I. Interpretation of the Definition of Genocide

Genocide is distinct from other offences such as crimes against humanity or war crimes and in particular those of persecution, extermination or ethnic cleansing.

The definition of the crime of genocide brings together several elements that appear controversial and require interpretation such as: the acts undertaken when committing the partial or total destruction of the group, the category and criteria defining the targeted group as such, and the specific intent of the offender to destroy the group as such ( mens rea ). (For more detailed case law elements, see the end of this chapter.)

Clarification regarding those elements can be found in the travaux préparatoires [preparatory work] ( our translation ) of the 1948 Genocide convention and those of the 1998 Rome Statute, creating the ICC, as well as in the decisions of international criminal tribunals such as and the International ad hoc Criminal Tribunals for former Yugoslavia (ICTY) and for Rwanda (ICTR).

• Immediate or eventual biological destructio n: Genocide is not limited to acts of murder. It also includes actions that may not result in an immediate death but that will eventually lead to the disappearance of a group as such. These are deliberate acts that aim to destroy—immediately or eventually—a group as such. Consequently, the following acts may also constitute genocide: acts deliberately inflicting on the group conditions of life calculated to bring about its destruction, as well as imposing measures intended to prevent birth within the group, forcible transfer of children, and causing serious bodily or mental harm to members of the group (including rape).
• Destruction of a group as such : The acts covered by the definition are those that target an individual not as such, but because he or she is a member of a national, racial, ethnic, or religious group. The Convention lists objective criteria according to which one belongs to one of these groups, but they are neither legally nor scientifically clearly defined. Therefore, International criminal tribunals have interpreted them as follow given the specific intent required for the crime of genocide: “the acts must be directed towards a specific group on these discriminatory grounds [national, ethnical, racial or religious]. A racial group is based on hereditary physical traits often identified with geography. A religious group includes denomination or mode of worship or a group sharing common beliefs. An ethnic group is one whose members share a common language and culture; or, a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others).” It is interesting to note that tribunals have accepted that the definition of the group can be based on subjective criteria according to which those who committed the crimes identified and stigmatised the members of the group. Such criteria include what the perpetrators perceived as being “national, ethnic, racial, and religious species aspects of the group concerned” (ICTR: Kayishema et al . case, Trial Judgment, 21 May 1999, para. 98). (See also, ICTY: Jelisić case, Appeals Judgment, 5 July 2001, paras. 45-47; Stakić case, Appeals Judgment, 22 March 2006, para. 25).

However, destruction of a group based on grounds of political opposition are not considered as included in the definition of the crime of genocide. This has been clarified in decisions of the Extraordinary Chambers in the Courts of Cambodia (ECCC). This hybrid tribunal (establishment of Extraordinary Chambers within the existing court structure of Cambodia) has been set up through an agreement between the UN organisation and the government of Cambodia to prosecute crimes committed between 1975 and 1979 in Cambodia by the Khmer Rouge authorities. However, judges did not endorse the “auto-genocide” theory (which is not outlined in the Genocide convention or in other sources of international criminal law). This “auto-genocide” concept was elaborated to qualify as genocide the killing of a quarter of the Cambodian population (including some victims from the ethnic Khmer majority) by the Khmer Rouge authorities. The ECCC judges have limited the charges that qualify as genocide in Cambodia to cover only the crimes committed by the Khmer Rouge against two decimated ethnic groups: the Cham Muslims and the Vietnamese minorities. (See Office of the Co-Investigating Judges, Closing order , Case No. 002/19-09-2007-ECCC-OCIJ, 15 September 2010, paras. 1335, 1545, 1546, 1548, 1549, 1551, 1552, 1554, 1556, 1559 and 1563; Trial Chamber, Decision on additional severance of case 002 and scope of case 002/02 , Case No. 002/19-09-2007-ECCC/TC, 4 April 2014, p.12, second conclusion).

