¹ See Arts 31 and 32 of the 1969 Vienna Convention on the Law of Treaties. Art 31 provided that ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. The preparatory work of the treaty is classified into the supplementary means of interpretation. Yet, it is usually considered a useful tool to determine the object and purpose of the treaty.

² See, for instance, UN Doc AG/Res. /47/121 of 18 Dec 1992, in which the United Nations General Assembly labelled ethnic cleansing as a form of genocide.

³ For a while, it was hoped that the International Court of Justice (ICJ) would consider the question before the ICTY. It has now been 10 years since an application was filed before the ICJ by Bosnia and Herzegovina against the Federal Republic of Yugoslavia for a violation of the Genocide convention (the Application of Bosnia and Herzegovina was filed on 20 Mar 1993, on the basis of Art IX of the Genocide Convention). Had the International Court of Justice already made a ruling, the ICTY's starting point would have been simpler. If the ICJ had determined that the ethnic cleansing carried out in Bosnia and Herzegovina constituted genocide, the ICTY most likely would have adopted this conclusion and would have limited its task to determining whether, and to what extent, each accused participated in the crime. Conversely, had the ICJ found that the ethnic cleansing carried out in Bosnia and Herzegovina did not constitute genocide, the genocide charges would most likely have gradually disappeared from the Tribunal's docket. But the case is still pending and the ICTY is the first international jurisdiction to consider this question.

⁴ Two rule 61 decisions also dealt with genocide charges. The 20 Oct 1995 decision in The Prosecutor v Dragan Nikolić invited the Prosecutor to add a genocide count to the indictment. The 11 July 1996 Decision in The Prosecutor v Radovan Karadć and Ratko Mladić considered the charges of genocide more extensively. However, those decisions cannot be equated to judgments and their legal findings should be considered with precaution in view of the very limited amount of evidence on which they are based and the lower standard of review applied. Those decisions indeed determine whether ‘there are reasonable grounds for believing that the accused committed one or all of the offences for which he is charged in the indictment’. Rule 61 was used, in the early years of the Tribunal, when no accused had yet been arrested, to proceed to a second, more thorough, review of the indictment that could lead to the issuance of an international warrant of arrest. As of Oct 2002, nineteen individuals have been indicted for genocide and/or complicity of genocide. Two accused are no longer alive: Simo Drljaca died resisting arrest and Milan Kovačević died in custody of heart problems. Momir Talić has been released for medical reasons. Eight are currently in custody at, or awaiting, trial: Momšilo Krajišnik, Radoslav Brđanin, Milomir Stakić, Vidoje Blagojević, Dragan Obrenović, Dragan Jokić, Momir Nikolić and Slobodan Milošević. Radovan Karadć, Zlatko Maldić, Vinko Pandurević, Ljubomir Borovćanin, and Stojan Zupljanin are still at large.

⁵ The written Trial Judgment was rendered on 14 Dec 1999 and the Appeals Judgment on 5 July 2001. Goran Jelisić was sentenced to 40 years in prison.

⁶ The Prosecutor v Duško Sikirica, Damir Došen and Dragan Kolundžija, IT-95–8-T (3 Sept 2001), hereinafter ‘the Sikirica et al Judgment on the Defence Motion to Acquit’. Duško Sikirica was alleged to have been the commander of camp, while the other two were alleged to have been shift commanders in the Keraterm camp.

⁷ The written Judgments on the Defence Motions to Acquit was rendered on 3 Sept 2001. Duško sikirica was sentenced to 15 years in the Sentencing Judgment of 13 Nov 2001.

⁸ The Prosecutor v Radislav Krstić, IT-98–33-T (2 Aug 2001), hereinafter the Krstić Trial Judgment.

⁹ The Jelisić Appeals Judgment found that, in view of the evidence presented, the accused could have been found guilty of genocide by a reasonable trial chamber (paras 68–72) but considered that it was not in the interest of justice to remit the case for further proceedings before a Trial Chamber (para 77).

¹⁰ Under Art II of the Genocide Convention and Art 4 of the ICTY Statute, genocide is defined as follows: ‘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:

(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;

(e)forcibly transferring children of the group to another group’

¹¹ Reservations to the convention on the Prevention and Punishment of Genocide, Advisory Opinion, ICJ Report (1951), 23.

¹² Otto Triffterer expresses these two levels of intent as follows: ‘there are two subjective elements required to establish criminal responsibility for genocide: the mens rea, as the pendant to the actus reus, and the ‘intent to destroy […]’. The author emphasizes that […] guarantee the rule of law and respect for the principle nullum crimen sine lege, the two ‘intents’ ought to be strictly separated when it comes to prove the facts necessary to establish the innocence or guilt of an accused’ in ‘Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such’, Leiden Journal of International Law, vol 14, no 2 (2001), 400.

