Applying the Genocide Convention at the ICTY

Abstract

In the years between the adoption of the Genocide Convention and the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), efforts to apply the Convention were rare. The atrocities committed in the Balkans and in Rwanda spelled an end to that hiatus. Srebrenica, and the other genocide cases prosecuted before the ICTY (and ICTR), have thus become among the first opportunities to test the boundaries of genocide. The authors explore developments in genocide cases before the ICTY from the perspective of whether they reflect a focus on the terms of the Convention and the existing jurisprudence of the ICTY or instead turn on comparisons to historical factual paradigms of genocide, particularly the Holocaust. They consider the following four key issues: (i) what does it mean to intend to destroy a ‘part’ of a group? (ii) what is the impact on the assessment of genocidal intent if the destructive acts are motivated by factors other than hatred? (iii) has the Convention been violated even in the absence of evidence of massive numbers of genocidal acts connected to a broad plan or policy? and (iv) what is the impact on the assessment of genocidal intent of expelling — rather than killing — a large portion of the group that is attacked? They find that while, in theory, ICTY case law has clear and binding pronouncements on all of these issues, there has not always been clarity or consistency in applying the ICTY’s stated law to the facts of a given case. The determination of issues (ii)–(iv) has reflected a tendency to lose sight of the governing legal principles articulated in ICTY case law in a search instead for factual features characterizing historical genocide paradigms, such as the Holocaust. In particular, the authors discover a blurring of the line between motive and intent, a tendency to over-rely on the objective factors of an atrocity in determining genocidal intent, and the creation of an erroneous dichotomy that views genocidal intent and mass expulsions as necessarily mutually exclusive.