Evidential Approach to Determine Genocidal Intent

Abstract

The mental element of genocide requires, in addition to intent and knowledge as regards the objective elements of the crime, also proof of a second subjective element. Determining the mental state of the defendant during the commission of the physical act of the offense is difficult. Finding evidence establishing the additional subjective element is even more complicated as this element does not relate to any particular objective elements of the crime. On top of that, accused of genocide are not explicit in their intentions and at trial they deny having genocidal intent. Finally, a historical, literal or systematic interpretation of the Genocide Convention does, according to several legal scholars, not provide a conclusive answer as regard the scope of genocidal intent. This paper attempts to bridge the gap between the subjective and objective elements of the crime of genocide by applying the domestic law concepts of intent. Accordingly, foresight of an inevitable consequence should be considered as a piece of evidence from which a trier of fact could find intent. The genocide definition remains the same; however, in the absence of explicit manifestations of genocidal intent, a trier of fact may deduce subjective elements from objective and cognizable evidence.