Table of contents:
P.25.1. Evidence of the nature of the conditions of life imposed.
P.25.2. Evidence of the length of time for which the conditions of life were imposed.
P.25.3. Evidence of the characteristics of the members of the targeted group.
P.27. Not required: Evidence of the actual physical destruction of the group.
Element:
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 692:
"692. The group upon which these conditions are inflicted must be a protected group under the terms of the Genocide Convention. Such conditions must be calculated to bring about the physical destruction of the targeted group in whole or in part and must be inflicted on it deliberately."
Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 518:
"518. The words "calculated to bring about its physical destruction" replaced the phrase "aimed at causing death" proposed by Belgium in the UN General Assembly’s Sixth (Legal) Committee.1094 The Trial Chamber in Akayesu held that the expression "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".1095 The element of physical destruction is inherent in the word genocide itself, which is derived from the Greek "genos" meaning race or tribe and the Latin "caedere" meaning to kill. It must also be remembered that cultural genocide, as distinct from physical and biological genocide, was specifically excluded from the Convention against Genocide. The International Law Commission has commented:
519. 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 part of a group does not in itself suffice for genocide.1097 As Kreß has stated, "[t]his 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".1098 In this context the Chamber recalls that a proposal by Syria in the Sixth Committee to include "[i]mposing 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 by twenty-nine votes to five, with eight abstentions.1099"
"1094. UN Doc. A/C.6/217 (Belgian proposal); UN Doc. A/C.6/SR.82 (Soviet amendment).
1095. Akayesu Trial Judgement, para. 505.
1096. Report of the International Law Commission on the Work of its Forty-eighth Session, 6 May- 26 July 1996, UN Doc. A/51/10, pp. 90-91.
1097. K. Kreß, Münchner Kommentar zum StGB, Rn 57, §6 VStGB, (Munich 2003), W. A. Schabas, Genocide in International Law (Cambridge University Press, 2000), p. 200. The German courts have found that the expulsion of Bosnian Muslims from the areas in which they lived did not constitute genocide. See BGH v. 21.2.2001 – 3 StR 244/00, NJW 2001, 2732 (2733).
1098. K. Kreß, Münchner Kommentar zum StGB, Rn 57, §6 VStGB, (Munich 2003).
1099. A/C.6/234, see UN GAOR, 3rd Session, Sixth Committee, Summary Records of Meetings, 21 September to 10 December 1948, p. 176 and 186. For further details see K. Kreß, Münchner Kommentar zum StGB, Rn 53-57, 57, §6 VStGB, (Munich 2003)."
B. Evidentiary comment:
The passage of the ICTY Trial Chamber in Stakić (para. 519) seems to blur the line between the nature of the acts (in particular whether they are such as to actually bring about the physical destruction of the group) and the state of mind of the perpetrator (whether the conditions were calculated to bring about the physical destruction of the group) and to introduce a requirement that the acts must be objectively capable of bringing about the destruction of the group. This also seems implicit in the approach of the ICTR Trial Chamber in Kayishema (para. 116, above), where it states that the conditions of life in question could 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." (emphasis added). Such a position is, however, to contrasted with the holding by the ICTY Appeals Chamber in Krstić (para. 32) concerning the general requirement of genocidal intent, that:
One way to reconcile these apparently conflicting views would be to read the specific requirement in paragraph (c) – that the living conditions be "calculated to bring about the physical destruction of the group" – as a more specific and perhaps more stringent requirement than the general requirement for genocidal intent under article 6. (It might indeed be argued that if this were not the case the requirement would be redundant.) This would imply the requirement that the conditions of life be capable of physically destroying the group. There is nothing, however, in the text of article 6(c) or its drafting history that would support such interpretation.
The question thus remains open as to what this element adds to the common element of genocide that the perpetrator "intended to destroy, in whole or in part, [the protected] group, as such". It may be argued that the requirement that a specific conduct be "calculated" to cause a certain outcome is different from requiring that the conduct be accompanied by the "intent" to cause that result: this, however, has yet to be established by a national court or international tribunal.
