DOLUS SPECIALIS DOLUS by Dana Burns Burns Dana By

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w g a e r e .c o m Hungary Hungary 9 Nadorutca 1051 Budapest, University Central European PROFESSOR: Karoly Bard HUMAN RIGHTSTHESIS HOW THE JUDICIAL INTERPRETATIONTHE JUDICIAL HOW INTENT OFGENOCIDAL DEVALUES SPECIALSTATUS GENOCIDE’S DOLUS SPECIALIS DOLUS By Dana Burns Burns Dana By

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ILORPY...... 56 ...... BIBLIOGRAPHY CHAPTER FIVE: “WITH 49 THE INTENT TO DESTROY”...... CHAPTER 38 FOUR: “CIVILIAN POPULATION”...... CHAPTER THREE: 23 “WIDESPREAD OR SYSTEMATIC”...... 17 CHAPTER TWO: RESEARCH DESIGN...... HPE N:ITOUTO ...... 1 CHAPTER ...... ONE: INTRODUCTION EXECUTIVE SUMMARY...... I TABLE ...... I OF CONTENTS 2. 1. 5.2 5.1 4.3 4.2 4.1 3.2 3.1 1.3 1.2 1.1

. te rmr ore ...... 60 1.2 Other ...... Primary Sources 56 1.1 Judgments...... usata ...... 32 3.2.2 ...... Substantial 30 3.2.1 ...... Geography 3.1.1 26 Multiple Perpetrators...... nEi olcie...... 12 ...... 1.3.2 An Evil Collective 10 ...... 1.3.1 An Evil Self .. ea omnay...... 5 1.2.1 Legal Commentary...... S P

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S E ITHOUT A UCH S H OURCES ...... 23 ...... THNICAL ...... 43 ...... 28 ...... PECIAL PECIAL ISTORY C IN THE IN ...... 41 ...... RIMES ...... 56 ...... 61 ...... I N , , NTENT

S R AME ...... 52 ”...... J OCIAL OCIAL ACIAL URISPRUDENCE T ...... 1 ...... ABLE OF ...... 4 ...... , P OR SYCHOLOGY R ELIGIOUS ...... 49 ...... C ONTENTS , AND ...... 38 ...... G ENOCIDAL ENOCIDAL

I NTENT ...... 9 ......

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w g a e r e .c o m extraordinarily ideology,evil groups, psychology, andpersonality—and develops a participation— perpetrators’ for explanations single variate prominent, the Waller dismisses model intentof and international lawyer George Fletcher’s collectivist view of perpetration. individualist Waller’s James psychologist social combined I Similarly, peers. psychologist these interpretations diminish the genocide’s special intent and status. commission, requiring a plan or policy, against vulnerable “civilian populations.” Therefore requirements of crimes againsthumanity, namely their “widespread or systematic” individual intent. Asperpetrators’ ofits measures courts collective the adopted nature, intended demonstrate to that confusionthe of genocide’s collective commission the with interpret Security Council resolution in the wake of the Yugoslav and Rwanda violence, donot challenge that the the that challenge destroy,in whole or in part, a national, ethnical, racial, orreligious group, as such. Yet, I intent to with committed the five acts means prohibited of one genocide Crime of Genocide, legal definition. According to the 1948 Convention on the Prevention and Punishment of the challenges to its definition. Sixty years ago, scholars and politicians agreed on name and crime of crimes. These terms not only convey the horror of the crime but also drive at the for this crime: mass killing, eliminationism, an odious scourge, a crime without a name, the and synonyms countless epithets law, are there international humanitarian of literature In the 1

France et al. v.Göring et al. In the interpretation of genocidal intent, judges assume the perspectives of their social Questioning how and why the judicial interpretation of genocidal intent varies, I varies, intent genocidal of interpretation judicial the why and how Questioning dolus specialis provisions of international law enforced.be entities, and only bypunishing individuals who such commit crimes can the Crimes againstinternational law areabstractcommittedmen, by notby ad hoc , or genocidal intent, in line with this law. International Criminal establishedby Tribunals, United Nations , (1946) 22 International Military 203.Tribunal

E XECUTIVE S UMMARY 1

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w g a e r e .c o m 3 523. from accused” the absence of the a confession but efficient and selective. Given the “difficult[y],even impossibl[ity], to determine […] in 2 executioners.” Unfortunately,genocide’s perpetrator. “arenever genocides hinderedby a lackof willing for explanation an as thesis collective evil the preferred they that though, demonstrates, psychological motivation. Their reliance onevidence of planning and systematization rarely accused’s the of courts the Bosnia Herzegovina, Tribunals Court discussed andthe of parts of analysis contextual developed also they However, intent. genocidal infer to which from fact” humanity and required planning, systematization, and as “presumptionswidespread attacks of genocide. Section of the Court of Bosnia Herzegovina (WCS BiH) acquit and convictindividuals of Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) as well as the War Crimes Criminal International the in which judgments the analyzed and study multiple-case applied social psychology to international law. To test my hypothesis, Iconducted a Tribunals of the former Yugoslavia and Rwanda and the Court of Bosnia Herzegovina, I Criminal International by the articulated as intent genocidal of interpretation the analyzing In individuals. penalizes inturn which law, humanitarian international violate collectives multifactoral model individualof commission. On the other hand, Fletcher argues that J. Waller,

Prosecutor v. Jean Paul Akayesu I found that the courts employed the jurisdictional elements of crimes against Becoming Evil: How Ordinary People Commit Genocide and Mass Killing dolus specialis 3

, recognizing that genocidemay alwaysnot be gross and systematic , Trial Judgment, CaseNo. ICTR-96-4-T, T.Ch.I., 2September 1998, par.

2 his intent as well as legal focus of the (2002), 15. ii

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w g a e r e .c o m the of foundations of essential the destruction at actions aiming of plan different coordinated root for nation (‘genos’), and the Latin root for murder (‘cide’), he defined ‘genocide’ as “a required planning asan element of crime.the Combining barbarity vandalism,and Greek the and“organized.” “systematic,” “premeditated,” art and cultural heritage”—as ‘vandalism.’ These togenocide predecessors wereplanned: ‘barbarism’ its and cultural systematiccounterpart—“the andorganized destruction of […] racial, religious and social collectivities.” social and religious racial, destruction national, he “the criminalization premeditated the of proposed Chancellor, of lose forty family members in the Holocaust. And ten months after Hitler’s appointment as Polish jurist Raphael Lemkin coined the crime and, almost prophetically; this advocate would 1.1 A Crime Without a Name crime. the formulations because in addition to the material elements, they address the mental element of scholars, do not debate this definition. Yet, Iwill introduce genocide’s alternative Prevention and Punishment of the Crime of Genocide (Genocide Convention). I, unlike other racial, orreligious group as such,” Genocide Convention should prevent such gross affronts tohuman dignity. discrimination, equality, and dignity. Although Unitedthe Nations human mechanismsrights prohibit Volitional becausedestruction of individualan victim’s group identity denies her agency, 6 II. 5 4 A. Jones, 1948 Convention on the Prevention andPunishment of the ofCrime Genocide, 78 C.M. Bassiouni, In his 1944 Genocide involves “the intent to destroy, in whole orin part, a national, ethnical, Genocide: AComprehensive Introduction 4 Crimes against Humanity inInternational Criminal Law discrimination can and has become destructive. At that destructive nadir, the the nadir, destructive Atthat destructive. hascan become and discrimination Axis Rule in Occupied in Europe Axis Rule C HAPTER

5 according to the 1948 United Nations Convention on 1948Unitedthe Nationson according Convention tothe O 6 NE This biological destruction, Lemkin defined as (2006), 9. :

I NTRODUCTION , Lemkin finalized the definition but still (1999), 328.

UNTS 277 (1948), Article 1

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w g a e r e .c o m of Genocide Research 11 rape, Holocaust, state crime, and state sponsored massmurder.” sponsored crime, andstate state Holocaust, rape, genocidal [and] ethnic massacre, genocidal atrocity, genocidal cleansing, gendered killing, femicide, gendercide, gynocide, politicide gernotocide, ethnocide, “culturecide, democide, Journal ofGenocide Research 7 eliminationist intent, special other coined have scientists social extreme, one On intent. itself requires of genocide tothecrime, as opposed concept, whether the disagree through any of the enumerated material offenses along with the necessary mental element. and material cancommit acts punishable the perpetrator Thus punishableacts these offenses. list as “punishable acts” and the former as “prohibited acts.” For clarity, Iwill refer to life of national groups, with the aim of annihilating the groups completely.” 10 9 8 in complicity genocide. genocide, aswell as genocide, conspiracy committo genocide, and direct and public incitement to commit In addition to genocide, the Convention punishes four other acts: attempt to commit group, as such: committed with intent to destroy, in whole orin part, a national, ethnical, racial or religious Genocide Convention, according which, to “genocide means any followingthe of acts the atrocity, Lemkin dedicated himself to its criminalization. S. Straus, ‘Contested Meanings and Conflicting Imperatives: A Conceptual Analysis of Genocide’, (2001) 3 Genocide Convention, Art. III. Genocide Convention, Art. II. S. Stein, ‘Conceptions and Terms: Templates for the Analysis of Holocausts and Genocide’, (2005) 7 D.J. Goldhagen, Although Unitedthe Nations Convention drew from Lemkin’s definition, scholars (e) Forcibly transferring of children grouptoanotherthe group.” (d) Imposing measuresintendedprevent to births within group; the physical indestruction in whole or part; (c) Deliberately inflicting on the group conditions of life calculated to bring about its (b) Causing serious bodily or mental harm membersto of the group; (a) Killingmembers of group; the On Assembly the United the 9 December General 1948, Nations adopted unanimously Worse Than War: Genocide, Eliminationism, and the Ongoing Assault onHumanity 171, at 196, note 2. 349, at 360.

9 The literature confusingly describes the latter the describes confusingly The literature 11 At the other end, 8

7 10 Having defined crimes: crimes: (2009). Journal 2

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w g a e r e .c o m 15 14 Sociology of Genocide: Analyses and Case Studies destruction.” defined “deliberate crime the as Drost Pieter continuum. unintentional her now I note extremity of later, the arguments men”and structuralist to “ordinary these return 13 Self 12 intent. definition into their Statutes or Criminal Codes. Again, the Convention requires special judicialthe institutions relevant tothis projecthave transposed verbatim Convention’s the alternatives; engage these rather than agreement I emphasize this of genocide. crime to the death. Regardless of their opinions of the Convention, scholars agree that intentis essential social It prohibitsgroups. biological physical butnotor destruction cultural linguisticor national, racial, and religious groups to the exclusion of economic, gender, political, and definition. intends todestroy a group.” Jonassohn, genocide “a constitutes form of massone-sided killing in which a[n…] authority California LosAngeles, returned Convention’sto the “intent.” According Chalk to and Montreal Institute for Genocide Studies, and Leo Kuper, professor at the University of “sustained purposeful action.” care toprofessional asmicrocosms of facilities, sanctions forgenocide.and crime,”for which, instance, children adult inflict on their parents by aging assigning their Hergenocidal intent. genocidal “peace-time the violence” “everyday continuum defines or anthropologist Nancy expandsScheper-Hughes genocide’s definition and eliminates F. Chalk and K. Jonassohn, 23. H. Fein, P.N. Drost, N. Scheper-Hughes, Genocidal‘The Continuum: Peace-Times Crimes’, in J.M. Mageo (ed.), (2002) 29, at 30. For comparison,For other scholars includeintentin their alternative definitions.In 1951, Usually, social scientists dislike the Genocide Convention. It protects ethnic,

Genocide: A Sociological Perspective The Crime of the State 15 In his comparative studies, Kuper prefers the Convention’s

14 (1959), Vol. II, 125, quoted in F. Chalk and K. Jonassohn, Frank ChalkKurt Jonassohn, and co-directors of the (1990), 24. (1990), 30. 13 Similarly, Helen Fein requires 12 Though I Though Power andthe The History and 3

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w g a e r e .c o m is responsible for the harm is harm for Cunder the responsible to killing the driver B may injure or kill passenger C, A nevertheless or recklessly kills B. So A Johan van der Vyver offers the following example: A intends to kill B, and foreseeing that consequences. He or she commits the act regardless of those consequences, orrecklessly. of of as will be discussed,intent describes the determination with which he or she acts. In crimes intentdiffers from motive. Motive describes incentivethe for which an individual and acts, the uncertain and undesired consequences of his or her act, a negligent criminal cannot. And from areasonableindividual reasonabledeviation of the care; where can standard anticipate Advertent recklessness, however, does not constitute negligence. Negligence requires a actus reus Goettigen, more logically characterizes genocidal intent as “surplus.” ofinternational Kai“special,” Ambos, law Universitaet professor atGeorg-August criminal element intentional standard but a secondary intentional element. intentional a secondary but standard intentional acts.” “stripped of theprohibited intent, genocidal actsindependently stand as criminal punishable International Law Journal “specific” standard, “specific” standard, 21 20 19 Criminal Law Forum 18 Cross 17 “Quantitative Criterion”’, (2002) 77 16 involves any Whereas crime 1.2 A Crime ofSpecialIntent J.D.van derVyver, ‘Prosecutionand Punishment of Crimethe of Genocide’, (1999)23 Arnold, 131. Ambos, 835. R. Arnold, ‘The Mens Rea of Genocide under the Statute of the International Criminal Court’, (2003) 14 K. Ambos, ‘What Does “Intent to Destroy” in Genocide Mean?’. (2009) 91 D.Alfonzo-Maizlish, ‘In Whole or inPart: Group Rights, the Intent Element of Genocide, and the dolus eventualis 833, at 845. 16 Thus In modern criminal law, law, criminal modern In […] has ” 20 and occurs as andoccurs dolus specialis nopendantin the actusreus 127,at 132. , the perpetrator, the can envision uncertain though possible, and undesired, dolus specialis 286, at 307. dolus eventualis elevates these crimes to genocide,in imposing not the highest mens rea

New York University Law Review mens rea . Each enumerated act requires actrequires enumerated . Each , the Convention elevates this element to a “special” or dolus eventualis “must correspond to all the material elements of the , dolus indirectus ,” 18 instead of literately translating translating literately of instead despite notdesiring despite harm. this 17 Since “ 1369, at 1381. , or , or dolus directus International Review of theRed this additionalmental mens rea mens 19

Fordham , such that . First of all, specialis 21

as 4

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w g a e r e .c o m also confusingly confusingly also intent, respectively.called requirement. “The psychological moment of plotting [is]not necessary for classifying an act interpretation. anddismiss this drafters the Criminal Tribunals for the former Yugoslavia and Rwanda, though, reaffirm the intention of affirmative defense, claiming reasons outside theConvention’s list.required an anticipated They requirement. motivation any removed Convention the drafting However surplus, genocidal intent remains separate from motive. In fact, the Committees Legal Commentary 1.2.1 membership in collective. membership that commitsbecause genocideacollective of perpetrator againstindividuals from their the motive asarequirement: phrase “assuch” theConvention’s read prosecutors international destruction through an exhaustive enumeration. Some drafting states, later scholars, and even resolved toforbid for destruction any reason, motive’s addition mightexclude intentional future, groupdestruction. Thus draftersthe those consequences. desires perpetrator the intent, of crimes In direct consequences. its undesired certain, despite and Research 25 24 liable for negligent omission. dolus directus 23 systems. law criminal national between differences 22 under which occurs necessarily not omission, does constitute negligence G. Lewy, ‘Can There Be Genocide without the Intent to Commit Gneocide?’, (2007) Schabas, 9 247. W. Schabas, van derVyver, 306-7. Please note that this introductory summary does not address all idiosyncrasies of or dolus directus The drafting Committees and the interpreting Tribunals also reject apremeditation Negligentliability occurs from uncertain consequences, but crimes of 661, at 662. Genocide in International Law: Crimeof Crimes . In some domestic systems, however, individuals may be held criminally involve certain ones. In events of indirect intent, the perpetrator acts acts perpetrator the intent, indirectevents In ones. of involve certain

Dolus indirectus

25 The Trial and Appeal Chambers of the International and directus 22

24 rather than describe intentionalto group correspond correspond to knowledge and purpose, (2009), 247. dolus indirectus Journal of Genocide 23 dolus indirectus Similarly, and 5

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w g a e r e .c o m Humanity’,(2007) 43 33 111 31 21 May 1999, par. 94. 32 30 International and Comparative Law Quarterly 29 28 Neither the Convention nor the courts establish a “numerical threshold.” “numerical a establish courts the nor Convention the Neither 26 genocide. commits individual an which with intention” special intended of as genocide.” destruction 27 International Law Journal of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribunals’, (2002) 37 aimed at the group, whether or not those acts actually resultin the group’s destruction.” as soon as prohibited actsarecommitted against group members with requisitethe intent explore shortly,its substantial but partial elimination. “The crime of genocide is completed a […] group, as such.” A genocidaire can intend either a group’s whole destruction or, as I mens rea personal contribution to the criminal attack. criminal tothe personal contribution her his needor in notpremeditate of a planbut with knowledge genocide may participate constitutes the planning of crime, it differs from a genocidal plan or policy. An individual a prohibited act. In the crime of genocide, the accused can intend partial destruction. The commit not heorshe herintent; his does not or realize accuseddoes the genocide, attempted Thus the Convention distinguishes between attempted and partial destruction. In the crime of Genocide Convention, if not the the if not Convention, Genocide assume this plan exists at the level of the state or a para-statal entity. In other words, the organization.” though “it would appear that itis not easy to carry out genocide without a plan or D. Nersessian, ‘Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes against against Crimes and of Genocide Intersection The Hate: Punishing to Approaches ‘Comparative Nersessian, D. (2002) Guilt’, Collective of Problem The atWar: Romantics and Liberals Lectures: Storrs ‘The Fletcher, G.

