Mens Rea in Complicity in Genocide

( I braved an attempt to publish a paper in my 2nd year of law school in Harvard law journal. I failed.)

What is genocide?

The term was originated in 1940s by Polish lawyer Raphel Lemkin in his book Axis Rule in Occupied Europe to describe the 'killing of individuals for the groups they belong to'. He defined genocide as "a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves."^[1].

In resolution 96 (I) of 1 December 1946 entitled 'The crime of genocide', the UN General Assembly affirmed that genocide was a crime- and implicitly a crime in its own right, since the label 'crime against humanity' was not used-under customary law.[2]

The Convention was signed on 9 December 1948.

The definition of genocide as laid down in the 1948 Genocide Convention includes three main elements, namely:

i) the intent to destroy in whole or in part;

ii) a national, ethnic, racial or religious group, and

iii) the genocidal acts enlisted in Article II, Genocide Convention, 1948:

·       Killing

·       Causing serious bodily injury/mental harm

·       Deliberately inflicting on the group conditions so as to bring its physical destruction

·       Imposing measures intended to prevent births

·       Forcibly transferring children to another

In accordance with Article VI, three international tribunals have setup for prosecution of criminals of genocide since the Genocide Convention, 1948 namely two ad-hoc tribunals International Tribunal or Yugoslavia(ICTY) in 1993 called International Criminal Tribunal for Rwanda(ICTR) in 1994 and International Criminal Court (ICC) in 1998. The text of article III of the Convention is reproduced, as it is, in article 4(3) of the ICTY Statute and article 2(3) of the ICTR Statute.[3]

The Rome Statute of International Court of Justice (ICC), 1998 has adopted this definition as well.[4]

The Protected groups

Under the convention, only a certain kind of groups could be considered as targeted groups. Hence it is important to discuss which groups come under the ambit of this Convention. The Trial Chamber in the Kristic case held that the list to four groups in the 1948 Genocide Convention 'was designed more to describe a single phenomenon, roughly corresponding to what was recognised, before the Second World war, as "national minorities", rather than to refer to several distinct prototypes of human groups'. national minorities are the groups. This might be the intention of the drafters as well but it was not mentioned in any of the Article. Possibly this is because they do not seek to exclude majorities out of the scope of protection.

The definition is limited to groups based on national, ethnic, racial and religious groups. The Trial Chamber in Akayesu propounded a definition for each of the group mentioned in the relevant rules: national groups as 'a collection of people who are perceived to share a legal bond of common citizenship, coupled with reciprocity of rights and duties' (Akayesu TC $ 512)[5], an ethnic group as a group whose members share a common language or culture' (513), racial group[6] as a group based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors ( $ 514). This limitation has been a ground of criticism by social scientists. Chalk & Jonassohn, included all human groups as targeted by the perpetrators fort the crime to be qualified to genocide. In fact, Charney entirely departed from the group element and refers to 'substantial numbers of human beings' as ingredient for genocide. Such definitions defeat the very purpose for the which term was originated: to protect groups. Besides that, crimes against humanity would exactly cover the aforesaid acts.^[7]

The question of including political groups in crime of genocide has arisen by various scholars.^[8] In Stakic, the accused killing of Bosnian Muslims had to be separately considered from the killing of Bosnian Croats-can't be lumped together non-Serbs( political or social group). Schaak discussed in his paper, reasons how political genocide is the blindspot of the Genocide Convention and why it shall be included within the definition.

It is humbly submitted that such a step would unnecessarily widen the scope of the crime and make it less serious. Also the term 'genocide' is made up of terms: genos( race, tribe) and cide(killing), in which murder is based upon an identity which cannot be changed: this makes it the offence of the gravest kind. There are states which punishes political opponents with force. In fact even the democratic states have also been engaged in elimination of Maoist groups, which use violence. Enclosing them within the definition would dilute the crime of genocide and prevent states to come forward to take action for victims of genocide as defined by the limited definition of the Convention. It is not being argued here that the states are justified in using force against political opponents. However upon including the political groups, the Genocide Convention shall not be able to attain its object of protecting the civilian population from extermination based on socio-racial biases. Nevertheless killing of non-civilian individuals would always come under crime against humanity.

