CILRAP » Case Matrix Network » CMN Knowledge Hub » Elements Digest » Art. 6 Genocide » Art. 6(c) Conditions of life » 5. The perpetrator inflicted certain conditions of life upon one or more persons.

Element:

5. The perpetrator inflicted certain conditions of life upon one or more persons.

As noted by ICTY Trial Chamber in The Prosecutor v. Radovan Karadžić:

"546. The acts punishable under Article 4(2)(c) are construed as "the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction". Contrary to the acts prohibited by Articles 4(2)(a) and 4(2)(b), this provision does not require proof of that a result was attained; as such, it does not require proof that the conditions actually led to death or serious bodily or mental harm of members of the protected group. When such "a result is achieved, the proper charge will be paragraphs (a) or (b)" of Article 4.

547. Examples of such acts include, but are not limited to, subjecting the group to a subsistence diet; failing to provide adequate medical care; systematically expelling members of the group from their homes; and generally creating circumstances that would lead to a slow death such as the lack of proper food, water, shelter, clothing, sanitation, or subjecting members of the group to excessive work or physical exertion. Yet, Article 4(2)(c) applies only to acts that are deliberately calculated to cause a group’s physical destruction and, as such, these acts must be clearly distinguished from those acts designed to bring about the dissolution of the group.

548. In the absence of direct evidence of whether the conditions of life imposed on the group were deliberately calculated to bring about its physical destruction, a chamber can be guided by the objective probability of these conditions leading to the physical destruction of the group in part. The actual nature of the conditions of life, the length of time that members of the group were subjected to them, and the characteristics of the group such as its vulnerability are illustrative factors to be considered in evaluating the criterion of probability." [1]

According to the Akayesu Trial Chamber:

"The Chamber holds that the expression deliberately inflicting on the group conditions of life calculated to bring about its physical destructions in whole or in part, should be construed as the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction.

"For purposes of interpreting Article 2(2) (c) of the Statute, the Chamber is of the opinion that the means of deliberate inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or part, include, inter alia, subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement."[2]

According to the Stakić Trial Chamber:

"Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part' under sub-paragraph (c) does not require proof of a result. The acts envisaged by this sub-paragraph include, but are not limited to, methods of destruction apart from direct killings such as subjecting the group to a subsistence diet, systematic expulsion from homes and denial of the right to medical services. Also included is the creation of circumstances that would lead to a slow death, such as lack of proper housing, clothing and hygiene or excessive work of physical exertion."[3]

According to the Kayishema and Ruzindana Trial Chamber:

"Therefore the conditions of life envisaged include rape, the starving of a group of people, reducing required medical services below a minimum, and withholding sufficient living accommodation for a reasonable period, provided the above would lead to the destruction of the group in whole or in part."[4]

Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, paras. 225-226:

''225. Article 4(2)(c) of the Statute provides that genocide can be committed by “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”. This provision has been analysed and interpreted by a number of trial chambers of the ICTY and the ICTR. The Trial Chamber in this case correctly summarised this jurisprudence as: The underlying acts covered by Article 4(2)(c) are methods of destruction that do not immediately kill the members of the group, but ultimately seek their physical destruction. Examples of such acts punishable under Article 4(2)(c) include, inter alia, subjecting the group to a subsistence diet; failing to provide adequate medical care; systematically expelling members of the group from their homes; and generally creating circumstances that would lead to a slow death such as the lack of proper food, water, shelter, clothing, sanitation, or subjecting members of the group to excessive work or physical exertion. Unlike Articles 4(2)(a) and (b), Article 4(2)(c) does not require proof of a result such as the ultimate physical destruction of the group in whole or in part. However, Article 4(2)(c) applies only to acts calculated to cause a group’s physical or biological destruction deliberately and, as such, these acts must be clearly distinguished from those acts designed to bring about the mere dissolution of the group. Such acts, which have been referred to as “cultural genocide”, were excluded from the Genocide Convention. For example, the forcible transfer of a group or part of a group does not, by itself, constitute a genocidal act, although it can be an additional means by which to ensure the physical destruction of a group.''

