DOLUS SPECIALIS: THE INTERNATIONAL CRIMINAL TRIBUNALS’

INTERPRETATIONS OF GENOCIDAL INTENT

by

Dana Leigh Burns

SIS Honors Capstone

Supervised by

Professors Linda Lucia Lubrano and David Bosco

Academic Year 2009-2010

Submitted to the
School of International Service
American University

In partial fulfillment of the requirements for graduation with

University Honors in International Studies
Bachelor of Arts Degree

April 2010
 Burns 2

ABSTRACT

In 1941, the “crime of crimes”1 was a “crime without a name.”2 The 1948 Convention on

the Prevention and Punishment of the Crime of Genocide criminalized “acts committed with

intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”3.

Despite that definition, how does the interpretation of genocidal intent vary in international

criminal law? This study intended to demonstrate that interpretations vary as judges balance the

qualitative and quantitative natures of the crime, or the essence of the human tragedy and the

extent of the biological destruction. Thus the researcher discursively analyzed the judgments in

which the International Criminal Tribunals for the Former Yugoslavia and Rwanda acquitted and

convicted individuals of genocide. The researcher aimed to move beyond the debate on

genocide’s definition in order to examine the effects of that academic debate on the term’s legal

application.

1
Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-S, Judgment and Sentence, par.16.
2
Winston Churchill, The Churchill War Papers: The Ever-Widening War, ed. Martin Gilbert, vol. 3: 1941 (New
York: W. W. Norton, 2000), quoted in Samantha Power, A Problem from Hell: America and the Age of Genocide
(New York: HarperCollins Publishers Inc., 2003), 30.
3 “Convention on the Prevention and Punishment of the Crime of Genocide,” United Nations,
http://treaties.un.org/doc/Treaties/1951/01/19510112%2008-12%20PM/Ch_IV_1p.pdf (accessed February 2010),
Art. 2.
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TABLE OF CONTENTS

INTRODUCTION

Research Agenda………………………………………………………………………….4

Literature Review…………………...……………………………………………….….....7

Research Design……………………………………...………………...…..…………….17

ANALYSIS

Introduction………………………………………………………………………………22

Mens Rea…………...…………………………………………………….……….….......24

Logical Comparisons, ‘Systematic’ Allusions…….……………………………………..27

Statistics and Geography..……………………………………………...………………...34

Statements: the Accused…………...................………………………….………………38

Stories: the Victims…...…………………………..……….........................……………..41

CONCLUSION

Analysis…………………………………………………………………………………..48

Connections to the Literature…………………………………………………………….50

BIBLIOGRAPHY……………………………………………….…………………………..…...52
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INTRODUCTION

If national judicial systems delineate crimes by degrees, why does international political

discourse confine a heart-wrenching, human tragedy to a single, legal term: “genocide”? One

word cannot contain this injustice. Genocide denies more than an individual his or her right to

life; genocide denies entire communities their right to exist. Genocide destroys communities for

a fact out of the members’ control: their identity.4 Of course, “identity” is subject to social

interpretation. In cases of genocide, that interpretation does not occur in ivory towers, rather on

front lines. Thus anecdotally genocide involves destruction in large numbers for who you are.

Perhaps given the extent of destruction—a community and, in this case, European

Jewry—Auschwitz serves as a metonym for the Holocaust. Yet, the bureaucratic, systematic,

and state-sponsored “Final Solution” evolved over a decade and involved persecution,

ghettoization, and forced labor as well as gassing, cremation, and execution. Genocide is

similarly understood as mass murder.5 That 8,000 Bosniak Muslim men died within six days in

Srebrenica6 and that 35 to 43 thousand Tutsi displaced persons died within six hours in Butare7

exemplify the genocides in the former Yugoslavia and Rwanda, respectively. That

understanding neglects that both genocides evolved from, and involved, quotidian human rights

abuses as well. In fact, the crime’s international legal definition requires neither large numbers

of victims nor even their death. The daily deprivations of identity and acts of inhumanity rather

constitute genocide.

4
Freda Kabatsi, "Defining or Diverting Genocide: Changing the Comportment of Genocide," International Criminal
Law Review 5, no. 3 (2005): 387.
5
David Alonzo-Maizlish, "In Whole or in Part: Group Rights, the Intent Element of Genocide, and the 'Quantitative
Criterion'," New York University Law Review 77, no. 5 (2002): 1384.
6
Martin Mennecke, "Genocidal Violence in the Former Yugoslavia: Bosnia-Herzegovina and Kosovo," in A
Century of Genocide: Critical Essays and Eyewitness Accounts, ed. Samuel Totten and William Parsons (New York
City: Taylor & Francis, 2008), 512.
7
Adam Jones, Genocide: A Comprehensive Introduction (London: Routledge, 2006), 239.
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In June 1991, Slovenia and Croatia seceded from the Federal People’s Republic of

Yugoslavia. Slovenia’s secession provoked a 10-day “public relations” war. The militaries of

Slobodan Milosevic’s Serbia-Montenegro and the Yugoslav Federal Army (JNA) invaded only

to realize President Milosevic’s rhetoric of defending the dissolving federation. Given Croatia’s

Dalmatian coastline, lucrative in terms of tourism and trade, and significant Serb minority, 12%

of the republic’s population, its secession outraged Serbia. Serbia’s aerial bombardment of

Croatia’s historic Dubrovnik, however, outraged the world audience. In its outrage over

aesthetics, the world ignored that the Croatian independence war destroyed 10,000-20,000 lives

and displaced another 700,000 people in seven months of war crimes and crimes against

humanity. The international community’s recognition of this nation-state effectively ended the

violence.

With Slovenia and Croatia independent, Bosnia-Herzegovina faced the following

decision: should the state with 43% Bosnian Muslims or Bosniaks, 35% Orthodox Serbs, and

18% Catholic Croats remain in a Serb-majority, rump Yugoslavia? Following Western advice,

Bosnia held and honored a referendum on the issue. In March 1992, Bosnia declared its

independence from federal Yugoslavia, and Bosnian Serbs declared their independence from

Bosnia. The world’s example of multiethnic harmony disintegrated into forced displacement and

ethnic cleansing, mass rape and murder, systematic maltreatment and starvation in detention

camps, and genocide.

Although all parties committed atrocities, Serb forces—the Serb-dominated JNA as well

as the Bosnian Serb military and paramilitaries—devastated Bosnian Muslims, Bosnian Croats,

and Bosnia’s eastern region, the newly declared Republika Srpska. Serbs desecrated mosques

and Muslim cemeteries, tortured and executed prominent Bosniaks and Croats, and laid siege to
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the former Olympic, capital city Sarajevo. In the most extreme example of the violence, Serb

forces deported 20,000 already displaced women, elderly persons, and children from the United

Nations safe haven in Srebrenica, only to execute the 7,000 to 8,000 remaining men. By

November 1995, the international community negotiated the Dayton Peace Accords, and the

conflict resolved at least militarily. But the Bosnian genocide had killed at least 100,000 people,

internally displaced 1.3 million, and internationally displaced another 1.2 million.8

Similarly, at least 800,000 Tutsi died and over 2 million Rwandans were displaced in the

spring and summer of 1994. In Rwanda, the Belgium colonial administration, like its European

counterparts throughout Africa and Asia, employed indirect rule, which rather arbitrarily

privileged the minority Tutsi ethnicity. This minority fled in the hundreds of thousands into

neighboring Burundi, Uganda, and Zaire (now the Democratic Republic of the Congo) when a

Hutu coup d’état ousted the Belgium authorities and reversed the political order in the early

1960s. In the early 1990s, these Tutsi refugees, united as the Rwandan Patriotic Front (FPR)

provoked war with regional Hutu political parties. War exacerbated the economic crisis, and

radio propaganda provoked ethnic tensions. Although by spring 1994, the international

community had dispatched the United Nations Assistance Mission for Rwanda (UNAMIR) and

negotiated the Arusha Peace Accords, Hutu parties refused to cooperate with Tutsi politicians.9

At 8:30am on April 6, 1994, these “Hutu Power” extremists shot down President Juvenal

Habyarimana’s plane, and by 9:18am, they’d erected roadblocks, began checking identity cards

and executing political opponents. With the torture and murder of 10 Belgian peacekeepers,

foreign governments yanked their militaries from UNAMIR and their journalists from Rwanda.

Carnage spread to the countryside as Hutu political and military authorities and Interahamwe

8
Mennecke, 507-521.
9
Rene Lemarchand, "The 1994 Rwandan Genocide," in A Century of Genocide: Critical Essays and Eyewitness
Accounts, ed. Samuel Totten and William Parsons (New York City: Taylor & Francis, 2008), 483-493.
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(“those who stand together”) militias massacred Tutsi civilians. Civilians sought refuge in

churches, football stadiums, and schools to no avail; their attackers pursued, raped, and killed

them. “93.7% of the victims were killed because they were identified as Tutsi; 1% because they

were related to, married to or friends with Tutsi; 0.8% because they looked like Tutsi; and 0.8%

because they were opponents of the Hutu regime at the time or were hiding people from the

killers.”10

Although the United Nations Security Council ridiculed characterizing the Rwandan

violence as genocide, and the International Court of Justice acquitted Serbia and Montenegro of

genocide against Bosnia-Herzegovina, the scholarly community accepts both conflicts as

genocidal. Yet, can this term with its exhaustive lists of only five physical offenses and of only

four protected groups, and with its three intentional requirements capture the reality its

perpetrators inflicted? Can this term with its highly political application in post-conflict

reconciliation and reconstruction capture the reality its victims suffered? This study examines

how someone warps their head around something like genocide. It questions how the

interpretation of genocidal intent, the sine quo non of genocide, varies in international criminal

law.

Literature Review

Before interpreting intent, the international community needed to define the crime

committed. Reflecting on Nazi Germany’s atrocities as the Reich’s army invaded the Soviet

Union, British Prime Minister Winston Churchill decried “a crime without a name.”11 Yet, since

10
Jones, 245.
11
Churchill, 29, quoted in Power, 30.
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before Hitler’s Nazi Party came to power, Raphael Lemkin (1900-1959) had been attempting to

name those atrocities.

The Ottoman Empire’s World War II-era expulsion of its Armenian population appalled

the Polish jurist. In 1933, to the Fifth International Conference for the Unification of Criminal

Law in Madrid, he proposed the criminalization of barbarity and vandalism. Barbarity was “the

premeditated destruction of national, racial, religious and social collectivities,” and vandalism

was “the systematic and organized destruction of the art and cultural heritage…of a

collectivity.”12 By 1944, Lemkin had combined these crimes, the Greek root for nation

(“genos”), and the Latin root for murder (“cide”) to invent genocide. In his monograph Axis

Rule in Occupied Europe, Lemkin defined genocide as “a coordinated plan of different actions

aiming at the destruction of essential foundations of the life of national groups, with the aim of

annihilating the groups completely.”13 Yet, some controversy developed over Lemkin’s

definition.

