i n d i v i d ua l c r i m i na l r e s p o n s i b i l i t y
433
In so far as the material elements of the crime are concerned, killing is
clearly the key conduct involved and it has been held that the act in ques-
tion must be intentional if not necessarily premeditated.
198
Forced migra-
tion (or ‘ethnic cleansing’) as such does not constitute genocide,
199
but
may amount to a pattern of conduct demonstrating genocidal intent.
200
The
Akayesu
case has also been important in emphasising that rape and
sexual violence may amount to genocide when committed with the nec-
essary specific intent to commit genocide. The Trial Chamber concluded
that ‘Sexual violence was an integral part of the process of destruction,
specifically targeting Tutsi women and specifically contributing to their
destruction and to the destruction of the Tutsi group as a whole.’
201
Fur-
ther, where it is intended to prevent births within the group whether by
impelling the child born of rape to be part of another group or where
the woman raped refuses subsequently to procreate, this may amount to
genocide.
202
The Rwanda Tribunal has also held that genocide may be
committed by omission as well as by acts.
203
War Crimes
204
War crimes are essentially serious violations of the rules of customary and
treaty law concerning international humanitarian law, otherwise known
as the law governing armed conflicts.
205
Article 2 of the Statute of the ICTY,
by way of example, provides for jurisdiction with regard to:
198
See e.g.
Staki´c
, IT-97-24-T, 2003, para. 515.
199
See e.g. the
Eichmann
case, 36 ILR, p. 5 and the
Brdjanin
case, IT-99-36-T, 2004, para.
118. See also the
Blagojevi´c
case, where, in addition, the Appeals Chamber of the ICTY
held that awareness of facts related to the forcible transfer operation was insufficient to
prove complicity in genocide in the absence of knowledge of mass killings at Srebrenica,
IT-02-60-A, 2007, paras. 119 ff.
200
See e.g. the
Review of the Indictments Concerning Karadˇzi´c and Mladi´c Pursuant to Rule
61 of the Rules of Procedure and Evidence
, ICTY, IT-95-5-R61 and IT-95-18-R61, 11 July
1996, para. 94, 108 ILR, pp. 134–5. See also ad hoc Judge Lauterpacht’s Separate Opinion
in the
Genocide Convention (Bosnia and Herzegovina
v.
Yugoslavia)
case, ICJ Reports,
1993, pp. 325, 431–2, and the ICC Elements of Crimes, article 6(c), footnote 4, UN Doc.
PCNICC/2000/1/Add.2 (2000).
201
ICTR-96-4-T, para. 731.
202
Ibid.
, paras. 507–8.
203
Kambanda
, ICTR-97-23-S, 1998, paras. 39–40.
204
See e.g. Cryer
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