G. Verdirame, ‘The Genocide Definition in Jurisprudencethe of Adthe Hoc Tribunals’, (2000) 49 Schabas, 226. N. Robinson,

Prosecutor v. Laurent Semanza Prosecutor v. Clément Kayishema and Obed Ruzindana Prosecutor v. Goran Jelisi Yale Law Journal Just as Just individualone can commitgenocide, genocideneed destroy not a group. includes the phrase “in whole or in part”—“the intent to destroy in whole or in part The Genocide Convention: A Commentary 30 As I will discuss, the judges emphasize the crime’s planned commission and 1499, at1523. Stanford Journal ofInternational Law 231, at 268. ü , Trial Judgment, Case No.IT-95-10-T, T.Ch.I., 14 December1999, par. 100. , Trial Judgment, Case No. ICTR-97-20-T, T.Ch.III., 15 May 2003, par. 316.

ad hoc 26 In fact, premeditation is “superfluous given the given is“superfluous premeditation In fact, 578, at 587. Tribunals, allows for a “lone genocidaire.” 28 Neither do the Tribunals require a plan, , Trial Judgment, CaseNo. ICTR- 95-01-T, T.Ch.II., (1960), 60,quoted in D.Nersessian, ‘The Contours 221, at 246. 27 Although premeditation premeditation Although 32 Yet, genocide’s 31 Texas Texas

29 33

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w g a e r e .c o m as suffices recklessness advertent that propose Kress Claus “does not necessarily refer to the degree or intensity of intent.” intensity or the degree of tothe necessarily refer not “does intent “specific” or “special” that us reminds correctly Ambos Kai desire, implies destroy” necessary for the material offenses and equivalent to to andequivalent material for the offenses necessary remain. mind” of state interpretations, “the challenges objectivelyof inproving, a judicial a context, genocidist’s are more victims. Regardless of the allowances for and emphases on complex, contextual context. Unfortunately for the victims,instances of genocide are more obvious when there group die, the Commissions’ clarifications allowjudges to interpret genocidal intent in accused’s the anticipated thatgenocide defense only occurs if in individuals all a victim group’s leadership ora group within aterritory substantial,demonstrates intent, partial of Experts”), means substantial(“Commission numbers or substantial members.Yugoslavia Therefore the former destruction the in of a law humanitarian international of violations 38 37 par. 506. 36 35 in Schabas, 236. 34 Inquiry on Darfur. of Commission to theInternational according part,’” important a ‘very necessarily not the intention to destroy at least asubstantial part of a particular group.” from every corner of the globe. Nonetheless the crime of genocide by its very nature requires is“it destruction: necessary intend not complete achieve the to annihilation of to a group International Law Commission (ILC) further clarifies this differentiation as well as partial Ambos, 845. Nersessian, ‘The Contours of Genocidal Intent’, 236. Report of the International Commission of Inquiry on Darfur to the United Nations Schabas, 236-7.Secretary-General (2005), Draft Code of Crimes against Peacethe and Security of Mankind, 1996YILC Vol. II(part 2), at 126, quoted At the opposite extreme from intent, Professors Otto Triffterer, Alicia Gil Gil, and ‘Substantial’, according totheUnited Nations investigating Commission Experts of To facilitate the prosecution of genocide, scholars propose lower levels of lower levels of propose scholars of genocide, prosecution facilitate the To 36 Although, the drafters included the phrase “in part” because they 37

dolus specialis dolus specialis 38 . Although the “intent to to “intent the Although .

. Triffterer mens rea mens 35 “but

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w g a e r e .c o m Jones adopt a “mixed individual-collective point of a“mixed point individual-collective Jones adopt reference.” Thus they, as do international criminal lawyers Alexander Greenwalt, Hans Vest, and John furtherance of a campaign targeting members of a protected group and knew that the goal or According to Greenwalt, “genocidal intent should be satisfied if the perpetrator acted in intent.and for low-level Jones arguefor Vest, interpretation aknowledge-based perpetrators’ whereasGreenwalt, as genocide; a violent backdrop against destruction reckless characterize the material elements are committed with intent and knowledge.” intent with arecommitted material the elements mens rea knowledgeable commission of international crimes, and so dismisses this lowest level of however, international demonstrates the International around Criminal Court, consensus 43 Ambos, 840. 42 Statute does not control the destroy. intentgenocidenevertheless the developed to jointcriminal thatthe consequence aimed in not though he enterprise participated, which at 41 11. v. Br Trial Chamber of Yugoslavia Tribunal theoretically Triffterer’s upheld analysis in 40 Leiden Journal ofInternational Law 39 endorses Ambos, 841. Gil, A.Gil 1998 Rome Statute of the International Criminal Court, 2187 O.Triffterer, ‘Genocide, Particular Its Intent to Destroy in Whole or inPart Groupthe as Such’, (2001) 14 Prosecutor v. Radoslav Br ÿ anin crime, or at least knowledge of the co-perpetrators’ intention to that effect. intention to that least co-perpetrators’ the knowledge of at or crime, of the other members of the groups necessary to bring about the final result of the sensethe of unconditionalthe will with regard tothe remaining killingthe acts—i.e. genocide, As to these constituent acts, e.g., the killing of a member of the group in the case of Gil Gil and Kress propose recklessness in tothe recklessness relation Gil andKresspropose Gil . “A person shall be criminally responsible liableand for punishment[…] ifonly dolus eventualis ; it “does not rule out” when the accused knew of the natural and foreseeable Derecho Penal Internacional: Especial Consideracion Del Delito De Genocidio dolus eventualis ÿ anin for the constituent offenses as well as the intent to destroy. ad hoc , Trial Judgment, CaseNo. IT-99-36-T, T.Ch.II., 1September 2004, par. 710-

399,quoted in Ambos, 840. would be sufficient, combined however with intention in in intention with however combined be sufficient, would Tribunals, neither have they applied the the applied they have neither Tribunals, UNTS 40 The Rome Statute of the 3 (1998),Art. 30(1). 43 actus reus Gil Gill and Kress 41 Although the Rome only. Br ÿ (1999), quoted in anin 42 Prosecutor Prosecutor

standard. 39 The 8

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w g a e r e .c o m affiliated with the Auschwitz Institute for Peace and Reconciliation and Cohen Chair of dismisses unicausal theories of “extraordinary human evil.” To these situations, the scholar destructive intention, whether it is individual or collective, ideological or pathological. crime’s definition, social psychologists and Holocaust historians debate the nature of social psychology and Holocaust history. Just as genocide scholars disagree about the genocidal intent, so to say,in practice. For explanations of genocidal intent, Iinstead turn to ignored has review literature this law, criminal on concentration project’s this Given 1.3 Holocaust History, SocialPsychology, and Genocidal Intent intervene. accused of the therein. participation willful these standards raise questions as toanindividual perpetrator’s knowledge of a planand canprovehave accusedcould the not crime.prosecutor not known the about Nonetheless, in latter, the the and foreseeable consequence, crimewasanatural and the need only prove they are constitutionally responsible rulers, public officials or private individuals.” private or officials public rulers, responsible constitutionally are they declares butwhether and liable“personssuperiors committing […] genocide subordinates, of the crimes’ scale and organization. The Convention does not distinguish between which an accused engages in againstcorrespond crimes humanity his to herto or knowledge eventualis humanity. against crimes resemble accurately more situations these Unfortunately, (ed.) 47 46 45 Columbia Law Review 44 manifest effect of the campaign was the destruction of the group in whole orin part.” D.J.Goldhagen, ‘Explaining Perpetrators’the Actions: Assessing the Competing Explanations’, in A.Jones Schabas, 207-10. Genocide Convention, Art. IV. A.K.A. Greenwalt,‘Rethinking Genocidal Intent: The Case forKnowledge-Based a Interpretation’, (1999) 99 Genocide: Perpetrators, Victims, Bystanders, Rescuers Victims, Bystanders, Perpetrators, Genocide: In a more than “remotely plausible-sounding patchwork explanation,” patchwork plausible-sounding “remotely than more a In As investigated later, the international criminal tribunals require the the later, criminal international tribunals require the As investigated and dolusindirectus 2259,at2288. 46 And at this point, the history of the crime and the psychology

are easier to demonstrate. In the first instance, the prosecutor (2008),Vol. IV, at 129. mens rea mens 47 James Waller James 45

with with 44 Dolus

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w g a e r e .c o m around Rorschach tests, didn’t dismiss the “mad Nazi” thesis, then the historical record does. even with 200 additional tests from rank-and-file Danish collaborators. reviewing sustained the data butwithin Gilbert, decade, the team another Kelley,supported that they could be duplicated in any country of the world today.” feltcompelled conclude to “not only such that uniquepersonalities are insane not or also but Gilbert espoused the mad Nazi thesis,Kelley championed the defendants’ sanity, such that he Whereas Rorschachs. Nuremberg the of analysis the on concurred nor collaborated neither American Army-assigned psychiatrist Douglas Kelley and psychologist Gustave Gilbert inkblotpsychological however,tests, provedless conclusive if equallynot surprising. The Surprisingly,intelligence tests revealed the Nuremberg defendants as genius. Rorschach psychopathology among the defendants, but simply Research Exchange 49 48 professionals assigned to Nuremberg, the question was not The Allies propagated Nazis’the insanity “formostdefense: of mentalthe health Waller dismisses the theories that genocidaires are inherently evil and psychologically insane. 1.3.1 An Evil Self Court of the Bosnia Herzegovina. and likewisethus apply thehigh-levelto accused before International the Criminal and Tribunals whichhereaches and andthe conclusions authors architects on which focus on he data relies People Commit MassKilling andGenocide identification, andbindingfactors of group. the Though his them moral thinking, disengagement, blaming thevictims, professional group socialization, social processes. He includes collectivist values, authority orientation, social dominance, us- andHolocaust GenocideKeene at Studies StateCollege adds cultural, psychological, and D. Kelley, ‘Preliminary Studies of the Rorschach Records of the Nazi War Criminals’, Waller, 62. (1946) 10 If the contradictory conclusions, which reveal the sensitivity of and so questions 45, at 47, quoted in Waller, 64.

focuses on “ordinary,” low-level perpetrators, the how much how if Becoming Evil: How How Ordinary Becoming Evil: they they wouldfind psychological disturbance.” 49 In1975,colleagues Rorschach 48 10

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w g a e r e .c o m (1995), 181, quoted in Waller, 80. 52 51 50 who might derive pleasure from what had to be done” On one hand, the Nazi bureaucracy undertook “a systematic effort […] to weed out all those Sixty-five percentof participants obeyed,inflicting up to 450volts, from which Milgram severe electrical shocks to the actor-“student” for wrong answers to a“paired-associate” test. increasingly administer to instructed participant-“teacher” the experimenter-“authority” Lifton’s explaindoubling to genocide andmass killing. In Milgram’s the 1960s experiment, group. the perpetrator within heterogeneity address failedthe to theory “Nazi personality” thesis,the Like “madNazi” the pattern. ideological and empirical criticism. Itignored leftist authoritarianism and allowed a response was the explanation. Their F-, as in fascist, scale measuring this personality, suffered University of California at Berkeley researchers identified that the authoritarian personality of war.” the stage atthat available manpower pool of the ‘dregs’ 101“wasthe Battalion ReservePolice that Browning reports Christopher Carolina professor of North University mobile killing units assigned to extermination at point-blank-range. On the other hand, Criminals of authors than the their ideologies, rather authoritarian produce allegiance, individuals to predispose commonalities the that Concluding similarity. sufficient identify to failed Rorschachs postulated a“Nazi personality.” Yet,thoseexperts studying Nuremberg the and Copenhagen in East. the Einsatzgruppen the assisted for indoctrinated office work, forYet, men,service andtoolittle combatthese old too E. Zillmer et al., C. Browning, Waller, 71. Similarly, Waller rejects Stanley Milgram’s agentic personality and Robert Jay When the “mad Nazi” thesis failed, the psychiatric and psychological experts experts and psychological psychiatric “mad Nazi”thesisfailed,the When the added that, “just about anyone could have joined the Nazi movement.” The Quest theNazi Personality:for Psychological A Investigationof Nazi War Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland The Quest for the Nazi Personality: A Psychological Investigation of Nazi War Criminals

50 in stafforder to Einsatzgruppen the (1998), 165. 52 In1950, 51

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w g a e r e .c o m 57 Waller, 119. 56 individualism, liberal of language in the speak may law the of mind “the that acknowledges Fletcher P. George crimes, international of conceptualization a collective for Arguing An EvilCollective 1.3.2 ideological killings, as I will discuss shortly. Lifton’s theory corresponds neither with evidence from social psychology nor research on 55 54 a than rather abused alcohol to escape responsibility, guilt, and shame, Waller concluded that “doubling, self as a “short-term adaptive mechanism.” Since criminals doubled themselves as well as Lifton proposed doubling as the “only, oreven central explanation,” Waller rejected a second as an self” entire Auschwitz self. This “division of the self into two functioning wholes, so that a part-self acts an created doctors the Nazi of project, the racial embodiment governmental the “biocracy,” German the to commitment ideological their on Acting Reich. Third in the participation in original]. 53 feels noresponsibility hostility on their part, can become agents in a terrible destructive process.” dare imaginemight […]Ordinary people, simply jobs,doing their and any without particular one than truth the to closer comes evil of banality the of conception Arendt’s “that concluded agentic state. being former’s that agent authority hypothesized the Milgram obedience, triggered tothe the Waller, 120. R.J. Lifton, Milgram, 145-6, quoted in Waller, 114. S. Milgram, S.Milgram, Despite empirical criticism, Lifton similarly postulated a “double” to explain doctors’ 55 The Nazi Doctors: Medical Killing and the Psychology ofGenocide Obedience to Authority: An Experimental View 54 cause

In the agentic state, “man feels responsible “man feels responsible In agenticstate, the 56 in turn sheltered the physical and moral life the primary self. Whereas of evildoing, can be seen as a for for Ibid. Ibid. the content of the actions that the authority prescribes” [emphasis [emphasis prescribes” authority the that actions the of content the

consequence (1974),6, quoted in Waller, 113. to the authority directing him but ” [emphasis in original]. ” [emphasis (1986), 418,quoted in 53 To explain this 57