However, the Trial Chamber in Akayesu assumed the intention of the draftsmen of the Genocide Convention, to protect any identifiable group- and thus included 'any stable and permanent group' within the ambit of the Article. Cassese viewed this proposition as unconvincing as the framers of the Convention evinced an intention to protect only the four groups explicitly indicated there.[9]

It is submitted that the view of the Chamber is convincing as the objective of the Convention was to protect civilian population from discriminatory killings, and the meaning of 'group' needs to evolve with time. Even then, for the afore-mentioned reasons, the drafters were correct in not including political groups within the ambit of definition.

Mens Rea and the doctrine of superior orders

An important aspect of prosecution for deciding culpability of a crime is the mental element. It becomes even more important when the crime requires the special intent[10] (dolus specialis)( case-law citation). Article II of the Convention provides the words "intent to destroy" for same. What is the meaning of intent? Does the perpetrator, while doing an act coming within the definition of genocide under the article, require to know that such an act would result into genocide or mere consequence of the act i.e. murder, serious bodily or mental harm, forceful transfer etc? Does the person accused of genocide need to have the specific intent to destroy or mere knowledge of the specific intent of the perpetrator of genocide for whom he is working, is sufficient for his conviction?

Should it be proved that the perpetrator genuinely believe that such an act will destroy the community? Because intention in the criminal law has an aspect of knowledge that the act which the person is committing would fulfill the object the person has in mind. It is certain that the person doing any of the act listed above would have intention of murder, rape etc. However would intention to murder, rape be sufficient for mens rea of genocide?

The inquiry to these questions has to be done in the light of the determination of liability of subordinates for intent of superiors and defence of superior orders.

In addition to this, it has to be noted that Article III lists out acts which shall be punishable without any mention of mental element. Complicity in genocide is punishable under same.[11] Also, the Convention explicitly mentioned that the ambit of the Convention extends to all persons whether they are constitutionally responsible rulers, public officials or private individuals.[12]

It has been held by ICTR Trial Chambers that the mental element of genocide is a special intent requirement  and not a general requirement.[13] This means that a perpetrator must act with the individual desire to achieve the destruction of the group.[14] Hans Frank, for example, had the necessary intent to prosecute Jews.[15]

However can the people who are accomplice in the act of genocide, who do not have the special intent can be prosecuted for the crime? For example, what is the culpability of a foot soldier whose duty is to harm a specific group for the purpose of extermination of an ethnic group. Harm might include forcing the group to concentration camps, raping women, looting homes and so on. Shall he be prosecuted under Genocide statute made under the Genocide Convention even if he committed everything under the order of superiors?

The doctrine of superior orders and official capacity have largely been superseded.[16] However the two defences nevertheless continue to be asserted in residual or modified form.[17]  State practice moved decisively towards elimination of any vestige of superior orders as a defence after the second world war.[18] The Nuremberg and Tokyo Statutes excluded the doctrine as a basis for relief from liability.[19] The establishment of two ad-hoc tribunals i.e. Prosecution of accused of crime of genocide in 1993-94 showcased the similar intent. ICTY Statute provides "The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires."[20] 4. ICTR Statute provides "The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal for Rwanda determines that justice so requires."[21]

Later with the creation of International Criminal Court (ICC) the Rome Statute went the similar way:

The superior orders shall not relieve a person of criminal responsibility unless certain condition(s) are not met (a) The person was under a legal obligation to obey the orders (b) the person know that the order was unlawful; and (c) The order was not manifestly unlawful.[22]

Also the subsection 2 expressly provides that the orders to commit genocide or crimes against humanity are manifestly unlawful.

This has been interpreted as expressly rejecting the defence of superior order in genocide and crime against humanity.[23]

Prsectuor v. Erdemovic is an important trial as it was the first case in which the accused pleaded that he was under threat/duress and had no free choice.