¹³ Jelisić Appeal Judgment, para 46: ‘the specific intent requires that the perpetrator seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such’; Krstić Trial Judgment para 561: ‘mere knowledge of the victims’ membership in a distinct group on the part of the perpetrators is not sufficient to establish an intention to destroy the group as such'.

¹⁴ Ibid, para 60.

¹⁵ The ICTY thereby rejected the interpretation recently advocated by some commentators that genocide should comprise those acts whose foreseeable or probable consequence is the total or partial destruction of the group. See in particular David, Eric, Droit des conflits armés (Bruylant, 1999), 615;Google ScholarGreenawalt, Alexander KA, ‘Rethinking genocidal intent: the case for a knowledge-based interpretation’, Columbia Law Review, 12 1999, 2259–94;CrossRefGoogle ScholarGil, Alicia Gil, Derecho penal internacional, especial consideracion del delito de genicidio (Tecnos: Madrid, 1999;Google ScholarTriffterer, , op cit, 14, no 2 (2001). The ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (ICJ Reports, 1996, 240) also rejected a broad interpretation of intent. It should be noted however that Judge Koroma has called for a broader understanding of intent in his dissenting opinion and deems that a situation should qualify as genocide if the consequences of the act could have been foreseen (ICJ Reports, 577).Google Scholar

¹⁶ The Prosecutor v Jean-Paul Akayesu, ICTR-96–4-t (2 Sept 1998), paras 497, 544–7; The Prosecutor v Clément Kayishema and Obed Ruzindana, ICTR-95–1-T (21 May 1999), para 91; The Prosecutor v Georges Anderson Ndeubumwe Rutaganda, ICTR-96–3-T (6 Dec 1999), para 59; The Prosecutor v Alfred Musema, ICTR-96–13-T (27 Jan 2000), para 164; The Prosecutor v Kambanada, ICTR 97–23-S (4 Sept 1998), para 16.

¹⁷ See Prevent the Crime of Silence: Reports From the Sessions of the International War Crimes Tribunal founded by Bertrand Russel, selected and edited by Peter Limpnew and peter Weis with additional material selected and edited by Ken Coated and a foreword by Noam Chomsky (Bertrand Russell Peace Foundation Ltd, 1971).

¹⁸ Ad hoc Committee on Genocide, Economic and Social Council, UN. Doc E/794 (24 May 1948), 14.

¹⁹ A/CN. 4/398 (11 Mar 1986), para 25: [all] writers, all judicial decisions and all the resolutions of international congresses agree that what characterizes a crime against humanity is the motive, ie, the intention to harm a person or group of persons because of their race, nationality, religion, or political opinions. What is involved is a special intention which forms part of the crime and gives it its specific nature.’

²⁰ ‘La théorie du génocide (…) déroge au droit commum en ce qu'elle englobe le mobile dans la constitution légale du d’ The author defines the motive as the fact that the crime is committed ‘en raison de la nationalité, de la race, de la religion, ou de l'opinion’. Henri Donnedieu de Vabres, ‘De la piraterie au génocide…les nouvelles modalités de la répression universelle’ Le droit privé franème siècle: études offertes à Georges Ripert, Paris, 1950, Tome 1, 245.

²¹ Killings occurred especially between 1968 and 1970, under the dictatorship of Stroessner.

²² See Kuper, Leo, The Prevention of Genocide (New Haven, Conn.: Yale University Press, 1985), 12.Google Scholar

²³ The Prosecutor v Goran Jelisić, IT-95–10-T (14 Dec 1999), hereinafter ‘The Jelisić Trial Judgment’, para 67. Emphasis added.

²⁴ Krstić Trial Judgment, para 561. emphasis added.

²⁵ The Prosecutor v Zoan Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić Drago Josipović, Dragan Papić Vladimir Šantić, IT-95–16-T (14 Jan 2000), hereinafter ‘The Kupreškić Trial judgment’, para 636. Emphasis added.

²⁶ This element could permit to distinguish genocide from the crime of extermination listed as a crime against humanity under Article 5 of the ICTY Statute.

²⁷ Jelisić Appeal Judgment, para 49.

²⁸ The trial judgment rendered on 15 Mar 2002 against Milorad Kronojelac (The Prosecutor v Milorad Kronojelac, Judgment, IT-97–25-T, 15 Mar 2002), departs from this reasoning and puts as a requirement that the accused ‘must consciously intend to discriminate’. It adds that [w]hile the intent to discriminate need not be the primary intent with respect to the act, it must be a significant one’. Pursuant to this judgment, the mere awareness of the discriminatory nature of the wide-spread or systematic attack would not be sufficient to find the accused guilty of persecution.

