Akayesu Trial Judgement, para 710.
- 92.
Akayesu Trial Judgement, paras 500–501. See also Rutaganda Trial Judgement, para 50, Musema Trial Judgement, para 155; Prosecutor v. Théoneste Bagosora et al., Trial Chamber, Judgement and Sentence, Case No. ICTR-98-41-T, 18 December 2008 (Bogosora et al. Trial Judgement), para 2117. ‘Killing members of the group requires a showing that the principal perpetrator intentionally killed one or more members of the group’.
- 93.
For the ICTY interpretation see Krstić Trial Judgement, para 543; Blagojević & Jokić Trial Judgement, para 543. For the ICJ interpretation, see Croatia v. Serbia Judgement, para 156.
- 94.
Kayishema & Ruzindana Trial Judgement. Upheld in Kayishema & Ruzindana Appeal Judgement, para 151.
- 95.
See Sect. 46.3. See also, e.g., Cassese 2003, p. 103 where the author differentiates the dolus specialis and the intent for the underlying crimes, ‘This intent amounts to dolus specialis that is, to an aggravated criminal intention, required in addition to the criminal intent accompanying the underlying offence (killing; causing serious bodily or mental harm; inflicting conditions of life calculated to physically destroy the group; imposing measures designed to prevent births within the group; forcibly transferring children’; Jessberger 2009, p. 97. Croatia v. Serbia Judgment, paras 186–187, which also distinguishes between dolus specialis and intent for the underlying crimes.
- 96.
Kajelijeli Trial Judgement, para 813. ‘Given that the element of mens rea in the killing has been addressed in the special intent for genocide, there is no requirement to prove a further element of premeditation in the killing.’ See also, e.g., Semanza Trial Judgement, para 319. Prosecutor v. Jean de Dieu Kamuhanda, Trial Chamber, Judgement, Case No. ICTR-95-54A-T, 22 January 2004, para 632.
- 97.
Akayesu Trial Judgement, para 589.
- 98.
Schabas 2009a, p. 179, Prosecutor v. Milorad Krnojelac, Trial Chamber, Judgment, Case No. IT-97-25-T, 15 March 2002 (Krnojelac Trial Judgment), para 329 applied mutatis mutandis from crimes against humanity of murder to killing in the context of genocide.
- 99.
Jessberger 2009, p. 97. See also Prosecutor v. Tharcisse Muvunyi, Trial Chamber, Judgement and Sentence, Case No. ICTR-2000-55A-T, 12 September 2006, para 487. ‘[T]he various Trial Chambers have concluded that the intent of the framers [of the Genocide Convention, regarding the infliction of serious bodily or mental harm] was to punish serious acts of physical violence that do not necessarily result in the death of the victim’.
- 100.
1996 ILC Report, p. 46, para 14.
- 101.
Kayishema & Ruzindana Trial Judgement, para 109, Bogosora et al. Trial Judgement, para 2117.
- 102.
Prosecutor v. Mikaeli Muhimana, Trial Chamber, Judgement and Sentence, Case No. ICTR95-1B-T, 28 April 2005, para 502.
- 103.
Seromba Appeal Judgement, para 46.
- 104.
1996 ILC Report, p. 44, para 5. ‘The prohibited acts enumerated in subparagraphs (a) to (e) are by their very nature conscious, intentional or volitional acts which an individual could not usually commit without knowing that certain consequences were likely to result. These are not the type of acts that would normally occur by accident or even as a result of mere negligence’; Bosnia and Herzegovina v. Serbia and Montenegro Judgment, para 186; Cassese 2003, p. 103.
- 105.
Krstić Trial Judgement, para 513: Kreß 2006, p. 481.
- 106.
Bogosora et al. Trial Judgement, para 2117. ‘The serious bodily or mental harm […] need not be an injury that is permanent or irremediable.’ See also Prosecutor v. André Ntagerura et al., Trial Chamber, Judgement Sentence, Case No. ICTR-99-46-T, 25 February 2004, para 664; Semanza Trial Judgement, paras 320–322; Musema Trial Judgement, para 156; Rutaganda Trial Judgement, para 51; Kayishema & Ruzindana Trial Judgement, para 108; Akayesu Trial Judgement, para 502.
