CILRAP » Case Matrix Network » CMN Knowledge Hub » Elements Digest » Art. 6 Genocide » Art. 6 Common elements » 2. [Mental element, specific] The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

Element:

2. [Mental element, specific] The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

To prove an accused committed genocide under Article 6 of the Statute, the Prosecution must establish beyond reasonable doubt that the accused committed genocidal conduct with genocidal intent. In other words, the Prosecution must prove that the accused committed the acts enumerated in Article 6(a)-(e) with "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such".

The specific intent requirement is that 'The perpetrator intended to destroy'. It has several sub-elements that must be considered: the degree of requisite intent; the meaning of the term "in whole or in part"; the meaning of the term "as such"; means of relevant proof from which genocidal intent can be inferred.

Additional to, and separate from, the common genocidal intent element is the mental element that pertains to each of the genocidal acts in article 6(a)-(e).

According to the Akayesu Trial Chamber:

"[T]he crime of genocide does not imply the actual extermination of [a] group in its entirety, but is understood as such once any one of the acts mentioned in Article 2(2)(a) through 2(2)(e) is committed with the specific intent to destroy, 'in whole or in part', a national, ethnical, racial or religious group, as such. [...] Genocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis. Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such."[1]

"Special intent is a well-known criminal law concept in the Roman-continental legal systems. It is required as a constituent element of certain offences and demands that the perpetrator have the clear intent to cause the offence charged [...] With regard to the crime of genocide, the offender is culpable only when he has committed one of the offences charged under Article 2(2) of the Statute with the clear intent to destroy, in whole or in part, a particular group. The offender is culpable because he knew or should have known that the act committed would destroy, in whole or in part, a group."[2]

Prosecutor v. Vujadin Popovic, Case No. IT-05-88-A, Judgement (AC), 30 January 2015, paras. 468, 493:

"468. With respect to Popovic’s arguments concerning the Trial Chamber’s inference of his genocidal intent, the Appeals Chamber recalls that in the absence of direct evidence, genocidal intent may be inferred from the factual circumstances of the crime.¹²⁹⁷ The Appeals Chamber further recalls that: proof of specific intent [may] be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts.¹²⁹⁸ The Appeals Chamber observes that the Trial Chamber inferred Popovic’s genocidal intent from such factors.¹²⁹⁹ The Appeals Chamber considers that no error of law has been demonstrated."

"493. Beara’s argument that the thousands of murdered men were not a substantial or legally significant part of the targeted group reflects a purely numerical approach, which disregards other factors relevant to determining whether the targeted part of the group is substantial enough to meet the requirement.¹³⁶⁷ The Appeals Chamber recalls in this regard that: The intent requirement of genocide under Article 4 of the Statute is […] satisfied where evidence shows that the alleged perpetrator intended to destroy at least a substantial part of the protected group. The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.¹³⁶⁸ In addition, the Appeals Chamber recalls the Trial Chamber’s findings that Beara participated in the killings “with knowledge that they would contribute to the destruction of the group”,¹³⁶⁹ and that the Muslims of Eastern Bosnia constituted a substantial part of the entire group of Bosnian Muslims, noting that “the import of the community is not appreciated solely by its size”.¹³⁷⁰ Considering, finally, that Beara’s numerical argument is premised on his argument regarding his acquittal for forcible transfer which has been dismissed above,¹³⁷¹ the Appeals Chamber finds that Beara has failed to demonstrate any error in the Trial Chamber’s analysis with regard to the substantiality of the targeted part of the group."

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 549-550, 2591-2592:

"549. The mens rea required for the crime of genocide—“intent to destroy, in whole or in part, a national, ethnical, racial or religious group” as defined in Article 4 of Statute—has been referred to variously as, for instance, special intent, specific intent, dolus specialis, particular intent and genocidal intent. Genocide requires not only proof of intent to commit the alleged acts of genocide, but also proof of the specific intent to destroy the protected group, in whole or in part. Therefore, when genocide is charged through the framework of JCE I, the accused needs to share genocidal intent with other members of the JCE."

"550. In assessing evidence of genocidal intent, a Chamber should consider whether “all of the evidence, taken together, demonstrates a genocidal mental state”, instead of considering separately whether an accused intended to destroy a protected group through each of the relevant acts of genocide. Where direct evidence of genocidal intent is absent, the intent may still be inferred from all the facts and circumstances. Factors relevant to this analysis may include, but are not limited to, the general context, the scale of atrocities, the systematic targeting of victims on account of their membership in a particular group, the repetition of destructive and discriminatory acts, or the existence of a plan or policy. Display of intent through public speeches or in meetings may also support an inference as to the requisite specific intent."

"2591. The Chamber recalls that in the present case the required mens rea for genocide is the intent to destroy, in part, the Bosnian Muslim and the Bosnian Croat groups as such. The Appeals Chamber held that given that the Accused is charged under Count 1 for his participation in the first form of JCE, “it is the genocidal intent of Karadžić and other alleged JCE members, not the physical perpetrators of the underlying alleged genocidal acts, that is determinative”. The Chamber notes, however, that the Accused’s responsibility under Count 1, is alleged in relation to all modes of responsibility under Articles 7(1) and 7(3) of the Statute and therefore at this stage the Chamber must examine whether there was genocidal intent present at any level from the physical perpetrators of the crimes to Bosnian Serb representatives not named as alleged Overarching JCE members, all the way up to the named alleged JCE members, including the Accused himself."

"2592. In determining the existence of such specific intent, the Chamber has considered the evidence as a whole and examined whether there existed direct evidence or whether such inference could be drawn from all the facts and the circumstances in the case. In this regard, the Chamber recalls that such inference must be the only reasonable inference that could be made based on that evidence. Given that the intent of the named alleged JCE members, including the Accused, is intrinsically connected to all of the evidence on the record pertaining to the existence and the scope of the Overarching JCE, the Chamber conducted a holistic and contextualised assessment of this evidence and will indicate below, where relevant, the appropriate cross-references to these sections."