In its judgement, the Trial Chamber noted that the parties were agreed on the facts. In particular, the accused agreed that the events alleged in the indictment were true, and the Prosecutor agreed that the accused’s claim to have committed the acts in question pursuant to superior orders and under threat of death was correct.^[24] Under the circumstances, the Chamber accepted as facts the version of events which the parties had submitted, including that Erdemović had committed his offences under threat of death.[25] The Chamber examined the magnitude of the crime and the scale of the accused’s role in it as aggravating circumstances. However, the Chamber considered it appropriate to grant Erdemović the
benefit of mitigating circumstances based on his age, his family background, his character, his admission of guilt, his remorse, his co-operation with the Office of the Prosecutor, and the fact that his crimes had been carried out under duress.[26]

The ILC provided in a draft article on superior orders that acting pursuant to an order does not relieve a person of criminal responsibility.[27] A subordinate who carries out an order to commit a genocidal act contribute to the eventual commission of the crime of genocide and justice requires that all such individuals be held accountable.[28]

The position of the international criminal law, till now, appears to be clear. That the subordinate would be liable for acts under done orders made by his/her superior. Especially in case of genocide, if they have knowledge of specific intent of the perpetrator, no exemption is possible( though mitigation of punishment is permissible, as seen in above statutes). However it is not the case.

The crime of genocide is a very peculiar offence. It has also been held at times by the tribunals that it does not merely require intention to commit murders on mass scale but also to eliminate part or whole of population of the target community i.e. it requires dolus specialis  (specific intent) of genocide.[29] (cases where specific intent is required- to quote)

As a result there is a controversial point of law: what is the mens rea requirement for complicity in genocide?

This difference between genocide and complicity for genocide can be explained by a cursory, literal reading of Article II and Article III of the Convention: Article II requires 'intent to destroy' while Article III which includes complicity as a punishable act do not mention any mental element. Nevertheless, it is true  that any kind of culpability of criminal nature requires mens rea.

A soldier mistakingly shooting a person on the belief that he is shooting a lion, would be absolved as he had no mens rea. However this mens rea requirement is not being discussed here. The question is, what if he had no intention to destroy the group but is still executing people? That is while shooting people, he knows that they are people (civilians) and are not to be killed for winning any battle.

The entire controversy revolves around whether it is the general intent of doing any of the prohibited acts in Article II or the specific intent of genocide which forms the necessary mens rea for prosecution. A cursory review of genocide jurisprudence at the ad hoc Tribunals reveals a fluctuating appreciation for and application of what constitutes the appropriate mens rea.[30]

As mentioned earlier, it has also been held by the tribunals that an accused is liable for genocide if he voluntarily aided and abetted a person to commit genocide while knowing that the person was committing genocide even if he did not have the special genocidal intent himself.[31]

Such an approach has been a matter of controversy among scholars of international criminal law. They have objected upon this approach  as it 'dilutes the essence of crime when they apply statutory modes of liability to the crime of genocide.'[32] In the paper cited above, the author emphasised upon the requirements of crime of genocide of which an important element is dolus specialis (specific intent) i.e. during the commission of the underlying offence the perpetrator must possess  the 'special genocidal intent,' i.e. the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. It criticised the Kristic and Blagojevic Judgements as violation of principle of legality because they suggest that there are two possible level of mens rea for complicity in genocide- special intent and knowledge-which does not comport with the plain language of the Genocide Convention.[33] While acknowledging that there is authority to suggest that complicity in genocide requires proof that the accomplice possessed the special genocidal intent, the Kristic Appeals Chamber held that such intent was not a prerequisite if the accomplice was charged with aiding and abetting.[34] The special genocidal intent which is part of the chapeau, distinguishes genocide as a specific crime under international law.[35] It is to be noted that Article III of the Convention or the ICTY Statute penalise complicity and not aiding and abetting.[36] It is humbly submitted that the court erred in creating the difference between complicity and aiding & abetting. Instead, there shall be difference between genocide and complicity in genocide.

Michael argued that requiring special genocidal intent does not obviate accomplice liability for genocide.[37] An accomplice may aid or abet a principal with only knowledge of their intention to commit the underlying offence, such as murder.[38] In his opinion with the knowledge of perpetrator's specific genocide intent he can be made liable for aiding and abetting offences such as murders, etc. However to try him as an accomplice to genocide, the accomplice must possess the special genocidal intent.[39] That is, he desired the requirement of special intent ( dolus specialis) to be fulfilled for complicity of genocide as well.