• Destruction in whole or in part : Acts must have been committed with the intent to destroy the group in whole or in part. Interpretation of this clause raises the issue of whether the requirement of destruction “in whole or in part” only concerns the destruction or also the intent behind the destruction. This issue is partly linked to the question of the nature of the group. According to case law of the international criminal tribunals, the intent to destroy must exist in respect of a substantial part of the targeted group. This may be measured by quantitative criteria (number of victims in relation to the total size of the group) or qualitative criteria, such as for instance the destruction of all males in the targeted group or the stature of the victims within the group (ICTY: Jelisić case, 14 December 1999, Trial Judgment , para. 82 and 5 July 2001, Appeal Judgment , para. 47) and should be assessed with regard to what happened to the rest of the group (ICTY: Krstić case, Appeal Judgment , 19 April 2004, para. 8). Indeed, some acts that amount to genocide do not necessarily cause immediate death but will make it impossible for the group to survive in the short or medium term.
• Proof of specific intent to destroy : As noted above, one of the difficulties in defining genocide is that the acts in question must go beyond the existence of any mass murder and demonstrate a specific intent to destroy a group as such. It is not enough to show that the perpetrator has committed a particular act; it must also be shown that he or she intended the ultimate result of the crime —the destruction, in whole or in part, of a particular group (ICTR: Kambanda case, Trial Judgment and Sentence , 4 September 1998, para. 16; Kayishema and Ruzindana case, Trial Judgment , 21 May 1999, paras. 91 and 96). According to jurisprudence, such intent can be evidenced by an existing policy of genocide or by the actions of those carrying out the orders. The existence of a genocide policy may be inferred from a broader plan. Similarly, the specific intent to destroy a protected group may be inferred in certain cases from public statements made by the authorities, from the scale and nature of the crimes committed, and from the specificity of the planning surrounding the commission of the crimes.

According to the ICC’s Elements of Crimes , intent and knowledge can be inferred on a case-by-case basis.

II. Prevention and Enforcement Provisions in the 1948 Genocide Convention

Article I of the Genocide convention provides that all States Parties recognise genocide as a crime under international law and undertake to prevent and punish it. While the criminalisation of genocide contributes to prevention through the deterrent effect of sanctions, the Convention also provides for other international preventive mechanisms.

a) Criminal punishment of genocide under the 1948 Genocide convention and the Rome Statute

The prohibition and punishment of the crime of genocide must always be enforced, whether in times of peace or war.

The Convention provides for the punishment not only of the act of genocide but also of any conspiracy, direct and public incitement, attempt to commit, or complicity to commit genocide (art. III of the Genocide convention). States Parties are obliged to enact legislation providing for effective penalties for the perpetrators of these crimes and for the unconditional extradition of the accused toward the requesting countries (arts. V and VII).

All persons who commit such acts must be punished, whether they are “constitutionally responsible rulers, public officials or private individuals” (art. IV). This means that no matter what official position a person holds, he or she cannot benefit from any form of immunity.

• However, according to article VI of the convention, persons accused of genocide can only be prosecuted by the national court of the State on whose territory the act was committed and by an international criminal court — the creation of which was initially envisaged in 1948 but was only finally established in 1998 (e.g., the ICC). Indeed, the idea of an international criminal court, capable of prosecuting the perpetrators of genocide, did not receive strong support from States immediately after the adoption of the Genocide convention.

History has shown that national courts are reluctant to punish such crimes, which, by their very nature, require the involvement of national authorities. The provisions on punishment in the 1948 Genocide convention thus fail to reflect the reality as the courts of the countries where this crime is committed are unlikely to prevent or punish these acts within a reasonable time. This explains why the crime of genocide usually goes unpunished and why the convention has never been enforced by national courts, whether in Cambodia in 1975 or in Rwanda in 1994. It is interesting to note that Rwanda did not fully its obligation under article I of the 1948 Genocide convention to make genocide a crime punishable under its own domestic law. However, after the 1994 genocide against the Rwandan Tutsi, it updated its legislation through its Organic Law No. 08/96 of 30 August 1996 on the Organization of Prosecutions for Offences Constituting the Crime of Genocide or Crimes against Humanity Committed since 1 October 1990 .

Because of the historical failure of national courts to punish individuals who commit acts of genocide, it was crucial that the Statutes of the ad hoc international criminal tribunals of the ICTY) and the ICTR), as well as the Statute of a permanent international criminal court (e.g. the ICC), include the crime of genocide in the list of crimes over which they have jurisdiction (art. 4 of the ICTY Statute, art. 2 of the ICTR Statute and art. 6 of the Rome Statute). The founding documents of each of these courts have retained the definition of genocide contained in the 1948 Genocide convention, which makes no reference to the extermination of political groups.