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w g a e r e .c o m 60 (2003),5. 61 B899B9C5BCD2/277422/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf 59 58 but its heart lies in the disfavored ideas of collective action and collective guilt.” invariably invariably a plurality connotes offenders.”of law connote ‘system-criminality’ or ‘collective wrongdoing’ […] System-criminality to Fletcher and his Elies colleague van “violationsSliedregt, ofinternational humanitarian on humanity.” humanity—“atall attacks theoretically losses ofhistory hasgenocide periods inflictedgreat ground. LuisProsecutor declined Moreno-Ocampoinvestigate to situationthe in exactly Iraq on this crimes,” in other words, confers a discretion on the Office of the Prosecutor, the Chief “when committed as part of plan or policy or as part of large-scale commission of such or systematic.” Although the Rome Statute only prioritizes the prosecution of war crimes them as “widespread conceptualize bodies in these that sense collective the are also humanity and as of 2002, that of the International Criminal Court. War crimes and crimes against nose; her choice—system word and thejurisprudence systematic—repeat of Tribunals,the the iton hit Sliedregt individuals. penalizes inturn which law, humanitarian international “second-order power of self-correction,” or power to evaluate his or her participation exercises because less collective denies theindividual’sindividual responsibility perpetrator either multiple victims or multiple perpetrators, I disagree. humanity, Iagree with Fletcher and van Sliedregt. When that argument stretches to require

Genocide Convention, Preamble. Preamble. Convention, Genocide van Sliedregt, E. Fletcher, 1526. http://www.icc-cpi.int/NR/rdonlyres/F596D08D-D810-43A2-99BB- Fletcher makes this case, however, to mitigate punishment. In a criminal society, the the Inacriminalsociety, mitigate punishment. to case,however, makes this Fletcher 60 On the hand,other genocidea group technically attacks 61 To the extent that genocide endangers communities and undermines genocide andundermines communities Totheextent endangers that The Criminal Responsibilityof Individuals for Violations of International Humanitarian Law

59 In other words, collectives violate violate collectives In otherwords, qua , 8-9. groupand 58 According 13

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w g a e r e .c o m Waller, 39. 65 64 63 62 morally. but murder mass to contribute that conditions of multiplicity the acknowledges thankfully War: Genocide,Eliminationism, and the Ongoing Assault onHumanity Goldhagen’s reductionism. he did Yet, not abandon eliminationism. In2010’s Reserve Police Battalion101and the Final Solution inPoland negative.for either or positive and energetically,” more members of a group engage in a specific action, and they do so sooner and more emotionally disposed, or inherently evil,Waller prefers “collective potentiation:” “when moral decision-making. Regardless of whether groups are intellectually less capable, more Niebuhr butwhich endorsed Waller posits challenges, thatgroups dominate individuals’ collective. “extraordinary” the of theories also but intention So critiqued and dismissed, especially by Christopher Browning’s in Holocaust. the men’s” participation for “ordinary Executioners: OrdinaryGermansandtheHolocaust evil. aggressively, Most Jonah Goldhagen, Daniel author of 1996 the mostimmoral experiences, but for the Romantic, the nation at war was ideal. individual. the introduction of Romanticism, orthe 18 D.J. Goldhagen, Fletcher, 1508. Waller, 36. Fletcher, 1542. The theory of the evil collective, which Gustav LeBon, Sigmund Freud, and Reinhold thousands, systematically and without pity. Germans to kill unarmed, defenseless Jewish men, women, and children by the induced ordinary forbeen andhad decades, were pervasive in Jews that Germany, psychological not invariablepressure, psychological propensities, butideas about social not atotalitarian state, means of coercive the not hardship, Not economic Given the collective’s potential, Waller turned to ideology as an explanatory factor for 62 This denial implicates not ideological only and structuralist critiques ofindividual 64 Hitler’s Willing Executions: Ordinary Germans and the Holocaust As Fletcher notes, from the liberal perspective, Romanticism glorified the

th century century philosophy in which collectivethe subsumes 63 65 This theory resonates with Fletcher’s

, accepts ideology as the only motivation , I will not engage with with engage not , Iwill Ordinary Men: Hitler’s Willing , Goldhagen (1997), 9, quoted in Worse than The 14

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w g a e r e .c o m Research 67 66 ideology. or and personalities,” the hatred, and prejudices the more framework, and aspirations, “the worldviews, leader’s centrality the of asserts intention.” also todisclose andcriticize the overall […] whichstructure particularenabled that describe when andwhom through so-calledemergedin intention a particular situation, and to structure and intent. “The causes of genocide are always, and necessarily double: to crimes. Thankfully, Meiji University’s Associate Professor Akio Kimura attributes genocide repeat. cannot from reality. In other words, genocide remains an “extraordinary evil,” which ordinary men Worse than War assessment; I appreciate Goldhagen’s, and individual Browning’s emphasis, and in although criminals were crazed or evil: the Third Reich,in the words of Judge Parker, was war Nazi the that believed jurists qualified internally which to extent the demonstrate trials II War post-World theseterms. The adopted theories explanatory because traditional the in part George Fletcher and Elies van Sliedregt. Waller employs the language of evil and insanity, lawyers by international as advanced andview of intent collectivist the model perpetration of individualist Waller’s James psychologist social combine I Similarly, peers. psychologist which ideology,sources—psychology, structure—they or rely. on see to stands It intent. genocidal of interpretation judge’s analyze intention—I contextual intent. dictate notdoes but influences diminished “second-order power of self-correction.” According to the each scholar, structure A.Kimura, ‘Genocide and Modernthe Mind: Intention and Structure’, (2003) 5 Goldhagen, Unfortunately, a structuralist understanding separates the perpetrator from from perpetrator her his the understandingor separates structuralist Unfortunately, a In the interpretation of genocidal intent, judges assume the perspectives of their social Although I adopt asimilarinterpretation of genocidal intent—an individual but 405, at 417. 67 Worse Than War Kimura’s structurally-enabled intention reminds of Fletcher’s societally- Fletcher’s of reminds intention structurally-enabled Kimura’s , Goldhagen offers more nuance, his ideological emphasis separates genocide separates emphasis more nuance,hisideological offers , Goldhagen , 73. , 73.

66 I agree with Waller’s Journal of Genocide 15

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w g a e r e .c o m 69 68 “soulless.” these interpretations diminish genocide’s special intent and status. commission, requiring a plan or policy, against vulnerable “civilian populations.” Therefore systematic” of namely requirements adopt crimes “widespread or againsthumanity, the tribunals the nature, collective genocides the of measures As intent. individual perpetrators’ the with commission collective genocide’s confuse thesetribunals that demonstrate intend to Herzegovina, Iapply psychology to law. Criminal formerTribunals of the Yugoslavia andRwanda andthe Court of Bosnia men.” In analyzing the interpretation of genocidal intent as articulated by the International accepted that genocidaires, atleast in terms of their spiritual and spiritual state are “ordinary hypothesis or Waller’s analysis. Certainly,international criminal law has evolved and humans by other humans.” other by humans and solock away the Mad or evil Nazi. Yet, Waller defines “evil as the deliberate harminglabel to of desire continuing the expresses indeterminacy, persisting their despite Rorschachs, Waller, 13.

France et al. v.Göring et al. Questioning how and why the judicial interpretation of genocidal intent varies, I varies, intent genocidal of interpretation judicial the why and how Questioning 68 Thealmostscientific to pilgrimage Nurembergthe and Copenhagen

69 Thus my use of this terminology reflects either the original

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w g a e r e .c o m in their jurisdictions, as opposed to the crime’s exclusion from the Charter of of the Charter from the tothecrime’sexclusion as opposed jurisdictions, in their Tribunals’ significance in international criminal law. reflect the and so interpretation Tribunals’ the isthey repeat only however, temporal; intervention, This intent. genocidal interpretation in the intervened have Darfur, on Inquiry Montenegro before the International Court of Justice, and the International Commission of Bosnia SerbiaInternational and Herzegovina’sapplication against Criminal Court, and influence each other. Legal developments, namely the drafting of the Rome Statute of the Tribunals the bodies, contemporaneous as Again, Convention. Genocide the of application genocidal intent. were beyondmy includeability to andwhich notdo included the judges’ interpretations of which in of pleas, guilty thousands have resulted gacacacourts, style and reconciliation” extension of the domestic Rwandan courts. Rwanda’s response to the genocide, the “truth too. Obviously, the inclusion of the Rwanda Tribunal would have privileged this project’s nature of the two Tribunals, Iconsidered the Rwanda Tribunal’s appellate and trial chambers, interrelated the Given of Bosnia Herzegovina. of Court the Section Warthe Crimes courts, domestic andthe Tribunal Yugoslavia the tribunal, international the of chambers appellate genocide. War Crimes Section of the Court of Bosnia Herzegovina acquit and convict individuals of the as well as Rwanda and Yugoslavia former the for Tribunals Criminal International the To testmy hypothesis,conducted a multiple-case I study and analyzejudgments the in which

Similarly, the Tribunals’ Statutes succeeded in including genocide as a separate crime in including asa separate succeeded genocide Statutes Tribunals’ the Similarly, I identified these Tribunals because of their simultaneous, prominent, and successful Concentrating on the former Yugoslavia, I compared the statements of the trial and C HAPTER T WO :

R ESEARCH ESEARCH D ESIGN

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w g a e r e .c o m 70 intent: forms and synonyms ‘intent’ words the of and‘destroy’, references tothe geographic structure. As Iscrutinized significant, related terminology tothedefinitions ofgenocidal cases arereliable. these words, other In reliable. prove intent genocidal interpret legally which samples intent, Genocide Convention” is documents analogous these persuasiveevidenceof a plausibleinterpretation of the of any interpretation of and“the Article of Genocidethe Convention, II verbatim reproduce offers continuity. also Herzegovina than to those of the former Yugoslavia’s other successor states. Thus the Court of Bosnia court domestic the more casesto hastransferred international tribunal the In fact, courts. Yugoslavia2014, the middle- has transferred Tribunal low-level and domestic accused partner of the UN tribunal. In order to complete its case load by the extended deadline of haveheldHerzegovina Courtof trials, domestic the is domestic Herzegovina the Bosnia the War Crimes Section of the Court of Bosnian Herzegovina. Although states beside Bosnia international criminal law. As evidence of their significance, Icompared the Tribunals and people, which required a genocidal intentional element, did notconstitute genocide. Court acquitted him on this charge. Ultimately, Eichmann hung for crimes against the Jewish as Israeli againstnon-Jews—the interestingly acrimehumanity againstSupreme committed individuals of crime.the Even though indictmentthe against Eichmann included genocide— the Similarly, International Military Tribunal at Nuremburg and the subsequent denazification trials. Nersessian, ‘The Contours of Genocidal Intent’, 242. Reading the legal findingsgenocide, related to Ianalyzed theterminology and The Statutes of the Tribunals and the Criminal Code of Court of Bosnia Herzegovina Finally, Ipreferred the Tribunals because of their prominence in the interpretation of ad hoc Tribunals remain the only international institutions to convict convict to institutions international only the remain Tribunals 70 itself. Since this study analyzed the legal interpretation of genocidal

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w g a e r e .c o m planned destruction. Unlike the common plan or purpose of a joint criminal enterprise, which and"random,” even inconsistent” them." witness…] that the ‘balijas’ had proliferated too much and that he had to rid the world of hearing theTrial before Chamber26 January on […]Hereportedly 1998 added [toone intentpresentation destroy:an confirm to himself as'Adolf' presented "Healsohis initial at confession.” Tribunals' jurisprudence allows inference from the accused's behavior “in the absence of a 75 74 73 72 71 interestin the Tribunals’ interpretations. From these sources, I studie how the ICTY, ICTR, and WCS BiH interpreted intent. I examined the Tribunals’ and the Court’s expression of its opinion, namely value judgments. judgments’ overall structure: where words or phrases occurred within the judgment. Finally, of the victim.s Whereas analysis of word choice occurs within sentences, Ialo observed the distribution and total quantity victimsof orscale andscope of atrocities, andidentifications

Ibid. Jelisi Akayesu Ibid. Jelisi , par. 106. , par. 102. ü ü 74 , Trial Judgment, par. 102. , Trial Judgment, par.105 & 107. expression of an affirmed resolve to destroy in whole or in part a group as such. express itself. […]In conclusion, the acts of Goran Jelisi this authority made iteven foreasier an opportunistic andinconsistentbehavior to prepared him. It means little whether this authority was real. What does matter is that suddenly found himself in an positionapparent of authority for which nothing had to please superiors, contributed to his to please committing Goran Jelisi finally superiors, crimes. contributed and which characteristics is marked simultaneouslynarcissistic and by immaturity, a anti-social, hunger tofill a borderline, ‘void’ and a presents concern which personality, disturbed personality. Goran Jelisi Despite Jelisi The words and attitude of Goran Jelisi To demonstrate this research design, Iwill analyze aparagraph, which my piqued Dismissing Jelisi , Trial Judgment, par. 523. 73 Obviously, Jelisi ü 's verbally expressed goal, ü ’s andstatements excusing his as actions “opportunistic and

ü did not confess, but witness testimony and his self- 75 the Chamber reveals its preference for systematic, its preference Chamber reveals the ü led an ordinary life before the conflict. This ü asrelated by the witnesses essentially reveal a 72 the Chamber relied on his “acts.” The ü are not the physical ü

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w g a e r e .c o m Justice ResearchSeminar, 16May 2011, 78 77 January 2005, par. 699. more could Goldhagen motivations, Daniel of Nazi perpetrators’ explanations colleagues’ an even remotely plausible-sounding explanation.” patchwork legalapplication. the term’s genocide’s definition. Similarly, this study examined the effects of that academic debate on on debate the beyond move to aimed definition Convention’s Genocide the accepting in research Rather, this nor policy for neithergenocide. of adefinition proposes this research the conflict and how to punish the crime. To avoid engaging these ethnic and political issues, as to what acts constitute genocide, who constitutes a victim or aperpetrator, how to resolve during armed, often political conflict. Thus any on genocide controversyresearch provokes the exclusion of cultural genocide and political groups. Similarly, the Convention is invoked thegenocide charge.to drop Trial Chamber“exerted informal, behind the scenes pressure” on the Office of the Prosecutor Geoffrey Nice revealed at aMay 2011 Oxford Transitional Justice Research Seminar, the seed theory, the Yugoslav Tribunal acquitted Goran Jelisi dismissal of them. Relying on the report of expert psychiatristvan de Bussche motivated the crimes. Infact, this personality explains his statements and thus the Chamber's personality “marked byimmaturity, ahunger tofill a 'void' and aconcern pleaseto superiors” must be a physically expressed, “affirmed resolve.” 79 perspective 76 extemporaneously,” “may materialize Sir Geoffrey Nice QC,‘International Criminal Courts: The Advocates' Perspective,’Oxford Transitional

Goldhagen, ‘Explaning Perpetrators’the Actions’,129. Jelisi Prosecutor v. Vidoje Blagojevi ü , Trial Judgment, par. 105, note 162. “No matter“No howinventive, ingenious, or tortuous the cannot reasoning,one construct Political discourse constrains genocide’s judicial definition. For instance, as Sir Again, the Chamber excuses Jelisi . ü 78 and Dragan Joki

The Convention resulted from political compromise, notably notably compromise, political from resulted Convention The http://beta.podcasts.ox.ac.uk/international-criminal-courts-advocates- 76 genocidal intent before the Jelisi beforethe intent genocidal ü : his “borderline, anti-social, and narcissistic” ü , Trial Judgment, Case No. IT-02-60-T, T.Ch.I. Sec.A, 17 ü of of genocide. 79 Instead of Insteaddismissing of his ü Trial Chamber Chamber Trial 77 and the bad- 20

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inferred from a certain number of offact:” of number from presumptions a certain inferred 83 82 inestablishing difficulty And the Tribunals have assumed this definition for genocidal intent as well. Given the accused,” evidence of genocide’s collective commission. “In the absence of a confession from the of in favor intent individual of evidence diminish or dismiss Tribunals the cases, other 81 2003, par. 1029. against aspart“committed any of systematica widespread population.” civilian attack or a genocidal plan, against vulnerable, “civilian populations.” evidenced as systematic attack”, or humanity: a“widespread against in of crimes intent terms fact-finding given the ILC’s interpretation of substantiality. Instead the Chambers evaluate judicial this influence easily could Discrimination group. victim the against discrimination and their statements theaccuseds’ moreconsider seriously Tribunals should But the such. In the intent to destroy,in whole, or in part, a national, ethnical, racial, orreligious group, as explanations, the Tribunal dismisses the specific intent standard. 80 by itfactpart that did havethe effect.” this mediathe have intended[to incite this to effect is thecommission inof evidenced genocide] Tribunal tortuously, orso circuitously as to approach contradictorily,finds that “the fact that appropriately direct his criticism at the Rwanda Tribunal. In Statue of the International Criminal Tribunal forRwanda, UN Doc. S/RES/955 (1994), Art. 3.

