The Crime of Genocide and the International Criminal Court’s Jurisdiction

Abstract

Article 6 ICCRSt refers to the “crime of all crimes”, i.e. the crime of genocide. The term was first coined by the Polish-Jewish lawyer Raphael Lemkin and then used inter alia in the ICC, ICTY and ICTR jurisprudence. However, despite the international community’s commitment to prevent genocide and punish its perpetrators, several cases of genocide occurred subsequently in Asia, Africa and Europe. Thus millions of people have been murdered solely or primarily on account of their perceived group identity—national, ethnic, racial, religious or political. In fact it is noteworthy that during the twentieth century, a century marked by unprecedented human evolution, the crime of genocide has occurred at least five times: the Pontian Greek and Armenian genocides by the Turks, the Jewish and Gypsy genocides by the Nazis, the Cambodian genocide by Pol Pot’s notorious Khmer Rouge regime, the Tutsi genocide in Rwanda by the Hutu and the Bosnian genocide in which over 8,000 people were murdered in Srebrenica by Bosnian Serb forces (probably the worst atrocity committed in Europe since World War II). Moreover, there currently exist five more cases of a potentially genocidal nature concerning: (1) the Rohingya in Myanmar, a case which is currently under investigation by the ICC (see further analysis below) (2) the Nuer and other ethnic groups in South Sudan (3) the Assyrian Christians and Yazidis in Iraq and Syria (4) the “anti-Balaka” Christian militias and the Muslim coalition in the Central African Republic (5) the Darfuris in Sudan. The present chapter focuses on the mens rea of the crime of genocide and examines the interrelation between the prerequisite criterion of “intent and knowledge” in Art. 30(1) ICCRSt and that of the distinct threshold regarding “intent to destroy” in Art. 6 ICCRSt. Moreover it critically analyses the four main interpretational approaches that have emerged regarding what exactly it means to destroy a group “in part”, beyond the self-evident fact that the destruction must of course be of a significant magnitude. Finally, the chapter focuses on the latest promising developments in combatting the crime of genocide and ICC Chief Prosecutor Fatou Bensouda’s innovative legal interpretation regarding the alleged genocide of Rohingya in Myanmar, an interpretation that draws upon Michail Vagias’s theoretical analysis.