2.1. The perpetrator "intended" to destroy that group.

The Jelisić Appeals Chamber said:

"The Appeals Chamber will use the term "specific intent" to describe the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such."[3]

"The specific intent requires that the perpetrator, by one of the prohibited acts enumerated in Article 4 of the Statute, seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such."[4]

The Krstić Trial Chamber declared:

"[...] the Chamber will therefore adhere to the characterisation of genocide which encompass only acts committed with the goal of destroying all or part of a group."[5]

According to the Sikirica et al. Trial Chamber:

"The Prosecution contends that, although it is extremely unlikely that there be direct evidence of the accused's intent to commit genocide, such intent can be inferred from the evidence.120 In its oral arguments, the Prosecution referred to the Kayishema and Ruzindana Appeal Judgement oral summary, which held that, regarding a lack of explicit manifestation of intent, the requisite intent may normally be inferred from facts and circumstances.121 The Appeals Chamber held that, generally, such an intent may be inferred from the words or deeds of the perpetrator and may be demonstrated by a deliberate pattern of conduct. The Appeals Chamber however stated that this persistent pattern of conduct was not an element of the crime of genocide but rather a means of proof so as to demonstrate whether the accused actually possessed the requisite intent.122 The Prosecution then referred to the Jelisić Appeal Brief, which set the following factors as being relevant to prove the mens rea element of genocide:

(a) The general and widespread nature of the atrocities committed;

(b) The general political doctrine giving rise to the acts;

(d) Methodical way of planning the killings;

(e) The systematic manner of killing and disposal of bodies;

(f) The discriminatory nature of the acts;

"(g) The discriminatory intent of the accused."[6]

According to the Jelisić Appeals Chamber:

"[a]s a proof of specific intent, it may, in the absence of direct explicit evidence, be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts."[7]

According to the Nyiramasuhuko et al. Trial judgment:

"The jurisprudence accepts that, in most cases, genocidal intent will be proved by circumstantial evidence. Such intent may be inferred from a number of facts and circumstances, including the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of the atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts. Evidence of limited and selective assistance towards a few individuals does not generally preclude a reasonable finding of the requisite intent to commit genocide. When based on circumstantial evidence, any finding that the accused had genocidal intent must be the only reasonable inference from the totality of the evidence."[8]

According to the Munyakazi Appeals Chamber:

"The Trial Chamber established Munyakazi's intent to participate in the crimes based on his personal participation and leadership role in attacks, which resulted in the death of thousands of mostly Tutsi civilians. The Appeals Chamber can identify no error in this approach. The Appeals Chamber has held that an accused's intent to participate in a crime may be inferred from circumstantial evidence, including his active participation in an attack. Indeed, contrary to Munyakazi's suggestion, "[t]he inquiry is not whether the specific intent was formed prior to the commission of the acts, but whether at the moment of commission the perpetrators possessed the necessary intent."The lack of evidence concerning Munyakazi's personal views about Tutsis does not undermine the reasonableness of the Trial Chamber's findings. Furthermore, the evidence of his active participation in the killing of thousands of Tutsi civilians at two parishes reasonably demonstrates that he possessed both genocidal intent and the requisite intent for extermination as a crime against humanity, that is, the intent to kill on a large scale with awareness that the crimes formed part of a widespread and systematic attack against Tutsi civilians."[9]

Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, paras. 246-247, 261-263:

''246. The Appeals Chamber recalls that “[a]s a specific intent offense, the crime of genocide requires proof of intent to commit the underlying act and proof of intent to destroy the targeted group, in whole or in part”. However, “by its nature, genocidal intent is not usually susceptible to direct proof”. As correctly stated by the Trial Chamber, “in the absence of direct evidence, genocidal intent may be inferred from a number of facts and circumstances, such as the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership in a particular group, the repetition of destructive and discriminatory acts, or the existence of a plan or policy”.''

''247. The Appeals Chamber notes that the Trial Chamber made findings concerning the existence of genocidal intent in this case after assessing “all of this evidence, taken together”, an approach that, according to the Trial Chamber, “is in line with the fluid concept of intent”. The Trial Chamber thus considered a variety of factors as a whole – including, but not limited to, the circumstances under which the actions constituting the actus reus of genocide were carried out – and concluded that the acts of Article 4(2)(a)-(c) of the Statute were perpetrated with the dolus specialis required for genocide. This holistic approach is consistent with the Tribunal’s jurisprudence. As the Appeals Chamber has recently stated: in the context of assessing evidence of genocidal intent, a compartmentalised mode of analysis may obscure the proper inquiry. Rather than considering separately whether an accused intended to destroy a protected group through each of the relevant genocidal acts, a trial chamber should consider whether all of the evidence, taken together, demonstrates a genocidal mental state.Tolimir himself acknowledges that “it is a good approach to consider whether ‘all of the evidence, taken together, demonstrated a genocidal mental state’”.Since Tolimir fails to show any reason why the Trial Chamber’s holistic analysis of the relevant evidence was erroneous or why the Appeals Chamber should depart from its settled case law in that regard, his arguments as to the approach adopted by the Trial Chamber are rejected.''

''261. The Appeals Chamber first observes that the Trial Chamber correctly stated that the prominence of the targeted portion of the protected group is a relevant factor in determining whether the perpetrator intended to destroy at least a substantial part of the protected group. Indeed, as the Trial Chamber held, “genocidal intent may […] consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have on the survival of the group as such”. This holding is consistent with other trial judgements of the Tribunal, as well as the Appeals Chamber’s own jurisprudence. The Appeals Chamber recalls, in this respect, that “[i]f a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4” of the Statute.''

''262. The Commission of Experts Report, on which the Trial Chamber relied as support for its legal analysis vis-à-vis the killings of the three Žepa leaders, states, in relevant part: [i]f essentially the total leadership of a group is targeted, it could also amount to genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others – the totality per se may be a strong indication of genocide regardless of the actual numbers killed. A corroborating argument will be the fate of the rest of the group. The character of the attack on the leadership must be viewed in the context of the fate or what happened to the rest of the group. If a group has its leadership exterminated, and at the same time or in the wake of that, has a relatively large number of the members of the group killed or subjected to other heinous acts, for example deported on a large scale or forced to flee, the cluster of violations ought to be considered in its entirety in order to interpret the provisions of the Convention in a spirit consistent with its purpose.''