The Rome Statute of the ICC was adopted on 17 July 1998 and entered into force on 1 July 2002. The ICC has the power to prosecute cases of genocide (art. 6) as well as war crimes and crimes against humanity (arts. 7-8), but only if the crime was committed on the territory of or by a national of a State that has ratified the Rome Statute (art. 12). If the State where the crime was committed has not ratified the Rome Statute or if the State of nationality of the accused has not ratified it either, the United Nations Security Council (UNSC) is the only body that may trigger the ICC’s exercise of jurisdiction (art. 13(b)). Once the States concerned have accepted the Court’s jurisdiction, the ICC can be seized of such a case in three ways: referral of a situation to the Court: (1) by any State Party; (2) by the prosecutor him —or herself, on the basis of information concerning acts of genocide received from any reliable source; or (3) by the UNSC acting under Chapter VII of the UN Charter (actions undertaken with respect to threats to or breaches of the peace).

The first ICC case involving allegations of genocide was referred by the UNSC in March 2005 (UNSC resolution 1593(2005)) in connection with an investigation into genocide, war crimes and crimes against humanity committed in Darfur (Sudan) since 1 July 2002. The UNSC referral was necessary to overcome the fact that Sudan is not a State Party to the ICC. In 2009 and 2010, indictments and arrest warrants for genocide, were issued against the President of Sudan, Omar Al Bashir. Since then, however, Sudan has challenged the ICC’s jurisdiction by refusing to cooperate in the execution of the arrest warrants.

➔ International Criminal Court (ICC) , International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR)

As one of the most serious crimes, genocide can also be prosecuted in any national court on the basis of the principle of universal jurisdiction, provided that the national criminal law of the country has provided for crimes committed by non-nationals outside the national territory.

However, the disparities and shortcomings in national laws regarding universal jurisdiction have been highlighted by the inability of many countries to prosecute foreign criminals such as Rwandan genocidaires in front of their domestic courts. This situation has improved with the establishment of the ICC, which has made it possible to incorporate a harmonised definition of genocide and a universal jurisdiction procedure into the national criminal laws of each Member States.

It should be noted that the first ever conviction of a non-State armed group (Daesh member) for genocide was handed down in Germany by the Higher Regional Court of Frankfurt in November 2021. The conviction was recently confirmed by the German Federal Court of Justice on 17 January 2023 following an appeal by the Daesh member. The defendant had received a life sentence, which was upheld on appeal and no further appeal is now possible. The court confirmed that “the defendant’s actions, which caused serious harm to Reda [and her mother], in conjunction with similar actions by other [Daesh] members, were capable of destroying the Kurdish religious group of the Yazidi faith.” It specified that “it was precisely the 43 organised enslavement of women and girls, especially in connection with religious re-education, that served to destroy the Yazidi religious minority in order to establish an Islamic caliphate. All in all, the approach was capable of bringing about […] the (partial) destruction of this group as such”. (German Federal Supreme Court, Decision 3 StR 230/22, paras. 3, 5, 8, 15, 37 and 38).

A second genocide conviction followed in May 2022, and the latest and third genocide conviction in Germany against a former member of Daesh (both concerning Yazidi victims in Iraq) was rendered on 21 June 2023. In these cases, two women were found guilty of aiding and abetting genocide for enslaving and abusing a young Yazidi woman in support of Daesh’s campaign to eradicate the Yazidi religious minority. They were sentenced to five and a half years and nine years and three months of imprisonment respectively.

➔ Universal Jurisdiction

b) Prevention of genocide under the Genocide convention and the ICJ

In addition to the individual duty of each State party to prevent and punish genocide (art. I), the Genocide convention provides two international prevention mechanisms: one being mandatory through the role of the ICJ and the other, which is optional, through the UN System.

• All disputes between States Parties concerning the interpretation, application, or fulfilment of the convention, including those relating to the responsibility of a State for genocide can be referred to the ICJ and they trigger the automatic jurisdiction of the ICJ over all States Parties to the Genocide convention (art. IX).
• All States Parties may “call upon the competent organs of the UN to take such action as they consider appropriate for the prevention and suppression of [such acts]” (art. VIII).