Akayesu Akayesu Prosecutor v. Ferdinand Nahimana etal. perpetration of perpetration of acts whichviolate, orwhich perpetrators the themselves consider to definition […] the repetition of destructive and discriminatory acts […] the The general political doctrine which gave rise to the acts possibly covered by the According to the ICTR Statute and ICTY practice, crimes against humanity are Dolus specialis , Trial Judgment, par.523. , Trial Judgment, par.523. Barayagwiza, etal 81 Iaccept the difficulty, and even impossibility, of determining genocidal intent. distinguishes genocide from war crimes andcrimes against humanity: dolus specialis ., the Tribunal admits its abandonment of specific intent, but in but intent, specific of abandonment its admits Tribunal the .,

Trial Judgment, Case No. ICTR-97-19-T, T.Ch.I., 3 December , the Tribunals allow that an accused’s “intent can be 80 Just asGoldhagen assessed competing 83

Barayagwiza, et al ., the Rwanda Rwanda the ., 82

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w g a e r e .c o m 87 86 85 and and IT-95-18-R61, T.Ch.I., 11 July 1996, par. 94-5, quoted in Indictment within Frameworkthe of Rule 61of Rulesthe of Procedure and Evidence], Cases Nos. IT-95-5-R61 84 come afuller to understanding inhumanity of our each to other.” we will incollaboration “Only convincing. more are intent genocidal of sources multiple Just as Waller argues that a composite theory best describes genocidaires’ participation, geographic scope of atrocities, the number of victims as well as the extent of theirinjury. specify the Judgments intent. and do, infer to, claim Tribunals the sources From these individual intention. as to factopposed collective tendto prove commission presumptions that of those emphasize criminal responsibility. Unfortunately, Tribunals and the Courtof the Bosnia Herzegovina infact,sources, should less preventthepreferenceof likely divulgesources individual to Waller, 10. Kayishema and Ruzindana

Akayesu Prosecutor v. Radovan Karadži which aims atunderminingis what considered be to the foundation of group. the acts, from the massive scale of their destructive effect and from their specific nature, combined effectof speeches orprojectslaying for thegroundwork and justifying the listthe but[…] whichare committed aspart of samethe […—] of pattern conduct the violate the very foundation of the group—acts which are notin themselves covered by planning, systematic the manner of killing. the weapons employed and the extent of bodily injury; the methodical way of their property, theuse language of derogatory towardmembers of targeted the group, deeds […]apattern of purposeful action […] thephysical of targeting group the or The perpetrator’s actions […]thenumber members of group […]words affected or groups. of membershiptheir of a particular group,while excluding the members of other victims fact the of on account deliberately furthermore, targeting and systematically others […] the scale of atrocities, their general nature, in a region or a county, or against the same group, whether these acts were committed by the same offender or directed systematically acts of culpable other perpetration the of context The general , Trial Judgment, par.523. 85

, Trial Judgment, par. 93. ü and Ratko Mladi

ü , Decision of Trial Chamber I [on the Consideration of the 86 Ibid

., par. 524. 524. par. ., 87 Reference to multiple to Reference 84

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w g a e r e .c o m requirement: final of Genocidethe text drafters Convention, the rejected planning Lemkin’s proposed those ‘at the top.’” themission United safe andwas “approved by Nations because area Srebrenica overseen Section of Courtof the Bosnia and its Herzegovinasupported finding of ingenocide the Law Review required proof of the existence of a policy or plan to commit these crimes.” of indication an as planning introduced Tribunals International The 3.1 Systematic intent. individual particularly, along with the vulnerability of the victims, donot prove individual criminal responsibility, participationthe of militiasthe and the Hutupopulation.” without implemented been have not could plan This […] government Rwandan former in the indeed ‘meticulously planned andsystematically by co-ordinated’ level top extremistsHutu were population Tutsi the of massacres the “that found Tribunal Rwanda Arusha-based plans evolve at the highestlevels and involve the general population. For instance, the scale of atrocities,” “the methodical way of planning.” According to the Tribunals, genocidal “the repetition of destructive and discriminatory act,” “a pattern of purposeful action,” “the the Tribunals’ interpretations, emphasize the crime’s planned and widespread commission— Whileincluding discrimination perpetrator’s the of victimthe population, these sources, in par. 98,par. quoted in C. Kre 91 90 1, 29July pg.2008, 106. 89 88 Schabas, 207 & 209.

Prosecutor v. Dragoljub Kunarac etal. Kayishema and Ruzindana Prosecutor’s Office of Bosnia Herzegovina v.Petar Mitrovi 461, at469, note 39. C 90 HAPTER “there was nothing in the Statute or in customary international law […] which which […] law international incustomary or Statute in the nothing was “there 89 The truth of those statements distracts from the factthat those facts,

ȕ , ‘The Crime of Genocide under International Law’, (2006)6 , Trial Judgment, par. 289. T HREE

, Trial Judgment,Case No.IT-96-23-T, T.Ch.I., 22 February 2002, :

“W IDESPREAD OR IDESPREAD OR ü , First Instance Verdict, Case No. X-KR-05/24- 88 Similarly, the War Crimes S YSTEMATIC dolus specialis International Criminal 91 Yet, the ” . For. the 23

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w g a e r e .c o m 97 96 95 94 Packaged, and Sold 93 UNTS Soviet Socialist Republics for theProsecutionof Major the WarCriminals of Europeanthe Axis (1951) 82 Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Unionof 92 common plan for conviction of war crimes and crimes against humanity. Tribunal for the Major War Criminals of the European Axis required a conspiracy or implicitin the Eichmann judgment about genocidal perpetrators. If, the International Military They may include planningbecause of a conclusion explicitat Nurembergthe Trials and Yugoslavia and Tribunals Rwanda established planningas evidence of intent. genocidal that he is “more normal, at any rate, than I am after having examined him.” accused the reportedly said of a psychiatrist examination, after MadNazi thesis; the rejected hispersonality.” about something thanbecauseof rather bureaucracy, Eichmann had done mostthe extraordinary becausethings ofhis position within amurderous Districtthe Court of Jerusalem’sit ruling, was inferred “anthat ordinary individual such as methodical way of planning, the systematic manner of killing” attacks. systematic commission,planned, chiefly preferof collective evidenceof Bosnia Herzegovina vacuum, the theory of the evil collective rushed, and so perhaps the Tribunals and the Court evidence of the specific intent.” II of Rwandathe Tribunal held that “the consistent andmethodical pattern of isfurtherkilling to destroy to destroy assuch.” group the ruled that “that the alleged perpetrator must have committed his crimes as part of a wider plan possiblea evidence to required element of intent. genocidal Theseholdings in interpretativebodies expertthese reversedthesignificance from of planning: genocidal

H. Arendt, Cole, T.‘Adolf Eichmann’, in French of the Government Provisional the ofAmerica, States United of the Government by the Agreement Jelisi Kayishema and Ruzindana Akayesu 279. ü , Trial Judgment, par. 66. Additionally itsto previous articulations that “a pattern of purposeful action […] the , Trial Judgment, par. 61. Eichmann in Jerusalem: A Report on the Banalityof Evil (2000), 70. , Trial Judgment, par. 535. Selling theHolocaust: From Auschwitz toSchindler: How History is Bought, 97

Within seven months but across seven thousand kilometers, 96 A Trial Chamberof the Yugoslavia Tribunal, however, (1963), 25. 95 prove intent, Trial Chamber Chamber Trial intent, prove 93 The Eichmann trial 92 Similarly,from 94 Into this Jelisi ü and 24

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w g a e r e .c o m were to be targeted,” or planned bewere toor targeted,” their destruction. 104 4(2)(b). 103 mental harm authorities of Tesli Tribunals confirmed planning as, nota element, rather evidence of genocidal intent. 102 Lemkin required a genocidal plan. Perhaps because in history, governments implemented about the Nazi Holocaust, though referring toCarthage’s destruction as well the Crusades, applies to any of the Tribunals’ contradictory statements on this issue, 101 evidence genocidal intent. For instance, the Each judgmentprofesses arejection of genocidal planning, whilerelying on such planning to appeal appeal judgment’s rejection. 100 intent todestroy a specified type of group.” a civilian is that against population bean genocidethere comprised within requirement the Article 5 that the [crimes againsthumanity] be part of a widespread or systematic attack 99 the whereas the subsequent Yugoslavia Tribunal judgments, however, affirm this holding. In fact, rejection of planningthe requirement, 98 in later

Prosecutor v. Radislav Krsti v.Radislav Prosecutor Jelisi Statuteof Internationalthe Criminal Tribunal for theformer Yugoslavia,UN Doc.S/RES/827 (1993), Art.

Kre

Br Br Br ÿ ÿ ÿ ȕ anin anin anin ü , 469, note 90. , Appeal Judgment, par. 48. As Kreß asserted in reference to the in to reference asserted As Kreß The Tribunals’ position reflects the literature, which,in turn, reflects history. Writing and casesputtogether in a footnote withoutany further explanation. complete legal reasoning in the text of the judgment itself but simply by a list of texts international law require planning] has not been supported by the most careful and [that neitherstatement far-reaching judicial Genocidenorcustomary the Convention suchanextremely that measure astonishment of with note can greatest one the only Krsti , Trial Judgment, par. 981-982. , Trial Judgment, par. 889. , Trial Judgment, par. 705, quoting Staki 103 ü , however, remain anomalous. One month after the also constituted evidence of a discriminatory campaign. ü judgment ignores judgment planning, the ü elaborated a list of Bosnian Muslim and Bosnian Croat individuals that ü , Trial Judgment, CaseNo. IT-98-33-T, T.Ch.I., 2 August 2001, par. 682. 100

After four years of conflicting jurisprudence, the 98 Jelisi

Krsti ü 99 Kunarac etal , Appeal Judgment, par. 48. Br Neither the Rwanda Tribunal judgments nor nor judgments Tribunal Rwanda the Neither ü Trial Chamber ruled that “the requirement in ÿ anin 102 Br This factual finding of bodily serious or trial judgment found that “the “the that found judgment trial ÿ anin . judgment, but which correctly trial judgment repeats the Jelisi ü 104 Appeals Chamber’s

101

ad hoc Jelisi

ü 25

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w g a e r e .c o m initiated, individual becauseresponsibility were his destructive acts capricious and personally who in turn assisted in the mobilization of the Hutu population to the massacre sites.” mobilized their subordinates, such as the gendarmes, the communal police, and the militias, instigation of general the population. “Persons inpositions of authority speechused hate and Thus Tribunalsthe infergenocidal from planning involvementauthorities’ and their Multiple Perpetrators3.1.1 Where both theories fail, the Tribunal acquits. collectivity. evil the of theory the prefer tribunals criminal international Nations United Again, the District Court of Jerusalem in Eichmann rejected the Mad Nazi thesis and the Muslim of Br presented himself to the Chamber as the Serbian Adolf and proclaimed the intention kill the Although the Chamber allows a “lone genocidaire,” it thatJelisi rejects a“lone genocidaire,” theChamber allows Although 108 107 106 105 declares that it could convict Goran Jelisi State.’” ofthe on part the involvement indirect someor be without committed to of genocide crime these plans, scholars, namely,“Morris and Scharf note that ‘it is virtually impossible for the seeking to destroy a group as such.” ingredient of the crime. In so doing, they did not discount the possibility of a lone individual asalegal objective asystem agenocidal or serving of organisation an existence deem not the not individual purpose. “It ensues from this omission that the drafters of the Convention did Yugoslavia Tribunalclarify to seemed thatagenocidal involvement state policy evidences 109 110

Ibid. Ibid., Jelisi Kayishema and Ruzindana Ibid. Kayishema and Ruzindana , par. 102. , par. 106. ü par. 99. 105 , Trial Judgment, par. 100. 109 Reflecting on the drafters’ exclusion of premeditation, Trial Chamber Iof the in words,evidencedother a disturbed personality butnotdestructive planning. þ ko, 108 committed genocide. Confusingly, the Tribunal denies Jelisic’s , Trial Judgment, par. 94. , Trial Judgment, par. 312.

106 Opposingexecution, authorship to Chamber the ü of of genocide “therefore only as a perpetrator.” ü , a man , a who 110

107

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w g a e r e .c o m private resources.” private following a regular pattern on the basis of a common policy involving substantial public or policy theChambersthe a state,” as“thoroughly and definedof have systematic organised plan which Kayishema could refuse. intentitis logical of assumes a inference as far Thus Chamber’s the participate. to refuse of resultcriminal negligence.” within a hierarchical,military structure, that “lack of knowledge, therefore, can only be the 114 113 111 oftheseauthorities. instigation incitement or atthe crimes the perpetrate who population commit. Thus these resources include, among the obvious finances and weapons, the general Vest adopt a two-tiered model of perpetration: those who organize or plan and those who organized perpetrators draws on the legal scholarship. Gil Gil, Greenwalt, Jones, Kress, and showingthe of actual knowledge.” structure of andmonitoring hasbeenreporting systems asafactor couldcited facilitate that Leadership assumes knowledge. As the Rwanda Tribunal ruled, the military’s “organized statements, the Chamber relies on Kayishema's role in the pattern as evidence of intent. Prefecture.” the to belonging in […]Kayishema the attackers] trucks the attacks [brought leading the directing and intentionality histhrough “At leadership.Bisesero, evidence proves Kayishema that was Kayishema andObedRuzindana In systematization. and state-sponsorship genocide’s emphasize Enumerating theauthorities ororganizations involved, asin passage,this judgments the 112

Akayesu Musema v.Alfred Prosecutor Ibid. Blagojevi , par. 536. Again, “there although is norequirement this that policy formally be must adopted as , Trial Judgment, par.580. ü and Joki 114 ü , Trial Judgment, par. 792. Systematization, especially evidence of multiple, hierarchically multiple, hierarchically of evidence Systematization, especially , Trial Judgment, Case No.ICTR-96-13, T.Ch.I., 27 January 2000, par. 142. 111

113 Though referencing his discriminatory Though referencinghis discriminatory and encouraging , the Rwanda emphasized Tribunal Kayishema’s Knowledge assumes consent, orat least the possibility to 112 Similarly, the Tribunal ruled in reference to knowledge Prosecutor v.Clement 27

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w g a e r e .c o m 119 118 117 from of a group every corner “the annihilation intendeven complete nor neither achieve must then spread.’” of diffusionthe of anti-Tutsi the propaganda, thekillings ‘started off like alittle sparkand 116 115 limitation—could territorial factual limits ontheability a perpetratortosucceedof atgenocide—such as a geographic or explains,“if intent exists only when an accused intends to destroy the whole group, then and through its enumerated acts, no group has been wholly destroyed. Alonzo-Maizlish historical episode of genocide to attempted genocide. Since the Convention’s entry intoforceevery change achievement—could partial though destruction, entire for interpretation—intent victims, the Convention does not establish a “qualitative criterion.” […] is immense.” placement, that “the puzzle […] whether ‘in whole orin part’ modifies ‘destroy’ or ‘group’ Alonzo-Maizlish underemphasizes, almost considering this observation's footnoted destruction.substantial On closer inspection, genocidalpresumably intent but requires the intent for partialpartial destruction. require crimes genocidal glance, first At intent. andintroduction the of elements of againstcrimes humanity findingsinstead of of genocidal intent individual perpetrators’ the with commission collective genocide’s of confusion the systematic nor widespread destruction are elements of genocide. These findings demonstrate of law,the neither letter the to According intent. genocidal evidences also attacks of these According to the Tribunals, the spreading, or more appropriately the widespread occurrence, 3.2 Widespread ethnic1994” to tensions prior “Military officialsperpetuated and civilian

Alonzo-Maizlish, 1385, note 76.