''263. The Appeals Chamber finds no legal error in the Trial Chamber’s statement that the selective targeting of leading figures of a community may amount to genocide and may be indicative of genocidal intent. The Appeals Chamber is not persuaded that the commission of genocide through the targeted killings of only the leaders of a group suggests that the leaders of the group are subject to special, stronger protection than the other members of the group, as Tolimir suggests. Recognising that genocide may be committed through the killings of only certain prominent members of the group “selected for the impact that their disappearance would have on the survival of the group as such” aims at ensuring that the protective scope of the crime of genocide encompasses the entire group, not just its leaders. A dissenting opinion in a judgement of the ICJ, the sole authority cited by Tolimir, does not bind this Tribunal and is not sufficient to substantiate Tolimir’s argument.''

2.1.1. Evidence inferred from the words, deeds or position of the perpetrator.

In the Kayishhema and Ruzindana case, theTrial Chamber said:

"Regarding the assessment of the requisite intent, the Trial Chamber acknowledges that it may be difficult to find explicit manifestations of intent by the perpetrators. The perpetrator's actions, including circumstantial evidence, however may provide sufficient evidence of intent [...] The Chamber finds that the intent can be inferred either from words or deeds and may be demonstrated by a pattern of purposeful action. In particular, the Chamber considers evidence such as the physical targeting of the group or their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, the systematic manner of killing. Furthermore, the number of victims from the group is also important."[10]

The Nyiramasuhuko et al. Trial Chamber said:

"[...] the Chamber has found that Nyiramasuhuko and Nsabimana tacitly approved of Kambanda's and Sindikubwabo's speeches. As set out above, Nyiramasuhuko's participation in the Interim Government's conspiracy was further evidenced, inter alia, by her presence at the ceremony, and her effective endorsement of the message of the President and the Prime Minister [...]. However, although Kambanda's and Sindikubwabo's speeches contributed to the instigation of widespread killings and large-scale massacres in Butare prefecture, the Chamber recalls that approval may constitute aiding and abetting of a crime such as genocide only if the Prosecution proves that the Accused's conduct substantially contributed to a crime [...]. Here, the Prosecution has adduced insufficient evidence to prove beyond a reasonable doubt that Nyiramasuhuko's and Nsabimana's conduct contributed to later crimes in a substantial manner.

"Accordingly, the Chamber does not find it established beyond a reasonable doubt that Nyiramasuhuko and Nsabimana's tacit approval of the speeches substantially contributed to the killings that followed. The Chamber therefore does not consider it proven that they are responsible for aiding and abetting genocide in relation to these events. The Chamber notes, however, that it will consider Nyiramasuhuko's and Nsabimana's conduct elsewhere in determining whether they possessed the requisite intent for genocide."[11]

P.15. Evidence of intention to destroy that group inferred from statements by the perpetrator.

P.15.1. Evidence of the perpetrator expressing his or her intention to destroy that group.

P.15.2. Evidence of the perpetrator expressing satisfaction after the commission of genocidal acts.

P.15.3. Evidence of the perpetrator having ordered or encouraged other to commit genocidal acts.

According to the Bizimungu et al. Trial Chamber:

"[E]ven when a speech contains no explicit appeal to commit genocide, it may still constitute direct incitement to commit genocide in a particular context, so long as the speech is not considered ambiguous within that context. In order to determine the speech's true meaning, it may be helpful to examine how it was understood by the intended audience."[12]

The Trial Chamber in Karemera and Ngirumpatse said:

"By not condemning, or even addressing, the recent massacre of more than 2,000 Tutsi civilians, which had taken place in the vicinity of the meeting venue, the speakers [all members of the Interim Government] condoned the killings and instigated and incited the population to continue killing Tutsis.

"The Chamber finds that, in the context of the recent massacres, the speeches were understood by the audience as a direct call to continue killing of Tutsis in order to destroy the Tutsi population in Rwanda in whole or in part. The Chamber considers that Karemera and the other Interim Government speakers had the intent to incite the population to continue these killings."[13]

According to the Nyiramasuhuko et al., Trial Chamber:

"Kanyanashi's spoken words encouraging the population to search for the 'enemy' and 'clear bushes', being references to killing Tutsis, evidences Kanyabashi had the requisite intent to destroy, in whole or in part, the Tutsi ethnic group."[14]

"Having regard to the organised nature of the attack and the fact it continued over two successive days; the Chamber finds that the assaillants intentionally killed members of the Tutsi ethnic group at Mugombwa Church. Further, in view of the large number of Tutsi victims, the fact that Ndayambaje told the attackers that their work would be simple since the people in the church were all gathered together, and that some attackers left to continue searching for those still in hiding upon Ndayambaje's instructions, the Chamber finds that the assailants possessed genocidal intent during the attack and that Ndayambaje knew of this intent."[15]

The Nzabonimana Trial Chamber said:

"The Chamber considers that, particularly when viewed in context, Nzabonimana's remarks substantially contributed to the successful attack upon the commune office. The Chamber recalls its finding that Nzabonimana was an influential figure in Gitarama prefecture and that Nzabonimana originated from Nyabikenke commune."[16]

"Prior to Nzabonimana's exhortations to the population at Cyayi centre to kill Tutsis at the commune office before taking their property, the attempted attack on the commune office had been unsuccessful. Commune policemen and members of the population assisted in repelling the attacks upon the commune office. Following Nzabonimana's address at Cyayi centre, commune policemen and members of the population successfully attacked the commune office with the only resistance coming from the refugees themselves."[17]

"Whereas during the attack upon Ntarabana Parish [...] and during the unsuccessful attack upon the commune office of 13 April 1994, the assailants used only traditional weapons (3.5.2.3.2), on 15 April 1994 [Nzabonibana discourse took place on 14 April], the assailants used firearms and grenades."[18]

"The Chamber considers Nzabonimana's speech, which included explicit instructions to kill Tutsis, an incontestably direct call on those assembled to commit genocide.