In adopting Lemkin’s term, the United Nations inherited this controversy in its 1948

Convention on the Prevention and Punishment of the Crime of Genocide (Genocide

Convention).14 According to the Convention, genocide constitutes “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 members 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 its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;

12
Jones, 9.
13
Scott Straus, "Contested Meanings and Conflicting Imperatives: A Conceptual Analysis of Genocide," Journal of
Genocide Research 3, no. 3 (2001): 360.
14
Dirk A Moses, "The Holocaust and Genocide," in The Historiography of the Holocaust, ed. Dan Stone (London:
Palgrave, 2008), 10-11.
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(e) Forcibly transferring children of the group to another group.”15

Not only does the Convention define those five acts as amounting to genocide, given the specific

intent, but also it punishes five other genocidal acts: genocide, complicity in genocide, attempt to

commit genocide, conspiracy to commit genocide, and direct and public incitement to commit

genocide. The perpetrator commits these punishable acts through any of the enumerated material

offenses and with the necessary mental element. For instance, the imposition of measures

intended to prevent births can constitute complicity in genocide and/or attempted to genocide,

depending on the perpetrator’s participation and purpose. Since the Convention’s adoption in

1948 and entry into force in 1951, scholars have proposed alternative definitions to incorporate

Lemkin’s formulation and to address the Convention’s failings. Having introduced the Genocide

Convention’s definition of genocide, this introduction will now survey social science’s

definitions of genocide.

In fact, within eight years of the Convention’s entry into force, Pieter Drost found fault

with the document. Alternatively, he defined genocide as “the deliberate destruction of physical

life of individual human beings by reason of their membership in any human collectivity as

such.”16 Thus his proposal includes collectivities excluded in the Convention, such as economic

and political groups. Yet, it does not correct the Convention’s exclusion of cultural genocide or

ethnocide, versions of Lemkin’s vandalism. Similarly, a common sense interpretation of Drost’s

“physical destruction” methodologically and temporally limits the crime, whereas the

Convention criminalizes non-immediate destruction: physical or psychological harm, the

15
“Genocide Convention,” Art. 2.
16
Pieter N. Drost, The Crime of the State, vol. 2 (Leyden: A. W. Sythoff, 1959), 125, quoted in Frank Chalk and
Kurt Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies 3rd ed. (New Haven: Yale
University Press, 1990), 13.
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prevention of births, and the forcible transfer of children. Therefore rather than expand the

definition, Drost contracts the crime.

Helen Fein, the founder and the first president of the International Association of

Genocide Scholars, however, expands the acts enumerated as genocide. She introduces a

typology of despotic genocides, eliminating non-threatening collectivities; developmental

genocides, intentionally or unintentionally destroying the human impediments to economic

resource exploitation; ideological genocides, eliminating constructed enemies and evils; and

retributive genocides, retaliating against real or imagined threats. Given her inclusion of

ethnocide and resistance—“regardless of the surrender or lack of threat offered by the victim”—

and her widely-interpretable intentionality requirement—“to destroy…directly or indirectly”17—

her definition demonstrates the most loyalty to the Convention and to Lemkin.

Continuing in comparative genocide studies, Frank Chalk and Kurt Jonassohn, co-

directors of the Montreal Institute for Genocide Studies, produce a typology. Significantly, their

definition challenges the Convention’s construction of the victim. Instead of expanding the

protected collectivities to include political ones, Chalk and Jonassohn identify the victim groups

from the perpetrator’s perspective. They define genocide as “a form of one-sided mass killing in

which a state or other authority intends to destroy a group, as that group and membership in it are

defined by the perpetrator.”18 Yet, they also accentuate the victims’ civilian status, thus allowing

for genocide denial if the victims violently resist, however decentralized and ineffective. That

accentuation about the victims and their own definition of the perpetrators emphasize the

former’s de facto power over the latter. Thus Chalk and Jonassohn present or at least perpetuate

17
Helen Fein, Genocide: A Sociological Perspective (London: Publications / International Sociological Association,
1990), 24.
18
Chalk, 23.
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a stereotype from the Holocaust about all genocides: that states commit them against vulnerable

populations.

Rejecting this myth, Leo Kuper returned to the Convention. As rationale, he cites the

Convention’s potential for preventive action since state parties “undertake to prevent and to

punish” genocide.19 Also he approves of its international acceptance since at that time, nearly 80

states had become party to the text. Yet, scholars introduced other genocidal crimes or crimes

with similar, special intent: “culturecide, democide, ethnocide, femicide, gendercide,

gernotocide, gynocide, politicide [and] ethnic cleansing, gendered atrocity, genocidal killing,

genocidal massacre, genocidal rape, Holocaust, state crime, and state sponsored mass murder.”20

Similarly, anthropologist Nancy Scheper-Hughes expands the definition; her genocidal

continuum constitutes “everyday violence” or “peacetime crime” as microcosms of and sanction

for genocide.21 This proliferation reflects genocide’s politicalization. The International Criminal

Tribunal for Rwanda in Prosecutor v. Jean Paul Akayesu found that genocide is the “crime of

crimes.”22 But as the majority of international organizations and legal scholars affirm, genocide

and crimes against humanity are equally atrocious. In fact, their accidental, separate

codification—one in international treaty and the other in international custom—carries no

significance in terms of the crimes’ severity.23 They require the same response.

This response includes protection, prevention, and punishment. In terms of genocide

prevention and punishment, the statues of the International Criminal Tribunals and the Rome

19
“Genocide Convention,” Art. 1.
20
Stuart Stein, "Conceptions and Terms: Templates for the Analysis of Holocausts and Genocides," Journal of
Genocide Research 7, no. 2 (2005): 196: note 2.
21
Nancy Scheper-Hughes, "The Genocidal Continuum: Peace-Time Crimes," in Power and the Self, ed. Jeannette
Marie Mageo (New York: Cambrige University Press, 2002), 30.
22
Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, Trial Chamber Judgment, par. 523, quoted in Kabatsi:
387.
23
Steven R Ratner, "Can You Compare Evils?: The Enduring Debate on Genocide and Crimes against Humanity,"
Washington University Global Studies Law Review 6, no. 1 (2007): 584.
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Statue of the International Criminal Court (ICC) reproduce the Genocide Convention verbatim.

This reproduction provides further proof of its international acceptance besides the 141 states

now party to its text. Thus this study adopts the Convention’s definition of genocide in its

analysis. Also since this study analyzes the legal application of the term “genocide,” the legal

definition is appropriate. In fact, this study analyzes the international criminal tribunals’

interpretations of genocidal intent.

The degree and the evidence of this intent prove just as contentious as the definition of

the crime. Having surveyed these definitions and settled on the Genocide Convention, this

introduction will now discuss the interpretations advanced for genocidal intent. As scholars and

practitioners debated genocide’s actus reas or material element, especially the enumerated acts

and protected groups, they also advanced alternative understanding of genocidal intent.

According to Lemkin, genocidal intent constitutes a “coordinated plan,” “aiming at the

destruction” and “with the aim of annihilating.”24 Drost defines it as “deliberate destruction,”25

and Fein articulates it as “sustained purposeful action.”26 Kuper, Chalk, and Jonassohn,

however, return to the Convention’s intent. Scholars advance such alternatives because the

Convention does not clarify the crime’s special character. Whereas any crime involves intent—a

mens rea or malice aforethought27—the Convention elevates this element to a “special” or

“specific” standard, dolus specialis.

Each enumerated act requires mens rea, such that “stripped of genocidal intent, the

prohibited acts independently stands as punishable criminal acts.”28 Dolus specialis elevates

24
Straus: 360.
25
Drost, 125, quoted in Chalk, 13.
26
Fein, 24.
27
Howard Abadinsky, Law and Justice: An Introduction to the American Legal System, 6th ed. (Upper Saddle
River: Pearson Prentice-Hall, 2008), 231.
28
David Alfonzo-Maizlish, "In Whole or in Part: Group Rights, the Intent Element of Genocide, and the
'Quantitative Criterion'," New York University Law Review 77, no. 5 (2002): 1381.
 Burns 13

these crimes to genocide. To clarify, intent differs from motive. The Committees drafting the

Convention, however, may have removed any motive requirement. They anticipated an

affirmative defense, which “claimed that a crime was committed for motives other than those

specified.” 29 Similarly, they determined to forbid destruction for any reason.30 Some drafting

states and later scholars read the Convention’s “as such” phrase as an unenumerated motive

requirement. According to that interpretation, the perpetrator commits genocide against

individuals from a collective for reasons of their membership in that collective. Although I adopt

this latter interpretation, the Tribunals largely ignore motive.

Instead, they elaborate on intent’s standard. Even the “special” standard, as any intent,

can take three forms: dolus eventualis, dolus indirectus, or dolus directus. In events of dolus

eventualis, the perpetrator predicts possible, though uncertain, consequences. Then he or she

commits the act regardless of the consequences, or recklessly, as under the Model Penal Code

(MPC). Recklessness, however, differs from negligence. Negligence evolves either when an

individual deviates from the reasonable standard of care or when an individual should recognize

and does not relieve a substantial, unjustifiable risk.31 In terms of genocide, Article II of the

Convention prohibits negligent genocide because the crime requires intent.32 Negligence,

however, cannot be confused with omission, which occurs under dolus indirectus and dolus

directus. Omission, the failure to act, addressed the crime’s actus reus rather than mens rea.

Dolus indirectus and directus involve certain consequences. In crimes of indirect intent, the

29
United Nations Economic and Social Council, “Ad Hoc Committee on Genocide: Summary Record of the
Eleventh Meeting,” United Nations, http://daccess-dds-
ny.un.org/doc/UNDOC/DER/NL4/800/54/PDF/NL480054.pdf?OpenElement (accessed April 2010), quoted in
William A. Schabas, Genocide in International Law : The Crime of Crimes 2nd ed. (Cambridge Cambridge
University Press, 2009), 247.
30
Schabas, 247.
31
Johan D. van der Vyver, "Prosecution and Punishment of the Crime of Genocide," Fordham International Law
Journal 23, no. 286 (1999): 10.
32
Schabas, 226.
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perpetrator knows of his or her crime’s secondary consequences and commits the crime anyway,

and in crimes of direct intent, the perpetrator desires those consequences. In other words and

under the MPC, dolus indirectus and dolus directus correspond to knowledge and purpose,

respectively. With either knowledge or purpose, an individual may omit to act. This omission—

in the case of genocide, often the failure to prevent the circumstances, which involve the crime or

to punish the perpetrators, who committed the crime—can constitute the crime itself.

An individual may also premeditate to commit a crime. But the drafters determined that

“the psychological moment of plotting [is] not necessary for classifying an act of intended

destruction as genocide.”33 Thus the prosecution need not demonstrate premeditation, or the

planning and preparation of the commission of a crime. Premeditation, however, differs from

planning. As William A. Schabas, the Director for the Irish Center for Human Rights and an

expert of public international law, explains: an individual may participate in genocide with

knowledge of a plan but without premeditation.34 For a conviction, however, courts effectively

require proof of a plan.