Ibid. Ibid Ibid Kayishema and Ruzindana ., 1380. ., par. 282. , 1385, note 76. Scholars and the Tribunals,however, agree on the latter interpretation. The accused 116

117 Despite thepresumption large genocidenumbersthat of requires , Trial Judgment, par. 279. a fortiori

defeat the intent element itself.” 118 Theformer 119 115

and “as a result 28

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w g a e r e .c o m requires only an intention for partial destruction of a protected group for genocide. humanitarian law proscribes violencethis as crimes against humanity and warcrimes and Tribunals’interpretation, planned attacks on vulnerable populations. International Chinese people. Inhis “collective genocide conflict,” interpretation, epitomizes murders two aSinophobe in which imagined crime to the extension “counterintuitive” genocide’s Herejects example. on this GeorgeFletcher draws records, hearing Committee’s prosecution for “drivingfive Chinamen out of town.” Likely having readtheSub- to asubstantial part. community, provided thenumberis substantial.” constitute only a part of a group either within a country or within a region or within a single multitude of persons of the same group must be classified as genocide even if these persons a destroy to intent “The introduced. Robinson, Nehemiah Convention, the on commentator large widespreadnumbersUnfortunately, evidence or more intent attacks obviously. membership in that collective with the intent todestroy at least asubstantial part of the group. accuseddestroy the member of agroupbecauseof individual’sone that perceived real or purpose of protecting right the of group existence. Instead judicial interpretation that requires and object Convention’s the undermine would criterion A is qualitative reasonable. threshold minimal quantity threshold of at least one victim.” 120 lines: similar along legislation implementing considered presidencies States Congress proposed an ‘understanding,’ and in the 1970s, the Carter and Nixon In United 1950s,the Relations Foreign the Senate Sub-Committee. Unitedbefore States a of the globe.” 124 123 122 121 Drost, 89, quoted in Fletcher, 1524. LeBlanc, 370 & 376. LeBlanc, 371. Arnold, 137. The Tribunals have significantly developed the ‘substantial’ criterion, which an early 120 According the to Semanza 123 In the words of the American Bar Association, substantiality avoids , Trial Judgment, par. 316.

travaux préparatoires 122 121 Robinson expressed interpretation this In addition to being minimal, this of the Rome Statute, “there is a dolus specialis 124 orin the referring referring 29

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w g a e r e .c o m 127 126 125 ‘authors’ synonyms for perpetrators, and imply genocide ‘architects,’ intentionality. collapsedshades into of dun by and gray,” wereexecuted “fully architects.” qualified emptied offeatures and color, shroudedin nightand fog, blanketed by perpetual winter, “we at best landscape—or ashaving tothink areaccustomed tragedies, of which no of […] Cole, expert in the developing field of Holocaust geography, poetically writes, these genocidal intent. Geography is an essential,if less acknowledged, element of genocide. Tim a zone.” limited to geographic extends intent only exterminatory the of when even genocide admitscustom characterisation the Commission, the Trial Chamber in the interpretations of Robinson, the Commission of Experts, and the International Law In experts. geographic advancedlight the by Herzegovinaindependent criteria endorsed of To reach a finding of substantial destruction, the Tribunals and the Court of Bosnia Geography 3.2.1 remember that genocidal intentis the “intent todestroy, in whole or discuss “substantiality” or partial destruction shortly,but for this discussion,it suffices to fact. this evidences Niltoicthe Tutsi motivations asmythologized associations with land. Propaganda“Greater about Serbia” or their expression of because of the perpetrators’ state apsychological to conceptualize to permanently ethnic the alter and is Geography maps. political aperfectly reasonable tool synonymous for the worst European massacre since World War II. As well, they are attempts leastplotted on mapthen the being memory—Srebrenica areat genocides of collective sine nonqua Kimura, 405. T. Cole, Jelisi ü I repeat Cole’s phrase aware of structuralist Akio Kimura’s critique: the common common the critique: Kimura’s Akio Cole’sstructuralist phraseawareof I repeat The ICTYconsults geographic todefine scope genocide’s substantiality.will I , Trial Judgment, par. 83. Holocaust City: The Making of a Jewish Ghetto of genocidaires is theirintent to destroy. If notplanned in the Tribunals’ sense,

Prosecutor v. GoranJelisi 125 Thus Tribunalsthe includeageographic elementin (2003), 2. ü ruled that “international “international that ruled in part .” According to 127 126 The

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w g a e r e .c o m 133 132 833. 131 accused.” Chamberis also able to infer, beyond reasonable doubt, the genocidal intent of the widespread nature not only in the commune of Taba, but also throughout Rwanda, the destruction. “Owing to the very high number of atrocities committed against the Tutsi, their and Kavi. and Home Saint Jean Complex, came from the hills of Bishunda, Burunga, Gitesi,Karongi, Ruzindana The Rwanda Tribunal,however, insists on widespread attacks. Thus as measurement. recommends geography a measurements of partiality, andtheTribunals’jurisprudence not does requirebut substantiality requirement.” elaborated “approximatelythat Bosnian 40,000 MuslimsSrebrenica […met] the of Bosnian Muslim group.” geographically limited Bosnian “aMuslims of Srebrenica substantialconstituted part of the 130 ICJ Rep. 43, par. 199. Herzegovina v. Serbia and Montenegro) 129 earlier fact, the “in In destroy whole.” violence couldorigin. ethnically-targeted asevidenceof serve intentto Widespread the intent against their control. ad hoc extent of their reach” asthepossible as well and control 128 Appealthe in Chamber

Akayesu Kayishema and Ruzindana Prosecutor v. Mom Blagojevi Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Krsti ü TribunalsInternational andthepermanent Court of Justice balance theperpetrators’ In other words, geography serves a limiting function before the Yugoslavia Tribunal. , Appeal Judgment, par.12-14, quoted in , Trial Judgment, par.730. 133 132 ü specifies that Tutsi killed in Kibuye prefecture, specifically at the Catholic Church Church Catholic the at specifically prefecture, Kibuye in killed Tutsi that specifies and Joki Unlike the Trial Chambers of the Yugoslavia Tribunal that evaluateintent in a The judgment pinpoints the location of their death as well as the place of their þ ü ilo Krajisnik , Trial Judgment, par. 673. Prosecutor v. Radislav Krsti Radislav v. Prosecutor 130 , Trial Judgment, par. 302. 129 In In 131 Thus, the

, Trial Judgment,Case No. IT-00-39-T, T.Ch.I., 27 September 2006, par. Therefore the Convention’s interpretations specify the the specify interpretations Convention’s the Therefore Prosecutor v.Mom , International, Court of Justice,Judgment of 26 February 2007,[2007] Akayesu Blagojevi Br ÿ anin judgment ‘entire’substitutes for widespread , Trial Judgment, par.702. ü þ and Joki ilo Krajisnik ü , “the area of the perpetrators’ activity 128 facilitate that determination. The determination. that facilitate ü trial foundjudgment the , the Yugoslav Tribunal Kayishema and 31

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w g a e r e .c o m shouldkilling be policy asa toachieve recognized goal-oriented leaders’calculated most “mass argues that Benjamin Valentino Professor Associate College Dartmouth intentionality, Convention and rejection,if momentarily, crimes against humanity’s jurisdictional elements. significantly, contextual interpretations demonstrate the Tribunals return to the text of the life calculated to bring about its physical destruction in whole orin part. instance, crime the maybe by committed inflictingdeliberately on groupthe conditions of imposing a strict threshold of intent, the Genocide Convention allows for such nuance. For A qualitative substantiality a evinces contextual understanding of annihilation. Though Experts, the ILC, and Nehemiah Robinson. In the Tribunals’ words, substantial intention latter sources correspond with scholarly interpretations, namely those of the Commission of 137 136 135 134 number of group members affected,” “the scale of atrocities, their general nature, in a region or a county” ‘widespread’ is Correlated to The Chambers‘substantial.’ find not only partial destruction in Substantial 3.2.2 category of crimes to prove another. genocide’s terminology for that of crimes against humanity demonstrates the reliance on one of a material offense against aviolent backdrop. As well, the linguistic substitution of limited geography, those of the Rwanda Tribunal prove genocidal intent by the commission Genocide Convention, Art. II(c). Jelisi Kayishema and Ruzindana Akayesu ü Genocide, according to some scholars,is an efficient solution. Acknowledging of of assuch. group the have survival would the that selectedfortheimpactupon persons their disappearance However, it may also consist of the desired destruction of a more limited number of the group, in which case it would constitute an intention to destroy a group en masse. may consist of desiring the extermination of a very large number of the members of , Trial Judgment, par. 82. , Trial Judgment, par.523. , Trial Judgment, par. 93. 136

135 and those members’ and those standing within The group. the 134 but also in “the 137 More 32

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w g a e r e .c o m 144 (2001). 143 genocidaires target groups treatment. harsh humiliating and especially leaders,suffered professional Trial Chamber foundprominent that Bosnian Muslim including civilians, and religious 142 141 140 wealthy 1,700 Jews,Hungarian group for survival.individuals’ significance Whereas infamousthe “Kasztnertrain”rescued understand that genocide may not be only systematic, but also selective. Tribunals the intent, genocidal of explanation contextual this Including collectives. the Tutsis based on the victims’ education and social prominence.” armedHutu militant of and Interahamwe began the against of other a campaign persecution substantial destruction. The jurisprudence of the Rwanda Tribunal proves that “the members century” in twentieth the expensive than quantitatively substantial extermination. Thejudicial “massof record killing less and logical ismore destruction substantial qualitatively ‘strategy,’ of this execution ‘ethnic cleanser.’” frustrated the resort of is “last the genocide argument: the 139 138 and leaders asfound religious in Thus the targeting of numerically and relatively few Bosnian Muslim policemen, physicians, as such.”have survivalof wouldthe impact that group “the theirthe upon disappearance politicalimportant military and objectives with respect to groups.” other police the instance, defend community the against external Thisfor standard survival threats. and religious leaders, community the is vulnerable tophysical and psychological harm. For

Valentino, 29. B.Valentino, ‘Final Solutions: The Causes of Mass Killing Genocide’,and (2000) 9

Jelisi Br Kayishema and Ruzindana Br ‘Kasztner, Rudolf (Israel) (1906-1957)’, in W. Laquer andJ.T. Baumel (eds.), ÿ ÿ anin anin ü

Qualitative substantiality does not privilege recognizesQualitativedoes rich but substantiality the and powerful, , Trial Judgment, par. 82. , Trial Judgment, par. 813, 843,851, 863-4, 870, 880-1, & 893. , Trial Judgment, par. 982, quoted Schabas, 201. 140 , Trial Judgment, par. 293. qua supportsgenocide’simplementation efficient as qualitatively

groupsand target individuals for their standing within those 143 Br the Tribunals jurisprudence protects community leaders Tribunalsthe protects for jurisprudence ÿ anin constituted genocide. Without medicals doctors 141 The Holocaust Encyclopedia Similarly, the 138 142 Security Studies Schabas extends extends Schabas In In words, other 139 In the the In Br 1, at 29. at29. 1, ÿ 144 anin

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w g a e r e .c o m 149 Trbi of both the Bosnian Muslims and the international community.” Serb leadership […]In addition, Srebrenica wasimportant due to its prominence in eyes the immense tothe Bosnian importance of Central region)surrounding strategic Podrinje were “Srebrenicaimportance. mention strategic (andthe judgment and symbolic Serbrenica’s case law, factors symbolic mental the and element material the harmonize offenses consider essential survival and emblematic representation. substantial the Yugoslaviadestruction, Tribunal andtheCourt of Bosnia Herzegovina The efficiency. than other reasons genocidaire’s potential efficiency considerations. and “in interpretation recognizesthus of longer-term effects genocide’s part” potential 148 possibility that the Muslim community in the area could reconstitute itself removal of all Bosnian Muslims from Srebrenica, thereby eliminating even the residual completed the “the of cleansing:ethnic transfer on repercussions genocidal the elaborated 147 146 spirit, of the will to live, and of life itself.” furthered because it “the of destruction process the of Tutsi of the group—destruction the 145 in and of itself a genocidal act, committed with life.”constructive “results in a grave and long-term disadvantage to a person’s ability to live a normal and instance, the Tribunals have elaborated “causing serious bodily or mental harm” as that which interpretation of partial destruction because it agrees with the crime’s physical element. For qualitative substantiality applies to the crime’s mental element, and so it is a persuasive

Krsti Krsti Krsti Akayesu Blagojevi ü , First Instance Verdict,Case No.X-KR-07/386, 16 October2009, pars. 784-5. ü ü ü Numerically Numerically limited but maysubstantially partial destruction for strategic prove , Appeal Judgment, par. 12. , Appeal Judgment, pars. 15 & 16. See also , Appeal Judgment, par. 31. , Trial Judgment, par.732. ü and Joki 145 ü , Trial Judgment, par. 645. tThe tThe Akayesu

Krsti trial judgmentalso foundsexual that violence,not though ü appealjudgmentand the 146 Prosecutor’s Office of Bosnia Herzegovina v. Milorad Similarly, the dolus specialis 149 Krsti Just as survival considerations considerations as survival Just , constituted destruction, constituted 148 ü In terms of qualitatively

Trbi appeal judgment ü

first instance instance first . ” 147 This This

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w g a e r e .c o m affirm Court of the Bosnia Herzegovina the the a threshold severity. Tribunals and the permanent International Criminal Court investigate and prosecute cases of judgments argued “genocide’s that character [i]sdefining acrime massive of proportions.” two those characteristic, as intentdistinguishing genocidal the agrees on who scholar misinterpreted every crimerepeating,lines. thesethe along to almost Opposed Chamber, presumed. Quantitative substantiality may also be compulsory, however, because the becausethe however, may becompulsory, also substantiality presumed. Quantitative logically is scale large genocide’s example, historical Holocaust’s the of enormity the Given imagination and misinterprets genocide. The Rwanda’s total Rwanda’s total population.” victims of approximately genocidethe at 800,000 toonemillion, nearly of one-seventh 152 151 150 statistics. For instance, the for destruction perhaps better than the Tribunals’the description captures preference insecticide.’” Hill strewn with bodieswas ‘like dead which hadsmall insects been killed off by “Bisesero that noted Tribunal Rwanda the of Chamber A Trial substantiality. quantitative identification. complementjurisprudence genocide’s groups, on namely protected their subjective

Krsti Kayishema and Ruzindana Kayishema and Ruzindana Mitrovi ü Accused participated in killing a great many people in the warehouse that day. What What is the that is important calculated. be precisely bytheAccused killed Bosniaks for the purposes of determining intent, it is not critical that the exact number of Yet, neitherYet, descriptions poetic nor statistics of destruction prove The Tribunals’ occasional overemphasis of quantitative substantiality lacks substantiality of The Tribunals’quantitative occasional overemphasis Occasionally, similar contextual interpretations appear in the Tribunals’ description of , Appeal Judgment, par. 8 & ü

trial judgment and the subsequent judgments before the War Crimes Section of 150 With the poetic horror that typifies genocide studies literature, this , Trial Judgment, par. 291. , Trial Judgment, par. 529. Kayishema andRuzindana 151

Br ÿ anin , Trial Judgment, par. 701. Krsti ü Appeal Chamber andthe judgmentreported “thenumber of the dolus specialis Br ÿ anin ad hoc Trial Trial . As 152 35

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w g a e r e .c o m thereof.” a partgroup, or the to the existence targeted of threat ofposing anyconcrete capable though generally unobserved case law, “itis irrelevant whether the conduct in question is accused’s statements. For instance, the the instance, For statements. accused’s destruction.” aimedintent whether group, not atthe actsor those actually in resulted group’s the completed as soon as prohibited acts are committed against group members with the requisite the Tutsi from using them to cross the river.” prevent from river to the to removeasked boatmen “he their canoes also escape: to prevent religious the group, 157 276. 156 Arrest against Omar Hassan Ahmad Al Bashir, Case No.ICC-02/05-01/09, P.T.Ch.I.,4 March 2009, par. 119. 155 154 et al sent millions to their death but because he killed a boy in cold blood. Transportation Administrator of the “Final Solution to the Jewish Question” notbecause he on his hands as well. Hausner tried to establish that the direct perpetration of the Gideon toproveHausner’s attempts Adolf that in acog Eichmann, machine, the had bloods genocide.constituted requisite intent intent. accused’s of, the inference allow the to as opposed thus demonstrate, oftheaftermath description the or killed actually While the 153 158 Nersessian, ‘Comparative Approaches to Punishing Hate’, 246.