"Nzabonimana's speech was given in an undeniably public location to twenty members of the general population, including Tutsis, who happened to be present in the area at the time of his arrival. Therefore, the Chamber has no doubt that it was public, and that Nzabonimana intended it to be so."[19]

The Karemera and Ngirumpatse Trial Chamber found:

"[t]hat the Interim Government ministers and national party leaders, including Karemera and Ngirumpatse, met on 18 April 1994 with the local authorities of Gitarama. During the meeting, they intimidated the local authorities to stop protecting Tutsis and instead allow the Interahamwe to continue killing Tutsis. Hundreds of thousands of unarmed civilians were killed by Interahamwe, other militias, and soldiers throughout Rwanda by mid-July 1994 [...]. Given the circumstances in Rwanda at the time, the only reasonable conclusion is that the perpetrators of these acts possessed the intent to destroy, in whole or in substantial part, the Tutsi group."[20]

"Karemera's letter of 25 May 1994 regarding the implementation of Jean Kambanda's directives, which he issued to pr'fets as Minister of the Interior for the Interim Government, had the effect of encouraging the continued killing of Tutsis. The only reasonable conclusion is that the perpetrators of the killings had the intent to destroy, in whole or in part, the Tutsi group."[21]

In Ndahimana, the Trial Chamber stated:

"[t]he encouragement or support need not be explicit; under certain circumstances, even the act of being present on the crime scene (or in its vicinity) as a 'silent spectator' can be construed as tacitly approving or encouraging the crime. In any case, this encouragement or moral support must always substantially contribute to the commission of the crime."[22]

P.15.4. Evidence of persons encouraging the commission of genocidal acts on behalf or under the control of the perpetrator.

P.15.5. Evidence of the perpetrator using pejorative terms towards members of that group.

P.16. Exculpatory: Evidence of perpetrator's statements from which intention to destroy that group cannot be inferred.

P.16.1. Evidence of mere discriminatory intent.

P.16.2. Evidence of mere support for the war.

P.16.3. Exculpatory: Evidence of lack of use of pejorative terms towards members of that group.

P.17. Evidence of the perpetrator's participation in meetings where genocidal acts were planned.

According to the Nzabonimana Trial Chamber:

"The Chamber has found beyond a reasonable doubt that Nzabonimana attended a meeting at Kibangu secteur, Nyakabanda commune in May 1994, where Prime Minister Kambanda distributed weapons to the Ndiza battalion for the purpose of fighting the Tutsi enemy. However, as the Indictment explicitly alleged that Nzabonimana actively spoke and distributed weapons at the meeting, Nzabonimana can not be held liable for his mere presence at the meeting. The Chamber therefore does not find Nzabonimana guilty of genocide for attending the Kibangu secteur meeting.

"This conclusion is bolstered by the evidence reflecting Nizeyimana's anger towards the presence of this Tutsi family, characterised by him and others as Inyenzi or Inkotanyi, and his disgust that they were being protected."[23]

P.18. Evidence of provision of logistical support for the commission of genocidal acts.

P.18.1. Evidence that the perpetrator provided weapons.

As to the Karemera and Ngirumpatse Trial Chamber:

"[t]hat on or about 12 April 1994, Nzirorera arranged with Bagosora to provide more weapons to the Interahamwe who were manning roadblocks. Under these circumstances, it was foreseeable that the weapons, apart from being used to protect people manning the roadblocks, would also be used for killing Tutsis. In Kigali alone, thousands of civilians, mostly Tutsis, including unarmed men, women and children, were killed by militias and soldiers by 12 April 1994 [...]. In these circumstances, the only reasonable conclusion is that the assailants who physically perpetrated the killings possessed the intent to destroy, in whole or in substantial part, the Tutsi group [...] Considering the open and notorious targeting and slaughter of Tutsis at roadblocks, and their willingness to provide weapons to the killers, the Chamber is convinced that Ngirumpatse was aware of the genocidal intent of the perpetrators and shared it."[24]

P.18.2. Evidence that the perpetrator procured gendarmes.

P.18.3. Evidence that the perpetrator provided transportation.

P.19. Evidence of the perpetrator leading others in the commission of genocidal acts.

P.20. Evidence of the perpetrator's position of power and authority.

The Nizeyimana Trial Chamber found that:

"Given Nizeyimana's high rank and considerable authority within the ESO, as well as his relationship with Second Lieutenant Bizimana, Nizeyimana's authorisation of the killing before the attack, and his continued authorisation after, amounted to significant and substantial contributions to the crime in the form of moral support and approval."[25]

2.1.2. Evidence inferred from the words or deeds of others.

P.21. Evidence of intention to destroy the group by those who acted with the perpetrator.

P.22. Evidence of incitement to commit genocide by political leaders.

P.23. Evidence of incitement to commit genocide by media sources.

2.1.3. Evidence inferred from the existence of a plan or policy to destroy that group.

P.24. Evidence of the existence of a plan or policy to commit genocide.

According to the Jelisić Appeals Chamber:

"The Appeals Chamber is of the opinion that the existence of a plan or policy is not a legal ingredient of the crime. However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases. The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime."[26]

P.24.1. Evidence of lists or numbers of people to be killed.

P.24.2. Evidence of forcibly relocate members of that group.

P.24.3. Evidence of meetings or planning.

P.24.4. Evidence of propaganda.

P.25. Evidence of preparations to commit genocide.

P.25.1. Evidence of use of civil defence groups or militias.

P.25.2. Evidence of use of roadblocks.

According to the Trial Chamber in Karemera and Ngirumpatse:

"The Chamber has found found that the majority of roadblocks during the genocide were set up and manned or controlled by MRND Interahamwe, that soldiers participated in manning roadblocks and supervised the activities of the youth militias at the roadblocks, and that people identified as Tutsis were killed because of their ethnicity at most roadblocks. In Kigali alone, thousands of civilians were killed by militias and soldiers by 12 April 1994. Karemera and Ngirumpatse were aware that widespread killing had commenced on 8 April 1994, but, nevertheless, Ngirumpatse facilitated the killing campaign by providing weapons on 11 April 1994.

"In these circumstances, the only reasonable conclusion is that the assailants who physically perpetrated the killings possessed the genocidal intent to destroy, in whole or in substantial part, the Tutsi group."[27]

P.25.3. Evidence of distribution of weapons.

P.26. Evidence of government's involvement.

P.26.1. Evidence of transportation by government vehicles.