These preventive measures have fuelled the debate about the legitimacy of the use of force by States to prevent or stop genocide either under UN authority or on their own initiative. The ancient legal doctrine of “just war” or more recent international initiatives such as the “Responsibility to Protect” have provided the moral basis for the use of national or international armed forces to stop genocide.

However, the use of international armed forces to prevent or stop genocide has not been successful in the past due to disagreements and vetoes among the permanent members of the UNSC.

Furthermore, the unilateral use of armed force by a State to prevent or stop a genocide is not lawful under international law. Indeed, a unilateral decision by a State to use armed force must clearly comply with the provision of the UN Charter limiting it to situations of self-defence. This was confirmed by the ICJ in its preliminary ruling in the case of Ukraine v. Russia , which recalled that a State’s unilateral decision to use armed force must clearly comply with the provision of the UN Charter limiting it to situations of self-defence. It rejected the legality of a State’s unilateral use of force on the grounds of preventing or stopping genocide.

In this context, ICJ rulings have clarified the appropriate interpretation, implementation, and enforcement of the Genocide convention.

c) ICJ decisions on the Genocide convention:

• Three major cases relating to the Convention on the Prevention and Punishment of the Crime of Genocide have been brought before the ICJ: Bosnia and Herzegovina v. Serbia and Montenegro s tarting 20 on March 1993 with the ICJ Judgment on 26 February 2007.
• The Gambia v. Myanmar starting on 11 November 2019 with the ICJ Order on provisional measures on 23 January 2020 and the Judgment on 22 July 2022.
• U kraine v. Russian Federation starting on 26 February 2022 with the ICJ Order on provisional measures on 16 March 2022.

In all of these cases, the ICJ took provisional measures before reaching a final decision on whether a particular situation constituted genocide under the convention. States have requested provisional measures under the obligation to prevent an allegation of genocide in progress, or the commencement of genocide pending the full and final proceedings and decision by the ICJ.

Furthermore, the defendant State, in all of these cases, have raised a preliminary challenge to the ICJ’s jurisdiction, which is a radical way of limiting the implementation of the Genocide convention.

In each instance, the ICJ judges were almost unanimous in upholding the Court’s jurisdiction, with the Russian judge voting against in the Ukraine and Bosnia cases and the Chinese judge voting against in all three cases.

- On the jurisdiction of the ICJ :

The ICJ has repeatedly reaffirmed that the Genocide convention sets out principles that form part of general customary international law and are therefore binding —even on the 40 UN member States that have not ratified it. These customary principles include the prohibition of genocide, and the obligation to prevent and punish the crime of genocide. They also include the Court’s automatic jurisdiction toward all States Parties under article IX of the convention. The Court has also clarified on numerous occasions that the non-participation of a party to the dispute does not exclude the Court’s jurisdiction and proceedings:

-by judgment of 11 July 1996 in the case of Bosnia and Herzegovina v. Yugoslavia submitted to the ICJ on 20 March 1993, the Court dismissed the preliminary objection raised by Yugoslavia and declared itself competent on the basis of art. XI of the Genocide convention (paras. 32-34).

-by judgment of 18 November 2008 in the case of Croatia v. Serbia submitted to the ICJ on 2 July 1999, the Court dismissed the same preliminary objection and declared itself competent based on the Genocide convention (para. 136).

-by judgment of 22 July 2022 in the case of Gambia v. Myanmar , submitted to the ICJ on 11 November 2019, the Court dismissed preliminary objections raised by Myanmar and declare itself competent on the basis of the Genocide convention (paras. 89-92).

-by its order of 16 March 2022 in the case of Ukraine v. Federation of Russia , submitted to the ICJ on 26 February 2022, the Court dismissed Russia preliminary objection and declare itself competent based on the Genocide convention and despite the non-participation of Russia to the ICJ case (paras. 43-48).