- 107.
See Schabas 2009a, p. 188. ‘Yet, while sexual violence and rape may in fact have the effect of contributing in a significant manner to the destruction of a group in whole or in part, this is not what the text of para (b) requires. The prosecution need not demonstrate a cause and effect relationship between the acts of violence and the destruction of the group. The result that the prosecution must prove is that one or more victims actually suffered physical or mental harm. If this act is perpetrated with the requisite mental element, the crime has been committed’; Jessberger 2009, p. 97.
- 108.
1996 ILC Report, p. 46, para 14. Croatia v. Serbia Judgment, para 157. See also Prosecutor v. Krajišnik, Trial Chamber I, Judgement, Case No. IT-00-39-T, 27 September 2006, paras 862–863. ‘it follows that “failure to provide adequate accommodation, shelter, food, water, medical care, or hygienic sanitation facilities” will not amount to the actus reus of genocide if the deprivation is not so severe as to contribute to the destruction of the group, or tend to do so. Living conditions, which may be inadequate by any number of standards, may nevertheless be adequate for the survival of the group’; Prosecutor v. Tolimir, Trial Chamber II, Judgement, Case No. IT-05-88/2-T, 12 December 2012 (Tolimir Trial Judgement), para 738; Seromba Appeal Judgement, para 46.
- 109.
Jessberger 2009, p. 99. Tolimir Trial Judgement, para 738.
- 110.
Akayesu Trial Judgement, para 731.
- 111.
Akayesu Trial Judgement, para 504; Krstić Trial Judgement, para 513.
- 112.
See Schabas 2009a, p. 189. ‘As France explained, ‘[t]o quote an historical example, the ghetto, where the Jews were confined in conditions which, either by starvation or by illness accompanied by the absence of medical care, led to their extinction, must certainly be regarded as an instrument of genocide. If any group were placed on rations so short as to make its extinction inevitable, merely because it belonged to a certain nationality, race or religion, the fact would also come under the category of genocidal crime’. Jessberger 2009, p. 100.
- 113.
Stakić Trial Judgement, para 519, Krštić Appeal Judgement, para 33.
- 114.
Schabas 2009a, p. 193.
- 115.
Bosnia and Herzegovina v. Serbia and Montenegro Judgment, para 190.
- 116.
Attorney General v. Adolf Eichmann, Supreme Court of Israel, Judgment, Criminal Appeal 336/61, 29 May 1962, para 196. ‘We do not think that conviction on the second Count [i.e., imposing living conditions calculated to bring about the destruction] should also include those Jews who were not saved, as if in their case there were two separate acts—first, subjection to living conditions calculated to bring about their physical destruction, and later the physical destruction itself.’ See Schabas 2009a, p. 192.
- 117.
- 118.
Akayesu Trial Judgement, para 505.
- 119.
Akayesu Trial Judgement, para 505.
- 120.
Kayishema & Ruzindana Trial Judgement, para 116.
- 121.
- 122.
Al Bashir Second Arrest Warrant, p. 7.
- 123.
- 124.
- 125.
Croatia v. Serbia Judgment, para 166.
- 126.
Akayesu Trial Judgement, para 507.
- 127.
Akayesu Trial Judgement, para 508.
- 128.
Akayesu Trial Judgement, para 508.
- 129.
Where an accused was found responsible of imposing measures to prevent births by signing various decrees curtailing marriages: United States v. Ulrich Greifelt et al., (1948) 13 LRTWC 1 (United States Military Tribunal), p. 17, p. 28. ‘(vii) Impeding the Reproduction of Enemy Nationals Measures, concerning mainly inhabitants of Poland, were taken to prevent their reproduction and thus contribute to the destruction of non-German races. They took the form of various decrees, and were chiefly aimed at drastically curtailing marriages. […] The defendant Ulrich Greifelt, as chief of the Main Staff Office and deputy to Himmler, was with the exception of Himmler, the main driving force in the entire Germanisation program. By an abundance of evidence it is established beyond a reasonable doubt […] that the defendant Greifelt is criminally responsible for […] hampering the reproduction of enemy nationals’.
