‘Causing Bodily Harm to Members of the Group’: Rhetorical Phrase or Effective Tool for Prevention?

Caroline Fournet is Rosalind Franklin Fellow and associate professor in the Faculty of Law at the University of Groningen. The author wishes to acknowledge that some of the research for the article below was conducted as part of the ERC-funded project, “Corpses of Mass Violence and Genocide”. The views expressed here remain the author’s own.

The United Nations Genocide Convention¹ has long been criticised for failing to ensure effective prevention of the crime it aims at preventing and punishing. Indeed, it has been observed that “Article VIII provides the only substantive guidance within the Convention for the role of prevention”.² Yet, as this paper proposes to argue, a close look at the legal list of proscribed acts reveals that further guidance for the role of prevention could be found in the convention through a more systematic understanding of the act of “causing bodily harm to members of the group”, which, once qualified, could serve as an early warning sign. Indeed, unlike other occurrences of death, genocidal death annihilates the human bodies of the victims, making them unrecognisable and depriving them of all individual and human identity so as to erase all traces of existence of the victim group. Genocidal death is not the consequence of a pathological outburst of barbaric and uncontrolled violence: it is the end result of a methodical orchestration, which inherently entails a gradual intensification of ill-treatments of the bodies of the victims, members of a protected group, culminating in the materialisation of the genocidal outcome.

 

Although the act of causing serious bodily harm is not defined in the Genocide Convention or in any of the subsequent legal instruments,³ the International Criminal Tribunals have addressed it on numerous occasions, seizing the opportunity to elaborate a more detailed definition of the act. An analysis of these judicial findings shows that this act, once qualified, could contribute to the fulfilment of the two promises made by the Genocide Convention itself, namely, the prevention and punishment of the crime.

Serious Bodily Harm as Genocidal Alarm Bell

The contemporaneous international—and authoritative—definition of the crime of genocide as encapsulated in Article II of the Genocide Convention, and as reproduced verbatim in the respective Statutes of the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the Former Yugoslavia (ICTY), and the International Criminal Court, defines genocide as

 

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

 

It can be safely asserted that this legislative enumeration is to be understood exhaustively and that only those acts which are expressly enumerated in Article II can be considered as genocidal, when “committed against one or several individuals, because such individual or individuals were members of a specific group, and specifically because they belonged to this group”.⁴ As further explained by the different Chambers of the International Criminal Tribunals, “[t]he actus reus of genocide is found in each of the five acts enumerated in Article 2(2) of the Statute”⁵ and, thus, “for a crime of genocide to have been committed, it is necessary that one of the acts listed under Article 2(2) of the Statute be committed”.⁶ Yet, interestingly, an analysis of the judicial understanding of the act of “causing serious bodily harm to members of the group” tends to demonstrate that this act could be used as an early warning sign that genocide is happening.

 

And indeed, although the ICTR Appeals Chamber has noted that “nearly all convictions for the causing of serious bodily or mental harm involve rapes or killings”,⁷ the act of “causing serious bodily harm” covers a whole series of non-fatal acts,⁸ which if qualified in time as genocidal could constitute a useful preventive alarm bell:

 

serious harm need not cause permanent and irremediable harm, but it must involve harm that goes beyond temporary unhappiness, embarrassment or humiliation. It must be harm that results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life. In subscribing to the above case-law, the Chamber holds that inhuman treatment, torture, rape, sexual abuse and deportation are among the acts which may cause serious bodily or mental injury.⁹

 

The ICTR Trial Chambers have repeatedly defined “causing serious bodily harm” as “harm that seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses”,¹⁰ while the Krstić Trial Chamber drew inspiration from “the Tribunal’s interpretation of the offence of wilfully causing great suffering or serious injury to body or health under Article 2 of the Statute … as ‘an act or omission that is intentional, being an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury’ ”.¹¹

 

