Every individual is bound on international law, not to commit international crimes such as genocide, crimes against humanity or war crimes. This is regardless of whether the individual acts through a state or non-state actor. In the following three videos, we will study three so called core crimes, genocide, crimes against humanity, and war crimes. We will explore how these crimes evolved in the practice of international criminal courts and tribunals. And our investigation starts with a crime that is often called the crime of crimes, genocide. You may have heard the term genocide in various contexts. The holocaust, the Maroush regime, Rwanda, Srebrenica, Darfur, or more recently the attacks against the Yezidi community in Iraq. But what is genocide? In many cases, atrocities are labelled as genocide, but they do not amount to genocide in legal terms. For instance, ethnic cleansing of territories is often described as genocide, but it does not necessarily qualify as genocide in the legal sense. In this video, we will find out why. We will see that genocide is difficult to establish through evidence. Let us first of all start with a term. The term genocide was first officially used in 1944 by the Polish-Jewish lawyer, Raphael Lemkin. Lemkin had witnessed the holocaust. He used the word genocide to describe the destruction of the essential foundations of the life of Jews in Eastern Europe. The word is composed of the term Genos, which means race or tribe. And Caedere, which means to kill. Lemkin referred to destruction in holistic sense, which included destruction of political and social institutions, culture, language, national feelings, religion and even economic existence. One of the distinctive features of genocide is that groups are attacked for being rather than for doing. Based on the influence of Lemkin, the Nuremberg prosecution included genocide in its indictment. However, the crime was not specifically mentioned in the judgment. Instead, the Holocaust was punished under crimes against humanity. A crime that we will discuss in the next video. One year after the Nuremberg judgement, the UN General Assembly adopted a resolution in which it affirmed that genocide is a crime under international law. The crime was defined for the first time in the United Nations Convention on the prevention and punishment of the crime of genocide. In short, the Genocide Convention. Let us now take a look at the definition of genocide in the convention. This definition is also reproduced in the statutes of the ad hoc tribunals and the international criminal court. Genocide means any of the following acts, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. A, killing member of the group. B, causing serious bodily or mental harm to members of the group. C, deliberately inflicting on the group conditions of life calculated to bring about it's physical destruction in whole or in part. D, imposing measures intended to prevent births within the group. And E, forcibly transferring children of the group to another group. As we just saw, the definition of genocide contains several separate elements. But the text does not really tell us how genocide can be established in court. In this lecture, we will have a closer look at three fundamental elements of the definition. The protected groups, genocidal intent and the concept of destruction. We will study how they have been interpreted. First of all, the protected groups. According to the Genocide Convention, genocide is a crime directed at specific groups recognized under international law. The crime can therefore only be committed against national, ethnic, racial, or religious groups. This means that extermination based on for example, political opinion or state assigned social class, is not covered. This is understandable in light of the historical context. The purpose was to limit protection to groups characterized by certain degree of stability and permanence. International criminal courts and tribunals have confirmed that this list of groups is conclusive. But the group requirement can be shown by combination of objective and subjective factors, including the perception of the respective group itself. Self perception was decisive in the context of the Rwandan genocide, since the two main ethnic groups Hutu and Tutsi, speak the same language, share the same religion, and have a common cultural identity. The second and most difficult element of genocide is to prove the intent of the perpetrator to destroy the group in whole or in part. This is referred to as specific intent. Intent is particularly hard to establish since it is difficult to look into the mind of the perpetrator. In the case of the Holocaust, intent could be shown by Nazi documentation, think for example of Mein Kampf. In modern context however, this becomes more difficult. Often, a genocidal plan or policy is used to illustrate intent. In Rwanda, atrocities were large scale. The Hutu allegedly killed more than 75% of the Tutsi population, living in Rwanda. The Akayesu case before the Rwanda Tribunal, the ICTR, was the first case in which genocide was prosecuted before an international tribunal. The tribunal inferred genocidal intent from four different factors. First, statements indicating genocidal intent such as the qualification of the Tutsi population as cockroaches. Second, conscious planning. Third, the systematic targeting of the Tutsis by the Hutu, enforce the scale of the atrocities. The Yugoslavia tribunal established in a number of historic documents that the massacre of Bosnian Muslims in Srebrenica constituted genocide. Genocide was more difficult to establish in light of the limited number of victims. There was evidence that 7,000 to 8,000 Bosnian Muslim men were killed in the enclave. The tribunal found that this was large enough to constitute genocide. The first decision was the Krstić judgement had established genocide by reference to a number of circumstances. In particular, the order to kill Bosnian Muslim military aged men and the forcible transfer of women, children and elderly. It's suggested that the killings seen together was a separation of women, children, and elderly were meant to destroy the Bosnian Muslim population in Screbrenica as a group. The third element of Genocide is destruction in whole or in part. According to judgements of the ad hoc tribunals, and the International Court of Justice in Bosnia-Herzegovina versus Serbia, and Croatia versus Serbia, destruction is meant in the physical sense. And not just in the sense of the destruction of the identity of the group. The mere intent to remove a group from its territory or home is not enough. What destruction in part exactly means is unclear. The Yugoslavia tribunal found that the action must target a substantial part of the group. And taking this into account, it confirmed that the Srebrenica massacre did indeed constitute genocide. We've just discussed three key elements. The ICC elements of crime have added a specific contextual element to genocide that is not in the genocide convention. They clarify that the conduct must either take place in the context of a manifest pattern of similar conduct directed against the group. Or that must be of a kind that could in itself affect the destruction of the targeted group. In the case against Sudanese president Omar al Bashir, this criterion was used to argue that genocide exists only when the threat against the existence of the targeted group or part thereof, becomes concrete and real, as opposed to just being latent or hypothetical. But this reading has a concrete threat based crime contrast with the ambition to prevent even emerging patterns of genocide. It is therefore, disputed. To sum up, genocide is frequently invoked in popular language. We've seen in this video, however, that the crime of genocide has a very particular meaning in international law. The three key elements, protected groups, genocidal intent, and destruction have been clarified by case law. In particular, genocidal intent is difficult to establish. We've seen, that the forced displacement of persons alone, does not suffice to establish such intent. What counts is the intent to exterminate a protected group. The concept of the second core crime, crimes against humanity is often a safer bet for prosecutors. It captures many of the underlying features of the crime. In particular, the idea of extermination. It is not necessarily less grave than genocide. We will discuss this crime in the next video.