P.26.2. Evidence of involvement of public officials or soldiers in carrying out the attacks.

P.26.3. Evidence of involvement of public officials in planning the attacks.

2.1.4. Evidence inferred from the systematic or widespread character or the nature of the genocidal acts.

According to the Akayesu Trial Chamber:

"it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act."[28]

The Karemera and Ngirumpatse Trial Chamber stated:

"By 25 April 1994, the atrocities committed in Rwanda were widespread and public and militiamen and civilians to be supplied by the fund were killing Tutsis throughout the country. The vast majority of the killers were Interahamwe and other groups of armed civilians who routinely used traditional weapons to massacre Tutsis. Kabuga made it clear in his letter to the Interim Government that he intended to use the fund to purchase traditional weapons for the military, militiamen, and civilians. In these circumstances, the only reasonable conclusion is that Kabuga and the assailants who physically perpetrated the killings possessed the intent to destroy, in whole or in a substantial part, the Tutsi group.

"Considering the public and widespread massacres of Tutsis in Rwanda, the Chamber is convinced that Karemera and Ngirumpatse were aware of the genocidal intent of the perpetrators and shared it."[29]

"Considering the scale of the assaults and the brutal and systematic manner in which the Tutsi victims were attacked, the Chamber finds it proven beyond a reasonable doubt that the assailants who physically perpetrated the killings possessed the intent to destroy, in whole or in substantial part, the Tutsi group."[30]

P.27. Evidence of systematic and consistent character of the genocidial acts.

According to the Nizeyinama Trial Chamber:

"Bizimana reported the killing to Nizeyimana and it has concluded that Nizeyimana authorised the murder. When viewing his actions in the context of other proven conduct, including his role in the Ruhutinyanya family killing, the Cyahinda Parish massacre, and killings at roadblocks, the Chamber has no doubt that Nizeyimana possessed genocidal intent. The only reasonable conclusion, particularly in light of his relationship and repeated collaboration with Second Lieutenant Bizimana, is that Nizeyimana was also aware of the genocidal intent held by the attackers."[31]

"While these attacks only resulted in the deaths of two Tutsis and the serious bodily harm of a third, the Chamber has no doubt that the perpetrators acted with the intent to destroy at least a substantial part of the Tutsi group. These attacks were emblematic of the systematic nature in which Tutsi civilians were identified and killed on an ongoing basis at this roadblock and others manned by ESO soldiers in Butare town. Notably, a prominent Tutsi lecturer, Pierre Claver Karenzi, was killed in the vicinity of a nearby roadblock manned by ESO soldiers on the same day that Rwekaza was killed and Witness ZAV was shot.

Indeed, these attacks followed President Sindikubwabo's 19 April 1994 speech, which marked a significant increase in violence and the targeting of Tutsi civilians within Butare town. Around 20 April, ESO soldiers killed Rosalie Gicanda, the former Tutsi Queen of Rwanda, and others taken from her home. Around 21 April, ESO soldiers participated in the separation and killing of Tutsis at the Butare University. Around 29 April, ESO soldiers participated in the separation and removal of Tutsis at the Groupe Scolaire, which led to their subsequent slaughter. There is additional evidence that, starting in the last third of April, soldiers used lists to identify and kill Tutsis at the Butare University Hospital.

"In this context, the fact that only two Tutsis were killed and one injured on these occasions reflects the rudimentary and inefficient means employed by ESO soldiers to commit these crimes. It raises no doubt that the soldiers' possessed genocidal intent at the moment of their commission. Based on Nizeyimana's conduct during the killing of Rwekaza and attack of Witness ZAV, as well as his actions during Uwambaye's murder, the record demonstrates that he shared this genocidal intent."[32]

P.27.1. Evidence of systematic killings.

P.27.2. Evidence of systematic disposal of bodies.

P.27.3. Evience of consistency of the weapons employed.

P.27.4. Evidence of consistency in the modus operandi.

P.28. Evidence of widespread nature of the genocidal acts.

P.28.1. Evidence of the scale of the attack.

P.28.2. Evidence of the number of the victims.

P.28.3. Evidence of the number of persons involved in the commission of genocidial acts.

P.28.4. Exculpatory: Evidence that the scale of the actual destruction was not substantial in the light of the scope of the perpetrators' control and ability to destroy.

P.29. Evidence of selection of victims.

P.29.1. Evidence of selecting victims on the basis of their membership of that group.

According to the Nizeyimana Trial Chamber:

"There is evidence that shortly after this attack [on Gicanda, the former Queen of Rwanda], ESO and other soldiers continued to participate in targeted killings of Tutsis. Specifically, around 21 April 1994, ESO soldiers participated in the separation and killing of Tutsis at the Butare University. Around 29 April, ESO soldiers participated in the separation and removal of Tutsis at the Groupe Scolaire, which led to their subsequent slaughter. There is additional evidence that, starting in the last third of April, soldiers used lists to identify and kill Tutsis at the Butare University Hospital. In this context, the Chamber has no doubt that the physical perpetrators who killed Gicanda and others taken from her home possessed genocidal intent."[33]

P.29.2. Evidence of killing of civilians (including children, pregnant women).

According to the Nizeyimana Trial Chamber:

"The soldiers shot and killed Rwekaza. Witness ZAV was shot, but survived, and the Chamber has concluded that he suffered serious bodily harm. Likewise, the Chamber has found that Nizeyimana ordered ESO soldiers to kill Beata Uwambaye, a Tutsi, at the same barrier around 5 May. The soldiers carried out Nizeyimana's instructions and killed Uwambaye. In all instances, the victims were in civilian clothing and unarmed."[34]

In Karemera and Ngirumpatse, the Trial Chamber said:

"Following the speech [inciting to genocidal acts], Tutsis including women, children, and the elderly, who could not possibly have been suspected of being actual or potential combatants in the war between the Rwandan Armed Forces and the RPF, were being killed on a large scale in Butare prefecture. The Chamber has found that Karemera and Ngirumpatse were members of a JCE to destroy the Tutsi population in Rwanda by this point."[35]

P.29.3. Evidence of killing of pregnant women to prevent birth of children of that group.

P.29.4. Evidence of selecting victims on the basis that their death or mistreatment would be particularly detrimental to the survival of that group.