T. Cole, ‘Adolf Eichmann’, 69. Ibid. Gacumbitsi v.Sylvestre Prosecutor Prosecutor v. OmarHassan Ahmad Al Bashir Mitrovi ., First Instance Verdict, Case No. X-KR-05/24, 9 September 2009, p. 118. , par. 471. In this vein, the the Bosniaks in the warehouse be killed, no matter nownumber. large the be killed, no in Bosniaks warehouse the the was that intentit made theirclear that in bytheir actions killings, the participated is even more important is that the Accused, as other members of the Detachment who 155 ü , First Instance Verdict, p. 109. See also Seealso 109. p. Verdict, Instance First , actus reus Combining these extremes and capturing intent, some judgments refer to the 154 Or as the International Criminal Court interpreted the Tribunals’ expressed mens rea must affect one or more members of an ethnical,national, racial, or Ndindabahizi does not does requires actual destruction: “the crimeisgenocide of

, Trial Judgment, Case No.ICTR-01-64-T, T.Ch.III., 17June 2004, par. 157 judgmentheld one that murder committed with the This holding is reminiscent of the Israeli Prosecutor Gacumbitsi , Decision on the Prosecution’s Application for a Warrant of a Warrant for Application Prosecution’s onthe , Decision Prosecutor’s Office of Bosnia Herzegovina v. Milos Stupar 156 This statementas opposed to the numbers judgmentcites the Accused’sinstructions 158 The Tribunals repeat TheTribunals 153

all 36

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w g a e r e .c o m this exercise, abandoningstatistics tofocus onindividual victims. 37

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voluntary commitment.” voluntary birth, with the exclusion of the more ‘mobile’ groups, which one joins through individual “‘stable’ […]constituted in a permanentfashion membership and of which is determined by préparatoires Convention’sthe application to thisobvious genocide, Chamber the referred tothe race, and they largely spoke the same language and practiced the same religion. To ensure failed to explain the differences among Rwandans; Hutu and Tutsi shared nationality and worship.” of mode or denomination religion, same the “share or groups religious and national factors;” religious cultural, linguistic, of irrespective region, geographical a with identified often languageculture;”common members have or of racial “hereditary traits groups physical citizenship, coupled with reciprocity of andrights duties;” members of “shareethnic groups a nationalmembers share “are of to alegal perceived groups basedbond oncommon and Tutsi and ethnic, Tutsi constituted national, religious groups.According racial, or to victims. In other words, the firstjudges debated whether Bosnian Muslims, Bosnian Croats, In early judgments, Chambers the struggled astowhether Convention the protected the 4.1 National, Ethnical, Racial, or Religious from derivedof peculiar the group.” the characteristics Robinson explained element group the of andreligious group areface destruction because group membership. of that In 1960 The 1948 Convention specifies genocide’s victims belong to a national, ethnical, racial, or 161 160 159 Robinson, 60. Ibid. Akayesu , par. 511. , Trial Judgment, par.512-515. 160 This seriatim approach, as Diane Marie Amman terms this early, abortive effort, . Another, though equally interpretationspecious, defined groups protected as C HAPTER 161 Yet, the

F OUR travaux :

“C dolus specialis infrequently mention stability group and IVILIAN 159 as “a specific motive for the act, as“aspecificmotive P

OPULATION ” Akayesu travaux , 38

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w g a e r e .c o m identification.subjective “Thevictim is perceivedby of perpetrator genocidethe as mentality.” possesses themethod requisitea particular adefendant group of whether determining seemed to want a firmer teleological grounding, a want afirmergrounding, teleological seemed to law to the facts, the mechanics of interpreting separate words as a whole. All the judgements law of of itsin itsapplication that either explicate, or statement not “did approach ensemble groups fourthe interpreted with assynonymous protected minorities. national I of infavor Chamber Trial one. seriatim ensemble an approach the explicitly rejected 166 93, at112. permanent” standard and standard permanent” characteristics.” religious they themselves belong and which to them displays specific national, ethnical, racial or individuals being asnot partof group the to which perpetrators the of crimethe considerthat 165 164 hand, the “positive” according victim distinguished the to perpetrator criteria. and the were groups in “positive” of Thepreviousapproach.” they protected that definitions theories of group identification. jurisprudence Tribunal’s that and foreshadowed Yugoslaviathe Tribunal’s alternative Rwanda Tribunal’s stable andinterpretation permanent survived, albeitin modified form,in 163 162 religion. and nationality change to right human permanence for asgrounds protection, Nations and United the hadpreviously confirmed the Amman, 113. D.M. Amman, ‘Group Mentality, Expressivism, and Genocide’, (2002) 2 Schabas, 133. Jelisi Staki ü ü Resolving this confusion, the The , Trial Judgment, par. 512. See also , Trial Judgment, par. 71. Jelisi

166 Jelisi

Chamber,inspiredby Commissionthe of report, “identif[ied]Experts’ ü trial trial replaced with identifications judgment “positive” these a “negative 164 Jelisi Addressing neither antecedent—

ü ’s negative identification—the identification—the ’s negative Rutaganda Jelisi ü , Trial Judgment, par. 71. 162 and Despite its flawed legal analysis, the raison d’agir Jelisi ü trial judgments trial Akayesu Kristi , areason to choose and apply International Criminal Law Review ü trial judgment judgment trial ’s “stable and

163 introduced introduced 165 On the other The 39

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w g a e r e .c o m February February 2003, par. 780. 172 Analysis of Government, Proposals for Redress 171 other groups, other relationshipthe with land.” the but also of its history, traditions, the relations between its members, the relationship with identification but referred to the perpetrator’s stigmatization. butreferred tothe perpetrator’s identification would bean assessment of intent perpetrator’s the todestroy group the in For instance, even early findings. the previous groups, the Tribunals, and so especially the Court of Bosnia Herzegovina, essentially rely on language, national feelings, religion, and the economic existence of national groups.” genocidethat would cause“disintegration politicalthe of and social institutions, of culture, definitions groups. of To thisprotected end multifaceted and on of identification negativethe Appeal reliance group rejection Chamber’s 170 The asasocial acollection of people together unit.” intangible—binding characteristics—often interpretation, JudgeMohamedShahabuddeen defined “A agroup. isgroup by constituted increasingly relied on these interpretations. In a dissenting opinion that became a persuasive Similarly, perspectives. subjective and from objective assessment allowed case-by-case Chamber the permanence, and of stability criteria objective members of an ethnic group.” Chamber held“it is that not disputed inin that Rwanda 1994, theTutsi were perceivedas 169 168 55. 167 himself/herself asbelonging saidthe to group.” belonginga group to slated for destruction. Insome instances, victim the may perceive

Prosecutor v. Elizaphan andGérard Ntakirutimana, Staki Blagojevi Krsti Jelisi Prosecutor v. George Rutaganda Blagojevi ü ü ü While reconcilingonacombination objective-subjective identification protected of , Trial Judgment, par. 21,quoting R.Lemkin, , Appeal Judgment,Partial Dissenting Opinion of Judge Shahabuddeen, par. 50. , Trial Judgment, par. 70. ü and Joki ü andJoki ü , Trial Judgment, par 666. ü trial judgment, continued: “a group is composed itsof individuals, 172

, Trial Judgment, Case No. ICTR-96-3-T, T.Ch.I., 6December1999, par. From the Convention’s literal text, the Chamber’s next task (2005),79. Staki 170 Axis Rule inOccupied Europe:Laws Occupation, of Trial Judgment,Case No.ICTR-96-17-T, T.Ch.I., 21 These definitions facilitated Thesedefinitions the 167 ü Although Although Ntakirutimana drewinspiration from Lemkin, quoting Jelisi ü 168 Rutaganda prioritized negative negative prioritized The Yugoslavia Tribunal Tribunal Yugoslavia The judgment, the Trial Trial the judgment, as such still discussed the the discussed still . Staki 171 ü

169 40

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w g a e r e .c o m intent, but as the discriminatory holiday demonstrates religious with Islamic an mistreatment Croats began on “the first day of Bajram.” occupation of Kotor Varoš municipality and their detention of Bosnian Muslims and Bosnian the targeted group.” targeted the targeting of group the or their use property, the languageof derogatory members toward of particular while group, excluding the members of groups;”other victims targetingdeliberately on and systematically account of membership of theira perpetrators themselves to violateconsider the very foundation of group;” the Ruzindana genocidal act against avictim because of the victim’s identity. intent findsa so that Chamber accusedcommitted the the that accused’sdiscriminatory the intent.” necessarily notgenocidal prove does reprehensible, reasons. appeal as“immaterial”dismisses targetingmembership solely on orfor grounds group other 176 intentfrom discriminatory 179 178 177 175 174 173 a victim against wascommitted acts words ‘as such,’ which conclude the statement of intent […] mean that one of the proscribed ethnical, national, racial or religious group, as such. According to the Appeal Chamber, “the According to the Convention, the perpetrator intends to destroy, in whole orin part, an 4.2 Group As Such but not necessarily necessarily not but

Br Kayishema and Ruzindana Akayesu Staki Ntakirutimana Krajišnik Karadzicand Mladi ÿ anin ü As credible evidence of discriminatory intent, the the intent, discriminatory of evidence credible As , AppealJudgment, par. 52. 174 , Trial Judgment, Par. 816. , Trial Judgment, par.523. , Trial Judgment, par. 856. Thus the Appeal Chamber separates not only criminal motive butalso judgments established “the perpetration of acts which violate, orwhich the , Appeal Judgment, par. 304. solely 178 ü , Decisionof Trial Chamber I,par. 94-5. The , par. 93. because of that membership.” dolus specialis Br

ÿ anin Chamber emphasizes that the Bosnian Serb military military Serb Bosnian the that emphasizes Chamber because . “Evidence demonstrating ethnic bias, however 179 of her of his membership or in group, protected the The coincidence of this operation and

173 Akayesu In fact, the 175 Yet, the Prosecutor establishes 177 and and“the physical Kayishema and Kayishema Ntakirumtimana 176 “the fact of

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w g a e r e .c o m 183 182 181 535. 180 Nyagatara. Palatin under Karera’s militiamen Interahamwe and policemen communal three that identifies judgment Karera individual victims, undermining thus “group assuch” the Forinstance, requirement. the of the Convention: toprotect the rights of groups to exist. individual findings,responsibility. Such nevertheless, to correspond objectthe andpurpose Staki “blood, notjust ink” anotherindividuals demonstrates frustration with genocide. Includingtheseindividuals puts humanity, emphasize which the difficulty establishingof intent, genocidal focus on the [individual victims], it is only by way of illustration of the crimes.” the of illustration of byway isit only victims], [individual confirmedShahabuddeen inhis this practice opinion; separate refer “ifdoes indictment the to evidenceand it.” soweintroduced on from six the million victims—but theincidentwas certainly indicative of Eichmann’s attitude make it the subject of a specific charge—it would not do to single out this one Jewish boy state’s case againstAdolf introduced a Eichmann, single episode,murderous “we did not Hutu woman. Consequently, they cannot constitute acts of genocide against the Tutsi a against they committed that were notes Chamber the victim, on inflicted the harm mental and bodily serious constitute acts above the “although concludes but torment woman’s the communal policeman beat a69-year old Hutu woman. The Chamber painstakingly details evidenceintroduced Interahamwemilitiamen, accused, judgment one the that two and

Cole, 69. Gacumbitsi Ibid Prosecutor v. François Karera ü . Appealnecessarily destructiveand Chamber expressed, notintent certainly not Occasionally, instead of identity-based discriminatory intent, the Chambers stress stress Chambers intent, the discriminatory identity-based of instead Occasionally, As Gideon Hausner, the Israeli Attorney-General and therefore the prosecutor in the inthe prosecutor the therefore and Attorney-General Israeli the Hausner, Gideon As , Appeal Judgment,Separate Opinionof Judge Shahabuddeen, par. 8. de facto 180 181 Unlike the Tribunal-imposed jurisdictional elements of crimes against against crimes of elements jurisdictional Tribunal-imposed the Unlike on the hands of otherwise high- and mid-level architects. control killed four Tutsi: Kabahaye, Murekezi, Ndingutse, and , Trial Judgment, Case No,ICTR-01-74-T, T.Ch.I., 7 December2007, par.

182 The ad hoc Tribunals likelyfollow this logic. Judge 183 Similarly, the Akayesu 42

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w g a e r e .c o m to a subsistence diet, systematic expulsion from their homes and deprivation of essential itsbring physical about in in destruction, includewhole or part, subjecting agroup of people to calculated life of conditions group the on inflicting “deliberately that held have Tribunals The 4.3 Vulnerable instead have imposed a vulnerability condition on the crime’s victims. genocidal they intent, elementto Just asthey systematic”“widespread definitional or added a 460. 187 186 massacres of Tutsi Rwanda,throughout including Kiguye Prefecture.” Tutsi. The events at Gitaw Hill formed part of a wider context of ethnically motivated genocidal intent, judgment. Combining from sources the which Tribunalsthe inferencethe propose of community. Some cases illustrate specific group victimization, such as the and destructive acts—they individualstargeted influential within theBosnian Muslim intent—the a day acts on occurred within community— Serbian the celebrated discriminatory more significantly,destroy hisintent to a protected group. This evidence combines 185 184 costly a way for him die.”to taken outside on St. Vitus’ day (28 June) […] he was told at the time that abullet was too virulence.” beaten special with group.” separate offense ora constituent act but as corroboration of the accused’s cruelty.

Prosecutor v. EmmanuelNdindabahizi Ibid., Br Akayesu actus reus ÿ anin, par. 881 Unfortunately, the Tribunals rarely follow the examples of of examples the follow rarely Tribunals the Unfortunately, On the other hand, the the hand, other the On 184 , Trial Judgment, par.721. Trial Judgment, par. 863. Like Hausner, the Prosecutor of the Rwanda Tribunal introduced evidence not of a of not evidence introduced Tribunal Rwanda the of Prosecutor the Hausner, Like allows elaboration of the suffering that the victims endured. For instance, the Ndindabahizi 186

Br held day “many that because they werekilled thousands were 185 These acts reveal not only the accused’s viciousness but, ÿ “Enver Burnic, a Bosnian Muslim former policeman, was anin , Trial Judgment, Case No. ICTR-01-71-T, T.Ch.I., 15July 2004, par. Trial Chamber specified that “Dr. Muahmuljin was Br ÿ 187 anin

and Ndindabahizi Ndindabahizi

43 .

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w g a e r e .c o m 193 192 191 April 1949, [1949] ICJ Reports 1,p. 24. and Ruzindana andits substantiality couldrequirementinclude the murder of only The children. punishment of “measures intended topreventbirths” mens rea 190 Tribunal for the former Yugoslavia, Arts. 3-5. 189 188 intended protect to differentinterests.” trial judgment, “offences under the Statute […] have different elements and, moreover, are medical supplies below aminimum vital standard.” protects menprotects and women, and adults children equally because neither the including thousands of women and children, even foetuses.” women, children, and the elderly. “The majority of the Tutsi victims were non-combatants, reflects the historical realities of genocide. As the ordinarythe meaning nor the object andpurpose of Genocidethe in Convention fact,and, prisoners of war. Geneva Conventions and Additional Protocol II of 1977, also protect civilians as well as and 3common of Grave Breaches to the of Article Geneva violations Conventions the 1949 against humanity require an attack on a civilian population, and war crimes, specifically against anational, ethnical, racial, orreligious group with the intent todestroy. Crimes children, and elderlythe not amountwould to genocide. disease,forcible transfer, and inflictedstarvation on civilians and refugees,including women, Genocide Convention, Art. II(d).