Similarly, although neither the Convention nor the courts establish a “numerical

threshold,”35 genocide’s mens rea includes the phrase “in whole or in part”—“the intent to

destroy in whole or in part a…group, as such.” According to a common sense interpretation and

the interpretation of the criminal tribunals, the genocidaire intends to destroy either an entire

community or intends to destroy a part thereof. Thus the Convention differentiates between

attempted and partial destruction. In the crime of attempted genocide, the accused does not

realize his or her intent, whereas in the crime of genocide, the accused only intends partial

33
Nehemiah Robinson, The Genocide Convention: A Commentary (New York: Institute of Jewish Affairs, 1960),
60., quoted in David L. Nersessian, "The Contours of Genocidal Intent: Troubling Jurisprudence from the
International Criminal Tribunals," Texas International Law Journal 37, no. 2 (2002): 268.
34
Schabas, 226.
35
Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgment and Sentence, par. 316.
 Burns 15

destruction. The International Law Commission further clarifies this differentiation and partial

destruction: “it is not necessary to intend to achieve the complete annihilation of a group from

every corner of the globe. None the less the crime of genocide by its very nature requires the

intention to destroy at least a substantial part of a particular group.”36

‘Substantial’, according to the Commission of Experts investigating violations of

international humanitarian law in the former Yugoslavia, means substantial numbers or

substantial members, like a group’s leadership, or even substantial within a territory.37 Thus

these clarifications of the Convention’s phrase “in part” allow for more contextualized

interpretations of genocidal intent. In fact, the drafters included the phrase because they

anticipated the accused’s defense that genocide only occurs if all individuals in a victim group

die. Unfortunately, more victims evidence intent more obviously. In other words, regardless of

the allowances for and emphases on complex, contextual interpretations, “the challenges of

objectively proving, in a judicial context, a genocidist’s state of mind” remain.38

Scholars debate even the standard equivalent to dolus specialis. Obviously, dolus

directus qualifies as dolus specialis, but Alexander K.A. Greenwalt argues for a knowledge-

based interpretation of intent. “Genocidal intent should be satisfied if the perpetrator acted in

furtherance of a campaign targeting members of a protected group and knew that the goal or

manifest of the campaign was the destruction of the group in whole or in part.”39 Interestingly,

he adopts the Convention’s confusing “in part” phrase and genocide jurisprudence’s emphasis on

planning. The international community has not adopted this approach. The Rome Statute of the

36
“Report of the International Law Commission on the work of its forty-eighth session, 6 May - 26 July 1996,
Official Records of the General Assembly, Fifty-first session, Supplement No.10,” United Nations International Law
Commission, http://untreaty.un.org/ilc/documentation/english/A_51_10.pdf (accessed March 2010), quoted in
Schabas, 236.
37
Schabas, 236-7.
38
Nersessian: 236.
39
Alexander K.A. Greenwalt, "Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation,"
Columbia Law Review 99, no. 8 (1999): 2288.
 Burns 16

International Criminal Court, signed by 139 states, thus confirming the international

community’s agreement, defines mens rea as knowledge and purpose. “A person shall be

criminally responsible and liable for punishment for a crime within the jurisdiction of the Court

only if the material elements are committed with intent and knowledge.”40 As investigated later,

case law of the international criminal tribunals also interprets intent as knowledge and purpose.

Dolus indirectus is easier to demonstrate; the prosecutor can prove the accused could not have

not known. Nonetheless, this standard raises questions as to an individual perpetrator’s

knowledge of a plan.41

For instance, “to this day, debates continue about how widespread the knowledge was

within the German Government, army, and population as a whole about the plan to destroy the

Jews of Europe.”42 According to intentionalists, Adolf Hitler and Nazi true believers or those

Party elite who swallowed the anti-Semitic and racist worldview, intended to exterminate

Europe’s Jewish population. This evocative historiographic position advanced the International

Military Tribunal at Nuremburg lacks historical proof. Outside vague and unconfirmed

statements by party officials, intentionalists can cite only Hitler’s insinuation in his

autobiography Mein Kampf. “At the beginning of the Great War, or even during the War, if

twelve or fifteen thousand of these Jews who were corrupting the nation had been forced to

submit to poison-gas…then the millions of sacrifices made at the front would not have been in

vain.” Functionalists see the Final Solution to the Jewish Question, however, as bureaucratic and

incremental, evolving from Nazi dissatisfaction with expropriation and concentration policies.

40
“Rome Statute of the International Criminal Court.” United Nations International Criminal Court.
http://untreaty.un.org/cod/icc/statute/romefra.htm (accessed March 2010), Art. 30 (1).
41
Schabas, 207-10.
42
Ibid., 210.
 Burns 17

Raul Hilberg clarified the Nazis’ step-by-step process as definition, expropriation, concentration,

and annihilation.43

This debate seems anachronistic and unnecessary, given as Marion Kaplan notes that the

Third Reich’s victims experienced neither intentionalism nor functionalism44 and that the

Holocaust is an accepted example of—in fact, exemplifies—genocide. Again, this crime under

the Convention demands the “intent to destroy.” Yet, absent is analysis of the interpretations

genocidal intent. As the preceding literature review proves, Holocaust historians debate the

Nazis’ intent, and social scientists define genocidal intent. Increasingly, scholars of international

law analyze the application of the Genocide Convention. Beside the occasional policy proposal,

like Alexander Greenwalt’s article, most analysis (see Roberta Arnold, Lori Bruun, Claus Kreß,

David Neressian, William Schabas, Cecile Tournaye, and Guglielmo Verdirame) introduces or

otherwise summarizes the Convention’s judicial interpretation. Such summaries, however, take

the Tribunals’ judgments at face value. Addressing a gap in the literature, this study analyzes the

meaning behind their words. I question: how does the interpretation of genocide intent varies in

international criminal law?

Research Design

In an attempt to answer this question, I hypothesized that judges who interpret genocidal

intent balance the qualitative and quantitative natures of the crime, or the essence of the human

tragedy, on the one hand, and extent of the biological destruction, on the other. In testing this

hypothesis, I conducted a multiple-case study and discursively analyzed the judgments in which

43
David Engel, ed. The Holocaust: The Third Reich and the Jews, ed. Clive Emsley and Gordon Martel, Seminar
Studies in History (Harlow: Longman, 2000), 32.
44
Marion Kaplan, Between Dignity and Despair: Jewish Life in Nazi Germany (New York: Oxford University
Press, 1998), 4.
 Burns 18

the International Criminal Tribunal for the former Yugoslavia (ICTY) and for Rwanda (ICTR)

acquit and convict individuals of genocide. In other words, whereas scholarship on the ICTY

and ICTR summarizes the Tribunals’ development of international criminal law, I studied

whether the Tribunals in fact developed that legal field. I aimed to move beyond the debate on

genocide’s definition in order to examine the effects of that academic debate on the term’s legal

application through discursively analyzing that application.

Discourse analysis is the study of the meaning of language in context. The context

includes not only the context in which the language occurs but also the context to which the

language refers. Thankfully, the texts themselves acknowledge the context to which they refer.

As an introduction to the legal findings, the Tribunals’ judgments include the factual findings.

Acknowledging the context in which the language occurs, this analysis adopts the Hague and

Arusha Tribunals as samples. The researcher identified these Tribunals for their simultaneous,

prominent, and successful application of the Genocide Convention.

Significantly, these contemporaneous and contemporary bodies eliminate intervening

legal developments from influencing the judges and expose current judicial interpretation of

genocidal intent. The Tribunals’ Statute s succeed in including genocide as a separate crime in

their jurisdictions, as opposed to genocide’s exclusion from the Charter of the International

Military Tribunal at Nuremburg and the charters, indictments, and convictions of the same city’s

subsequent denazification trials. Similarly, the ICTY and the ICTR remain the only international

institutions to convict individuals of the crime. Domestic convictions, especially since state

parties may have issued reservations with their ratification, introduce contextual interpretation

differences,45 which the researcher preferred to avoid. Finally, the Tribunals’ prominence in the

interpretation of international criminal law recommend them to this research, Their Statues
45
Nersessian: 262-268.
 Burns 19

reproduce verbatim Article II of the Genocide Convention, and “the interpretation of any of these

analogous documents is persuasive evidence of a plausible interpretation of the Genocide

Convention”46 itself. Since this study analyzes the legal interpretation of genocidal intent,

samples which legally interpret genocidal intent prove reliable. In other words, the Tribunals are

reliable samples.

To analyze these samples, the researcher first downloaded the relevant documents. From

the ICTY and ICTR’s publically-accessible and official web sites, the researcher downloaded the

Trial Chambers’ judgments and sentences in cases of genocide acquittals and convictions.

Reading the legal findings related to genocide, I analyzed the terminology and structure. As

significant, I scrutinized terminology related to the Convention’s and scholars’ definitions of

genocidal intent: forms and synonyms of the words ‘intent’ and ‘destroy’, references to the

geographic distribution and total quantity of victims or scale and scope of atrocities, and

identifications of the victim. Whereas analysis of word choice occurred within sentences, I also

observed the judgments’ overall structure: where words or phrases occurred within the judgment.

Finally, I examined the Tribunals’ expression of its opinion, namely value judgments. From

these sources, I studied how the ICTY and ICTR interpreted intent.

To demonstrate this research design, I will analyze the paragraph, which piqued my

interest the Tribunals’ interpretations. According to the legal findings of the International

Criminal Tribunal for Rwanda’s Trial Chamber judgment in Prosecutor v. Jean Paul Akayesu,

It has been established that on the evening of 20 April 1994, Akayesu, and two
Interahamwe militiamen and a communal policeman, one Mugenzi, who was armed at
the time of the events in question, went to the house of Victim Y, a 69 year old Hutu
woman, to interrogate her...During the questioning which took place in the presence of
Akayesu, the victim was hit and beaten several times. In particular, she was hit with the
barrel of a rifle on the head by the communal policeman. She was forcibly taken away
and ordered by Akayesu to lie on the ground. Akayesu himself beat her on her back with
46
Ibid.: 242.
 Burns 20

a stick. Later on, he had her lie down in front of a vehicle and threatened to drive over
her if she failed to give the information he sought.47

First, this paragraph from the legal findings chapter reveals its own significance in that it repeats

other chapters’ findings. The factual findings chapter would corroborate the victim’s story, but

this paragraph reminds that “it has been established.” Similarly, law chapter’s section on

individual criminal responsibility establishes just the accused’s responsibility for the alleged

crimes. This legal findings paragraph, however, details that the accused not only commits

crimes, beating and threatening the victim, but also that crimes occur in his presence, which the

ICTR and ICTY interpret as encouragement or aiding and abetting. Second, this story

significantly establishes another element of genocidal intent; since it stresses the victims’

vulnerability. An elderly woman faces four men. At least three men have self-defense and likely

more aggressive training as well and weapons knowledge, and one attacker was armed. Also,

Akayesu enjoys and exploits political authority over the woman. Notably, the Genocide

Convention does not identify the victims as vulnerable, rather as members of ethnic, national,

racial, or religious groups.

This judgment also introduces the vulnerability requirement to their identity, in affirming

the Convention’s exhaustive, enumerated, protected groups. Although the woman belongs to an

ethnic or racial group, the Tribunal dismisses the acknowledged “serious bodily and mental

harm” she endured as amounting to genocide. The ICTR contextually interprets her identity as a

political she suffered not as a Hutu but as an individual opposed to the genocidal regime. Thus

Akayesu did not possess the intent to destroy a protected group and not commit genocide.

Perhaps, the judges include this paragraph because the brutalization makes the accused the brute

47
Akayesu, par. 720.
 Burns 21

and the crime concrete. Perhaps, judges can better extrapolate Akayesu’s destruction against a

discriminated group, when he committed these atrocities against an elderly, Hutu woman.

These example and the final results may not prove valid for another researcher. Given

discourse analysis’ context dependence, he or she could identify other elements as significant. I

adopted this interpretative strategy because I accepted the Genocide Convention’s definition of

genocide and so of genocidal intent. Again, the Convention’s chapeau defines genocidal intent

as the “intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as

such,” so I identified those three elements as significant. Obviously, the Tribunals’ expressions

of opinion and statements of value reveal just those facts. Where the judgments say what—the

structure—express opinion and state values equally obviously. Thus I identified if and how the

Tribunals’ prioritized elements and interpretations of intent. Ultimately, given my acceptance of

the Genocide Convention’s definition of genocide and genocidal intent, I doubt that the scholarly

community will significantly dispute my results.