- 130.
- 131.
See ICC Elements of Crimes, Article 6(d).
- 132.
Boot 2002, para 422. ‘In order to constitute genocide, it is not necessary that the perpetrator had the intent to prevent births totally [and], it will be sufficient that partial prevention is the purpose of the measures in question’.
- 133.
1996 ILC Report, p. 46, para 4.
- 134.
- 135.
1996 ILC Report, p. 46, para 17.
- 136.
Akayesu Trial Judgement, para 509. See also Musema Trial Judgement, para 159; Rutaganda Trial Judgement, para 54; Kayishema & Ruzindana Trial Judgement, para 118.
- 137.
ICC Elements of Crimes, Article 6(e), footnote 5.
- 138.
See, e.g., Blagojević & Jokić Trial Judgement, para 617. ‘The evidence establishes that the Bosnian Muslim refugees in Potocari did not have a genuine choice of whether to remain in or leave the Srebrenica enclave. This lack of a genuine choice was a result of the actions and behaviour of the officers and soldiers of the VRS towards the refugees. In particular the Trial Chamber observes the following evidence testimony:
– the widespread knowledge among the Bosnian Muslim refugees of serious crimes committed by members of the Bosnian Serb forces in Potocari,
– the organised, inhumane and frequently aggressive process of separating out and removing the male members of the population,
– the evidence regarding the conditions in Potocari during the nights of 11 and, in particular, 12 July,
– that many VRS soldiers were cursing at the Bosnian Muslim refugees, saying that they would be slaughtered’;
Krnojelac Trial Judgement, paras 233, 475. ‘The Trial Chamber finds that living conditions in the KP Dom made the non-Serb detainees subject to a coercive prison regime which was such that they were not in a position to exercise genuine choice. […] Deportation is illegal only where it is forced. ‘Forced’ is not to be interpreted in a restrictive manner, such as being limited to physical force. It may include the threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment. The essential element is that the transfer be involuntary in nature, where the relevant persons had no real choice’; Blagojević & Jokić Trial Judgement, para 67, ‘forcible transfer of the women, children and elderly is a manifestation of the specific intent to rid the Srebrenica enclave of its Bosnian Muslim population. The manner in which the transfer was carried out – through force and coercion, by not registering those who were transferred, by burning the houses of some of the people, sending the clear message that they had nothing to return to’.
- 139.
Krstić Trial Judgement, para 521; Krnojelac Trial Judgement, para 476.
- 140.
Krstić Trial Judgement, para 521. ‘Both deportation and forcible transfer relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside. Yet, the two are not synonymous in customary international law. Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State’; Krnojelac Trial Judgement, para 476 ‘The Trial Chamber considers it to be well established that forcible displacements of people within national boundaries are covered by the concept of forcible transfer’.
- 141.
Berster 2014, para 93.
- 142.
- 143.
Werle 2005, p. 203.
- 144.
See Prosecutor v. Mladen Naletilić and Vinko Martinović, Trial Chamber, Judgement, Case No. IT-98-34-T, 31 March 2003, footnote 1362. ‘The Commentary to the Geneva Convention IV holds "[unlike] deportation and forcible transfer, evacuation is a provisional measure", p. 280. The Chamber sees this as indicative of that deportation and forcible transfer are not by their nature provisional, which implies an intent that the transferred persons should not return’.
- 145.
ICC Elements of Crimes, Article 6(e)(5).
- 146.
1996 ILC Report, p. 46, para 17.
- 147.
General Assembly of the United National, Resolution 96(1).
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Beauvallet, O., Kim, H., Jolivet, L. (2022). Genocide. In: Sayapin, S., Atadjanov, R., Kadam, U., Kemp, G., Zambrana-Tévar, N., Quénivet, N. (eds) International Conflict and Security Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-515-7_46
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