Statute of the International Criminal Tribunal forRwanda, Arts. 3 & 4. Statute of the International Criminal Ibid Akayesu Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania) Musema ., par. 128. Yet, that judgment and others specify that the accused targeted civilians, refugees, The Genocide Convention requires that the perpetrator commit the enumerated acts acts commit enumerated the perpetrator the requires that Convention The Genocide impose sex or age qualifications on the protected groups. Rather the Convention’s , Trial Judgment, par.469. , Trial Judgment, par. 157. judgmentemphasized not andonly victims’ protected non-combatant thus the 189 According to the principle of Accordinginterpretation principlethe effective to of

191

Musema 188 193 This interpretation strays neither from could include the killing of one sex, trial judgment implies, however, however, implies, judgment trial 192 The Genocide Convention Convention Genocide The 190 actus rea actus and the the and , Judgment of 9 Kayishema nor the the nor Akayesu 44

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w g a e r e .c o m vulnerability. greater refugee Perhaps, “refugee.” expresses to implies a significance categories international wouldcourt apply international law without regard basicto definitional Murambi Interahamwe Hill at andpursuing Tutsi attacking refugees.” region. in acts Bisesero the genocidal describethethe accusedGérardNtakirutimana’s term to internally displaced people. In eight of ten sub-paragraphs, the nationality or did “not cross an internationally recognized State border,” State aninternationally cross recognized did“not nationality or nationality.” defines refugee, among other criteria, as someone who is “outside the country of his erroneously Thethem 1951Conventiondub refugees. Relating Status tothe of Refugees Convention protects both civilians and combatants. interpretation and fails to correct the Chamber’s already moot argument because, again, the meaning, loses innocence principleof the contradicting any independent effective 199 198 197 196 195 194 irrelevance of the motive in the crime of genocide. nor legal responsibility Kayishema’sof victims would excuse genocide because of the andinvariablyhebut ledthese massacres.” orchestrated bloody prevent,failed to those under his control from slaughtering thousands ofinnocent civilians; only not and knew, legal guilt. “Kayishema moral and accused’s innocence with the their status under Geneva the Conventions butalsovulnerability their and virtuousness, contrasting F. Deng, Guiding Principles on Internal Displacement, UN Doc. E/CN.4/1998/53/Add.2 (1994). 1951 Convention Relating to the Status of Refugees,(1951) Ibid Ntakirutimana, Trbi Kayishema and Ruzindana ., par. 832(i). ü 198 , First Instance Verdict, par. 795. Similarly, that court emphasizes vulnerability through descriptions of the victims’ Besides inappropriately victimsBesides the ascivilians,thejudgments characterizing For instance, “on or about 18 April 1994, Gérard Ntakirutimana was with 196 Since the persecuted Rwandan Tutsi remained inside the country of their TrialJudgment, par. 832(i)-(x). , Trial Judgment, par. 516.

195 189 If read as synonymous with civilians, UNTS 137, Art. 1A(2). 194 Ntakirutimana Neither the moral guilt guilt moral the Neither 199 197 That an an That they constituted constituted they judgment used 45

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w g a e r e .c o m andfrom which nature, is their undermining specific beaims whatat the consideredto inference permitmassive from however, “the jurisprudence, scale of effect destructive [acts’] described in the convention, that act could still not be called genocide.” might acts it betothe similar and however atrocity of an act degree to the whatever intent], attack. Citing the attack. knowledge of the principle perpetrator’s knowledge of perpetrator’s principle the Rwanda Tribunal Serombaconvicted aiding of abetting and genocide, requires which only endured. As the Chamber explains, these facts do not demonstrate genocidal intent; the caused thisharm of inmay ahouse worship have to harm ultimate contributed the victimsthe mental or vulnerability harm—the pre-existing Tutsi’s areligious factand the that leader traditional safety. Under this particularlymaterial subjective seriousoffense—causing bodily traditional safety.” in inflee they began seekrefugee and homes, to weretargets their Tutsis the “because churches, parishes and would be protected and be ‘respected in these places,’” “sincethat the1959revolutions, whenever peopleinsecure, feltthey would gotothe in Nyange church.” in Nyange parish’s banana plantation, and expelled “verythese vulnerable […]Tutsi whosought refuge Massbecause celebrate herefused at theTutsi, for prohibitedfood to theirthe gathering mental harm gravity a genocidal causedbodily and of Athanase Seromba priest Catholic 201 200 ultimately pointless search for refuge. The 202 204 326. 203 205

Ibid. Kayishema and Ruzindana Ibid. Ibid. Prosecutor v. AthanaseSeromba Akayesu , par. 302. , par. 312. , par., 322, 329-331. In addition to the nature of the victims, the Tribunals emphasize the nature of the , Trial Judgment, par.519. travaux préparatoires 201 203 Unfortunately, the churches were only “perceived safe havens.” Thus Seromba perverted church;the longerno didit offerits , Trial Judgment, par. 305.

, Trial Judgment,Case No. ICTR-01-66-T, T.Ch.I., 13 December2006, par. , dolus specialis Akayesu Kayishema andRuzindana Kayishema held that “in the absence of [genocidal . 204

judgmentestablishes 205 The Tribunals’ Tribunals’ The 200 and 202

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w g a e r e .c o m character.” destroy the group in whole orin part need not always lead toa destruction of the same indeed takeaphysical biologicalor form, butthe accompanyingintent, by acts, those to opinion allows non-exterminatory acts. “From their nature, the listed (or initial) acts must destroy be biologically physically,or JudgeShahabuddeen’s dissenting butpersuasive destruction, andinmany alongcases were destroyed mosques with Catholic and inagainst employment, e.g.,by arbitrary theirdismissals, houses were markedfor of cattle.” theirkilled herds Ruzindana emphasized victim vulnerability longer-term through discrimination. The While the Convention’s Convention’s the While detainee.” drove a nail intothe foot of a detainee, removed the nail, and drove it into the foot of another 212 206 thirty paragraphs of the trial judgment, the machetes, spears,pangas, andother kill grenades, cudgels to weapons Tutsis.” the does not constitute individual genocide may attack intent. butevidence county[; and] foundation of group[;] the 211 2004, par. 656 & 686. 210 209 208 207

Ibid., Krsti Prosecutor v. Emmanuel Bagambiki, etal. Musema Kayishema and Ruzindana Akayesu Karadzicand Mladi ü par. 293. In addition to In this findings, category of , Appeal Judgment,Partial Dissenting Opinion of Judge Shahabuddeen, par. 48. , Trial Judgment par.523. , Trial Judgment, par. 907. 210 Chamber observed that “perpetrators setfire and Chamber looted that to[Tutsi’s] observed housesand 211 From these facts, the Tribunal may infer, but does not establish, 207

weapons the employed and bodily extent the of injury. ü , Decisionof Trial Chamber I,par. 94-5. Musema travaux , Trial Judgment, par. 93. 206 212 the scale of atrocities, their general nature, in a region or a

and Staki and the Tribunals’ jurisprudence require that this intent to to intent this that require jurisprudence Tribunals’ the and Bagambiki’ Musema ü found that “Bosnian found were that discriminated Muslims , Trial Judgment, Case No.ICTR-99-46-T, T.Ch.III., 25 February Bagambiki specifiedthat“the assailants used guns, s findings of physical suffering, the Tribunals Tribunals the suffering, physical of s findings Chamber repeated that “soldiers also

208 In other words, an Kayishema and dolus specialis 209 Within 47 .

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religion, and the “disintegration of the political and social institutions, of culture, language, national feelings, reflects and Lemkin’s broad attacks of contextual objective— genocide’s understanding Theinclusion of the nature. destructive and attacks’ the intent discriminatory accused’s members of a group. Yet, the Chambers referenced these targeted attacks to prove atleast the property the the not and thisaffected destruction prohibited act, Not a“Conventionally” 214 215 213 churches.”

Lemkin, 79 [emphasis added]. Mitrovi Staki ü wives and families to Poto would bekilled if they surrendered or remained inSrebrenica, orwentwith their for 60kilometers over a attest deeplyto belief, heldwhich be out turned to true: they footescape enemy on through andmine fields and terrains territory uncompromising The fact that 15,000 men,most of whom were unarmed, were willing to attempt an , Trial Judgment. par. 544. ü , Trial Judgment, pg. 99. 213 Thejudgments of Court the of Bosnia Herzegovina repeat economic existence economic existence

þ ari. of of national groups.” 214

215

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w g a e r e .c o m emphasis onthenumber of Thus perpetrators. the Yugoslavia and Tribunals Rwanda prefer facilitates the Chambers’ ultimate reliance on systematic perpetration, especially given the requirement of a genocidal courtsplan, included the planning evidence. This as hedging intent. Although Convention the purposely andexcluded Chambers the explicitly a rejected humanityinfer of chapeau against genocidal impose the crimes to Herzegovina elements participation, Chambers the deduceintention; Tribunalsthe andtheCourt of Bosnia Mikaeli Muhimana specifically but in most judgments more generally. And from wereintended destroy which theaccused Tutsi to the group,” participated in massacres, the that conclusion irresistible the to Chamber the “lead individuals, vulnerable involvingmany numbers of andperpetrators injuringmany numbers of civilians orotherwise in of andnature the planned As discussed attacks systematic precedingthe chapters, 5.1 crime. of the status special the elements of crimes against humanity to establish genocide’s commission and thereby reduce jurisdictional the on rely Herzegovina of Bosnia Court of Section the Warthe Crimes accused. The International Criminal Tribunals for the former Yugoslavia and Rwanda and of the person tothe opposed crimethe as the of context on reliance Chambers’ the and excuse crime.” of the circumstances commit acrime, even genocide,may not always be difficult or impossible to discern from theto “intent The accused. the from confession a absent intent genocidal proving of difficulty Again, the Tribunals allow inferences from “certain presumptions of fact” because of the 516. 217 2003, par. 624. 216

Prosecutor v. Mikaeli Muhimana Prosecutor v. Jean de Dieu Kamuhanda Dolus Specialis C HAPTER in the Jurisprudence F IVE 216

, Trial Judgment, CaseNo. ICTR-95-1B, T.Ch.III., 28February 2005, par. While I acknowledge the challenge, Idisagree with the :

“W , Trial Judgment, Case No.ICTR- 99-54A-T, T.Ch.II., 22 January ITH THE I NTENT TO D ESTROY 217 in the case of ” 49

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w g a e r e .c o m genocide have a more stringent actus reus and mens rea, but the injury it aims to redress is an “Notonlyrejects its between antecedent. criminal andgenocide equivalence does international criminal law. David Nersessian, alecturer at Boston University School of Law, within genocide devalues elements jurisdictional humanity’s against crimes from intent between the two offenses explain this confusion. Yet, the judicial interpretation of genocidal The historical development of from genocide persecution and the continuinglikeness civilians. Herzegovina, protect Bosnia of Code Criminal the and Tribunals the of Statutes in the codified as humanity, annihilation of national, ethnical, racial, orreligious groups, war crimes and crimes against religious composition. Again, whereas the Genocide Convention prevents and punishes the Tribunals refer to the victim groups’ non-combatant status but not national, ethnical, racial, or genocidal intent but instead as innocent victims of the perpetrator’s cruelty. In this way, the Tribunals’judgments underscore individuals’ suffering andnot often as factual evidence of individualwords, becausevictims areattacked of theirmembership. group Nevertheless the population. The crime protects national, ethnical,racial, orreligious groups as such. In other systematic attacks. or of widespread againsta backdrop occur substantial widespread destruction.or Unlike crimes against humanity, need genocide not quantitatively emphasize and interpretations contextual ignore occasionally Chambers of ageographicmeasurement permits destruction, the andaqualitativeinterpretations, andauthoritative early, text the to according GenocideConvention, the Even though attacks. disturbed genocidaires. Besides system criminality, the Tribunals insist on widespread psychologically or theories oftoideologically motivated evil asopposed the collective Similarly, neither does the crime of genocide necessarily destroy a civilian 50

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w g a e r e .c o m Chamber’s insistence, and the similar insistence of other Chambers, on collectively and genocide. From the perspective of the principle of effective interpretation, this Trial inconsistent behavior” did notconform to the judges’ conception of either genocidaires or the Serbianthe Adolf. himself as he presented Chamber, before the Trial At initialappearance the purpose. explicit lightly.” beimposed will crime this for convictions that danger was group for destructiontargeted in its entirety inor […] guardagainstsubstantial part a echoes this distinction. “The demanding proof of specific intent and the showing that the 222 221 accused.” of the actual with conduct the be intentmust counterbalanced of accused an the determine Ignoring warningof retroactive the the They dismiss manifestations, whether actions, omissions, or speech, of 220 219 218 possibility of this scale. The the intention encompasses this that makes clear judgment assuch.”Infact, the of a group form”—and intenttotal the membersextermination and total of […] of destruction—“general clearly Thus thejudgment the between of distinguishes scale destruction—“all-embracing found, harm issuemore than severe the in at persecution.”

Schabas, 214. Nersessian, ‘Comparative Approaches to Punishing Hate’, 246 & 225. Jelisi Prosecutor v. Ignace Bagilishema Krsti ü ü Yet, the Chambers have imposed convictions without regard for these requirements. i.e., a whole people or part of partof a people. or a whole people i.e., crime, which is general and total: extermination the membersof of a group as such; form is already indicated by definitionThis the of criminalthe intention take. necessary in this to liable is crime this which form total all-embracing the say, would One State which adopts in its domestic legislation the definition of the crime of genocide? in law of a is criminal the its endows What special with character crime itthat this , Appeal Judgment, par.87, quoted in , Trial Judgment, par. 102. 221 —Trial Chamber I of the Yugoslavia Tribunal acquitted Jelisi acquitted Tribunal Yugoslavia the I of Chamber —Trial 222 His “disturbed personality,” reflected in as his “opportunistic and Br

, Trial Judgment, Case No. ICTR-95-1A-T, T.Ch.I., 7 June 2001, par. 63. ÿ anin Trial Chamber, repeating the the repeating Trial Chamber, Bagilishema Br ÿ anin , Trial Judgment, par. 990. 219

218 Chamber—“the use of context to As the District Court of Jerusalem 220

Krsti dolus specialis ü Appeal Chamber, ü despite his his despite . 51

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w g a e r e .c o m stigma.” grave a similarly carry and heinous similarly be may humanity against crimes of within international criminal law. “One shouldnot be blind tothe fact some that categories Internationalthe Commission of Inquiry on Darfur affirmedno that such hierarchy exists crimes against humanity as premeditated murder stands to intentional homicide.” condemnation and opprobrium.” crimes this Tribunal has the duty to punish, the crime of genocide is singled out for special “crimecrimes.” the of 2000 506. 228 227 226 par. 15. See also 225 224 223 moral opprobrium. 1998 The idea, espoused early Though the notcarry thecrimejudgments this does genocide of greater Crime5.2 “The ofCrimes” when the judges discuss intent, they reject the “ordinary men” thesis. The the inconclusive studies on a Mad Nazi or otherwise authoritarian personality. Unfortunately, others affirm that ordinary individuals commit extraordinary evil. In fact, Waller discusses also fails. James Waller, Hannah Arendt, Tim Cole, and Christopher Browning, among hatred ethnical than personality individual more balancedthe modulated defects” without islikely“the more personality unbalanced borderline be[…] drawnextremeto to racial and genocideis Yet, flawed. systematically Appeal the reasoningthat perpetrated Chamber’s execution of Bosnian Muslim men.’” officer who is unlikely haveto ever instigated a plan such as the one devised for the mass found acquitting General, asareserved the judgment, “he‘appeared and career serious Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, par. par. Secretary-General, Nations United the to Darfur on ofInquiry Commission International of the Report Schabas, 12.

Krsti Prosecutor v. Jean Kambanda Krsti Jelisi Genocide inInternationalLaw ü ü ü Prosecutor v.Omar Serushago , Appeal Judgment, par. 36. , Appeal Judgment,Partial Dissenting Opinion of Judge Shahabuddeen, par. 131. , Appeal Judgment, par. 70. 225 According to the According to , Trial Judgment, CaseNo. ICTR-97-23-S, T.Ch.I., 4September1998, par. 16.

