International law, Sixth edition
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
Ibid., para. 523. See also the cases of Kayishema and Ruzindana, ICTR-95-1-T, 1999, paras.
87 ff. and Musema, ICTR-96-13-T, 2000, paras. 884 ff. 187 ICTR-97-32-I, 2000, para. 14. 188 IT-95-10, paras. 100–1. 189 IT-98-33-T, 2001, para. 589. 190 Ibid., para. 590. 432 i n t e r nat i o na l l aw where a conviction for genocide relies on the intent to destroy a protected group ‘in part’, the part must be a substantial part of that group. The aim of the Genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole. 191 It was concluded that the intent requirement of genocide under arti- cle 4 of the Statute was 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. 192 It was also emphasised that each perpetrator must possess the necessary specific intent. 193 The intention to ‘destroy’ means the physical or biological destruction of all or part of the group and not, for example, attacks upon the cultural or sociological characteristics of a group in order to remove its separate identity. 194 The sometimes difficult question of the definition of mem- bership of the groups specifically referred to in the relevant instruments has also been analysed. In Akayesu, 195 the Trial Chamber of the Rwanda Tribunal leaned towards the objective definition of membership of groups, 196 but this has been mitigated by other cases emphasising the importance of subjective elements as part of the relevant framework. 197 191 IT-98-33-A, 2004, para. 8. 192 Ibid., para. 12. 193 Ibid., para. 134. 194 Ibid., para. 25. 195 ICTR-96-4-T, 1998, paras. 511 ff. 196 In Kayishema and Ruzindana, ICTR-95-1-T, 1999, paras. 522 ff., the Trial Chamber em- phasised the importance of the designation contained in identity cards. 197 See Rutaganda, ICTR-96-3-T, 1999, paras. 55 ff. See also Bagilishima, ICTR-95-1A-T, 2001, para. 65, where the Trial Chamber concluded that ‘if a victim was perceived by a perpetrator as belonging to a protected group, the victim could be considered by the Chamber as a member of the protected group, for the purposes of genocide’. See also the Report of the UN Commission of Inquiry on Darfur, S/2005/60, paras. 500 ff. 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 Download 7.77 Mb. Do'stlaringiz bilan baham: |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling