Document - International Criminal Court: Fact sheet 3: Prosecuting the crime of genocide
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The International Criminal
Fact sheet 3
Prosecuting the crime of
''[G]enocide constitutes the
crime of crimes''.
Kambanda, Judgement and Sentence,
Case No. ICTR 97-23-S (Trial Chamber 4 September 1998), para.
What is the origin of the
The crime of genocide was
first defined by Rafael Lempkin in 1944 in his
book,Axis Rule in Occupied
Europe, based on a proposal he
made a decade earlier. The word is a hybrid consisting of the Greek
word ''genos'', meaning race, nation or tribe, and the Latin
suffix, ''cide'', meaning killing. Although it was never expressly
identified as a crime in the 1945 Nuremberg Charter, it was cited
in the indictment and opening speeches as a crime against humanity
in the trial of senior Nazis before the International Military
Tribunal at Nuremberg.
What is genocide?
It is any one of a number of
acts aimed at the destruction of all or part of certain groups of
people; it is this intent that distinguishes genocide from other
crimes against humanity.
Article 6 of the Rome
Statute of the International Criminal Court (Statute) gives the
International Criminal Court (ICC) jurisdiction over genocide as
defined in Article II of the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide (Genocide Convention). That
definition is considered part of international customary law, and,
therefore, binding onallstates - whether they have
ratified the Genocide Convention or not. The Statutes of the
International Criminal Tribunal for Rwanda and of the International
Criminal Tribunal for the former Yugoslavia use the same
What acts of genocide will
the ICC prosecute?
The following five prohibited
acts - if committed with the intention to destroy all or part of a
national, ethnical, racial or religious group, as such - may
- Killing members of the
- Causing serious bodily or
mental harm to the members of a group;
- Deliberately inflicting on
a group conditions of life calculated to bring about its physical
- Imposing measures intended
to prevent births within a group;
- Forcibly transferring
children of a group to another group.
Cultural genocide (deliberate
acts taken with the intent of preventing members of a group from
using their language, practicing their religion or carrying out the
group's cultural activities) does not fall within the definition of
genocide as used in the Statute unless the acts were also one of
the five prohibited acts and they were committed with the required
intent. Similarly, ecocide (acts committed with the intention to
disrupt or destroy the ecosystem in a particular area) by attacks
upon the environment, has not been included in the definition, and
would not constitute genocide unless the attacks involved one of
the five prohibited acts with the necessary intent.
Can rape be an act of
In the 1998
landmarkAkayesujudgment, a Trial Chamber
of the International Criminal Tribunal for Rwanda held that when
rape was used as a method to destroy a protected group by causing
serious bodily or mental harm to the members of the group, it
constituted genocide. In addition, it explained that rape also can
be used as a way to prevent births within a group. For example, in
societies where ethnicity is determined by the identity of the
father, raping a victim to make her pregnant can prevent the victim
from giving birth to a baby within her own
Are those who encourage
others to commit genocide guilty of the crime?
Under Article 25 (3) (b) of
the Statute, anyone who orders, solicits or induces someone to
commit genocide (who carries it out or attempts to do) so is guilty
of genocide. It is also a crime under the Article 23 (3) (e) if a
person ''directly and publicly incites others to commit
What about those who assist
others in committing genocide or attempts to commit
Article 25 (3) (c) states
that anyone who aids, abets or otherwise assists someone to commit
genocide or attempt to commit it is guilty of genocide. Article 25
(3) (f) provides that a person who attempts to commit genocide is
guilty of the crime. Although, in contrast to Article III of the
Genocide Convention, conspiracy to commit genocide is not expressly
defined as a crime under the Statute, Article 23 (3) (d) provides
that much the same conduct is a crime.
Who can constitute a victim
Any member of a national,
ethnical, racial or religious group of people can be the victims of
genocide. The term ''ethnical'' was intended to include linguistic
and cultural groups.
The Statute does not include
social or political groups within the definition of potential
victims. However, many of the acts would fall within the Court's
jurisdiction as crimes against humanity if committed against
members of such groups on a widespread or systematic basis and
pursuant to a state or organizational policy (see Fact Sheet No.
Is destruction or intention
to destroy an entire group or a substantial part of it
There is no such requirement.
It is sufficient for the accused to have intended to destroy a
large number of the group in a particular community, such as a town
or village, because of the group's identity.
Who can be tried for
Anyone can be tried for
genocide, no matter what the person's position. This means that not
only a head of state or government minister who planned or ordered
the act, but those who committed the act, whether ordinary foot
soldiers or next door neighbours can be guilty of the crime.
Article 33 (2) expressly provides that following a superior's
orders is not a legitimate defence to genocide.
What is necessary to prove
As the intention to destroy
all or part of a group, as such, is an essential element of the
crime, it is crucial, and at the same time often very difficult, to
find clear evidence of the motives and intentions that lie behind
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