Political discourse constrains genocide’s judicial definition. The Convention resulted

from political compromise, notably the exclusion of cultural genocide and political groups.

Political conflict invokes the Convention, which promises state parties to “undertake to prevent

and to punish”48 the crime. Thus any research on genocide provokes controversy as to what acts

constitute genocide, who constitutes a victim or a perpetrator, how to resolve the conflict and

how to punish the crime. To avoid engaging these ethnic and political issues, this research

proposes neither a definition of nor policy for genocide. Rather, this research in accepting the

Genocide Convention’s definition aimed to move beyond the debate on genocide’s definition.

Similarly, this study examined the effects of that academic debate the term’s legal application.

48
“Genocide Convention,” Art. 1.
 Burns 22

ANALYSIS

Exemplifying the political controversy genocide provokes, the international community

dragged its heels during the genocides in the former Yugoslavia and Rwanda—debating the

necessity, the legality, and the funding of humanitarian intervention. Yet, the United Nations

Security Council jumped at the chance to resolve the internal conflicts judiciously. Almost

immediately after Helsinki Watch reported “prima facie evidence that genocide is taking place”

in Bosnia-Herzegovina, the United Nations Security Council unanimously adopted resolution

780. They established a Commission of Experts to investigate these reports. With confirmation

of widespread and systematic violations of humanitarian law, the Security Council again

unanimously adopted a resolution. Resolution 808 created the International Criminal Tribunal

for the former Yugoslavia. The ICTY has jurisdiction over grave breaches of the Geneva

Conventions of 1949, crimes against humanity, war crimes, and genocide committed in the

former Yugoslavia since 1991.49

In reference to Rwanda, the United Nations portentously expressed concern at the

deteriorating security and humanitarian situations one day before President Juvenal

Habyarimana’s assassination. But only as the violence died down in July 1994, did the Security

Council commission experts to investigate violations of humanitarian law. With this

Commission’s report of widespread and systematic crimes against humanity and violations of the

Geneva Conventions, the Security Council adopted resolution 955, establishing the International

Criminal Tribunal for Rwanda. Like with the jurisdiction of the ICTY, the United Nations

geographically and temporally limits that of the ICTR. The ICTR has jurisdiction over

violations of Article 3 common to the Geneva Conventions and to the Additional Protocols,

49
“Statute of the International Criminal Tribunal for the Former Yugoslavia,” United Nations International Criminal
Tribunal for the Former Yugoslavia, http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf
(accessed February 2010).
 Burns 23

crimes against humanity, and genocide committed in Rwanda or by Rwandan citizens between

January and December 1994.50

Just as the differences in geographic and temporal jurisdiction reflect the conflicts’

perpetration—in those countries and during those periods—the crimes included in each

Tribunal’s Statute indicate the laws’ violated. These crimes are either codified in international

law, or the Tribunals define them, namely crimes against humanity which constitute

“The following crimes when committed as part of a widespread or systematic attack

against any civilian population on national, political, ethnic, racial or religious grounds:
(a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f)
torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other
inhumane acts.”51

The Tribunals also adopt verbatim the Genocide Convention, which along with punishing

genocide punishes acts of genocide. Thus they prosecute conspiracy to commit genocide, direct

and public incitement to commit genocide, attempt to commit genocide, and complicity in

genocide.

In these prosecutions, each Tribunal employs three Trial Chambers, and the two organs

of international justice share one Appeals Chambers. The United Nations General Assembly

elects 16 judges to the ICTR for four-year terms with eligibility for re-election. The ICTY’s

equal number of “persons of high moral character, impartiality and integrity”52 enjoy permanent

positions. At the request of each Tribunal’s President, the General Assembly also appoints ad

litem judges. Similarly, the Chief Prosecutor, shared between the Tribunals until 1999, serves a

four-year term with the possibility of re-election. His or her investigation and prosecution teams,

the latter consisting of trial, appellate, information, and evidence sections, rotate annually.

50
“Statute of the International Criminal Tribunal for Rwanda,” United Nations International Criminal Tribunal for
Rwanda, http://www.un.org/ictr/statute.html (accessed February 2010).
51
“Statute of the International Criminal Tribunal for the Former Yugoslavia;” “Statute of the International Criminal
Tribunal for Rwanda.”
52
“Statute of the International Criminal Tribunal for Rwanda.”
 Burns 24

Given such personnel changes—in fact, each case catalogued in the project presented a

different combination of judges and prosecutors, not to mention defense attorneys and support

staff—and the Statutes’ geographic and temporal limitations, the researcher acknowledged that

those factors would affect interpretation. Unfortunately, I could not find the extent of the effect.

Instead, I concluded that the Tribunals interpret intent both from somewhat objective sources,

namely statistics on the alleged atrocities committed and the systematic perpetration of those

atrocities or their planning and premeditation, and subjectively, from the stories or the statements

of victims, witnesses, or the accused himself. In the subsequent subsections, I will analyze the

Tribunals’ interpretation of intent from these sources.

Mens Rea

Despite differences in jurisdiction and personnel, the Tribunals accepted each other’s

jurisprudence in terms of the required mens rea. The degree of that element—dolus directus,

dolus indirectus, or dolus eventualis—varies according to the genocidal act. For clarification,

the Convention defines five prohibited acts, or acts that amount to genocide, given the specific

intent:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberating inflicting on the group conditions of life calculated to bring about its
destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.53

These “prohibited acts independently stand as punishable criminal acts”54 in most states’ court

systems; the mental state elevates the material offense to genocide or another of the five

genocidal acts. Also the Convention punishes and so the Tribunals prosecute five genocidal acts:

53
“Genocide Convention,” Art. 2.
54
Alfonzo-Maizlish: 1381.
 Burns 25

genocide, complicity in genocide, attempt to commit genocide, conspiracy to commit genocide,

and direct and public incitement to commit genocide.55 Just as an individual commits genocide

through any of the actus reus, he or she commits the other punishable acts through any of the

prohibited acts. For instance, the imposition of measures intended to prevent births can

constitute complicity in genocide and/or attempt to commit genocide, depending on the

perpetrator’s participation. Since in the Tribunals’ Statutes, the same chapeau—“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”56—applies to these acts, the same mens rea

requirement would seem to apply as well. The subsequent section tests this assumption.

According to the International Criminal Tribunal for Rwanda’s Trial Chamber I in

Prosecutor v. Jean-Paul Akayesu the principal perpetrator intends to destroy. An accomplice has

knowledge of, but does not necessarily share, this intent,57 though the person who is conspiring

to commit genocide must share it.58 In Akayesu again, the ICTR affirmed that “the person who is

inciting to commit genocide must himself have the specific genocidal intent.”59 While all

genocidal acts involve genocidal intent, the International Criminal Tribunals establish the dolus

directus standard for those acts, except attempt to commit genocide and complicity in genocide.

Since an international court has not prosecuted attempted genocide, an intentional standard does

not exist for that crime. For complicity in genocide, however, a dolus indirectus standard

suffices. Significantly, knowledge, instead of knowledge and purpose, eases the prosecution’s

burden. The prosecution can prove an accused’s knowledge in the negative: the accused could

not have been unaware.

55
“Genocide Convention,” Art. 3.
56
“Genocide Convention,” Art. 2.
57
Akayesu, par. 726.
58
Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A, Trial Chamber Judgment, par. 192.
59
Akayesu, par.560; Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, Trial Chamber Judgment, par.854.
 Burns 26

To complicate the prosecution’s case further, “the mens rea varies according to the mode

of liability.”60 According to both Statutes, individuals who “planned, instigated, ordered,

committed or otherwise aided and abetted in the planning, preparation or execution of a crime”

are criminally responsible for genocide.61 The ICTR case law defined these modes.

In Prosecutor v. Semanza, the ICTR Trial Chamber defined planning as “one or more

persons formulating a method of design or action, procedure, or arrangement for the

accomplishment of a particular crime,” and ordering as “a situation where an individual has a

position of authority and uses that authority to order – and thus compel – another individual, who

is subject to that authority, to commit a crime.” 62 Interestingly, this definition allows for de

facto as well as de jure authority. In other words, it reflects a contextual, social scientific

understanding rather a black and white, legal one. Prosecutor v. Ndindabahizi defined

instigation as “urging or encouraging, verbally or by other means of communication, another

person to commit a crime, with the intent that the crime will be committed,” and which directly

and substantially contributes to the commission of that crime. Similarly, the same Trial Chamber

continued that aiding and abetting constitute “any form of assistance and encouragement given to

another person to commit a crime,” which directly and substantially contributes to the

commission of the crime. Finally, the aider and abettor need not share the intent, but must have

knowledge of the principal perpetrator’s general intent to commit the punishable act, and, in the

crime of genocide, specific intent to commit genocide.63 In terms of varying intentional

standards, aiding and abetting necessitates dolus indirectus but instigation needs dolus directus.

60
Prosecutor v. Protais Zigiranyirazo, Case No. IT-01-73-T, Trial Chamber Judgment, par. 398.
61
“Statue of the International Criminal for the Former Yugoslavia;” “Statute of the International Criminal Tribunal
for Rwanda.”
62
Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Trial Chamber Judgment, par. 380.
63
Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Trial Chamber Judgment, par. 456-7.
 Burns 27

The literature summarizes the jurisprudences on intentional standards and argues their

acceptability. Such summary remains outside the scope of this study, which explores the

Tribunals’ establishment of a mental state from circumstantial evidence. Yet, I detailed the

complexities of the international criminal tribunals’ degrees of dolus specialis because they

demonstrate the wide variations in genocidal intent.

Regardless of the accused’s alleged participation in genocide—again, the Genocide

Convention and the Statutes of the Tribunals punish acts of genocide along with genocide and

then punish these acts under modes of liability—the Chambers reject recklessness or dolus

eventualis. Because “by their very nature the enumerated acts are conscious, intentional, and

volitional acts,”64 negligence arising under any standard does not suffice either. Largely, the

Chambers settled on a dolus directus standard for genocide.

Logical Comparisons, ‘Systematic’ Allusions

Now, this analysis will discuss that standard’s application; the Tribunals found sources or

‘presumptions of fact” from which to interpret genocidal intent. According to Prosecutor v.

Akayesu, the Tribunals infer the intent from

from the general context of the perpetration of other culpable acts systematically directed
against the same group whether these acts were committed by the same offender or by
others…the scale of atrocities committed, their general nature, in a region or country, or
furthermore, the fact of deliberately and systematically targeting victims on account of
their membership of a particular group, while excluding members of other groups.65

Prosecutor v. Kayishema and Ruzindana elaborated that the Chambers consult “the physical

targeting of the group or their property; the use of derogatory language toward members of the

targeted group; the weapons employed and the extent of bodily injury; the methodical way of

64
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment, par. 58.
65
Akayesu, par. 523.
 Burns 28

planning, the systematic manner of killing”66 as well. These “presumptions of fact” separate into

two categories—the genocidal acts’ discriminatory commission or widespread and systematic

perpetration—and suggest two components of the three-part dolus specialis and add another

condition. First, discriminatory acts, including cultural genocide or ethnocide, address the

component that genocidaires intend to destroy a group “as such.” Second, widespread acts,

implying the extent, quantity, or scale of destruction, attend to the component that genocidaires

intend to destroy a group “in whole or in substantial part.” Systematic acts, however, add the

condition of the genocidaires’ plan to destroy a group. Though these sources expand genocide’s

intentional element, the Trial Chambers of the International Criminal Tribunal for the Former

Yugoslavia elaborated further. In Prosecutor v. Radoslav Brdanin, the Chamber concluded that

an inference from presumptions of fact “has to be the only reasonable inference available on the

evidence.”67 This “reasonable” requirement not only protects a presumption of innocence but

also introduces logical or objective comparison into the Tribunals’ interpretation of intent.

