March 4, 2025
Name: Muhammad Dzaky Raihan
Student Number: 2203101010179
Subject: International Criminal Law
QUIZ
1. How to identify protected groups in Genocide?
Identifying protected groups in genocide is a crucial aspect of international criminal law, as
defined by the Convention on the Prevention and Punishment of the Crime of Genocide (1948).
According to this convention, four specific groups are protected: national, ethnical, racial, and
religious groups. However, the challenge lies in defining these groups and determining
membership, which has been extensively debated in international jurisprudence.
Objective vs. Subjective Approaches in Identifying Protected Groups
Initially, international tribunals adopted an objective approach in defining protected groups.
This method relied on concrete, externally verifiable criteria such as nationality, language,
culture, or physical characteristics. However, as seen in the Akayesu case (ICTR-96-4-T, 1998),
where the International Criminal Tribunal for Rwanda (ICTR) convicted an individual for
genocide, the rigid application of objective criteria proved problematic. The Tutsi victims, for
example, did not have clear physical or cultural distinctions from the Hutu population.
In response, the courts gradually shifted towards a subjective approach, which considers the
perception of the perpetrator. This means that a group is protected if the perpetrators of genocide
perceive them as a distinct entity targeted for destruction. The ICTY, in the Jelisić case (IT-95-
10-T, 1999), acknowledged this shift by emphasizing that rigid scientific classifications of race
or ethnicity are impractical, and what matters is how the victims were identified by those
committing the crime.
Criteria for Identifying Protected Groups
1. National Groups – Defined as groups sharing legal bonds through citizenship,
nationality, or historical identity. The Nottebohm case (ICJ, 1955) provided a reference
for determining nationality based on strong factual ties rather than formal citizenship.
2. Ethnical Groups – Typically identified by shared culture, language, and historical
lineage. However, as seen in the Rwandan Genocide, this criterion can be fluid, requiring
both objective markers and societal perception.
3. Racial Groups – Originally defined by hereditary physical traits, but contemporary legal
interpretation recognizes that race is socially constructed. The Akayesu ruling criticized
a purely biological view and instead considered race in its social and historical context.
4. Religious Groups – Defined by shared spiritual beliefs and practices. Courts have
debated whether atheistic or agnostic groups could fall under this category, with some
arguing that only organized religious communities are protected.
Implications of the Perpetrator-Based Approach
By relying on the perpetrator’s perception, courts ensure that groups targeted for genocide
receive legal protection even when their classification under traditional definitions is unclear.
However, this approach has its challenges, particularly regarding the principle of legality
(nullum crimen sine lege), which demands precise definitions in criminal law.
Ultimately, while the Genocide Convention protects only four specific groups, international
jurisprudence has evolved to incorporate both objective markers and the subjective perceptions
of perpetrators, ensuring broader legal coverage and accountability.
2. Whether Genocide always needs a genocidal policy or plan?
Genocide does not always require a genocidal policy or plan as a formal legal element.
However, in practice, many genocidal acts occur within the context of an organized plan or
systematic policy.
Legal Framework: Intent vs. Policy
The Convention on the Prevention and Punishment of the Crime of Genocide (1948) does
not explicitly require a policy or plan. Instead, it focuses on specific intent (dolus specialis)—
the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. This
means that even spontaneous or decentralized acts of mass violence could be considered
genocide if the perpetrators acted with genocidal intent.
International Jurisprudence on Genocidal Policy
The International Criminal Tribunal for Rwanda (ICTR) and the International Criminal
Tribunal for the Former Yugoslavia (ICTY) have confirmed that genocide can occur even
without an official state policy. In Prosecutor v. Akayesu (ICTR-96-4-T, 1998), the ICTR
ruled that genocide can be committed by individuals or groups, not just state actors, and does not
require a formal plan. Similarly, in Prosecutor v. Jelisić (ICTY-95-10, 1999), the ICTY stated
that a genocidal policy may facilitate proof of intent, but it is not a legal requirement for
genocide to occur.
The Rome Statute of the International Criminal Court (ICC) also follows this approach.
Article 6 of the Rome Statute mirrors the Genocide Convention’s definition and does not require
an official genocidal plan or policy. However, in practice, systematic and coordinated actions
often provide strong evidence of genocidal intent.
