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
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 Page 36 (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).
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. Page 37
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 a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirementjs]"9);
(iv) imposing measures intended to prevent birth within the group (such measures would consist of "sexual mutilation, the practice of sterilisation, forced birth control [and the] separation of the sexes and prohibition of marriage"10); or
(v) forcibly transferring children of the group to another group.
From this list it will be clear that genocide need not actually result in the extermination of the group. It is enough that one of the defined acts is committed with the broader intention that the group be destroyed.
Genocide can be committed by act or omission (or what might be described as a deliberate failure to act). For example, in Kambanda7
Note also that it is not necessary that the prosecutor be able to establish the exact number of deaths attributable to an act of genocide before the accused can be found guilty of this crime.12
It is also clear that genocide may be perpetrated in a limited geographic zone. As the ICTY Trial Chamber concluded in Krstic7}3"the intent to eradicate a group within a geographical area such as the region of a country or even a municipality"14 could amount to genocide. Page 38
The victim of the crime of genocide is the group itself and not the individual.15 What, then, is to be understood by the notion of 'group'? The definition of genocide in the Rome Statute of the ICC provides that genocide is any one of the enumerated acts (see above) committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. The common criterion in the four types of groups protected under the Genocide Convention (national, ethnic, racial or religious) is that "membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner".16 In other words, they do not have a choice in the matter of whether they belong to a particular group or not. As such, "more 'mobile' groups which one joins through individual voluntary commitment, such as political and economic groups"17 are not groups that are protected under the rules against genocide.
The prohibition on genocide, therefore, would not cover a group comprised of, say, homosexuals or members of a political or social organisation - unless membership was confined to a particular tribe, race or nationality, which would mean that the protection for the defined groups under the Genocide Convention would be triggered.
The ICTR Trial Chamber in Akayesu has provided the following definition of the four groups that are covered by the genocide definition:
*National group: a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties.
*Ethnical group: one whose members share a common language and culture.
*Racial group: a group distinguished from others by hereditary physical traits frequently identified with geographical areas, irrespective of linguistic, cultural, national or religious factors.
*Religious group: a group whose members share the same religion, denomination or mode of worship, or common beliefs.
What about other 'groups'? The ICTR in Akayesu posited that the groups protected against genocide should not be limited to the four groups recognised in the definition of genocide under the Genocide Convention but should include "any stable and permanent group".18On this basis one might include a 'cultural group', since it too could be regarded as a stable and permanent group, membership of which is often not chosen but an automatic consequence of birth. However, as one commentator notes, the pronouncement in Akayesu is "likely to have limited impact",19 since the framers of the Genocide Convention appear to have made exhaustive provision for which types of groups...