Moreover, there has been an inconsistency in applying the requirement of specific intent for the conviction of genocide in international tribunals i.e. ICTR and ICTY. For instance, in Akayesu, the first ever genocide conviction before an  international tribunal, the Trial Chamber, in dicta, stated that an accomplice need not possess the special genocidal intent to be convicted of complicity in genocide, so long as the accomplice knew or had the reason to know that the principal perpetrator was acting with the genocidal intent.[40] Similar position has been taken in Musema, Bagilishema, and Blagojevic(pg 102-footnote 6)

A trial chamber of the Rwanda tribunal quoted Brazil's statement in the Sixth Committee about the importance of this secondary intent element: "genocide [is] characterised by the factor of particular intent to destroy the group. In the absence of that factor, whatever the degree of atrocity of an act could still not be called genocide."[41] The above view stresses upon the requirement of 'dolus specialis' for the crime of genocide. It can be argued that perpetrator must intend to destroy the group. Otherwise it would be only a murder. Then should the people who are complicit in genocide be convicted i.e. is Article III justified in making complicity culpable without any specific intent?

The question becomes more important with the establishment of International Criminal Court (ICC) which tries individuals for international crimes. The Rome Statute of the ICC expressly A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime.[42]

The view of Michael G. raises various questions: What is the mes rea requirement for the genocide as well as complicity in genocide? Would not trying subordinates for the crime of genocide has practical implications i.e. deterrent value as for prevention of genocide in the coming future? Should the aforesaid statutes have excluded the provision of trying subordinates for complicity or aid & abetment of genocide?

Rome Statute includes responsibility for the crime of genocide on the basis of command from superior.[43] The question of mens rea required for complicity in genocide, the ICJ state in Application of the Convention on the Prevention and Punishment of the Crime of Genocide[44] that a person cannot be held responsible for complicity in genocide unless he or she knew of the specific intent of the principle perpetrator.

It is submitted that as the foot-solider is supposed to know the war crimes and could not take defence under the doctrine of superior orders, he should also be expected to know the International Humanitarian Law which prohibits genocide and crimes against humanity. The conviction of the solider under genocide serves as a deterrent for the international community which cannot be achieved by a conviction for murder. Also the genocide is not an individual act but is achieved by an organized effort of a group of individuals generally having political power. In addition to this, the specific intent of a foot-solider is almost impossible to determine because unlike politicians and Army heads, he is not engaged in delivering speeches or writing articles against the target groups. Henceforth, the afore-mentioned statutes are justified in incorporating the provision of trying subordinates for complicity or aid & abetment of genocide.

It is to be noted that similar to legal systems of most democracies, the international law does not sanction punishment more than a death sentence by hanging( i.e. death that involves torture) . Now if an accused could be proven guilty for a murder, then he would be sentenced to death in most of these countries which gives capital punishment. Assuming that he has been engaged in more than one instances of murder, rape and plundering; he would clearly qualify as 'threat to the society' and executed. Death sentence, henceforth would be justified. It is therefore submitted that death sentence by hanging would be just punishment for a soldier who had no specific intention of destroying the group but has done acts which qualify under the head of genocide.

What constitutes 'intent to destroy'?

There has been no single test to identify whether certain acts qualify for acts done with 'intent to destroy.' The courts and tribunals reflected upon the facts and circumstances to find out what constitutes 'intent to destroy' from time to time. What is required by customary and Conventional international law to ground criminal responsibility for genocide is the intent to destroy, in whole or in part, of the specified groups as such and not necessarily the group's actual destruction, total or partial. The perpetrator need to seek to achieve destruction of group.[45]

Article II states that the conviction does not require whether the acts have been done in war or peace. Similarly, attempting to kill a part of the population of targeted group could come under the ambit of crime if done with necessary intent. There shall be substantial number of victims to provide evidence of intent. It shall be significant enough to impact However number is not an exhaustive criteria for assessing such impact.