P.29.5. Evidence of exclusion from genocidal acts of persons not members of that group.

P.30. Evidence of the nature and purpose of the genocidal acts.

P.30.1. Evidence of rape as a means of destroying that group.

The Karemera and Ngirumpatse Trial Chamber stated:

"In light of the evidence brought before it, the Chamber is satisfied that the rapes, mutilations and other acts of sexual violence against Tutsi women and girls were systematic and widespread. Many of these women were subjected to severe humiliation and physical injuries. As a consequence, these crimes did not only cause serious bodily and mental harm to the women themselves, but also, by extension, to their families and communities. Furthermore, many Tutsi women were killed after they were subjected to rapes and sexual assaults."[36]

P.30.2. Evidence of acts to disable victims or render them defenceless.

P.30.3. Evidence of acts having symbolic meaning.

P.30.4. Evidence of the particular cruelty or the genocidal acts.

P.31. Evidence of other persecutorial acts preceding or accompanying the genocidal acts.

P.31.1. Evidence of forced transfer of members of that group.

P.31.2. Evidence of acts disposal of bodies.

P.31.3. Evidence of detention and mistreatment of members of that group.

2.1.5. Evidence which is insufficient to exclude the intention to destroy that group.

P.32. Evidence of motives of the perpetrator.

P.32.1. Evidence that there were also other reasons for the genocidal acts.

P.32.2. Evidence that the perpetrator was motivated by benign intention.

P.33. Evidence that the genocidal acts were not the most efficient way of destroying the group.

P.34. Evidence of having saved or protected members of that group.

P.35. Evidence that the perpetrator also killed some members of his or her own group.

2.1.6. Exculpatory evidence.

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 555:

"555. It is well established that where a conviction for genocide relies on the intent to destroy a group “in part”, such part must be a substantial part of the whole protected group. The targeted portion must be a “significant enough [portion] to have an impact on the group as a whole”. The Krstić Appeal Chamber stated that in determining substantiality, the following considerations can be made:

The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4.

Furthermore, the area of the perpetrators’ activity, control, and the possible extent of their reach should be considered. The applicability of these factors and their relative weight will vary depending on the circumstances of a particular case."

P.36. Evidence that killings were arbitrary or random.

P.37. Evidence that only some members of that group were selected as victims of the genocidal acts.

2.2. The perpetrator intended to "destroy" that group.

P.38. Evidence of intention to destroy by physical or biological means.

P.39. Not sufficient: Evidence of cultural genocide.

P.39.1. Evidence of destruction of cultural and religious buildings.

P.40. Not sufficient: Evidence of "ethnic cleansing".

P.41. Not sufficient: Evidence of displacement.

P.42. Not sufficient: Evidence that the acts were intended to defeat rebels.

P.43. Exculpatory: Evidence of housing in camps of internally displaced people.

2.3. The perpetrator intended to destroy that group "in whole or in part".

The Krstić Trial Chamber held that:

"The Trial Chamber is thus left with a margin of discretion in assessing what is destruction "in part" of the group. But it must exercise its discretionary power in a spirit consonant with the object and purpose of the Convention which is to criminalise specified conduct directed against the existence of protected groups, as such. The Trial Chamber is therefore of the opinion that the intent to destroy a group, even if only in part, means seeking to destroy a distinct part of the group as opposed to an accumulation of isolated individuals within it. Although the perpetrators of genocide need not seek to destroy the entire group protected by the Convention, they must view the part of the group they wish to destroy as a distinct entity which must be eliminated as such."[37]

The Gatete Trial Chamber stated:

"Although there is no numeric threshold, the perpetrator must act with the intent to destroy at least a substantial part of the group."[38]

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 555:

2.3.1. Intention to destroy the group in part.

P.44. Evidence of intention to destroy a numerically significant part of the group.

The Akayesu Trial Chamber stated that:

"[...]the crime of genocide does not imply the actual extermination of group in its entirety, but is understood as such once any one of the acts mentioned in Article 2(2)(a) through 2(2)(e) is committed with the specific intent to destroy "in whole or in part" a national, ethnical, racial or religious group."[39]

P.45. Evidence of intention to destroy a geographical defined part of the group.

The Krstić Trial Chamber stated:

"The A campaign resulting in the killings, in different places spread over a broad geographical area, of a finite number of members of a protected group might not thus qualify as genocide, despite the high total number of casualties, because it would not show an intent by the perpetrators to target the very existence of the group as such. Conversely, the killing of all members of the part of a group located within a small geographical area, although resulting in a lesser number of victims, would qualify as genocide if carried out with the intent to destroy the part of the group as such located in this small geographical area. Indeed, the physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to annihilate the group as a distinct entity in the geographic area at issue. In this regard, it is important to bear in mind the total context in which the physical destruction is carried out."[40]

P.45.1. Evidence of the intention to destroy a geographical area of strategic or symbolic importance to the group.

P.46. Evidence of intention to destroy a part of the group consisting of its leadership.

The Jelisić Trial Judgment said:

"Genocidal intent may therefore be manifest in two forms. It may consist of desiring the extermination of a very large number of the members of the group, in which case it would constitute an intention to destroy a group en masse. However, it may also consist of the desired destruction of a more limited number of persons selected for the impact that their disappearance would have upon the survival of the group as such. This would then constitute an intention to destroy the group 'selectively'."[41]

According to the Sikirica et al. Trial Chamber:

"The United Nations Expert Study on Genocide defines the term 'in part' as implying 'a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group such as its leadership'. This definition means that, although the complete annihilation of the group is not required, it is necessary to establish 'the intention to destroy at least a substantial part of a particular group'. The Chamber believes that it is more appropriate to speak of a "reasonably substantial" rather than a 'reasonably significant' number. This part of the definition calls for evidence of an intention to destroy a reasonably substantial number relative to the total population of the group. According to this definition, if that criterion is not met, the mens rea may yet be established by evidence of an intention to destroy a significant section of the group, such as its leadership. While the Chamber does not reject that aspect of the definition, which sees the two elements as being alternative, there may be situations in which the inference as to the intent can not be drawn on the basis of the evidence in relation to each element in isolation, but when the evidence in relation to each is viewed as a whole, it would be perfectly proper to draw the inference."[42]

P.47. Evidence of intention to destroy a part of the group that is otherwise significant.