In interpreting the intent of Milomir Stakic and Momcilo Krajisnik, the ICTY Trial

Chamber consulted the principle of command responsibility. According to this principle, the

Chamber logically considered the intent of subordinate and superior officers as it reflected on the

accused. “A crime committed by a person of low political or military rank without genocidal

intent may nevertheless be characterized as an act of genocide if it is procured by a person of

higher authority acting with that intent.”68 The Tribunals contested but Prosecutor v. Sylvestre

Gacumbtsi reconciled whether command responsibility operates outside formal superior-

subordinate relationships. Gacumbtsi advocated a contextual interpretation of the accused’s

66
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Trial Chamber Judgment, par.
93.
67
Prosecutor v. Radoslav Brdanin, Case No. IT-99-36-T, Judgment, par. 970.
68
Prosecutor v. Momcilo Krajisnik, Case No. IT-00-39-T, Trial Chamber Judgment, par. 857.
 Burns 29

“social, economic, political or administrative standing, or from his abiding moral principles” and

his exercise of coercion.”69 Thus later judgments, like 2009’s Prosecutor v. Callixte

Kalimanzira, assessed the accused’s de facto moral and de jure political authority. “The

evidence does not establish that he could have lent moral support or political credibility in any

significant way [and] any authority or influence he may have possessed in the view of the

audience paled in comparison to that of” the other attendees.70 Raising this requirement to

command responsibility, another ICTR Trial Chamber requires that the accused not only enjoy

de facto or de jure authority over subordinates but also “at least have reason to know” that those

subordinates engaged in genocidal activity. For each count from the indictment, the Trial

Chamber judgment in Prosecutor v. Musema repeats that Musema exercised de facto and de jure

authority over his supposed subordinates, that he “knew, or, at least, had reason to know” of his

subordinates’ actions, and rather than prevent or punish the crimes, participated. This logical

reasoning in accordance with command responsibility allows the judge to avoid the accused’s

statements and the ‘systematic’ atrocities themselves. Thus the judge consults more

dispassionate facts than discriminatory crimes.

Similarly, the ICTY Trial Chamber logically compared Brdanin’s intent to destroy and

intent to displace. The Bosnian Serb forces “muster[ed] the logistic resources to forcibly

displace tens of thousands of Bosnian Muslims and Bosnian Croats, resources which, had such

been the intent, could have been employed in” their destruction in eastern Bosnia. Consulting

the widespread and systematic perpetration of the genocidal acts, the Chamber found that the

evidence of the intent to displace outweighed the evidence of the intent to destroy. This cold,

logical comparison ignores whether Brdanin’s intent to displace outweighed his intent to destroy,

69
Prosecutor v. Sylvestre Gacumbtsi, Case No. ICTR-2001-64-T, Trial Chamber Judgment, par. 282.
70
Prosecutor v. Callixte Kalimanzira, Case No. ICTR-05-88-T, Trial Chamber Judgment, par. 182.
 Burns 30

considering only the logistical evidence of those intents. Similarly, it ignores whether the two

intents can exist concurrently and what the Serbian forces intended in Bosnia-Herzegovina. For

instance, the former ICTY jurisit Cecil Tournaye concludes that “the objective of the conflict in

the former Yugoslavia was not to exterminate an ethnic group, but to rather expel it in order to

create ethnically pure territories.”71 Continuing comparisons, the ICTR addressed plans:

“preparations are completely consistent with a plan to commit genocide. However, they are also

consistent with plans for a military or political struggle.”72 This judgment applies the “only

reasonable inference” requirement to dismiss the evidence against Bagosora and to escape

intentional interpretation.

The ICTR applied logical comparisons to avoid interpreting intent. Comparing the intent

to incite genocide and the intent to commit genocide, the Trial Chamber concluded that the intent

to incite incorporated not only the intent to destroy but also the intent to commit genocide: “he

who incited to commit genocide also has the specific intent to commit genocide.”73 Having

factually found incitement and legally found responsibility therefore, the Chamber infers from

those findings intent to commit genocide and circumvents interpreting intent. Similarly,

Prosecutor v. Sylvestre Gacumbitsi, having found that the accused aided and abetted the

commission of genocide, follows that “the requisite specific intent to establish genocide is in

itself evidence of the Accused’s intention to participate in the commission of such acts of

genocide.”74 Although the same mens rea standard applies to these acts, they constitute different

71
Cecile Tournaye, "Genocidal Intent before the ICTY," International and Comparative Law Quarterly 52, no. 2
(2003): 447.
72
Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, Anatole Nsengiyumva, Case No. ICTR-98-
41-T, Trial Chamber Judgment, par. 2110.
73
Akayesu, par. 729.
74
Gacumbtsi, par. 287.
 Burns 31

degrees of participation. The intent to incite and the intent to aid and abet do not necessarily

translate into the intent to commit the crime.

In other cases, the Chambers analyze illogically or abandon logic. For instance,

Prosecutor v. Emmanuel Ndindabahizi reversed Brdanin’s “only reasonable inference” standard.

The ICTR’s Trial Chamber I determined that “even in the absence of other massacres, a brutal

attack, targeting several thousand members of an ethnic group, is itself indicative of the requisite

intent to destroy an ethnic group, in whole or in part.”75 An attack, however brutal, admits intent

to attack, whereas a brutal attack in the context of brutal attacks can demonstrate intent to

destroy. This determination reverses Brdanin and instead relies on the earlier Akayesu judgment

and its evidential sources. Even in this reliance, Ndindabahizi prefers the second source

advanced in Akayesu—“the scale of atrocities committed”—to the first presumption of fact—

“the general context of the perpetration of other culpable acts.”76 Though that historic judgment

admits no hierarchy to the sources, syntactic order in judicial orders often indicates one. To

some extent, Prosecutor v. Ndindabahizi reverses Akayesu as well.

Yet, the sources advanced in Akayesu and Kayishema and Ruzindana affirmed the

Genocide Convention’s definition of genocidal intent; they addressed its discriminatory and

numerical conditions and established a planning condition. And the standards advanced in

Brdanin affirmed criminal law’s presumption of innocence. Whether affirming or rejecting the

sources from which to infer intent and the standards to which to hold them, logical or objective

comparisons of intent avoid interpretations of intent. In comparing the intent to commit a crime

against the intent to commit another, the judge would avoid consulting the acceptable sources

75
Ndindabahizi, par. 461.
76
Akayesu, par. 523.
 Burns 32

and so would avoid the atrocities themselves. The judge avoids balancing the qualitative and

quantitative measures of the crimes.

Quantitatively comparing genocidal intent, the Chambers return not to the crime’s mens

rea requirements, but to its simplistic, traditional definition: state-sponsored, systematic mass

killing. Although almost no scholar, intergovernmental body, or advocacy organization so

defines genocide, the g-word’s politicization—activists allege the term describes to everything

from abortion,77 bisexuality,78 and dieting,79 to HIV/AIDS,80 “methadone programs,”81 and racial

desegregation82—reveal that this simpler definition suffices for the general public. In that

simpler vein, the ICTY and ICTR Trial Chambers emphasize the acts’ widespread and

systematic execution and statistical effects.

“Widespread or systematic” describes crimes against humanity. Genocide evolved from

crimes against humanity. Before the Genocide Convention, the International Military Tribunals

at Nuremburg and Tokyo convicted defendants of war crimes and crimes against humanity for

conduct that included the constituent elements of genocide.83 As an alternative to the Genocide

Convention and as a reflection of crimes against humanity, Helen Fein defines genocide as

“sustained purposeful action,”84 or systematic. In fact, the director of the Duke University-

Geneva Institute for Transnational Law, Madeline Morris, determines that intent distinguishes

77
Gregg Cunningham, "Why Abortion Is Genocide", Center for Bio-Ethical Reform
http://www.abortionno.org/Resources/abortion.html (accessed 4 March 2010).
78
Helen Fein, "Genocide, Terror, Life Integrity, and War Crimes," in Genocide: Conceptual and Historical
Dimensions, ed. George Andreopoulos(Philadelphia: University of Pennsylvannia Press, 1994), 95.
79
"Forget Weight Loss--Low-Carb Diets May Be Essential to Surviving",
http://www.prweb.com/releases/2008/04/prweb861444.htm (accessed 4 March 2010).
80
Adbul Alim Muhammad, "Shocking Revelations on Aids Research by Our North American Correspondent,"
New Dawn 1992.
81
Fein, "Genocide, Terror, Life Integrity, and War Crimes," 95.
82
Jack Nusan Porter, "Introduction," in Genocide and Human Rights: A Global Anthology, ed. Jack Nusan Porter
(Washington, DC: Univeristy Press of America, 1982), 9-10, quoted in Ibid.
83
Madeline Morris, "Genocide Politics and Policy: Conference Remarks," Case Western Reserve Journal of
International Law 35, no. 2 (2003): 206.
84
Fein, Genocide: A Sociological Perspective, 24.
 Burns 33

genocide from crimes against humanity.85 The two categories of crimes “are a product of

historical accident.”86 Accounting for this accident, the Tribunals infer intent from the “general

context,” the deliberate or systematically directed or targeted acts,87 “the methodological way of

planning, [and] the systematic manner of killing.”88 Thus “systematic” applies to victim

selection as well as denoting a plan, pattern, or policy, and connoting the bureaucratic, state-

sponsored Nazi Holocaust. Although the Genocide Convention does not require a plan, the

ICTY Trial Chamber determined that “it will be very difficult in practice to provide proof of the

genocidal intent of an individual if the crimes committed are not widespread and if the crime

charged is not backed by an organization or a system.”89 The ICTR Trial Chamber concluded to

infer intent from “a consistent pattern of conduct” by the accused. 90

Thus all Trial Chambers emphasized genocide’s widespread and systematic commission.

For instance, Krstic, Brdanin, and Rutaganda repeated the word “systematic,” in describing the

atrocities, which the accused committed.91 Similarly, Brdanin referred to “the existence of a

genocidal plan or policy”92 and Stakic to “a comprehensive pattern.”93 Interestingly, Stakic

determined that perpetrators “devise the genocidal plan at the highest level.”94 These references

and repetitions allude to the acts’ discriminatory and planned commission. They compare

genocide to crimes against humanity, which are widespread and systematic, and to the

Holocaust, which was bureaucratic, state-sponsored, and systematic. They do not confirm that

commission or even the general context, in which the accused perpetrated the acts. From

85
Morris: 207.
86
Ratner: 584.
87
Akayseu, par. 523.
88
Kayishema and Ruzindana, par. 93.
89
Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, Trial Chamber Judgment, par. 101.
90
Musema, par. 927.
91
Prosecutor v. Radislav Krstic, Case No. IT-98-33-T, Trial Chamber Judgment, par. 546.
92
Brdanin, par. 980.
93
Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Trial Chamber Judgment, par. 546
94
Ibid, par. 532.
 Burns 34

evaluation of factual findings, the judges issue legal findings. Interestingly, the legal findings

repeat some facts, yet not the facts, which prove systemization. Given that in the legal findings,

the adjective “systematic” rather than factual evidence of systemization suffices, the Tribunals

seem to lower their standards for genocidal intent.

In fact, the references and repetitions imply crimes against humanity and the Holocaust as

interpretations of genocidal intent. Again, the Statutes define crimes against humanity as

“committed as part of a widespread or systematic attack against any civilian population on

national, political, ethnic, racial or religious grounds.”95 And since it provoked the Genocide

Convention, the Holocaust serves as a proto-genocide. Other genocides, especially their extent

of bureaucratization, state-sponsorship, and systematization, are thus compared to the Holocaust.

And of the Holocaust, Hannah Arendt determines that “such a crime could be committed only by

a giant bureaucracy using the resources of government.”96 In the Trial Chambers’ judgments,

this comparison and comparisons to crimes against humanity occur through the reiteration of

“systematic” and similar phrases. In other words, the Tribunals interpret genocidal intent by

implying similarity to other atrocities. Like logical evaluations, these comparisons allow the

judge to avoid considering the atrocities themselves and so balancing the qualitative and

quantitative measures of genocide.

Statistics and Geography

In quantitative measures, the Tribunals most frequently interpret intent from a statistical

analysis of the atrocities. This section analyzes the Tribunals’ interpretations of genocidal intent

95
“The International Criminal Tribunal for the Former Yugoslavia;” “The International Criminal Tribunal for the
Rwanda.”
96
Hannah Arendt, "Postscript," in Eichmann in Jerusalem: A Report on the Banality of Evil (Harmondsworth:
Penguin, 1977), 289, quoted in Akio Kimura, "Genocide and the Modern Mind: Intention and Structure," Journal of
Genocide Research 5, no. 3 (2003): 410.
 Burns 35

from statistics. The Genocide Convention defines genocide’s mens rea as “the intent to destroy,

in whole or in part, a…group, as such.” Frank Chalk and Kurt Jonassohn propose an alternative

to this ambiguous phrase; they define genocide as “mass killing.”97 The Tribunals, however,

interpret that intent according to the International Law Commission’s (ILC) Draft Code of

Crimes against the Peace and the Security of Mankind’s analysis of the Genocide Convention.

The ILC interprets “in part” as a substantial part, numerically or in terms of the community.

Thus the Jelisic judgment questions “what proportion of the group is marked for destruction and

beyond what threshold could the crime be qualified as genocide?”98 Prosecutor v. Radislav

Krstic answers

that the intent to destroy a group, even if only in part, means seeking to destroy a distinct
part of the group as opposed to an accumulation of isolated individuals within it…Indeed,
the physical destruction may target only a part of the geographically limited part of the
larger group because the perpetrators of the genocide regard the intended destruction as
sufficient to annihilate the group as a distinct entity in the geographic area at issue.99

Although this jurisprudence allows for a non-statistical interpretation of genocidal intent,

the ICTY’s early judgments stress numbers within a given geography. Jelisic cites that

“approximately 66 bodies were discovered scattered about in four mass graves.”100 Krstic

continues that “within a period of no more than seven days, as many as 7,000-8,000 men of

military age were systematically massacred while the remainder of the Bosnian Muslim

population present at Srebrenica, some 25,000 people, were forcibly transferred to Kladanj.”101

In introducing this fourth and geographic element to a mens rea already “difficult, even

impossible to determine,”102 the ICTY restricts interpretations of genocidal intent. Yet, this

97
Chalk, 23.
98
Jelisic, par. 80.
99
Kristic, par. 590.
100
Jelisic, par. 90.
101
Krstic, par. 594.
102
Akayesu, par. 523.
 Burns 36

geographic emphasis also expands genocide; it allows for more nuanced interpretations, namely

defining destruction regionally or municipally rather than internationally.

Nuance does not necessarily mean that the judges consider qualitative measures. Like the

Tribunal’s logical reasoning and “systematic” repetition removes the judge, this statistical

interpretation ignores the essence of the human tragedy, while, interestingly, including the

discriminatory and dreadful atrocities. The ICTR cites numbers in Musema and Seromba: the

accused substantially contributed to attacks against 40,000103 and to the death of 1,500

refugees,104 respectively. Certainly, these statistics shock the audience, so they could introduce

the human element to the interpretation. I, however, read statistics as an objective, rational, and

quantitative interpretation of genocidal intent.

This quantitative criterion, as legal scholar David Alonzo-Maizlish discovered, features

more prominently in the ICTY’s genocide jurisprudence, whereas the ICTR prefers identifying

“thousands,” “large numbers,” or even “substantial numbers” of victims.105 In fact, the ICTR

rejected the qualitative criterion; Prosecutor v. Gacumbitsi determined that “the phrase ‘destroy

in whole or in part a[n] ethnic group’ does not imply a numeric approach.”106 Similarly,

Prosecutor v. Ndindabahizi found that killing an individual with genocidal intent constitutes

genocide,107 thus substantiating the elevating quality of dolus specialis. Significantly, the

International Criminal Court has adopted Ndindabahizi’s interpretration: “there is a minimum

quantity threshold of at least one victim.108 Although some judgments specify numbers, the

ICTR’s more vague quantification of “in part” honors the intention of the Genocide Convention.

103
Musema, par. 901.
104
Seromba, par. 334.
105
Ndindabahizi, par. 454, 460.
106
Gacumbitsi, par. 258, quoted in Paul Kim, "The Law of Genocide in the Jurisprudence of ICTY and ICTR in
2004," International Criminal Law Review 5, no. 3 (2005): 437.
107
Ndindabahizi, par. 471.
108
Roberta Arnold, "The Mens Rea of Genocide under the Statute of the International Criminal Court," Criminal
Law Forum 14, no. 2 (2003): 137.
 Burns 37

And as Alonzo-Maizlish argues and I agree, this criterion forgets the Convention’s intention—to

promote and to protect group rights. Insisting on a qualitative measure of genocidal intent

forgets that “destruction of such groups harms the entirety of humanity”109 and introduces an

extrastatutory policy concern, namely the trivialization of genocide.

Yet, the Rwandan Tribunal could have adopted the Yugoslavian criterion. According to

the Trial Chamber in Prosecutor v. Kayishema and Ruzindana, the Tribunal adopted the sources

for inference of genocidal intent from the Commission of Experts in their Final Report on the

Situation in Rwanda and the Special Rapporteur’s Report of the Sub-Commission on Genocide.

The Commissions respectively enumerate “the number of group members affected” and “the

relative proportionate scale of the actual or attempted destruction of a group” as evidencing dolus

specialis.110 Instead of comparing destruction to total population, the ICTR evaluated scale or scope

without a definition. For instance, describing only the perpetrators and the situation, Bagambiki

determines “the scale of these killings of the Tutsi refugees and the length of time required to kill

such a large number of victims prove that these killings were intentional.”111

Whereas the foundational commissions and documents of the Tribunals qualitatively

interpret partial intent, the ICTY introduces a quantitative interpretation. Interestingly, the

Tribunals disagree. The ICTY defines genocidal destruction with statistics, and the ICTR describes

large-scale destruction with that terminology. Again, I reject the ICTY’s and prefer the ICTR’s

interpretation because the latter considers the statistics in context. Even a qualitative measure of

genocidal intent considers groups, as such, not masses of individuals.

109
Alfonzo-Maizlish: 1380.
110
Kayishema and Ruzindana, par. 93.
111
Bagambiki, par. 689.
 Burns 38

Statements: the Accused

Consulting individuals, the ICTY and ICTR interpret genocidal intent from the

statements and the stories of the accused and the victims, and I will now analyze this source of

dolus specialis. Although the Tribunals advance alternative sources of genocidal intent, they

prioritize the accused’s statements. “In the absence of a confession,”112 the Tribunals consult

presumptions of facts, according to Akayesu. Prosecutor v. Ndindabahizi reaffirmed this ruling:

“the requisite intent may be proven by overt statements of the perpetrator or, as with any crime,

by drawing inferences from circumstantial evidence of intent.”113 Significantly, the Chamber

identifies the accused’s statements before alternative sources, and again, syntactic order in

judicial orders often indicates an order. That the accused’s statements do not necessitate

corroboration whereas circumstance evidence invokes the “only reasonable” requirement also

indicates the Tribunals’ preference. Prosecutor v. Brdanin, found that an inference from

presumptions of fact or circumstantial evidence “has to be the only reasonable inference

available on the evidence.”114

Yet, the ICTR Trial Chambers considered the accused’s statements either as related to

corroborated evidence or as related by a witness as proving genocidal intent, and the ICTY

dismissed the accused’s statements as proving genocidal intent. For instance, the Musema Trial

Chamber judgment includes Musema’s testimony about violence against Tutsi civilians and

refugees at roadblocks and attacks elsewhere.115 The judgment ignores whether Musema

addressed his alleged participation in these crimes. In fact, his testimony only corroborates the

roadblocks and the violence occurring there was “systematic.” As previously analyzed, the

112
Akayesu, par. 523.
113
Ndindabahizi, par. 454.
114
Brdanin, par. 970.
115
Musema, par. 928-930.
 Burns 39

Tribunals accept references to “widespread and systematic” violence as proof of genocidal

intent. In finding the accused guilty of genocide, the Akayesu judgment cites victim testimony,

namely that of women assaulted either in his presence, under his orders, or by himself. Although

Akayesu does not admit saying “don’t ever ask again what a Tutsi woman tastes like,”116 the

ICTR accepts witness testimony of this statement.

At the other extreme, the ICTY Trial Chambers in Prosecutor v. Jelisic and Prosecutor v.

Brdanin admitted the accused’s statements but dismissed them as demonstrating genocidal

intent. For instance, Goran Jelisic introduced himself as the “Serbian Adolf” to the Chamber and

to his victims, who also allegedly heard him declare his hatred for and desire to kill all

Muslims.”117 Given Jelisic’s psychological state and randomly perpetrated violence, the

judgment negatively concludes that he did not commit genocide. Similarly, Brdanin stated few

Bosnian Croats and Muslims would remain in the Serbian Bosnia Autonomous Region of

Krajina (ARK) and suggested drowning all Bosnian Croat and Bosnian Muslim children in the

Vrbas River. In the Chamber’s opinion, “these utterances strongly suggest the Accused’s

discriminatory intent, however, they do no allow for the conclusion that the Accused harboured

the intent to destroy the Bosnian Muslims and Bosnian Croats of the ARK.”118 At face value, the

Tribunals prioritize the accused’s confession or other overt statement of intent. Discursively

analyzing the Trial Chambers’ judgments, however, demonstrates that these Chambers critique

these statements as harshly as other sources.

Although the Tribunals admit the accused’s statements, the judges’ description of the

accused better evidence their interpretations of genocidal intent. Some judgments, according to

the standards of judicial neutrality, dismiss the accused’s statements neutrally. For instance, in

116
Akayesu, par. 709.
117
Jelisic, par. 102.
118
Brdanin, par. 986-7.
 Burns 40

Prosecutor v. Ntakirutimana, “the Chamber notes that the alibi raised by the two Accused was

found not to raise a reasonable” doubt.119 Considering only the burden and dismissing the

content of the alibi, the Ntakirutimana Trial Chamber remains neutral about the accused’s

alleged participation. Other judgments, like Prosecutor v. Kalimanzira, more directly dismiss

the substance of the accused’s statements. The Chamber notes that the accused avoided

contested points and that it “disbelieves” the accused’s alibi.120 Kalimanzira’s legitimate

comments, though expressed in more concrete language than Ntakirutimana, remain relatively

neutral toward the perpetrator.