A footnote to the Elements of the Crimes for article 6(c) of the Rome Statute, corresponding to II(c) states that the term conditions of life may include, but is not necessarily restricted to, deliberate deprivation of resources indispensible for survival, such as food or medical services, or systematic expulsion from homes.[46]

Mental Harm, non-physical action is one of the acts prohibited by the Article II. Roger O'Keefe states that torture, non fatal physical violence that causes disfigurement or serious injury to the external or internal organs-II should be deemed as physical harm.[47] Besides he argues that mental harm more than minor or temporary impairment could qualify for the crime of genocide if there is infliction of strong fear or intimidation of threat. Elements of crime to 6(b) grants ICC rationae materiae to prosecute for the crime for non-physical harm.[48]

Destruction of culture which has been referred to loosely as cultural genocide does not fall within the ambit if the crime of genocide as embodied in customary and Conventional international law.[49] At the same time, the destruction of culture may serve evidentially to confirm genocidal intent.[50]

The tribunals have held that genocide requires indiscriminate killing of people of targeted group including mothers and child.[51] However in ____, the tribunal held that killing of male of two or three generations in a male-dominant/ patriarchal society where women are backward, the intent to destroy could be found.

Not dissimilarly, forcible transfer, displacement, or deportation of persons, including the practice of ethnic cleansing does not constitute in and itself a genocidal act.[52] The paper would argue later that why ethnic cleansing in the contemporary world shall constitute in and itself a genocidal act.

The very pattern of the atrocities committed over many communities demonstrated the necessary intent. argumet was rejected the dolus specialis has to be convinvingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist......"[53](153)

For intent, not separate acts over a period of time, but all of the evidence taken together demonstrates a genocidal mental state.

Destroy: Can ethnic cleansing alone constitute Genocide

It is to be noted that Myanmar has been accused of genocide of thousands of Rohigya Muslims. A legal question arises: Can ethnic cleansing alone constitute Genocide?

Or would only material destruction lead to genocide?

Ethnic cleansing is genocide, Myanmar.

Ethnic cleansing has not been defined as an independent crime under international law. Henceforth there is no precise definition of what ethnic cleansing is. However a United Nations Commission of Experts mandated to look into violations of international humanitarian law committed in the territory of the former Yugoslavia defined ethnic cleansing in its final report S/1994/674, the ethnic cleansing as “… a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.”[54]

The question whether ethnic cleansing could constitute the crime of genocide arouse in 1990s with the forced removal of Muslims and Croats in Bosnia.[55] It was argued that the intent behind ethnic cleansing is inconsistent with the intent required for genocide. Ethnic cleansing involves "displacing a population in order to change the ethnic composition of a given territory," while genocide "is directed at the destruction of the group.".[56]

For discussion on whether ethnic cleansing alone can constitute genocide, it is important to delve into drafting history of the Convention. Forced removal was not directly proposed in the Sixth Committee as an act that might that constitute genocide but Syria proposed adding a category as follows: "imposing measures intended to obligate members of a group to abandon their homes in order to escape the threat of subsequent ill-treatment."[57] It was defeated 29 votes to 5 with 8 abstentions.[58] However within days of the Genocide Convention, the Universal Declaration of Human Rights, which was adopted by the UN General Assembly guarantees a right to return to one's country, a proposition that effectively forbids forced removal.[59]

Almost all major instances of genocide throughout the history have been committed with an intent to create a 'pure' state or 'clean' state. The Ottoman Empire wanted to eliminate Armenians to "Turkify" the empire.[60] Nazis aimed to create a pure state of 'racially-superior' Aryans over Jews. Massacre in Yugoslavia and Rwanda in 1990s showcased similar motives. In fact, the very fundamental reason of any genocide is creation of a 'clean' state. This is achieved by forming by violent and terror inspiring policies that forces people of one ethnicity to leave the country i.e. ethnic cleansing.