''2586. However, the Chamber recalls that the “actus reus of Article 4(2)(c) of the Statute ‘covers methods of physical destruction, other than killing, whereby the perpetrator ultimately seeks the death of the members of the group’”. While Article 4(2)(a) and (b) in that Article 4(2)(a) and (b) proscribes acts causing a specific result, i.e.: death and serious bodily or mental harm, respectively, Article 4(2)(c) concerns “those methods of destruction that do not immediately kill the members of the groups, but which, ultimately, seek their physical destruction”, i.e.: slow death.''
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 906:
"906. In the absence of direct evidence, in inferring whether the "conditions of life" imposed on Bosnian Muslim and Bosnian Croat detainees amounted to conditions calculated to bring about their physical destruction in part,2256 the Trial Chamber has focused on the objective probability of these conditions leading to the physical destruction of the group in part.2257 In evaluating this objective probability, the Trial Chamber has focused on the actual nature of the "conditions of life" and on the length of time that members of the group were subjected to them. It has also been guided, when available, by factors such as the characteristics of the members of the group upon which they were inflicted."
"2256. The Indictment alleges that Bosnian Muslim and Bosnian Croat non-combatants were detained under conditions calculated to bring about the physical destruction of a part of those groups: Indictment, para. 37(3).
2257. See N. Robinson, The Genocide Convention: a Commentary (Institute of Jewish Affairs, New York, 1960), p. 64: "[i]t is impossible to enumerate in advance the 'conditions of life' that would come within the prohibition of Article II; the intent and probability of the final aim alone can determine in each separate case whether an act of Genocide has been committed (or attempted) or not"."
P.25.1. Evidence of the nature of the conditions of life imposed.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 906:
"906. In the absence of direct evidence, in inferring whether the "conditions of life" imposed on Bosnian Muslim and Bosnian Croat detainees amounted to conditions calculated to bring about their physical destruction in part,2256 the Trial Chamber has focused on the objective probability of these conditions leading to the physical destruction of the group in part.2257 In evaluating this objective probability, the Trial Chamber has focused on the actual nature of the "conditions of life" and on the length of time that members of the group were subjected to them. It has also been guided, when available, by factors such as the characteristics of the members of the group upon which they were inflicted."
"2256. The Indictment alleges that Bosnian Muslim and Bosnian Croat non-combatants were detained under conditions calculated to bring about the physical destruction of a part of those groups: Indictment , para. 37(3).
2257. See N. Robinson, The Genocide Convention: a Commentary (Institute of Jewish Affairs, New York , 1960), p. 64: "[i]t is impossible to enumerate in advance the 'conditions of life' that would come within the prohibition of Article II; the intent and probability of the final aim alone can determine in each separate case whether an act of Genocide has been committed (or attempted) or not"."
P.25.2. Evidence of the length of time for which the conditions of life were imposed.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 906:
"906. In the absence of direct evidence, in inferring whether the "conditions of life" imposed on Bosnian Muslim and Bosnian Croat detainees amounted to conditions calculated to bring about their physical destruction in part,2256 the Trial Chamber has focused on the objective probability of these conditions leading to the physical destruction of the group in part.2257 In evaluating this objective probability, the Trial Chamber has focused on the actual nature of the "conditions of life" and on the length of time that members of the group were subjected to them. It has also been guided, when available, by factors such as the characteristics of the members of the group upon which they were inflicted."
"2256. The Indictment alleges that Bosnian Muslim and Bosnian Croat non-combatants were detained under conditions calculated to bring about the physical destruction of a part of those groups: Indictment , para. 37(3).
2257. See N. Robinson, The Genocide Convention: a Commentary (Institute of Jewish Affairs, New York , 1960), p. 64: "[i]t is impossible to enumerate in advance the 'conditions of life' that would come within the prohibition of Article II; the intent and probability of the final aim alone can determine in each separate case whether an act of Genocide has been committed (or attempted) or not"."
P.25.3. Evidence of the characteristics of the members of the targeted group.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 906:
"906. In the absence of direct evidence, in inferring whether the "conditions of life" imposed on Bosnian Muslim and Bosnian Croat detainees amounted to conditions calculated to bring about their physical destruction in part,2256 the Trial Chamber has focused on the objective probability of these conditions leading to the physical destruction of the group in part.2257 In evaluating this objective probability, the Trial Chamber has focused on the actual nature of the "conditions of life" and on the length of time that members of the group were subjected to them. It has also been guided, when available, by factors such as the characteristics of the members of the group upon which they were inflicted."