Faced with the facts that “serious bodily harm” is “not defined in the Statute”¹² and that it “does not necessarily mean that the harm is permanent and irremediable”,¹³ the International Criminal Tribunals have used “a common sense approach”¹⁴, determining the act “on a case-by-case basis”.¹⁵ It has been recognised that “serious bodily harm” includes acts of bodily or mental torture,¹⁶ inhumane or degrading treatment, cruel treatment,¹⁷ persecution,¹⁸ deportation,¹⁹ rape²⁰ and sexual violence,²¹ mutilations and interrogations combined with beatings, and/or threats of death.²² Interestingly, not only is such a list of acts a jurisprudential elaboration of the conventional text, but the International Criminal Tribunals have also specified that this list remains illustrative and does not constitute an exhaustive enumeration.²³ Still, serious bodily harm would include persecution, a crime otherwise categorised as a crime against humanity and which as such does not automatically trigger preventive action, thereby arguably creating a problematic gap in any early warning system.

Persecution and Genocide

The crime of persecution has been defined as “one of the most vicious of all crimes against humanity … only one step away from genocide—the most abhorrent crime against humanity—for in genocide the persecutory intent is pushed to its uttermost limits through the pursuit of the physical annihilation of the group or of members of the group”.²⁴ Perhaps going even further in its quasi-merging of the two crimes, the Kupreškić Trial Chamber held that:

 

[P]ersecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging … Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extreme form of wilful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide.²⁵

 

These findings seem to suggest a difference of gravity and seriousness between persecution as a crime against humanity and genocidal acts, including that of causing serious bodily harm. Yet, a look at the case law combined with the reality of the facts reveals the striking resemblance between the two crimes in the sense that both categories encompass acts which can potentially lead to the destruction of the victim group.

 

Deprived of any clear statutory definition of the crime of persecution, the International Criminal Tribunals were left with the arduous task of defining its elements. Per the Kupreškić Trial Chamber, these are: “a) those elements required for all crimes against humanity under the Statute, b) a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited under Article 5, c) discriminatory grounds.”²⁶

 

Persecutory acts “include the denial of other fundamental human rights, provided” such acts “are of equal gravity or severity” to the other crimes against humanity listed in Article 5 of, or elsewhere in, the ICTY Statute.²⁷ As specified by the Stakić Trial Chamber, “it is immaterial to identify which rights may amount to fundamental rights for the purpose of persecution. Persecution can consist of the deprivation of a wide variety of rights, whether fundamental or not, derogable or not”.²⁸ When assessing the degree of gravity or seriousness of a given act or acts, the Tribunals do so “not in isolation but in context, by looking at their cumulative effect. Although individual acts may not be inhumane, their overall consequences must offend humanity in such a way that they may be termed ‘inhumane’ ”,²⁹ a consideration which could also be applied to the act of causing serious bodily harm.

 

It is, however, true that, unlike genocidal acts, persecutory acts need not be inherently criminal to be recognised as such:

 

Jurisprudence from World War II trials found acts or omissions such as denying bank accounts, educational or employment opportunities, or choice of spouse to Jews on the basis of their religion, constitute persecution. Thus, acts that are not inherently criminal may nonetheless become criminal and persecutorial if committed with discriminatory intent.³⁰

 

Yet, the case law nonetheless demonstrates that the non-existence of a requirement of criminality with respect to persecutory acts remains theoretical. Indeed, insofar as acts may only become persecutory if committed with “the specific intent to discriminate”,³¹ this discrimination element will by and of itself automatically criminalise the act. The consideration that “acts underlying persecution … need not be considered a crime in international law”³² is thus, in practice, totally illusory—as further exemplified by the judicial findings themselves, where acts that were qualified as persecutory can hardly be considered as anything other than criminal: the unlawful detention of civilians,³³ the deportation and forcible transfer of civilians,³⁴ murder, extermination, torture,³⁵ “humiliating treatment”,³⁶ “constant humiliation and/or degradation”,³⁷ “harassment, humiliation and psychological abuse”,³⁸ “hate speech” (as potentially causing “an irreversible harm”),³⁹ “destruction, wilful damage and looting of residential and commercial properties”,⁴⁰ “destruction of, or wilful damage to, religious and cultural buildings”,⁴¹ and, more generally, violations of “elementary and inalienable rights of man”.⁴²