Practical Considerations: Role of Policy in Proving Genocide
While a genocidal policy is not a legal requirement, in most cases, genocide occurs within a
structured plan or organized campaign (e.g., the Holocaust, Rwandan Genocide). A formal
policy can make proving intent easier—documented orders, government propaganda, and
organized killings provide clear evidence of intent. However, localized or spontaneous
genocidal acts may still qualify as genocide if they are committed with specific intent.
3. How to identify genodical intent?
Genocidal intent, or dolus specialis, is the specific intent to destroy, in whole or in part, a
national, ethnical, racial, or religious group. This intent is what distinguishes genocide from
other international crimes, such as crimes against humanity or war crimes. However, proving
genocidal intent is often challenging, as direct evidence (such as written orders or public
statements) is not always available. Instead, courts rely on both direct and circumstantial
evidence to establish intent.
Direct Evidence of Genocidal Intent
In some cases, genocidal intent can be proven through explicit statements or documents from
the perpetrators. Examples include official policies or orders directing the destruction of a
group, speeches or propaganda encouraging mass killings (such as radio broadcasts during the
Rwandan Genocide calling for the extermination of the Tutsi), and admissions or confessions
by perpetrators acknowledging their intent to destroy a group.
However, direct evidence is rare, as perpetrators often disguise their true intentions. Therefore,
courts frequently rely on circumstantial evidence to infer intent.
Circumstantial Evidence and Patterns of Conduct
Because direct evidence is often unavailable, courts examine patterns of conduct and the
broader context of mass violence. Several key factors are used to infer genocidal intent.
First, the scale and systematic nature of attacks can indicate intent. When violence is large-
scale and organized, rather than random or sporadic, it suggests a deliberate attempt to
eliminate a group. For example, in Prosecutor v. Krstić (ICTY-98-33-T, 2001), the
International Criminal Tribunal for the Former Yugoslavia (ICTY) found genocidal intent based
on the coordinated mass killings of Bosnian Muslim men in Srebrenica.
Second, targeting individuals based on group identity is another crucial indicator. If victims
are selected because of their membership in a specific group, rather than for political or
military reasons, this strengthens the case for genocidal intent. Historical examples include the
forced identification of Jews with yellow stars during the Holocaust or the systematic
execution of Tutsis in Rwanda.
Third, hate speech and propaganda play a significant role. Public incitement to genocide, such
as radio broadcasts, speeches, or publications that dehumanize a group, provides strong
evidence of intent. For instance, in Prosecutor v. Akayesu (ICTR-96-4-T, 1998), the
International Criminal Tribunal for Rwanda (ICTR) ruled that propaganda urging Hutus to kill
Tutsis contributed to establishing genocidal intent.
Fourth, the methods of killing and atrocities committed can reveal intent. Acts such as
systematic rape, forced sterilization, and mass executions targeting a particular group often
indicate a desire to eliminate that group’s existence. The killing of leaders, intellectuals, or
cultural figures within the group can also demonstrate an intent to destroy its identity.
Fifth, the forced transfer of populations and destruction of cultural identity may also signal
genocidal intent. Actions such as forcibly removing children from a group, banning their
language, or destroying religious sites can be used as evidence. In Prosecutor v. Blagojević and
Jokić (ICTY-02-60-T, 2005), the ICTY considered the forced displacement of Bosnian Muslims
as part of a broader genocidal campaign.
Judicial Interpretation of Genocidal Intent
Courts have developed legal standards to infer genocidal intent based on the totality of
evidence. The ICTR and ICTY have ruled that genocidal intent does not require a formal
policy but can be inferred from actions, statements, and patterns of violence. Similarly, the
International Criminal Court (ICC) has stated that intent can be inferred if the perpetrators
knew their actions would lead to the destruction of a protected group.
Conclusion
Genocidal intent can be identified through direct evidence (such as orders or public statements)
and circumstantial evidence (such as large-scale, systematic killings, targeting of identity, hate
speech, and destruction of cultural symbols). Courts rely on these factors to establish the specific
intent to destroy a group, which is the defining characteristic of genocide.