2.3.2. Evidence which is not required.

P.48. Not required: Evidence of the actual destruction of the group.

The Nzabonimana Trial Chamber stated:

"The Chamber recalls that it has found Nzabonimana's actions at this meeting failed to constitute the instigation of genocide [...]. The Chamber also recalls that direct and public incitement is an inchoate crime; therefore, it is not necessary to prove that genocide was subsequently perpetrated, though evidence of the perpetration of genocide can assist in determining whether the accused possessed the requisite intent."[43]

P.49. Not required: Evidence that a substantial part of the group was actually destroyed.

P.50. Not required: Evidence of genocidal acts against multiple victims.

2.4. The perpetrator intended to destroy that group "as such".

The Jelisić Appeals Chamber held:

"The Appeals Chamber further recalls the necessity to distinguish specific intent from motive. The personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide."[44]

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 551-554:

"551. The specific intent to destroy the group “as such” makes genocide an exceptionally grave crime and distinguishes it from other serious crimes, such as persecutions as a crime against humanity. The term “as such” has great significance as it shows that the crime of genocide requires intent to destroy a collection of people because of their particular group identity based on nationality, race, ethnicity, or religion."

"552. For example, the Krstić Trial Chamber found that the destruction of a sizeable number of men would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica. The Appeals Chamber in that case upheld this finding, stating that “[t]he physical destruction of the men therefore had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinction”. The Krstić Appeals Chamber further held that “[t]he finding that some members of the VRS Main Staff devised the killing of the male prisoners with full knowledge of the detrimental consequences it would have for the physical survival of the Bosnian Muslim community in Srebrenica further supports the Trial Chamber’s conclusion that the instigators of that operation had the requisite genocidal intent”."

"553. The Genocide Convention and customary international law prohibit only the physical and biological destruction of a group, not attacks on cultural or religious property or symbols of the group. However, while such attacks may not constitute underlying acts of genocide, they may be considered evidence of intent to physically destroy the group. Forcible transfer alone would not suffice to demonstrate the intent to “destroy” a group but it is a relevant consideration as part of the Chamber’s overall factual assessment."

"554. Specific intent is distinguished from personal motive; however, the existence of a personal motive does not exclude the possession of genocidal intent."

2.4.1. Evidence inferred from the words or conduct of the perpetrator.

P.51. Evidence of statements by the perpetrator.

P.51.1. Evidence of the perpetrator expressing regret at having mistakenly attacked a person not a member of the group.

P.52. Evidence of conduct by the perpetrator.

The Nizeyimana Trial Chamber said:

"[...] when evaluating the impact of Nizeyimana's contribution, the Chamber recalls that Nizeyimana's presence at the Cyahinda Parish necessarily allowed him to examine " from military intelligence and operations perspectives " the strengths and weaknesses of the displaced Tutsis who had fortified themselves within the parish. It is noteworthy that during the ensuing attack, ESO soldiers utilised specialised arms that could weaken structural safe havens for the refugees within the parish facilities and kill numbers of them from a safe distance. In light of the fact that the primarily Tutsi refugees had previously staved off initial, armed assaults by the bourgmestre and gendarmes, the use of these heavy weapons is not coincidental. Indeed, the Chamber has no doubt that the participation of the ESO soldiers and the weaponry utilised reflect Nizeyimana's on-the-ground assessment of the situation at Cyahinda Parish and were a direct result of Nizeyimana's contributions to the planning and authorisation of this assault. There is no question that Nizeyimana's contributions proved to be both significant and substantial to the ensuing extermination operation."[45]

P.52.1. Evidence of the perpetrator acting on instructions to attack members of the group.

P.53. Evidence of victims belonging to the group.

2.4.2. Evidence inferred from the context in which the genocidal acts were committed.

P.54. Evidence of widespread and systematic violence.

P.55. Evidence of a general campaign of persecution.

P.56. Evidence of the number of the victims belonging to the group.

P.57. Evidence of statements by others.

P.58. Evidence of prior separation or classification of victims.

P.59. Evidence of the opinions of witnesses as to why victims were killed.

2.4.3. Exculpatory evidence.

P.60. Exculpatory: Evidence of different basis on which victims were targeted.

P.60.1. Evidence that victims were targeted to defeat rebel groups.

P.60.2. Evidence that victims were targeted to steal property only.

P.61. Exculpatory: Evidence that members of the group were not mage the victim of genocidal acts.

Footnotes:

[1] ICTR, Prosecutor v. Akayesu, "Judgement", ICTR-96-4-T, 2 September 1998, para. 497-498.

[2] ICTR, Prosecutor v. Akayesu, "Judgement", ICTR-96-4-T, 2 September 1998, para. 518, 520. See also ICTR, Prosecutor v. Rutaganda,"Judgement", ICTR-96-3-T, 6 December 1999, para. 59-61; ICTR, Prosecutor v. Kambanda,"Judgement", ICTR-97-23-T, 4 September 1998, para. 16.

[3] ICTY, Prosecutor v. Jelisić, "Appeals Judgement", IT-95-10-A, 5 July 2001, para. 45.

[4] ICTY, Prosecutor v. Jelisić, "Appeals Judgement", IT-95-10-A, 5 July 2001, para. 46; see also ICTY, Prosecutor v. Krstić, "Judgement", IT-98-33-A, 2 August 2001, para. 550.

[5] ICTY, Prosecutor v. Krstić , "Judgement", IT-98-33-T, 2 August 2001, 2 August 2001, para. 571.

[6] ICTY, Prosecutor v. Sikirica et al., "Judgement on Defence Motions to Acquit", IT-95-8-T, 3 September 2001, para. 46-61.

[7] ICTY, Prosecutor v. Jelisić, "Appeals Judgment ", IT-95-10-A, 5 July 2001, para. 47. See also ICTR, Prosecutor v. Gatete, "Judgment", ICTR-2000-61-T, 31 March 2011, and para. 583.