 

It is also true that genocidal acts usually entail physical acts of destruction and do not cover acts of an economic, patrimonial and cultural nature. In contrast, “[p]ersecution may take diverse forms and does not necessarily require a physical act”,⁴³ and violations of political, social, and economic rights have been recognised as constitutive of persecution:⁴⁴

 

economic and political discrimination by the Nazis against the Jews has been included [within the definition of crimes against humanity], on the presumable ground that such discrimination could impact on the “life and liberty” of victims in a “wholesale” way. It is not necessary to prove a physical attack.⁴⁵

 

Perhaps more tellingly with respect to the comparison with the act of causing serious bodily harm, the Blaškić Trial Chamber explained that:

 

the crime of “persecution” encompasses not only bodily and mental harm and infringements upon individual freedom but also acts which appear less serious, such as those targeting property, so long as the victimised persons were specially selected on grounds linked to their belonging to a particular community.⁴⁶

 

While persecution was here considered as including bodily harm, it is worth recalling that persecution was equally included within the ambit of causing serious bodily harm as a genocidal act,⁴⁷ a judicial equivalence which undoubtedly highlights the similarities between the two categories of crimes—persecution and genocide. It also prompts the question of the required gravity threshold for an act to be considered as constituting bodily harm serious enough to trigger both the qualification of genocide and preventive action.

 

In his seminal work on Nazi Germany, Saul Friedländer had poignantly retraced the path from persecution to destruction, recalling the

 

furious onslaught aimed at eliminating any trace of “Jewishness,” any sign of the “Jewish spirit,” any remnant of Jewish presence (real or imaginary) from politics, society, culture, and history. To this end the Nazi campaign deployed, in the Reich and throughout occupied Europe, propaganda, education, research, publications, films, proscriptions, and taboos in all social and cultural domains, in fact every existing method of erasure and stamping out, from the rewriting of religious texts or opera libretti tainted by any speck of Jewishness to the renaming of streets carrying the names of Jews, from the banning of music or literary works written by Jewish artists and authors to the destruction of monuments, from the elimination of “Jewish science” to the “cleansing” of libraries and, as foretold by Heinrich Heine’s famous dictum, from the burning of books to that of human beings.⁴⁸

 

Several scholars have further analysed the désinsertion progressive of the Jews, their arrachement par étapes⁴⁹ (gradual eradication) from society, as genocidal steps and have established the importance of the systematic spoliation, violent isolation and brutal exclusion from all social life of the Jewish community for the realisation of the Nazi enterprise of destruction.⁵⁰ There is indeed little doubt that the “anti-Semitic radicalisation”⁵¹ through spoliations, exclusion and “patrimonial violence … greatly facilitated the deportation of the Jews, depriving them of the right to use their goods to protect themselves”.⁵²

 

At Nuremberg, the International Military Tribunal defined persecutions as “a record of consistent and systematic inhumanity on the greatest scale”⁵³ paving “the way for the ‘final solution’ ”.⁵⁴ It unequivocally recognised that the Jews “were forced into ghettos, subjected to discriminatory laws, deprived of the food necessary to avoid starvation, and finally systematically and brutally exterminated”⁵⁵ and that the anti-Semitic laws designed to exclude Jews from Germany’s life and economy⁵⁶ “paved the way for the ‘final solution’ ”.⁵⁷ The United States Military Tribunal in the Ministries case similarly found that:

 

The persecution of Jews went on steadily from step to step and finally to death in foul form. The Jews of Germany were first deprived of the rights of citizenship. They were then deprived of the right to teach, to practice professions, to obtain education, to engage in business enterprises; they were forbidden to marry except among themselves and those of their own religion; they were subject to arrest and confinement in concentration camps, to beatings, mutilation, and torture; their property was confiscated; they were herded into ghettos; they were forced to emigrate and to buy leave to do so; they were deported to the East, where they were worked to exhaustion and death; they became slave laborers; and finally over six million were murdered.⁵⁸