Kambanda 226 , Trial Judgment, Case No.ICTR-98-39-S, T.Ch.I.,5 February 1999, Highlighting this alleged hierarchy as the subtitle of his , William Schabas explained that “ that explained Schabas William , 224

and 1999 Krsti ü appeal judgment, “among appeal the grievous Serushago judgments defined genocide as genocide stands to genocide stands Krsti ü appeal 227

By 2005, 228 223 52

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w g a e r e .c o m influences the Tribunals, too. For instance, the groups—conforms to the Convention’s “as such” element.Yet, that firstinterpretation thousands of Tutsi refugees encircled by an even larger number of primarily civilian groups.” are very committed by nature and individuals against asmembers typically groups of “Aggression, crimes of war, crimes against humanity, and genocide are deeds that by their as international crimes. Fletcher George Lecture, crimes collective defined 2002 Storrs involvingmultiple individuals,more specifically multiple perpetrators. AtYale University’s international humanitarian law’, capable of attracting the same sentence.” crimes under the Statute, and that all of the crimes specified therein are ‘serious violations of of crimes, namely a 2001 appeal decision of the Rwanda Tribunal. “There is no hierarchy of aspect. aspect. synonymous with or, at least, part of a systematic attack—effectively removes the preventive ifprevention, broadly defined. Yet,the court’s restrictive definition—planning as actsactuallyin not destruction.”those group's the result againstcommitted group members with intent requisite the aimed atthe group,whether or the latter is results-based. “The crime of genocide is completed as soon as prohibited acts are Nersessianground, distinguishes genocide and persecution; the whereas formeris inchoate, the on Convention the punish the intent todestroy,in whole or in part, a group as such. The Convention is, after all, 231 230 229 cited the The Report Fletcher, 1514. Nersessian, ‘Comparative Approaches to Punishing Hate’, 246. Kayishema and Ruzindana Equally ineffective in respectthis is courts’ the understanding of genocide as Rather, it is as an inchoate offense that genocide has the power to prevent as well as

231 The secondinterpretation—committed againstindividuals asmembers of ad hoc Prevention , Appeal, Judgment, par. 367. courts’ reversals of the

and Punishment of the Crime of Genocide. On this Ndindabahizi obiter dictum 230

Insistence on planning may assist assist may planning on Insistence judgment noted, “a gathering of that genocide is genocide crime the that 229

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w g a e r e .c o m in of Court As theInternational Justicethe opinioned redundancy. of disapprove interpretation treaty and statutory of principles The redundant. genocide Court the interpret as special of Bosnia surplus in Herzegovina of or terms surplus in the sense of additional. Unfortunately, the International Criminal Tribunals and has denied thishierarchy. Therefore genocide is not special in sensethe of superior but law criminal International importance. moral or hierarchical crime’s the not is status special participation. participate, Herzegovina acquitted Mr.MiladinHerzegovina acquitted Stevanovi 236 05/24-2, 29 July 2008, p.86-90. 235 234 233 Jelisi 232 place in Rwanda is not dispositive of questionthe of accused’sthe innocence guilt.”or the Again,according to attackers.” the destructive result. Nor does it exclude orexcuse that anyone did possess “undesirables” not implydoes everyone that operating within the genocidal machine intended Reich instituted the state machinery to exterminate Jews, Gypsies, Slavs, and other line between genocide and crimes againsthumanity. For instance, the fact that the Third requirement. intent, is necessary not only from a human rights perspective but also as a Convention interpretation, Ambos, 834. Fletcher, 1523.

Prosecutor’s Office of Bosnia Herzegovina v.Miladin Stevanovi Kayishema and Ruzindana Ndindabahizi ü could harbor destructive intent as much as Stevanovi Like Kai Ambos fittingly characterizes genocide’s genocide’s KaiLike Ambos fittingly characterizes To prove the individual intention by reference to the crime’s commission erases the the erases commission crime’s the to reference by intention individual the prove To 232 235 ThoughFletcher “lone dismisses the genocidaire” asasuperficial but the Yugoslavia Tribunal acquitted Mr. Goran Jelisi Goran Mr. acquitted Tribunal Yugoslavia the but , Trial Judgment, par. 458. 233 Ibelieveindividual that criminal responsibility,specific established through Kayishema andRuzindana , Trial Judgment, par. 273.

ü of of becausegenocide ofhis refusal to Chamber, “afindinggenocide that took Corfu Channel Corfu ü , First Instance Verdict, Case No. X-KR- dolus ü did not. The Court of Bosnia as surplus, ü case, in spite of his active hisactive of spite in 236 dolus specialis genocide’s 234

54 .

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w g a e r e .c o m 237 from identified infer sources which to indemonstrated precedingthe chapters, Yugoslaviathe andRwanda Tribunals havenot only overturning the case law, will undoubtedly increase the difficulty of demonstrating intent. As widespread commission a civilianagainst population. Resolving conflict, essentially this Tribunals’ judgments which focus on systematic, meaning planned and collective, as well as intent should concentrate on the individual, unlike the majority of the International Criminal morally collectives— massrobbed perpetrate the crimes, judicial interpretation of genocidal Convention’s mental wouldelement maintain Convention’s the and object purpose. As opposeddoingto violence tothe terms,interpretation effective of Genocidethe frame preventive strategies for individually-lead group destruction. forframework therecognition preventionand so of collective genocide crimes; should thus includemust understanding Crimes these perpetrators. against humanity a provide understanding. and prevention about reminder the with conclude genocide. Examining these alternatives is beyond the scope of this project. Instead, I perhaps the impossibility of proving intent, another alternative is to eliminate the crime of which resemble the jurisdictional elements of crimes against humanity. In the face of

Corfu Channel effects.’ terms, bein manner tohaveappropriate construed clauses themselves enablingthe a a dispute isreferred must, totheCourt if it notdoes involve doing violence to their of purport or effect […] ‘in case of doubt, the clauses of a special agreement by which admit that a provision of this sort occurring in a special agreement should be devoid it beindeed would interpretation incompatible accepted rules generally the with of to Given that “ordinary men”—neither psychologically predisposed individuals nor nor individuals predisposed psychologically men”—neither “ordinary that Given Because ordinary people commit extraordinary evil, any effective preventive strategy strategy preventive effective any evil, extraordinary commit people ordinary Because , p.24. 237

dolus specialis but also have privileged those sources 55

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w g a e r e .c o m Prosecutor v.SylvestreGacumbitsi Prosecutor v.ZejnilDelali ______Prosecutor v.RadoslavBr ______Prosecutor v.SimonBikindi ______Prosecutor v.JeanBoscoBarayagwiza etal Prosecutor v.ThéonesteBagosora etal ______ProsecutorIgnace Bagilishema v. Prosecutor v.MichelBagaragaza ______Prosecutor v.JeanPaulAkayesu 1.1 Judgments 1. Primary Sources Prosecutor v.VidojeBlagojevi Prosecutor v.PaulBisengimana June 2004. November 1998. September 2004. September 2004. T.Ch.I. Sec.A. 17 January 2005. 2007. (2003). 18 December 2008. June 2001. November 2009. September 1998. April April 2006. December 2008. Appeal Judgment. Case No. IT-99-36-A. A.Ch. 3April 2007. Appeal Judgment. Case No. IT-02-60-A. A.Ch. 9May 2007. Appeal Judgment.Case No.ICTR-99-52-A. A.Ch.28 November Appeal Judgment. Case No. ICTR-95-1A-A. A.Ch. 3July 2002. Appeal Judgment.Case No.ICTR-96-04-A. A.Ch.1 June 2001. ÿ ü anin et al. . Trial Judgment.Case No. ICTR-01-72-T. T.Ch.III. 2 ü andDraganJoki . Trial Judgment. Case No. IT-99-36-T. T.Ch.II. 1 . Trial Judgment. Case No. ICTR-00-60-T. T.Ch.II. 13 . Trial Judgment. Case No. ICTR-96-04-T. T.Ch.I. 2 Trial Judgment. Case No. IT-96-21-T. T.Ch.I. 16 . Trial Judgment. Case No. ICTR-05-86-S. T.Ch.III. 17 . Trial Judgment. Case No. ICTR-95-1A-T. T.Ch.I. 7 . Trial Judgment. Case No. ICTR-01-64-T. T.Ch.III. 17 B IBLIOGRAPHY . Trial Judgment. Case No. ICTR-98-41-T. T.Ch.I. . Trial Judgment. Case No. ICTR-99-52-T ü . Trial Judgment. Case No. IT-02-60-T.

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w g a e r e .c o m ______Prosecutor v.RadislavKrsti ______Prosecutor v.Mom ______Prosecutor v.ClémentKayishema andObedRuzindana ______Prosecutor v.François Karera Prosecutor v.RadovanKaradži ______Prosecutor v.JeandeDieuKamuhanda ______Prosecutor v. Prosecutor v.Callixte Kalimanzira ______Prosecutor v.JuvénalKajelijeli ______Prosecutor v.GoranJelisi ______September 2006. 2001 95-01-T. T.Ch.II. 21May 1999. 2009. December 2007. July 1996. Procedure andEvidence].Cases Nos.IT-95-5-R61and T.Ch.I. 11 IT-95-18-R61. Consideration of the Indictment within the Framework of Rule 61 of the Rules of 2005. 22 T.Ch.II. January 2003. 2000. September 1998. June 2009. December 2003. 1999.

Jean Kambanda þ ilo Krajišnik Appeal Judgment. Case No. IT-98-33-A. A.Ch. 19 April 2004. Appeal Judgment. Case No. IT-00-39-A. A.Ch. 17 March 2009. Appeal Judgment. Case No. IT-95-01-A. A.Ch. 1June 2001. Appeal Case Judgment. No. ICTR Appeal Case Judgment. No. ICTR-99-54A-A. A.Ch. 19September Appeal Judgment. Case No. ICTR-97-23-A. A.Ch. 19October Appeal Judgment. Case No. ICTR-98-44A-A. A.Ch. 23 May 2005. Appeal Judgment. Case No. IT-95-10-A. A.Ch. 5July 2001. Appeal Judgment. Case No. ICTR-01-64-A. A.Ch. 7July 2006. ü . Trial Judgment.Case No. IT-95-10-T. T.Ch.I. 14 December ü . Trial Judgment.Case No. IT-98-33-T. T.Ch.I. 2 August . Trial Judgment. Case No. ICTR-97-23-S. T.Ch.I. 4 . Trial Judgment. Case No. ICTR-01-74-T. T.Ch.I. 7 ü . Trial Judgment. Case No. ICTR-98-44A-T. T.Ch.II. 1 andRatkoMladi . Trial Judgment. Case No. IT-00-39-T. T.Ch.I. 27 . Trial Judgment. Case No. ICTR-05-88-T. T.Ch.III. 22 . Trial Judgment. Case No. ICTR-99-54A-T. ü . Decision of Trial Chamber I[on the . Trial Judgment. Case No. ICTR- - 01-74-A. A.Ch. 2February 57

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w g a e r e .c o m Prosecutor v.ElizaphanNtakirutimana andGerard Ntakirutimana ______AndréNtagerura etal ______Hormisdas Nsengimana Musema Prosecutor v.Alfred ______Muhumana Prosecutor v.Mikaeli Niyitegeka Prosecutor v.Eliezer ______Prosecutor v.EmmanuelNdindabahizi Prosecutor Nchamihigo v.Simeon ______Prosecutor v.Ferdinand Nahimanaetal ______Prosecutor v.TharcisseMuvunyi ______Prosecutor v.JeanMpambara Prosecutor v.DragoljubKunarac etal. Nos. ICTR-96-10-TNos. and ICTR-96-17-T. 21T.Ch.I. February 2003. 25 February 2004. 17 November 2009. 2003. February 2005. September 2006. 2007. 15 July 2004. November 2008. 2007. 3 December 2003. 2008. September 2006. 2001. February 2002. January January 2000. Appeal Judgment. Case No. ICTR-99-46-A. A.Ch. 7July 2006. Appeal Judgment. Case No. ICTR-95-1B-A. A.Ch. 21 May 2007. Appeal Judgment.Case No.ICTR-01-71-A. A.Ch.16 January Appeal Judgment.Case No.ICTR-99-52-A. A.Ch.28 November Appeal Case Judgment. No. ICTR-00-55A-A. A.Ch. 29August Appeal Judgment.Case No.ICTR-96-13-. A.Ch.16 November . Trial Judgment.Case No. ICTR-96-13-T. T.Ch.I. 27 . Trial Judgment.Case No. ICTR-01-65-T. T.Ch.I. 11 . Trial Judgment. Case No. ICTR-96-14-T. T.Ch.I. 16 May . Trial Judgment.Case No. ICTR-00-55A-T. T.Ch.II. 12 . Trial Judgment. Case No. ICTR-95-1B-T. T.Ch.III. 28 . Trial Judgment. Case No. ICTR-01-63-T. T.Ch.III. 12 . Trial Judgment. Case No. ICTR-99-46-T. T.Ch.III. . Trial Judgment. Case No. ICTR-01-71-T. T.Ch.I. Trial Judgment. Case No. IT-96-23-T. T.Ch.I. 22 . Trial Judgment. Case No. ICTR-01-69-T. T.Ch.I. . Trial Judgment. Case No. ICTR-97-19-T. T.Ch.I. . Trial Judgment. Case Case Judgment. . Trial 58

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w g a e r e .c o m ______Prosecutor v.Protais Zigiranyirazo ______Prosecutor v.AloysSimba ______OmarSerushago ProsecutorJoseph Serugendo v. ______Prosecutor v. Staki Milomir ______ProsecutorSeromba v. ______Georges Ruggiu Prosecutor v.Tharcisse Renzaho ______Prosecutor v.LaurentSemanza Prosecutor v.AndréRwamakuba ______George Rutaganda Rukundo ______Emmanuel 2009. December 2008. 2007. 2005. February 1999. 2006. 2006. May 2003. 2009. A.Ch. 13 December 2004. September 2006. December 1999. 27 February 2009. 2000. . Trial Judgment.Case No. ICTR-01-66-T. T.Ch.I. 13 December Appeal Judgment. Case No.ICTR-01-73-A. A.Ch.16 November Appeal Judgment.Case No.ICTR-01-76-A. A.Ch.27 November Appeal Judgment.Case No.ICTR-98-39-A. A.Ch.April 6 2000. Appeal Judgment. Case No. IT-97-24-A. A.Ch. 22March 2006. Appeal Judgment. Case No. ICTR-01-66-A. A.Ch. 12March 2008. Appeal Judgment.Case No.ICTR-97-20-A. A.Ch.May 20 2005. Appeal Case Judgment. Nos.ICTR-96-10-A and ICTR-96-17-A. Appeal Judgment.Case No.ICTR-96-03-A. A.Ch.May 26 2003. . Trial Judgment. Case No. ICTR-01-76-T. T.Ch.I. 13 December ü . Trial Judgment. Case No. IT-97-24-T. T.Ch.II. 31 July 2003. . Trial Judgment. Case No. ICTR-97-20-T. T.Ch.III. 15 . Trial Judgment. Case No. ICTR-97-32-I. T.Ch.I. 1 June . Trial Judgment. Case No. ICTR-05-84-I. T.Ch.I. 12 June . Trial Judgment. Case No. ICTR-98-39-S. T.Ch.I. 5 . Trial Judgment. Case No. ICTR-97-31-T. T.Ch.I. 14 July . Trial Judgment.Case No. ICTR-98-44C-T. T.Ch.III. 20 . Trial Judgment. Case ICTR-96-3-T. No. T.Ch.I. 6 . Trial Judgment. Case No. ICTR-01-73-T. T.Ch.III. 18 . Trial Judgment.Case No. ICTR-01-70-T. T.Ch.II. 59

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w g a e r e .c o m Statue of the International Criminal Tribunal for Rwanda. UNDoc. S/RES/955 (1994). Report of the International Commission of Inquiry on Darfur to the United Nations Secretary- Draft Code of Crimes against the Peace and Security of Mankind. 1996 YILC Vol. II(part Deng, F. Guiding Principles on Internal Displacement. UN Doc. E/CN.4/1998/53/Add.2 Agreement by the Government of the United States of America, the Provisional Government 1998 Rome of Statute Internationalthe 2187 Criminal Court. 1951 Convention Status Relating tothe of (1951) Refugees. 1948 Convention Preventionthe on and Punishment of Crimethe of Genocide. 78 Sources Primary Other 1.2 ChannelCaseCorfu (United KingdomofGreat Britain andNorthern Irelandv. Albania) Application oftheConvention on the Prevention andPunishment oftheCrime ofGenocide ______MilosStuparet al France et al. v. Göringetal.France etal. Prosecutor Bashir v.OmarHassan AhmadAl ______Milorad ______MiladinStevanovi Prosecutor’sof Office BosniaHerzegovina v.PetarMitrovi General (2005). 2). (1994). Majorthe War Criminals of EuropeanAxis.the 82 (1951) Northern Ireland, and the Union of Soviet SocialistRepublics for the Prosecution of of the French Republic, the Government of the United Kingdom of Great Britain and Series (1948). July 2008. International International of Court Justice. Judgmentof 9 April [1949] ICJReports 1.1949. Judgment of [2007] 26 February ICJ Rep.43.2007. (Bosnia andHerzegovina v.SerbiaandMontenegro) 01/09. P.T.Ch.I. 4 March 2009. a Warrant of Arrestagainst Omar Hassan Ahmad Al Bashir. CaseNo.ICC-02/05- 2009. September 2009. X-KR-05/24-1.No. 29 July 2008. 137.

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