²⁹ The Trial Chamber, in support of its finding, mentions a German case arising from the Second World War in which the accused was found guilty of a crime against humanity for denouncing his wife to the Gestapo on the basis of her anti-Nazi remarks. The District court of Hamburg found that, whilst the accused did not necessarily act on the ground of racial hatred, he nevertheless knew that his act would fall within the general mass persecution of the Jews (OGHBZ, Decision of the District Court (Landgericht) Hamburg of 11 Nov 1948, STS 78/48, Justiz und NS-Verbrechen II, 1945–66, 491, 499, quoted in the Tadić Trial Judgment, para 658).

³⁰ Krstić Trial Judgment, para 580; Jelisić Trial Judgment, paras 78–83; Sikirica et al Judgment on Defence Motion to Acquit, paras 63–86. The case law however does make it possible to take into consideration attacks on the group's symbols, such as the cultural or religious buildings, as further evidence of the intent to target the group as a distinct entity. See the Prosecutor v Radovan Karadžić and Ratko Mladić, IT-95–18-R61, Review of the Indictments Pursuant to Rule 61 of the Rule of Procedure and Evidence, para 94.

³¹ The ICTY case law reiterated this principle of interpretation prevailing in criminal law on several occasions. See for instance The Prosecutor v Dusško Tadić, IT-94–1-A (15 Oct 1998), para 73: ‘in applying these criteria, any doubt should be resolved in favour of the Defence in accordance with the principle in dubio pro reo’; The Prosecutor v Delalić et al IT-96–21-T (16 Nov 1998), para 413: ‘where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which canons of construction fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain this. This is why ambiguous criminal statutes are to be construed contra proferentem.’ Similar statements have been made by the ICTR. See, for instance, The Prosecutor v Jean-Paul Akayesu, para 319: ‘the general principles of law stipulate that, in criminal matters, the version favorable to the accused should be selected.’

³² See, for instance, Federal Constitutional Court, 2 BvR 1290/99, 12 Dec 2000, para (III)(4)(a)(aa): ‘the statutory definition of genocide defends a supra-individual object of legal protection, ie, the social existence of the group […] the intent to destroy the group […] extends beyond physical and biological extermination […] The text of the law does not therefore compel the interpretation that the culprit's intent must be to exterminate physically at least a substantial number of the members of the group’ (emphasis added).

³³ See, for instance, the recent jurisprudence in Kosovo. On 9 Apr 2001, the Supreme Court of Kosovo reversed the conviction of genocide pronounced by the District Court of Mitrovica against the defendant Miroslav Vuković and stated in dicta: ‘The exactions committed by Milošević's regime in 1999 cannot be qualified as criminal acts of genocide, since their purpose was not the destruction of the Albanian ethnic group in whole or in part, but its forcefully departure from Kosovo as a result of systematic campaign of terror including murders, rapes, arsons, and severe maltreatments. Such criminal acts correspond to the definition of crimes against humanity given by international laws (widespread or systematic plan of attack against civilian population during the war) or be qualified war crimes as per Article 142 of the CLY.’ It thereby distinguished ethnic cleansing, which clearly constitutes a crime against humanity, from the crime of genocide. The Federal Republic of Yugoslavia's Criminal Code 141, which defines the crime of genocide, lists ‘forcible dislocation of the population’ as one of the actus reus of genocide. This act is usually considered to be covered by Art II, subpara (c) of the Genocide Convention, ie, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.

³⁴ Axis Rule in Occupied Europe, 79, 87–9.

³⁵ Actes de la Vème Conférence internationale pour l;'unification du droit pénal (Paris, 1935), 48–56.Google Scholar

³⁶ Letter of Raphael Lemkin published in ‘Executive Sessions of the US Senate Foreign Relations Committee’, Historical Series 781–805 (1976), 370.

³⁷ The notion of cultural genocide was rejected by the General Assembly Sixth committee by 25 votes to 6, with 4 abstentions and 13 delegations absent.

³⁸ USA v Ulrich Greifelt et al, Trials of War Criminals, vol XIV (1948), 2: ‘The acts, conduct, plans and enterprises charged in Paragraph 1 of this Count were carried out as part of a systematic program of genocide, aimed at the destruction of foreign nations and ethnic groups, in part by murderous extermination, and in part by elimination and suppression of national characteristics.’ See also the judgments rendered by the Polish Supreme Court against Amon Leopold Goeth (Trials of War Criminals, vol VII, no 37, 8) and Rudolf Frnaz Ferdinand Hoess (Trials of War Criminals, vol VII, no 38, 24).Google Scholar

³⁹ ILC Draft Code, commentary of Art 17, 106.