 

In The Hague, the ICTY acknowledged that the aim of the persecutory deprivation of “the fundamental rights to life, liberty and basic humanity enjoyed by members of wider society” was “the death and removal of those persons from the society in which they live alongside the perpetrators, or eventually from humanity itself”.⁵⁹ In this context, it may be suggested that persecutory acts as crimes against humanity, both including serious bodily harm and as included within the genocidal act of causing serious bodily harm, should be taken as nothing but warning signs that genocide will soon ensue.

Serious Bodily Harm as Evidentiary Tool

It is a well-known judicial fact that genocidal intent—the very specific intent to destroy one of the protected groups as such, without which there can be no qualification as, or conviction for, genocide—“is a mental factor which is difficult, even impossible, to determine”. Without confession of the accused, intent can only be “inferred from a certain number of presumptions of fact”.⁶⁰ According to the case law, such facts include “the general political doctrine which gave rise to the acts possibly covered by the definition in Article 4 [on genocide of the ICTY Statute], or “the repetition of destructive and discriminatory acts”,⁶¹ and thus share a striking resemblance to persecutory acts.

 

Referring more specifically to the act of causing serious bodily harm, the Akayesu Trial Chamber paid due attention to such harm as evidence of genocide, notably when perpetrated against the dead bodies of the victims. In his testimony before the ICTR, and reproduced in the judgement, Dr Ronie Zachariah, who was then working with Médecins sans Frontières,

 

described in great detail the heaps of bodies which he saw everywhere, on the roads, on the footpaths and in rivers and, particularly, the manner in which all these people had been killed. At the church in Butare, at the Gahidi mission, he saw many wounded persons in the hospital who, according to him, were all Tutsi and who, apparently, had sustained wounds inflicted with machetes to the face, the neck, and also to the ankle, at the Achilles’ tendon, to prevent them from fleeing.⁶²

 

It is precisely from these wounds inflicted to the ankle, at the Achilles’ tendon, that the ICTR Trial Chamber was here able to infer the perpetrators’ intent to destroy the group as such. For the Trial Chamber, such wounds—a prime illustration of serious bodily harm—showed “the resolve of the perpetrators of these massacres not to spare any Tutsi. Their plan called for doing whatever was possible to prevent any Tutsi from escaping and, thus, to destroy the whole group”.⁶³

 

In a similar vein, the ICTY Trial Chamber in the Krstić case clearly deduced genocidal intent from acts of serious bodily harm inflicted on the corpses of the victims during reburials:

 

Finally, there is a strong indication of the intent to destroy the group as such in the concealment of the bodies in mass graves, which were later dug up, the bodies mutilated and reburied in other mass graves located in even more remote areas, thereby preventing any decent burial in accord with religious and ethnic customs and causing terrible distress to the mourning survivors, many of whom have been unable to come to a closure until the death of their men is finally verified.⁶⁴

Concluding Remarks

Although the act of causing serious bodily harm remains undefined in the UN Genocide Convention and in the founding Statutes of the International Criminal Tribunals, the latter have clarified its scope of application and have included therein a whole series of different acts. Provided these reach a certain level of seriousness, they are characterised as genocidal:

 

To support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.⁶⁵

 

While this requirement of seriousness undoubtedly constitutes a necessary safeguard against extensive interpretations and abuses of the concept of genocide, it should nonetheless not be subjected to an over-strict interpretation, which would ultimately hamper any useful attempt at prevention. Indeed, while it would be an understatement to assert that bodily harm is at the heart of all genocidal enterprises, the question that arises here relates to the understanding of the required degree of gravity and seriousness. Put simply, when is bodily harm serious enough to warrant preventive intervention? History has shown that caricatures and mockeries of the bodies of members of the group targeted for destruction can rapidly turn into ill-treatment, torture, killings and reach the phase of destruction. Which degree of gravity must the bodily harm reach to be considered genocidal? After all, an imposed yellow star on pieces of clothing did lead to the “greatest enterprise of dehumanisation of all times”.⁶⁶

Endnotes

1. Convention for the Prevention and Punishment of the Crime of Genocide, United Nations, 1948. Approved and proposed for signature, ratification or accession by the General Assembly of the United Nations, resolution 260 A (III) of 9 December 1948. (Entry into force, 12 January 1951.)

