1 Introduction 2 Genocide 2.1 History 2.2 Definition 2.3 Actus reus - genocide 2.3.1 The victim as group 2.4 Mens rea -genocide 3 Crimes Against Humanity 3.1 History 3.1.1 Developments after World War II 3.3 Definition 3.4 Actus reus - crimes against humanity 3.4.1 Offences 3.4.2 Widespread or systematic attack against a civilian population 3.5 Mens rea - crimes against humanity 3.5.1 Knowledge of the broader context 3.5.2 Crimes of persecution 3.5.3 Can a crime against humanity be committed negligently? 4 War Crimes 4.1 Introduction 4.2 Armed conflict 4.3 Class of perpetrator 4.4 War crimes under the ICC Statute 4.4.1 When will Article 8 be triggered? 4.5 Actus reus - war crimes 4.5.1 War crimes in times of international armed conflict 4.5.2 War crimes in times of non-international armed conflict 4.6 Mens rea - war crimes
1 Introduction Having outlined the institutional framework of the International Criminal Court (ICC) and described the complementarity regime in preceding chapters, in this chapter we analyse those international crimes that might be prosecuted before the ICC or in domestic courts exercising complementary jurisdiction. We deal in turn with genocide, crimes against humanity and war crimes. The crime of aggression is not dealt with here, notwithstanding the fact that is included as a potential ICC crime in the Rome Statute,1 as its definition is still in the process of being finalised.2 2 Genocide 2.1 History Genocide involves the intentional mass destruction of entire groups or members of a group. The crime of genocide has been committed throughout history, the twentieth century being no exception. We think especially of the Jews decimated by the Nazis, the Cambodians destroyed by the Khmer Rouge and, more recently, the genocide inflicted by the Hutus on the Tutsis in Rwanda and the genocidal aims of Serbs against Kosovar Albanians in the Former Yugoslavia. The term 'genocide' is a combination of the Latin words genus (kind, type, race) and cide [to kill) and was coined by Raphael Lemkin writing in response to the events of World War II.3 The first criminal prosecution of genocide took place at the International Military Tribunal at Nuremberg, although strictly speaking the Germans were being tried for 'crimes against humanity' under the Nuremberg Charter. There was no reference to the crime of genocide in the Charter or the judgment of the tribunal, even though it did appear in the indictment and was referred to by the prosecution from time to time. It took almost half a decade, with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), before genocide came to be prosecuted again at the international level.4 Notwithstanding the small incidence of genocide prosecutions prior to the 1990s, the strengthening of the normative prohibition of genocide, beginning with the Genocide Convention of 19487,5 has now reached the point where genocide has become regarded as a crime under customary international law6 and a norm of jus cogens the sense that the rules prohibiting genocide cannot be derogated from), which imposes erga omnes obligations (that is, obligations are laid down on all member States of the international community, and all member States of that community have the right to require that acts of genocide be discontinued). 2.2 Definition Article 2 of the Genocide Convention of 1948 defines genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: *Killing members of the group; *Causing serious bodily or mental harm to members of the group; *Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; *Imposing measures intended to prevent births within the group; *Forcibly transferring children of the group to another group." What this definition reflects is a preoccupation among the drafters of the Convention with the Nazi extermination of the Jews in World War II. Notwithstanding this preoccupation, the definition is no anachronism (at least in formal terms) since it has been replicated in Article 4(2) of the ICTY Statute, Article 2(2) of the ICTR Statute and Article 6 of the ICC Statute. Genocide is the most serious crime against humanity, as evidenced in the high threshold set for the mental element required for proof of genocide. While other crimes against humanity require the intent to commit the underlying offence (for example, murder, torture or rape), together with the knowledge that the offence is being committed within the context of the targeting of the civilian population as part of a widespread or systematic attack, genocide requires the specific intent to destroy, in whole or in part, a national, ethnic, racial or religious group of persons. 2.3 Actus reus - genocide Article 6 of the Rome Statute, following Article 4 of the Genocide Convention, defines the various classes of actus reus (wrongful act) falling under the crime of genocide, each of which was helpfully elaborated upon by the ICTR Trial Chamber in Akayesu. The classes are as follows: (i) killing members of a national or ethnic, racial, or religious group (meaning their 'murder', i.e., intentional, voluntary killing7); (ii) causing serious bodily or mental harm to members of the group (these terms "do not necessarily mean that the harm is permanent or irremediable"8); (iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction (including, inter alia, "subjecting a group of people to ...