In Nikolic, the court held that the policy of ethnic cleansing took the form of discriminatory acts of extreme seriousness which tend to show its genocidal character.[61] The Eichmann case reflects that expulsion is not inconsistent with an intent to destroy.[62] (1921)

A contrary view to Nikoloic was taken by the Stakic trial chamber of the Yugoslavia tribunal, in which the chamber found ethnic cleansing inconsistent with genocidal intent: "It does not suffice to deport a group or a part of a group.[63] A clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or a part of a group does not in itself suffice for genocide."[64]

Such a reasoning is flawed in the today's global scenario. In a period when refugees are vehemently opposed in foreign countries, it becomes very clear that people who have been forcefully removed from the nation would die. This shall amount to murder. With an intent to destroy a specific group, such an act becomes genocide.

Penal Codes around the world provides that if a guardian does not provide food to his child, it would be murder. Moreover, Article II(c) of the Convention provides 'deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part' amounts to genocide. State is nothing but a guardian of its population. In fact, the very term 'ethnic cleansing' is derogatory for those ethnic groups on whose removal the state would be considered 'cleaned'.

It is henceforth submitted that ethnic cleansing could alone constitute genocide.

Conclusion

ICTY indicted 161 people in all from Bosnia, Croatia, Serbia, Montenegro and Kosovo.[65] Of the 83 convicted, more than 60 of them were ethnic Serbs. Blagojevic was convicted of Complicity in genocide.

1.     In sum, there is no clear legal right for third States to intervene in case of genocide, nor is there a clear obligation for the Security Council to act.[66]

2.     The paper while discussing whether ethnic cleansing could alone constitute genocide, noted the fact that no recognition of ethnic cleansing as an independent crime has been made under international law. There is no precise definiton as well. It has been loosely defined by committee “… a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.”^[67]

 It has only been used as a legal phrase for indictment/prosecution of crimes against humanity or genocide. It has also been noted that the value of ethnic cleansing has been found in most genocides. This makes ethnic cleansing a grave offence. In Nikolic the practice of ethnic cleansing was deemed to show genocidal intent. However in Stakic, it was held that merely displacing people out of the country is inconsistent with requirements of genocide. This is a flawed judgement because state is a guardian of its citizens and cannot exile them without any justifiable reason. It is also submitted that in the contemporary world where countries treat refugees as threat, exiling them shall be equated with culpable homicide. Thus ethnic cleansing shall alone constitute genocide.

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[1] "Axis Rule in Occupied Europe" (1943)

[2] William A. Schabas, Convention For The Prevention And Punishment Of The Crime Of Genocide, United Nations Audiovisual Library of International Law, http://legal.un.org/avl/ha/cppcg/cppcg.html

[3] Roger O'Keefe, International Criminal Law, 196 ( 1st ed. 2015)

[4] Rome Statute, Article VI

[5] The definition of 'national group' has been criticized, among others, by Schabas, who rightly observe that the    ICTR TC mixed up the notion of nationality with that of membership in national group

[6] The notion of race or racial group does not find room from a scientific point of view, hence has been subjected to criticism

[7] Article 7 of the Rome Statute of the International Criminal Court (ICC) “The notion encompasses crimes such as murder, extermination, rape, persecution and all other inhumane acts of a similar character (wilfully causing great suffering, or serious injury to body or to mental or physical health), committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.”

[8] Van Schaak, B., 'The crime of political genocide: repairing the Genocide Convention's blind spot'. 106 YALE L J, 2259-2291(1997)

[9] CASSESSE, INTERNATIONAL CRIMINAL LAW 120 ( 2d ed. 2008)

[10] The Prosecutor v Akayesu, Judgement (2 September 1998), para 121

[11] Article III (e)

[12] Article IV

[13] E.g., The Prosecutor v Akayesu, Judgement (2 September t998), para 121

[14] The Prosecutor v Rutaganda, Judgement, para. 60

[15] However he could not be prosecuted for genocide for there was no statute criminalising genocide back then PHILLIP SANDS, EAST WEST STREET

[16] CASSESSE, INTERNATIONAL CRIMINAL LAW 228 ( 2d ed. 2008)

[17] ibid

[18] Ibid, p. 229

[19] Charter of International Military Tribunal, Art. 8; Charter of the Tokyo Tribunal, Art. 6

[20] ICTY Statute, Article 7(4)

[21] ICTR Statute, Article 6(4)

[22] Article 33, ICC Statute

[23] The Defence of Superior Order: The Statute of the International Criminal Court versus Customary International Law, EJIL 10 (1999), 172-191

[24] Case Information Sheet, Drazan Erdemovic, ICTY

[25] ibid

[26] ibid

[27] Draft Code of Crimes against the Peace and Security of Mankind, art. 5.