 

2. William A. Schabas, Genocide in International Law: The Crime of Crimes, 2nd ed. (Cambridge: Cambridge University Press, 2009), p. 533.

 

3. See International Criminal Tribunal for Rwanda (henceforth ICTR), Prosecutor v. Laurent Semanza (Judgement and Sentence), Arusha (Tanzania), 15 May 2003, paras. 320–1.

 

4. ICTR, Prosecutor v. Jean-Paul Akayesu (Trial Judgement), 2 September 1998, para. 521. See also from the ICTR, Prosecutor v. Georges Anderson Nderubumwe Rutaganda (Judgement and Sentence), 6 December 1999, para. 60; Prosecutor v. Alfred Musema (Judgement and Sentence), 27 January 2000, paras. 153–4 and 165; Prosecutor v. Ignace Bagilishema (Trial Judgement), 7 June 2001, para. 61; Semanza, supra note 3, para. 312; Eliézer Niyitegeka v. Prosecutor (Appeal Judgment), 9 July 2004, para. 50.

 

5. ICTR, Prosecutor v. Sylvestre Gacumbtsi (Trial Judgement), 17 June 2004, para. 251. See also from the ICTR, Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Judgement), 21 May 1999, para. 100; Semanza, supra note 3, para. 318; Prosecutor v. Juvénal Kajelijeli (Judgement and Sentence), 1 December 2003, para. 812; Prosecutor v. Jean de Dieu Kamuhanda (Judgement and Sentence), 22 January 2004, para. 631.

 

6. Akayesu, supra note 4, para. 499.

 

7. ICTR, Prosecutor v. Athanase Seromba (Trial Judgement), 13 December 2006, para. 46.

 

8. See, for example, Semanza, supra note 3, para. 320; ICTR, Prosecutor v. Andre Ntagerura, Emmanuel Bagambiki, Samuel Imanishimwe (Judgement and Sentence), 25 February 2004, para. 664.

 

9. International Criminal Tribunal for the Former Yugoslavia (henceforth ICTY), Prosecutor v. Radislav Krstić (Trial Judgement), The Hague, 2 August 2001, para. 486.

 

10. Kayishema and Ruzindana, supra note 5, para. 109. See also Semanza, supra note 3, para. 320; Ntagerura, Bagambiki, Imanishimwe, supra note 8, para. 664; Seromba, supra note 7, para. 317.

 

11. Krstić, supra note 9, para. 484.

 

12. Semanza, supra note 3, paras. 320–1. In this respect, the ICTR Appeals Chamber expressly declared that the “quintessential examples of serious bodily harm are torture, rape, and non-fatal physical violence that causes disfigurement or serious injury to the external or internal organs” (Prosecutor v. Athanase Seromba (Appeal Judgement), 12 March 2008, para. 46).

 

13. Akayesu, supra note 4, para. 502; Kayishema and Ruzindana, supra note 5, para. 110; Rutaganda, supra note 4, para. 51; Musema, supra note 4, para. 156; Bagilishema, supra note 4, para. 59; Semanza, supra note 3, paras. 320–2; Kajelijeli, supra note 5, para. 815; ICTY, Prosecutor v. Milomir Stakić (Trial Judgement), 31 July 2003, para. 516.