⁴⁰ Tadić Appeal Judgment, IT-94–1-A, 15 July 1999, para 284.

⁴¹ Page 2.

⁴² The Kupreškić Trial Judgment heavily relied on the Second World Way judgments to determine the notion of persecution under customary international law (see paras 593–604). It also clearly distinguished persecution from genocide by describing persecution as encompassing all crimes against humanity ‘which are committed on discriminatory grounds, but which, for example, fall short of genocide, which requires a specific intent “to destroy, in whole or in part, a national, ethnical, racial, or religious group”’ (para 606).

⁴³ See Shabas, William, Genocide in International Law, the Crime of the Crimes (Cambridge: Cambridge University Press, 2000) 229–30, who considers that such interpretation is defendable, on the basis of the letter and objectives of the genocide Convention as well as the need for a dynamic interpretation of legal instruments that protect human rights.Google Scholar

⁴⁴ Akayesu Trial Judgment, pras 510–16.

⁴⁵ The Trial Chamber did not delve into the definition of the group and it is unclear whether the judgment refers to the Muslims of Brčko as the ‘group, as such’, or as the substantial part of the group that the Bosnian Serbs allegedly intended to destroy. See paras 72 and 83.

⁴⁶ Jelisić Trial Judgment, para 71.

⁴⁷ Para 61: ‘[the Prosecution] must establish the intent to destroy in whole or in part the Bosnian Muslim or Bosnian Croat populations in Prijedor.’

⁴⁸ Para 68.

⁴⁹ Krstić Trial Judgment, para 560.

⁵⁰ The designation of the group on the basis of its geographical existence has notably been advocated by Cherif Bassiouni. See ‘The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia’ 5 Criminal Law Forum, 323–4.

⁵¹ Krstić Trial Judgment, para 559.

⁵² The Prosecutor v Nikolić, Review of the Indictment pursuant to Rule 61, Decision of Trial Chamber I, 20 Oct 1995, IT-94–2-R61, para 27.

⁵³ Jelisić Trial Judgment, para 70.

⁵⁴ Kristić Trial Judgment, para 557.

⁵⁵ See para 556.

⁵⁶ The preamble of the General Assembly resolution 96(I) states that ‘many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part’. See also the commentary of the representative of the United Kingdom, Sir Gerald Fitzmaurice, UN Doc A/C6/SR. 73. It does seem that some confusion was made between the actus reus and the mens rea during the discussions. See, for instance, the debates within the Sixth Committee, where some representatives argued that the intent must be to destroy an entire group, but that genocide could be accomplished in stages, initially only affecting parts of the group (UN GAOR C.6 at 92–7).

⁵⁷ See, for instance, ‘the ICC, making the right choices—Part I defining the crimes and permissible defences and initiating a prosecution’ Jan 1997, AI, index: IOR 40/01/97, 22.

⁵⁸ Jelisić Trial Judgment, para 82; Krstić Trial Judgment, paras 590–1.

⁵⁹ Jelisić Trial Judgment, para 82; Sikirica et al Judgment on Defence Motion to Acquit, para 66: ‘This part of the definition calls for evidence of an intention to destroy a reasonably substantial number relative to the total population of the group’; This is also consistent with the solution retained in the ‘Draft Statute for the International Criminal Court. Part 2. Jurisdiction, Admissibility and Applicable Law’, UN Doc. A/AC.249/1998/CRP.8, 2 n.1: ‘the reference to “intent to destroy, in whole or in part… a group, as such” was understood to refer to the specific intention to destroy more than a small number of individuals who are members of the group’.

⁶⁰ Jelisić Trial Judgment, para 82; Sikirica et al Judgment on Defence Motion to Acquit, paras 76–7; Kristić Trial Judgment, paras 585–7.

⁶¹ The judgments that chose to define the group on the basis of a geographical criterion did not need to use it again when the substantial character was assessed.

⁶² Para 590.

⁶³ Para 594.

⁶⁴ Para 595.

⁶⁵ Para 595. See also para 634.

⁶⁶ The case brought by Bosnia and Hezegovina before the ICJ against the Federal Republic of Yugoslavia is still pending.

⁶⁷ General Krstić has lodged an appeal against the Trial Judgment rendered on 2 Aug 2001, notably on the ground that the Trial Chamber erred in finding the accused guilty of genocide. Defence Appeal Brief, 10 Jan 2002.