[28] Draft Code of Crimes against the Peace and Security of Mankind, art. 5. (commentary) p. 31

[29] Cases specific intent is required- Akayesu

[30] Is The Emerging Jurisprudence On Complicity In Genocide Before The International Ad Hoc Tribunals a Moving Target in Conflict with the Principle of Legality? Michael G. Karnavas The Criminal Law of Genocide ASHGATE p. 102

[31] Prosecutor v. Musema, case No. ICTR-96-13-T, Trial Judgement, 27 January 2000, at para. 887, Akayesu, Bagilishema-pg103 b2-not citation

[32] Is The Emerging Jurisprudence On Complicity In Genocide Before The International Ad Hoc Tribunals a Moving Target in Conflict with the Principle of Legality? Michael G. Karnavas The Criminal Law of Genocide ASHGATE p. 97

[33] Ibid p.109

[34] Prosecutor v. Kristic, Case No. IT-98-33-A, Appeal Judgement, 19 April 2004, at paras. 139, 142 and 143

[35] ibid

[36] Statute fn

[37] Is The Emerging Jurisprudence On Complicity In Genocide Before The International Ad Hoc Tribunals a Moving Target in Conflict with the Principle of Legality? Michael G. Karnavas The Criminal Law of Genocide ASHGATE p. 109

[38] ibid

[39] ibid

[40] Prosecutor v Akayesu, Case No. ICTR-96-4-T, Trial judgement, 2 September 1998, at paras. 530-532

[41] Prosecutor v Akayesu, Case No. ICTR-96-4-T, Trial judgement, 2 September 1998, at para 519, from UN GAOR, 3rd sess., Part 1, Summary Records of Meetings 21 September- 10 December 1948, p. 87, UN Doc. A/C.6/SR.72 (1949)(Mr. Amado, Brazil)

[42] Rome Statute, Article 32

[43] fn

[44] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, judgements, ICJ Rep 2007, 43, 218, para 421

[45] Prosecutor v. Jelisic

[46] Fn Rome statute

[47] fn

[48] fn

[49] Roger O

[50] ibid

[51] Fn, Darfur Commission

[52] Kristic (p 148, roger)

[53] 153. Roger

[54] http://www.un.org/en/genocideprevention/ethnic-cleansing.html

[55] SCHABA, W.A. (2000), GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF CRIMES, pp. 199-200, Cambridge University Press, Cambridge.

[56] JOHN QUIGELY, THE GENOCIDE CONVENTION; INTERNATIONAL LAW ANALYSIS (ASHGATE) pg 199

[57] UN GAOR, 3rd sess., Part 1, Summary records of Meetings 21 September-10 December 1948, p. 176,UN Doc. A/C.6/SR/81 (1948).

[58] Ibid, p. 186

[59] Universal Declaration of Human Rights, GA Res. 217A, art. 13, para. 2, UN Doc. A/810, p.71 (1948).

[60] http://www.history.com/topics/armenian-genocide

[61] 'Prosecutor v. Nikolic, Case No. IT-94-2

[62] Eichman

[63] Prosecutor v. Stakic, Case No. IT-97-24-T, Judgement, 31 July 2003, para. 519.

[64] ibid.

[65] Reuters, nov 22, 2017, https://www.reuters.com/article/us-warcrimes-mladic/ex-bosnian-serb-commander-mladic-convicted-of-genocide-gets-life-in-prison-idUSKBN1DL2WK

[66] Larissa van den Herik, The Schism between the Legal and the Social Concept of Genocide in the Light of the Responsiblity to Protect,  The Criminal Law of Genocide ASHGATE p. 93

[67] http://www.un.org/en/genocideprevention/ethnic-cleansing.html