 

14. See, for example, Kayishema and Ruzindana, supra note 5, para. 108; Kajelijeli, supra note 5, para. 815.

 

15. Ibid.

 

16. ICTR, Prosecutor v. Mikaeli Muhimana (Judgement and Sentence), 28 April 2005, para. 502.

 

17. ICTY, Review of the Indictments Pursuant to Rule 61 (Karadzić and Mladić), 11 July 1996, para. 93.

 

18. Akayesu, supra note 4, para. 504. See also Rutaganda, supra note 4, para. 51.

 

19. Karadzić and Mladić, supra note 17, para. 93.

 

20. Ibid.

 

21. Muhimana, supra note 16, para. 502.

 

22. See notably Akayesu, supra note 4, paras. 706–7 and 711–12. See also Kayishema and Ruzindana, supra note 5, para. 108; Stakić, supra note 13, para. 516; Kajelijeli, supra note 5, para. 815.

 

23. Akayesu, supra note 4, para. 502; Kayishema and Ruzindana, supra note 5, para. 110; Rutaganda, supra note 4, para. 51; Musema, supra note 4, para. 156; Semanza, supra note 3, paras. 320–1; Seromba, supra note 7, para. 317.

 

24. ICTY, Prosecutor v. Kupreškić et al. (Trial Judgement), 14 January 2000, para. 751 (emphasis added). See also Dragan Nikolić (Initial Indictment), 4 November 1994, para. 24; Krstić, supra note 9, para. 684. For an analysis of the distinction between persecution as a crime against humanity and genocide, see Caroline Fournet and Clotilde Pégorier, “ ‘Only One Step away from Genocide’: The Crime of Persecution in International Criminal Law”, International Criminal Law Review 10, no. 5 (2010), pp. 713–38.

 

25. Kupreškić, supra note 24, para. 636 (emphasis added).

 

26. Ibid., para. 621. For confirmation, see, for example, ICTY, Prosecutor v. Dario Kordić, Mario Čerkez (Trial Judgement), 26 February 2001, para. 195; Krstić, supra note 9, para. 480; ICTR, Prosecutor v. Georges Ruggiu (Judgement and Sentence), 1 June 2000, para. 21; Semanza, supra note 3, para. 347; ICTR, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze (Trial Judgement and Sentence), 3 December 2003, para. 1072; ICTR, Prosecutor v. Joseph Serugendo (Judgement and Sentence), 12 June 2006, para. 10.

 

27. Krstić, supra note 9, para. 481, concurring with Kupreškić, supra note 24, para. 619 and Kordić and Čerkez, supra note 26, para. 195. For confirmation, see ICTY, Prosecutor v. Miroslav Kvočka et al. (Trial Judgement), 2 November 2001, para. 185; ICTY, Prosecutor v. Mitar Vasiljević (Trial Judgement), 29 November 2002, para. 247.

 

28. Stakić, supra note 13, para. 773.

 

29. Kupreškić, supra note 24, para. 622. For confirmation, see Kordić and Čerkez, supra note 26, para. 199; Krstić, supra note 9, para. 481; ICTY, Prosecutor v. Milorad Krnojelać (Trial Judgement), 15 March 2002, para. 446; Vasiljević, supra note 27, para. 247; Stakić, supra note 13, para. 736.

 

30. Kvočka et al., supra note 27, para. 186.

 

31. Ibid., para. 200.

 

32. ICTY, Prosecutor v. Miroslav Kvočka et al. (Appeal Judgement), 28 February 2005, para. 323.

 

33. ICTY, Prosecutor v. Tihomir Blaškić (Trial Judgement), 3 March 2000, para. 234; Kvočka et al., supra note 27, para. 186.

