International Criminal Law
362
of particular perpetrators. The next step is to establish whether the accused shared
the intention that genocide be carried out.
147
The
Jelisic
judgment opined that
genocidal intent may manifest itself through a desire to exterminate a very large
number of group members, or by killing a more limited number of persons selected
for the impact their disappearance or extermination will have upon the survival of
the group as such.
148
In most cases, there will be no direct proof of genocidal intent
and, so, this must be inferred through circumstantial evidence. Jean Paul Akayesu,
the first person to be convicted of genocide by the ICTR, was the Bourgmestre of
Taba commune, a position that afforded him a very significant amount of influence
and authority over all the public institutions of the commune. The accused had
delivered passionate speeches against the Tutsi and moderate Hutus, whereby he
advocated their extermination and was found to have ordered other acts of violence
against his victims. These actions could only be classified as genocide if
discriminatory intent could be demonstrated with the aim of destroying the perceived
group in whole or in part. The ICTR reached this inference on the basis of the general
context of other culpable acts systematically directed against the Tutsi, the multiplicity
of offenders across Rwanda, the general nature of the crimes and the deliberate
targeting of victims on account of their particular membership, while excluding
others.
149
The
Kayishema
judgment added further elements, such as the use of
derogatory language towards group members, methodical planning and systematic
killing and the number of victims exterminated.
150
None of these factors alone can
provide credible proof of genocidal intent; what is needed is a combination
demonstrating the overall context of atrocities against a specific group of which the
accused can only have been a substantial actor on account of his or her unlawful acts
against the targeted group.
The definition of genocide encompasses the perpetration of acts that aim to destroy
a group in whole or in part. The ‘in part’ element does not characterise the destruction
of the group, but refers instead to the intent of the perpetrator in destroying the group
within the confines of a limited geographical area.
151
Thus, if an individual possesses
the intent to destroy a distinct part of a group within a limited geographical area, as
opposed to an accumulation of isolated individuals within it, that person would be
liable for genocide. On this basis, the ICTY Trial Chamber convicted General Krstic of
genocide for his participation in the extermination of thousands of Bosnian Moslem
males in the area of Srebrenica in 1995.
152
In terms of victim numbers, ICTY and ICTR
147
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