[8] ICTR, Prosecutor v. Nyiramasuhuko et al., "Judgement", ICTR-98-42-T, 24 June 2011, para. 5732 (footnote omitted). See also ICTR, Prosecutor v. Bizimungu et al, "Judgement", ICTR-99-50-T, 30 September 2011, para. 1958; ICTR, Prosecutor v. Ndahimana, "Judgement", ICTR-01-68-T, 30 December 2011, para. 804.

[9] ICTR, Prosecutor v. Munyakazi, "Judgment", ICTR-97-36A-A, 28 September 2011, para. 142. See also ICTR, Simba v Prosecutor, Appeals Judgment", ICTR-01-76-A, 27 November 2007, para. 266 (footnotes omitted).

[10] ICTR, Kayishhema and Ruzindana, "Judgement", ICTR-95-1-T, 21 May 1999, para. 93.

[11] ICTR, Prosecutor v. Nyiramasuhuko et al., "Judgement", ICTR-98-42-T, 24 June 2011, para. 5746-5747.

[12] ICTR, Prosecutor v. Bizimungu et al, "Judgement", ICTR-99-50-T, 30 September 2011, para. 1974.

[13] ICTR, Prosecutor v. Karemera and Ngirumpatse, "Judgement", ICTR-98-44-T, 2 February 2012, para. 1597-1598.

[14] ICTR, Prosecutor v. Nyiramasuhuko et al., "Judgement", ICTR-98-42-T, 24 June 2011, para. 6012.

[15] ICTR, Prosecutor v. Nyiramasuhuko et al., "Judgement", ICTR-98-42-T, 24 June 2011, para. 5756.

[16] ICTR, Prosecutor v. Nzabonimana, "Judgement", ICTR-98-44D-T, 31 May 2012, para. 1712.

[17] ICTR, Prosecutor v. Nzabonimana, "Judgement", ICTR-98-44D-T, 31 May 2012, para. 1713.

[18] ICTR, Prosecutor v. Nzabonimana, "Judgement", ICTR-98-44D-T, 31 May 2012, para. 1714.

[19] ICTR, Prosecutor v. Nzabonimana, "Judgement", ICTR-98-44D-T, 31 May 2012, para. 1758-1759.

[20] ICTR, Prosecutor v. Karemera and Ngirumpatse, "Judgement", ICTR-98-44-T, 2 February 2012, para. 1619-1620.

[21] ICTR, Prosecutor v. Karemera and Ngirumpatse, "Judgement", ICTR-98-44-T, 2 February 2012, para. 1635.

[22] ICTR, Prosecutor v. Ndahimana, "Judgement", ICTR-01-68-T, 30 December 2011, para. 826.

[23] ICTR, Prosecutor v. Nzabonimana, "Judgement", ICTR-98-44D-T, 31 May 2012, para. 1729.

[24] ICTR, Prosecutor v. Karemera and Ngirumpatse, "Judgement", ICTR-98-44-T, 2 February 2012, para. 1611-1612, 1614.

[25] ICTR, Prosecutor v. Nizeyimana, "Judgement and Sentence", ICTR-2000-55C-T, 19 June 2012, para. 1514.

[26] ICTY, Prosecutor v. Jelisić, "Appeals Judgement", IT-95-10-A, 5 July 2001, para. 48.

[27] ICTR, Prosecutor v. Karemera and Ngirumpatse, "Judgement", ICTR-98-44-T, 2 February 2012, para. 1662-1663.

[28] ICTR, Prosecutor v. Akayesu, "Judgement", ICTR-96-4-T, 2 September 1998, para. 523.

[29] ICTR, Prosecutor v. Karemera and Ngirumpatse, "Judgement", ICTR-98-44-T, 2 February 2012, para. 1646-1647.

[30] ICTR, Prosecutor v. Karemera and Ngirumpatse, "Judgement", ICTR-98-44-T, 2 February 2012, para. 1650.

[31] ICTR, Prosecutor v. Nizeyimana, "Judgement and Sentence", ICTR-2000-55C-T, 19 June 2012, para. 1513.

[32] ICTR, Prosecutor v. Nizeyimana, "Judgement and Sentence", ICTR-2000-55C-T, 19 June 2012, para. 1521-1523.

[33] ICTR, Prosecutor v. Nizeyimana, "Judgement and Sentence", ICTR-2000-55C-T, 19 June 2012, para. 1512.

[34] ICTR, Prosecutor v. Nizeyimana, "Judgement and Sentence", ICTR-2000-55C-T, 19 June 2012,

[35] ICTR, Prosecutor v. Karemera and Ngirumpatse, "Judgement", ICTR-98-44-T, 2 February 2012, para. 1626-1627.

[36] ICTR, Prosecutor v. Karemera and Ngirumpatse, "Judgement", ICTR-98-44-T, 2 February 2012, para. 1667-1668.

[37] ICTY, Prosecutor v. Krstić , "Judgement", IT-98-33-T, 2 August 2001, para. 590.

[38] ICTR, Prosecutor v. Gatete, "Judgement", ICTR-2000-61-T, 31 March 2011, para. 582. See also ICTR, Prosecutor v. Ndindiliyimana et al.,"Judgement", ICTR-00-56-T, 17 May 2011, para. 2072.

[39] ICTR, Prosecutor v. Akayesu, "Judgement", ICTR-96-4-T, 2 September 1998, para. 497; see also Karad?ić, Rule 61 Decision, para. 92.

[40] ICTY, Prosecutor v. Krstić , "Judgement", IT-98-33-T, 2 August 2001, para. 590.

[41] ICTY, Prosecutor v. Jelisić, "Judgement", IT-95-10-T, 14 December 1999, para. 82.

[42] ICTY, Prosecutor v. Sikirica et al., "Judgement on Defence Motions to Acquit", IT-95-8-T, 3 September 2001, para. 65.

[43] ICTR, Prosecutor v. Nzabonimana, "Judgement", ICTR-98-44D-T, 31 May 2012, para. 1758.

[44] ICTY, Prosecutor v. Jelisić, "Appeals Judgement", IT-95-10-A, 5 July 2001, para. 49.

[45] ICTR, Prosecutor v. Nizeyimana, "Judgement and Sentence", ICTR-2000-55C-T, 19 June 2012, para. 1507.