''226. The Appeals Chamber has not previously been called upon to address the issue of what acts qualify as the actus reus of genocide under Article 4(2)(c) of the Statute. However, it is satisfied that the legal principles stated by the Trial Chamber are consistent with the existing case law of the ICTY and the ICTR, as well as the letter and spirit of the Genocide Convention. The Appeals Chamber recalls, in this respect the relevant findings of the ICJ in the recent Croatia v. Serbia case. Citing ICTY jurisprudence, the ICJ held that: [d]eliberate infliction on the [protected] group of conditions of life calculated to bring about its physical destruction in whole or in part, within the meaning of Article II(c) of the Convention, covers methods of physical destruction, other than killing, whereby the perpetrator ultimately seeks the death of the members of the group. Such methods of destruction include notably deprivation of food, medical care, shelter or clothing, as well as lack of hygiene, systematic expulsion from homes, or exhaustion as a result of excessive work or physical exertion.''

5.1.1. Commons Means of Proof.

P.1. Evidence of the length of time for which the conditions of life were imposed.

The Kayishema and Ruzindana Trial Chamber stated:

"The Chamber finds that the time periods during which the deprivation occurred were not of sufficient length or scale to bring about the destruction of the group."[5]

5.1.2. Evidence of conditions of life in detention cities.

P.2. Evidence of deprivation of food and water.

P.2.1. Evidence of provision of inadequate quantities of food.

P.2.2. Evidence that food provided was not suitable for consumption.

P.2.3. Evidence that water provided was insufficient in quantity.

P.2.4. Evidence that water provided was not suitable for drinking.

P.3. Evidence of insufficient medical treatment.

P.4. Evidence of inadequate provision of proper housing.

P.4.1. Evidence that detainees were housed in buildings not intended for human habitation.

P.4.2. Evidence of overcrowded housing.

P.4.3. Evidence of insufficient and/or unsuitable bedding.

P.4.4. Evidence of insufficient breathing air.

P.4.5. Evidence of lack of natural light.

P.4.6. Evidence of housing insufficiently heated.

P.5. Evidence of imposition of sleep deprivation.

P.6. Evidence of restrictions on the movement of detainees.

P.7. Evidence of lack of permission to receive visitors.

P.8. Evidence of inadequate provision of clothing.

P.9. Evidence of provision of inadequate hygiene facilities.

P.9.1. Evidence of unclean housing.

P.9.2. Evidence of inadequate toilet facilities.

P.9.3. Evidence of lack of shower or bathing facilities.

P.9.4. Evidence of lack of running water.

P.9.5. Evidence that it was not possible to change or wash clothes.

P.9.6. Evidence of presence of diseases or parasites.

P.10. Evidence of imposition of excessive work or physical exertion.

P.11. Evidence of corporal punishment or other cruel treatment.

5.1.3. Evidence of conditions of life in ghettos.

P.12. Evidence of restrictions on economic activities.

P.13. Evidence of prohibitions on cultural and religious activities.

P.14. Evidence of use of violence to create a climate of terror.

P.15. Evidence of kidnapping for the purpose of forced labour.

P.16. Evidence of improper sanitary conditions and diseases resulting therefrom.

P.17. Evidence of deprivation of food.

5.1.4. Evidence of deportation and systematic expulsion.

P.18. Evidence of deportation.

According to the Stakić Trial Chamber:

"It does not suffice to deport a group or a part of a group. A clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or a part of a group does not in itself suffice for genocide [...] 'this is true even if the expulsion can be characterised as a tendency to the dissolution of the group, taking the form of its fragmentation or assimilation. This is because the dissolution of the group is not to be equated with physical destruction". In this context the Chamber recalls that a proposal by Syria in the Sixth Committee to include '[i]imposing measures intended to oblige members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment' as a separate sub-paragraph of Article II of the Convention against Genocide was rejected [...]."[6]

P.18.1. Evidence of mistreatment of displaced persons.

5.1.5. Other evidence of conditions of life.

P.19. Evidence of deprivation of food.

P.19.1. Evidence of the destruction of crops.

P.20. Evidence of deprivation of medical services.

P.21. Evidence of imposition of excessive work or physical exertion.

P.22. Evidence of expulsion of persons from their homes.

P.23. Evidence of destruction of villages.

P.24. Evidence of rape.