4. [Mental element for element 3] [Circumstance of context:] The perpetrator was aware that the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

4. [Mental element for element 3] [Circumstance of context:] The perpetrator was aware that the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

A. Evidentiary comment:

The Introduction to the elemenets of Genocide in the Elements of Crimes states that:

This "clarification" appears to have arisen from an inability of states to agree on the appropriate form of a mental element, and their belief that in any event it was likely that a perpetrator’s knowledge of this cirumstance would exist if genocidal intent was able to be shown (see Lee, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, pp.48 – 49).

The Prosecutor v. Grégoire Ndahimana, Case No. ICTR-01-68 , Judgement (TC), 30 December 2011, para. 828:

828. The Majority considers that Ndahimana could not ignore the fact that the victims of the attacks at the Nyange parish were Tutsis. For example, evidence relating to 14 April 1994 shows that the accused talked to the refugees and the told him that they had been attacked. The Majority found that Ndahimana came to Nyange parish on the evening of 15 April 1994 and that he had reason to know a large-scale attack occurred that day. In addition, the Majority found him criminally responsible for the acts committed by the communcal police on 15 April 1994 as he had reason to know that they participated in the killings that occurred that day but did not punish them. (…) Additionally, Ndahimana’s presence at the meeting prior to and during the attack of 16 April 1994 shows that Ndahimana could not have ignored, nor been ignorant of the fact that the main perpetrators intended to commit genocide.

[1] Concerning this issue, see in particular Nehemiah Robinson, "The Genocide Convention. Its Origins as Interpretation", p.15, which states that victims as individuals "are important not per se but as members of the group to which they belong".