In other cases, while recapitulating the evidence instead of, for instance, finding for a

conviction, the ICTR Trial Chambers express a negative opinion about the accused. In

Prosecutor v. Ferdinand Nahimana, Jean Bosco Barayagwiza, and Hassan Ngeze, the ICTR

ruled that “if the downing of the [Rwandan President Juvénal Hayarimana’s] plane was the

trigger, then RTLM, Kangura and CDR [the media outlets under the accused’s oversight] were

the bullets in the gun” (emphasis added).121 The same case continues that Radio Télévision

Libre des Milles Collines (RTLM) was Nahimana’s “weapon of choice,” and that Nahimana was

RTLM’s “mastermind,” but that Barayagwiza was the “lynchpin among the three Accused.”122

These statements, as opposed to the Tribunal’s in Ntakirutimana or Kalimanzira, express the

Tribunals’ negative opinion of the accused. The criminal and violent imagery convict the

accused before the Court does in the final sentencing chapter.

119
Prosecutor v. Elizaphan and Gérard Ntakirumtimana, Cases No. ICTR-96-10 & ICTR-96-17-T, Trial Chamber
Judgment and Sentence. par.782.
120
Ibid., par. 179, 215.
121
Prosecutor v. Ferdinand Nahimana, Jean Bosco Barayagwiza, and Hassan Ngeze, Case No, ICTR-99-52-T,
Trial Chamber Judgment, par. 953.
122
Ibid, par. 966, 974, 1050.
 Burns 41

Yet, this bias does not exist as an anomaly in one case; it extends to other cases.

Prosecutor v. Renzaho repeated Nahumana, Barayagwiza, and Ngeze’s violent language, and

Ntakirutimana struggled to present the accused positively: the judgment describes the search for

Tutsis in animalistic terms, as “hunting down” or “chasing,” as opposed to “pursuing,”123 a

humanizing word occurring later. Of course, the Chambers do not have an obligation to present

the accused positively or even to withhold their judgments. Rather this obviously negative

language expresses the Tribunal’s opinion and so emphasizes the accused’s guilt.

The accused’s statements and statements about the accused qualitatively measure

genocidal intent. Even though the ICTY and the ICTR dismiss the accused’s statements as

supporting evidence of dolus specialis, the statement’s themselves and their inclusion in the

judgment of genocidal intent force the judges to confront the essence of the human tragedy.

Stories: the Victims

The judges confront genocide’s human heartbreak more explicitly in witness and victim

testimony. In terms of the accused’s statements, the ICTY and ICTR generally discredited them

as demonstrating genocidal intent. Interesting, in terms of statements from and stories of

witnesses and victims, the Tribunals’ treatment diverges. Either the Trial Chambers discredit

their experiences and so dismiss them as evidence of dolus specialis, or they emphasize the

victims’ vulnerability as civilians, refugees, women and children, thus introducing a new element

to genocidal intent. Although now a common interpretation of the victim group’s identity,

subjective identity interpretation caused hesitation in Arusha, so it remained the sphere of

scholars. For instance, Chalk and Jonassohn proposed defining the victim “group and

123
Ntakirutimana, par. 828, 832.
 Burns 42

membership in it [as] defined by the perpetrator.”124 This fifth and final section analyzes the

interpretation of genocidal intent from the statements from and the stories of victims.

In the ICTY’s first prosecution of a genocide indictment, the Jelisic judgment historically

acquitted the accused because the Tribunal dismissed the evidence of dolus specialis, explicitly

victim testimony. The judgment reported witness testimony as “according to” or “as related by,”

and as “alleged,” “purported,” or “reputed.”125 Similarly, it includes discrepancies between

testimonies: “On 8 May 1992 [Jelisic] reputedly said to one witness that is was his sixty-eighth

victim, on 11 May that he had killed one hundred and fifty persons, and finally on 15 May to

another witness following an execution that it was his ‘eighty-third case.’”126 Fortunately,

instead of crediting these discrepancies to the victims, the Tribunals attribute the differences

between dates and executions to the accused’s excited exaggerations: “he took a certain pride in

the number of victims that he had allegedly executed.”127 Unfortunately, the discrepancies’

inclusion already casts doubt on the victims’ testimony, as does the Trial Chamber’s obvious

statement about the testimony’s lack of support: “he had allegedly executed” (emphasis added).

Finally, the ICTY reads the executions’ randomness as proof that Jelisic neither planned nor

desired the group’s destruction. The random killings could have, however, reinforced the

executioner’s power and terrorized the survivors.

In the ICTR’s most similar instance, Trial Chamber III in Prosecutor v. Bagambiki

questions not the events and the experiences, but their destructive nature: “the Chamber

concludes that the mistreatment was not such as to cause…serious bodily injury.”128 In other

124
Chalk, 23.
125
Jelisic, par. 102-105.
126
Ibid., par. 103.
127
Ibid., par. 104.
128
Prosecutor v. André Ntagerura, Emmanuel Bagambiki, Samuel Imanishimwe, Case No. ICTR-99-46-T, Trial
Chamber Judgment, par.692.
 Burns 43

words, Bagambiki questions the actus reus not the mens rea. Bagambiki is even anomalous in

ICTR’s jurisprudence. More commonly, the “Chamber found the witnesses to be credible and

their evidence reliable, and [that] various circumstances supported their testimonies.”129 Instead

of discrediting witnesses, the ICTR Trial Chambers remarked that they corroborated each other’s

testimony and other evidence.

Given this corroboration, the ICTR’s Chambers consulted witness and victim testimony.

In fact, the ICTR interpreted the accused’s intent to destroy from the personal tragedies of his or

her victims. Not only do personal stories portray the accused as vicious, but also they paint the

victims as vulnerable. Musema describes in graphic detail, the accused’s rape on 13 May 1994

of the young Tutsi teacher Nyiramusugi.130 Nyiramusugi’s brutalization not only makes

Musema the brute but also makes the crime concrete. Moving away from evaluations of an

“ethnical, national, racial, or religious group, as such” and in substantial part, Nyiramusugi’s

experience demonstrates the accused’s destruction. As opposed to large-scale, systematic

destruction, personal stories demonstrate genocide’s human tragedy.

Interestingly and in a similar vein, Prosecutor v. Akayesu includes the accused’s attack

on elderly Hutu woman.

It has been established that on the evening of 20 April 1994, Akayesu, and two
Interahamwe militiamen and a communal policeman, one Mugenzi, who was armed at
the time of the events in question, went to the house of Victim Y, a 69 year old Hutu
woman, to interrogate her...During the questioning which took place in the presence of
Akayesu, the victim was hit and beaten several times. In particular, she was hit with the
barrel of a rifle on the head by the communal policeman. She was forcibly taken away
and ordered by Akayesu to lie on the ground. Akayesu himself beat her on her back with
a stick. Later on, he had her lie down in front of a vehicle and threatened to drive over
her if she failed to give the information he sought.131

129
Prosecutor v. Siméon Nchamihigo, Case No. ICTR-01-63-T, Trial Chamber Judgment, par. 333.
130
Musema, par. 907.
131
Akayesu, par. 720.
 Burns 44

First, this paragraph corroborates or credits the victim’s story—“it has been established”—and

even establishes the accused’s criminal liability. He commits crimes, namely beating and

threatening the victim; and crimes occur in his presence, which the international criminal

tribunals interpret as encouragement or aiding and abetting. Second, this story stresses the

victims’ vulnerability: an elderly woman faces four men. At least three men have self-defense

and likely more aggressive training as well, and one attacker was armed. Akayesu enjoys and

exploits political authority over the woman. Notably, the Genocide Convention does not identify

the victims as vulnerable, rather as members of ethnic, national, racial, or religious groups.

Immediately identifying her as the ethnic or racial Hutu group—the genocidaires as opposed to

the victims—the ICTR dismisses that the “serious bodily and mental harm” she survived

constituted genocide. Yet, the harm’s inclusion in the judgment evidences Akayesu’s ability to

engage in biologically destructive behavior. His infliction of such violence on an already

vulnerable member of his own group makes his perpetration of genocide against an already

discriminated group seems more plausible.

As Akayesu established, this targeting evidences genocidal intent. Yet, the victims’

perceived vulnerability does not prove dolus specialis. Nevertheless, the Brdanin judgment

identifies the victims not only as a protected group—a national, ethnical, racial, or religious

group—but also as individuals. The Manjaca detention facility held civilians, including

underage and elderly detainees,132 and the Omarska internment camp held 30 to 35 women,

minors, and mentally impaired individuals.133 Similarly, Prosecutor v. Seromba specifies that

refugees suffered. Within five sentences, the judgment mentions “refuge” or “refugee” eight

132
Brdanin, par. 750.
133
Ibid, par. 841-2.
 Burns 45

times,134 and Prosecutor v. Ntakirutimana uses the word eight times within one paragraph.135

Technically, the fleeing Tutsi population was internally displaced people not refugees, but the

latter term, given its less technical nature and longer historical use, conjures stronger emotions,

perhaps explaining the ICTR’s preference for the term.

Comparing the attackers and their victims, Akayesu emphasizes the latter’s weakness.

Other judgments from both Tribunals stress the victims’ state and genocide’s human heartbreak

by contrasting the crime’s location and the victims’ expectation of safety there. In addition to

the victim’s internal displacement, other ICTY and ICTR judgments emphasize that the victim

faced armed and trained attackers in traditionally secure settings. The judgments detail that

crimes consciously occurred in churches, elementary schools, football stadiums, firehouses,

police stations, and private homes; members of the Serb military and paramilitaries established

detention facilities in these former safe havens.136 The ICTR elaborates on that unexpected

transformation: “Elizaphan Ntakirutimana conveyed attackers to Murambi Church and ordered

the removal of the church roof so that it could no longer be used as a hiding place for the

Tutsi.”137 Of churches, elementary schools, football stadiums, firehouses, police stations, and

private homes, the public expects safety, so displaced persons sought refugee there. Similarly,

these locations symbolize intercultural integration, which genocidaires attack and which

genocides destroy. Genocide’s denial of the right to exist “shocks the conscience of humankind,

causes tremendous and irreversible loss to humanity, and stands against the principles of

humanity that are embodied in the United Nations.”138 That destruction of the victim group and

134
Seromba, par. 326.
135
Ntakirutimana, par. 832.
136
Brdanin, par. 742-968.
137
Ntakirutimana, par. 828.
138
Harvey Marcel Haldorson, “Genocide: A Philosophic Criticism of Genocide as It Is Definied in the United
Nations' Convention on the Prevention and Punishment of Genocide” (Concordia University, 1992), 67.
 Burns 46

of the intercultural connections affects the country in long-term reconciliation and

reconstruction. Post-war, no one enjoys an expectation of safety. In fact, everyone feels

vulnerable to reprisal violence. Such an emphasis reflects the judges’ empathy toward the

victims. These contrasts between the victims and their attackers, between the attacks and their

traditionally safe settings, further highlight the victims’ vulnerability.