"2256. The Indictment alleges that Bosnian Muslim and Bosnian Croat non-combatants were detained under conditions calculated to bring about the physical destruction of a part of those groups: Indictment , para. 37(3).
2257. See N. Robinson, The Genocide Convention: a Commentary (Institute of Jewish Affairs, New York , 1960), p. 64: "[i]t is impossible to enumerate in advance the 'conditions of life' that would come within the prohibition of Article II; the intent and probability of the final aim alone can determine in each separate case whether an act of Genocide has been committed (or attempted) or not"."
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 906:
"906. In the absence of direct evidence, in inferring whether the "conditions of life" imposed on Bosnian Muslim and Bosnian Croat detainees amounted to conditions calculated to bring about their physical destruction in part,2256 the Trial Chamber has focused on the objective probability of these conditions leading to the physical destruction of the group in part.2257 In evaluating this objective probability, the Trial Chamber has focused on the actual nature of the "conditions of life" and on the length of time that members of the group were subjected to them. It has also been guided, when available, by factors such as the characteristics of the members of the group upon which they were inflicted."
"2256. The Indictment alleges that Bosnian Muslim and Bosnian Croat non-combatants were detained under conditions calculated to bring about the physical destruction of a part of those groups: Indictment , para. 37(3).
2257. See N. Robinson, The Genocide Convention: a Commentary (Institute of Jewish Affairs, New York , 1960), p. 64: "[i]t is impossible to enumerate in advance the 'conditions of life' that would come within the prohibition of Article II; the intent and probability of the final aim alone can determine in each separate case whether an act of Genocide has been committed (or attempted) or not"."
P.27. Not required: Evidence of the actual physical destruction of the group.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 691:
"691. "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 the physical destruction in whole or in part of the targeted group.1705 […]"
Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 517:
"517. "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. […]"
A. Legal source/authority and evidence:
Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, Judgment (TC), 31 July 2003, para. 519:
"519. 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 part of a group does not in itself suffice for genocide.1097 As Kreß has stated, "[t]his 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".1098 In this context the Chamber recalls that a proposal by Syria in the Sixth Committee to include "[i]mposing 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 by twenty -nine votes to five, with eight abstentions.1099"
"1094. UN Doc. A/C.6/217 (Belgian proposal); UN Doc. A/C.6/SR.82 (Soviet amendment).
1095. Akayesu Trial Judgement, para. 505.
1096. Report of the International Law Commission on the Work of its Forty-eighth Session, 6 May- 26 July 1996, UN Doc. A/51/10, pp. 90-91.
1097. K. Kreß, Münchner Kommentar zum StGB, Rn 57, §6 VStGB, (Munich 2003), W. A. Schabas, Genocide in International Law (Cambridge University Press, 2000), p. 200. The German courts have found that the expulsion of Bosnian Muslims from the areas in which they lived did not constitute genocide. See BGH v. 21.2.2001 – 3 StR 244/00, NJW 2001, 2732 (2733).
1098. K. Kreß, Münchner Kommentar zum StGB, Rn 57, §6 VStGB, (Munich 2003).
1099. A/C.6/234, see UN GAOR, 3rd Session, Sixth Committee, Summary Records of Meetings, 21 September to 10 December 1948, p. 176 and 186. For further details see K. Kreß, Münchner Kommentar zum StGB, Rn 53-57, 57, §6 VStGB, (Munich 2003)."
"557. For the same reasons, the Trial Chamber finds that the dolus specialis has not been proved in relation to "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." The Trial Chamber recalls in this context that deporting a group or part of a group is insufficient if it is not accompanied by methods seeking the physical destruction of the group."
B. Evidentiary comment:
The ICTY Trial Chamber in Stakić appears to have taken the position that forced deportations are not covered by article 6(c) (or at least not in themselves), apparently on the basis that they could not be calculated to destroy the group, but only to dissolve it. (On this point see the evidentiary under element 5 above.)
In Brđanin the Prosecution sought to argue that forced deportations constituted conditions of life calculated to bring about the destruction of the group under article 6(c). The Trial Chamber ruled this argument impermissible on the basis that it had not been raised in pleadings (but did not state whether it would in any event necessarily fail on the grounds discussed in Stakić).