 

34. Ibid.

 

35. Kupreškić, supra note 24, paras. 600–15; Kvočka et al., supra note 27, para. 186.

 

36. Kvočka et al., supra note 27, para. 190.

 

37. Stakić, supra note 13, para. 760.

 

38. Kvočka et al., supra note 32, para. 324.

 

39. Nahimana, Barayagwiza and Ngeze, supra note 26, para. 1072. Contra, see Kordić and Čerkez, supra note 26, para. 209.

 

40. Stakić, supra note 13, para. 764, concurring with Kordić and Čerkez, supra note 26, para. 205.

 

41. Stakić, supra note 13, para. 768, concurring with Kordić and Čerkez, supra note 26, paras. 206–7.

 

42. Blaškić, supra note 33, para. 220.

 

43. Kupreškić, supra note 24, para. 568. For confirmation, see Vasiljević, supra note 27, para. 246; Semanza, supra note 3, para. 348.

 

44. Kupreškić, supra note 24, para. 615.

 

45. ICTR, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze (Appeal Judgment), 28 November 2007, Partly Dissenting Opinion of Judge Shahabuddeen.

 

46. Blaškić, supra note 33, para. 233.

 

47. Akayesu, supra note 4, para. 504. See also Rutaganda, supra note 4, para. 51.

 

48. Saul Friedländer, Nazi Germany and the Jews, 1939–1945: The Years of Extermination (New York: HarperCollins, 2007), pp. xiv–xv. See also Saul Friedländer, Nazi Germany and the Jews, 1933–1939: The Years of Persecution (London: Phoenix, 2007).

 

49. Alfred Grosser, Le crime et la mémoire (Paris: Flammarion, Collection Champs, 1989), p. 68.

 

50. See, for example, Fabrice d’Almeida, La vie mondaine sous le nazisme (Paris: Editions Perrin, Collection tempus, 2008), p. 167.

 

51. Ibid., p. 176. (Translation by the author. The original version reads: “phase de radicalisation antisémite”.)

 

52. Antoine Garapon, Peut-on réparer l’histoire? Colonisation, esclavage, Shoah (Paris: Editions Odile Jacob, 2008), p. 129. (Translation by the author. The original version reads: “la violence patrimoniale … avait … grandement facilité la déportation des Juifs, les privant du droit d’utiliser leurs biens pour se protéger.”)

 

53. “International Military Tribunal (Nuremberg), Judgment and Sentences, October 1, 1946”, American Journal of International Law 41, no. 1 (January 1947), p. 243.

 

54. Ibid., p. 292. See also D. Gros, “Le droit antisémite de Vichy contre la tradition républicaine”, in Le genre humain (collectif), Juger sous Vichy (Paris: Éditions du Seuil, novembre 1994), pp. 17–27, at 26.

 

55. “International Military Tribunal (Nuremberg)”, p. 290.

 

56. Ibid., p. 292.

 

57. Ibid. See also ICTY, Prosecutor v. Dusko Tadić aka “Dule” (Opinion and Judgment), 7 May 1997, para. 706.

 

58. United States v. Ernst von Weizsaker et al. (“Ministries Case”), Case No. 11, Military Tribunal IV, Trial of War Criminals (Volume XIV, Nuremberg: 1949), p. 471.

 

59. Kupreškić, supra note 24, para. 634, and Ruggiu, supra note 26, For confirmation, see Kordić and Čerkez, supra note 26, para. 205.

 

60. Akayesu, supra note 4, para. 523. Already in his 1985 report, Whitaker had suggested that “a court should be able to infer the necessary intent from sufficient evidence”. See B. Whitaker, “Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide”, United Nations Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Thirty-Eighth Session, E/CN.4/Sub.2/1985/6, 2 July 1985, para. 39.

 

61. Karadžić and Mladić, supra note 17, para. 94.

 

62. Akayesu, supra note 4, para. 115.

 

63. Ibid., para. 119. See J. Sémelin, Purifier et Détruire: Usages politiques des massacres et génocides (Paris: Editions du Seuil, 2005), p. 357.

 

64. Krstić, supra note 9, para. 596.

 

65. Seromba, supra note 7, para. 46.

 

66. A. Frossard, Le crime contre l’humanité (Paris: Editions Robert Laffont, 1987), p. 42. (Translation by the author. The original version reads: “la plus grande entreprise de déshumanisation de tous les temps”.)