Adhering to this interpretation, the Krstic judgment emphasizes the victims’ vulnerability

by identifying Srebrenica’s Bosnian Muslims as a community rather than in the Convention’s

legal language of a protected group.139 Other judgments, namely Prosecutor v. Nchamihigo and

v. Bagosora identify other communities, notably Hutu political opponents and Belgium

peacekeepers, respectively, as victims of genocide. In an example of the Prosecution’s

argument, the team charged that the killing of 10 Belgian peacekeepers was “intended to prompt

Belgium to withdraw its contingent to UNAMIR and thus facilitate the ensuing massacres.” The

ICTR Trial Chambers did not accept the argument. In December 2008, Trial Chamber I

dismissed the charge, and one month early, Trial Chamber III found “where the perpetrators of

the genocide believed that eliminating Hutu political opponents was necessary for the successful

execution of their genocidal project against the Tutsi population, the killing of Hutu political

opponents cannot constitute acts of genocide.”140

Again, in defining the victim as a collective rather than an individual, the Tribunals

interpret genocidal intent from evidence of genocide against groups “as such.” The Convention

modifies the protected groups with the phrase “as such,” which some drafting states and

interpreting scholars read as a requirement that the perpetrator commits genocide against

individuals for their group identity. In an example of this interpretation, Peter Drost’s proposed

139
Krstic, par. 211.
140
Nchamihigo, par. 338.
 Burns 47

definition of genocide expands the protected groups to all “individual human beings” if

deliberated destroyed “by reason of their membership in a human collectivity as such.”141 The

Tribunals’ own jurisprudence affirms that “the victim is chosen not because of his individual

identity, but rather on account of his membership of a national, ethnical, racial or religious

group…which, hence, means that the victim of the crime of genocide is the group itself and not

only the individual.”142 To this end, the Trial Chambers advanced, among other sources of

genocidal intent, “the fact of deliberately and systematically targeting victims on account of their

membership of a particular group, while excluding members of other groups” and “the use of

derogatory language toward members of the targeted group.”143

As evidence of this discrimination or targetting, Rutaganda and Brdanin include the

ethnic insults that the victims experienced. Just as the Prosecutor v. Rutaganda Trial Chamber

judgment includes that the accused, speaking to Interahamwe, “stated there was a lot of dirt that

needs to be cleaned up,”144 other ICTR deliberations emphasized that at roadblocks, guards

separated Hutu from Tutsi, and massacred Tutsi, “based on their ethnic identity” occurred.145

Similarly, the Prosecutor v. Brdanin judgment introduces the ethnic humiliation that Bosnian

Croat and Bosnian Muslim prisoners in Bosnian Serb detention centers experienced. In certain

centers, detainees “were called ‘Balija,’ subjected to other ethnic slurs and humiliated,” “were

forced…to assume a praying position,” and “were made to sing Serbian songs and to extend the

Serbian three-fingered salute,” and the guards forced one prisoner, who wrote a statement in the

Latin script, not only to eat that statement but also to rewrite it in Cyrillic.146

141
Drost, 125, quoted in Chalk, 13.
142
Akayesu, par. 521.
143
Kayishema and Ruzindana, par. 93.
144
Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-T, Judgment and Sentence, par.
385.
145
Prosecutor v.François Karera, Case No. ICTR-01-74-T, Trial Chamber Judgment and Sentence, par. 536.
146
Brdanin, par. 776; 839; 834; 823.
 Burns 48

The Trial Chambers advance these sources of genocidal intent or genocide committed

against a group “as such.” Yet, most statements about or stories from the victims emphasize

their vulnerability. The Genocide Convention, reproduced verbatim in the Statutes of the ICTY

and ICTR, however, does not require the victims’ vulnerability, whether as individuals or as a

collective. In fact, according to genocidal intent, only a substantial part of “a national, ethnical,

racial or religious group, as such,” suffers biological destruction.

CONCLUSION

Scholars debate whether genocide’s legal definition with its exhaustive lists of five

physical offenses, four protected groups, and three intentional requirements and whether its

political application in post-conflict countries expresses the reality its perpetrators inflicted and

its victims suffered. Anecdotally, genocide is mass murder based on the victim’s identity.147

Technically, genocide is “acts committed with intent to destroy, in whole or in part, a national,

ethnical, racial or religious group, as such.”148 Examining how this academic debate affects the

judicial interpretation of genocidal intent, this study discursive analyzed the judgments in which

the International Criminal Tribunals for the Former Yugoslavia and Rwanda acquitted and

convicted individuals of genocide.

Scholarship summarizes the Genocide’s Convention judicial interpretation and so takes

the International Criminal Tribunals’ judgments at face value, whereas I analyzed the meaning

behind their words. Thus although the Tribunals advanced sources from which to infer

genocidal intent, I identified four sources from which they interpreted it: logical comparisons,

reference to and repetition of ‘widespread’ and ‘systematic,’ statistics of the atrocities, and the

147
Kabatsi: 387.
148
“Genocide Convention,” Art. 2.
 Burns 49

statements of or about the accused and stories of or about the victims. On the one hand, logical

comparisons, references to and repetition of ‘systematic’, and statistics serve as objective sources

from which to interpret intent. Not necessarily qualitative measures, they do dehumanize the

crime, so the judges avoid genocide’s human expression and effects. On the other hand, the

statements about and stories from both the accused and the victims qualitatively measure

genocidal intent. Obviously, these measures humanize the crime, forcing the judge to face the

atrocities. As this study intended to demonstrate, a tension does exist between the essence of the

human tragedy and the extent of the biological destruction, both of which the term ‘genocide’

attempts to capture.

This tension does not result in a judgment’s reliance on either qualitative or quantitative

measures. In fact, the Tribunals interpret intent from multiple sources perhaps because the

Tribunals have multiple audiences, because they dismiss the evidence even if they accept the

source, and because one source, like the term genocide, cannot capture the lived experience. The

Tribunals are not only convicting or acquitting the defendant but also demonstrating their

legitimacy to future defendants and the international community and establishing legal

precedent. Besides the post-World War II International Military Tribunals at Nuremburg and

Tokyo, these International Criminal Tribunals constitute the first international attempt to end

impunity for violations not only of the laws of war but also of humanitarian and human rights

law. As the first international, judicial bodies to interpret the 1948 Convention on the Prevention

and Punishment of the Crime of Genocide, they are obviously leaving a legacy. Also, as

previously analyzed, the Tribunals may accept a source but dismiss the evidence. For instance,

the Tribunals’ jurisprudence prioritizes the accused’s statements but dismiss these statements as

demonstrating genocidal intent. Finally, these sources are incomplete. Just as a single, legal
 Burns 50

term applied in a political context cannot capture the essence of the human tragedy and the extent

of the biological destruction, one source cannot capture all of genocidal intent. Thus the

Tribunals consult multiple sources.

Genocidal intent, according to the United Nations 1948 Convention on the Prevention

and Punishment of the Crime of Genocide involves “the intent to destroy, in whole or in part, an

ethnical, national, racial, or religious group, as such.”149 The judgments reviewed here

substantially added to the jurisprudence on what acts constitute genocide, but this study

considered only genocidal intent. In that field, these judgments challenge the Convention in

terms of the groups protected under the Convention, the interpretation of partial intent, the

reference to and repetition of ‘systematic,’ and the sources of intent.

Again, the Tribunals interpret intent from logical comparisons, reference to and repetition

of ‘widespread’ and ‘systematic,’ statistics of the atrocities, and the statements of or about the

accused and stories of or about the victim. The Convention protects four groups: ethnic,

national, racial, and religious. Notably, it excludes political and social collectivities, which

scholars advocate protecting. Although the judgments largely adhere to the Convention’s list,

the prosecution occasionally advocates expanding the protected groups. Again, in some cases,

the prosecution argues that the destruction of one group, albeit political, protecting the

discriminated group constitutes or at least facilitates genocide and so should also be prosecuted.

While the Tribunals reject this interpretation, they do adopt another standard by which to identify

the victims: their vulnerability. The ICTY and the ICTR emphasize the victims’ vulnerability,

thus introducing another requirement to genocidal intent’s identification of the victim groups.

“This subjective approach to the definition of the four protected groups, far from undermining

the Convention, breathes new life into and ensures healthy interplay between the norms and the
149
“Genocide Convention,” Art. 2.
 Burns 51

socio-cultural context in which they are applied.”150 This contextual interpretation challenges

that the perpetrators select victims according to their group membership and desire the groups’

destruction as a group.151

Similarly, the ICTY change the interpretation of “partial intent.” Whereas the

commissions and documents establishing the Tribunals and even the ICTR interpret “in part”

pseudo-qualitatively, in terms of community, the ICTY analyzes statistics. Obviously, “in part”

implies numbers, so the Tribunals include statistics on the atrocities. Yet, the ICTY advances

and the ICTR applies a definition of “in part” beyond these statistics, also considering whether

the destruction was substantial in terms of the groups’ members. The ICTY, however, adds

another element to genocidal intent, requiring that substantial numbers suffer within a given

geography. Not only do the ICTY’s Trial Chambers emphasize numbers but also geography,

thus introducing two interpretations to dolus specialis. This numerical emphasis contracts the

crime’s definition. Instead of affirming groups’ right to exist, the significance of some

populations to group survival, and the contribution of human groups to all of humanity, this

qualitative criterion introduces an extrastatutory policy concern, namely the trivialization of

genocide, to the Genocide Convention.152 Yet, this geographic emphasis also expands genocide;

it allows for more nuanced interpretations, namely defining destruction regionally or municipally

rather than internationally.

The ICTY and ICTR Trial Chambers also expands genocide’s definition by emphasizing

genocidal acts’ widespread and, specifically, systematic execution. ‘Systematic’ connote

genocide’s predecessors: crimes against humanity and the Holocaust. Capturing this source, the

150
Guglielmo Verdirame, "The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals," The
International and Comparative Law Quarterly 49, no. 3 (2000): 598.
151
Greenwalt: 2265.
152
Alonzo-Maizlish: 1392.
 Burns 52

Tribunals not only consult the victims’ systematic selection and the crime’s degree of planning

but also reference and repeat the term ‘systematic.’ Repetition of systematic or reference to

state-sponsorship, however, do not confirm that systematic commission. Thus the Tribunals

interpret genocidal intent by implying similarity to other atrocities, lowering their evidentiary

standards for genocidal intent and allowing the judge to avoid considering the atrocities

themselves and to avoid balancing the qualitative and quantitative measures of genocide.

Ultimately, the Tribunals interpret intent according to both qualitative and quantitative

measures. More significantly, they add elements to genocidal intent: a qualitative criterion with

a geographic emphasis, a vulnerability requirement for protected groups, and the crimes’

systematic commission. Although the Tribunals advanced sources from which to infer intent, the

fact that they interpret genocidal intent from unacknowledged sources, what the “intent to

destroy” involves, what intentional standard to require, and where to locate genocidal intent

remain unresolved issues.153

Thus this topic requires further study. I propose expanding this study to include not only

the Trial Chamber judgments where the accused plead guilty to genocide but also to Appeals

Chamber judgments of genocide. These studies also could investigate the interpretation of intent

for other genocidal acts. Similarly, future research could compare national prosecutions for

genocide with the international interpretation of dolus specialis. International prosecutions may

soon include the International Criminal Court’s judgments. Given that the ICC’s Appeals

Chamber’s recent ruling on an arrest warrant for Sudanese President Omar al-Bashir lowered the

standard for indictments for genocide, maybe more interpretations of genocidal intent will soon

exist for study.

153
Kimura: 406.
 Burns 53

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 Burns 60

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