-On the extraterritorial application of the Genocide convention and the violation by a State of its obligation to prevent and punish genocide:

In the Bosnia and Herzegovina v. Serbia and Montenegro case, the ICJ concluded that the obligation to prevent the crime of genocide contained in article I of the Genocide convention is extraterritorial in scope (para. 183, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, 26 February 2007). This means that States with the capacity to influence others have a duty to use all means reasonably available to them to prevent the crime of genocide, even when acts are committed outside of their borders (para. 443, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, 26 February 2007). Thus, with regard to the genocide committed by Bosnian Serb militias in Srebrenica in July 1995, the ICJ ruled that Serbia itself had not committed the acts of genocide but that it had violated its obligation to prevent genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (para. 471(5), Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, 26 February 2007). This is the first time that the ICJ has condemned a State based on its obligation to prevent genocide.

-On the interest of States to act before the ICJ:

In the case of The Gambia v. Myanmar, Myanmar contested the existence of a dispute with Gambia which justify a referral to the ICJ. The Court recognised that The Gambia’s application to the ICJ was admissible even though The Gambia was not a direct victim of, or in an open conflict with Myanmar over the application of the Genocide convention. The basis for The Gambia’s right to refer the matter to the ICJ could be a legal dispute, and it was considered sufficient for a referral to the ICJ, that diverging views on the convention have been publicly expressed (paras. 63-65, 73, 77 and 93-114, The Gambia v. Myanmar, Judgment, 22 July 2022). The Court recalled its consistent position since its Advisory Opinion of 28 May 1951 on reservations to the Convention on the Prevention and Punishment of the Crime of Genocide: “under such a convention, the contracting States have no interests of their own; they only have, each and every one of them, a common interest, which is to preserve the accomplishment of the high purposes of this convention which are its raison d’être” ( The Gambia v. Myanmar, Judgment, 22 July 2022, paras. 107-108, and Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion , 28 May 1951, p. 23).

-On the right of States to use force to prevent genocide:

In the Ukraine v. Russian Federation case, Ukraine asked the ICJ to protect its right “not to be subject to a false claim of genocide” and “not to be subjected to another State’s military operations on its territory based on a brazen abuse of Article I of the Genocide Convention”. In its initial decision of 16 March 2022 on provisional measures, the Court clarified the scope of article I of the Genocide convention, by which all States have undertaken to prevent and punish the crime of genocide. The Court considered that this obligation to prevent and punish must be implemented by States in good faith, taking into account other parts of the convention, in particular articles VIII and IX, which provides for action within the framework of the UN or a referral to the ICJ (para. 56, Ukraine v. Russian Federation , Order , 16 March 2022.) The Court also recalled that measures taken by a State to prevent genocide must respect international law, and in particular the UN Charter (para. 56, Ukraine v. Russian Federation, Order , 16 March 2022).

Without ruling at this stage on the merits of the case, the Court held that it was doubtful whether in the light of its purpose, the convention authorised the unilateral use of force by a contracting State party on the territory of another State, for the purpose of preventing or punishing an alleged act of genocide (para. 59, Ukraine v. Russian Federation, Order , 16 March 2022). In the absence of evidence to support the Russian Federation’s claim that allegation that genocide had been committed on Ukrainian territory, the Court also considered that Ukraine had a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide on Ukrainian territory (para. 60, Ukraine v. Russian Federation, Order, 16 March 2022).

• On the proof of the required specific intent to commit genocide:

In its judgment of 26 February 2007 in the case of Bosnia and Herzegovina v. Serbia and Montenegro referred to the ICJ in 1993, the Court found that the mass killings and other atrocities committed during the conflict throughout the territory of Bosnia and Herzegovina were not accompanied by the specific intent (dolus specialis) that defines the crime of genocide, namely the intent to destroy the protected group in whole or in part (para. 277). Such atrocities therefore constitute war crimes and crimes against humanity. The Court held that acts of ethnic cleansing may be an element in the implementation of a genocidal plan, provided that there is an intention to physically destroy the targeted group and not merely to secure its forced displacement (para. 190). The Court held that the specific intent to destroy the group in whole or in part, must be convincingly established by reference to particular circumstances, unless a general plan to do so can be convincingly demonstrated. For this pattern of behaviour to be accepted as evidence of the genocidal intent, it would have to be such that it could only point to the existence of such specific intent (para. 373). In the light of its examination of the factual evidence presented to it concerning the atrocities committed in Bosnia and Herzegovina between 1991 and 1995, the Court concluded that, with the exception of the events in Srebrenica in July 1995, the specific intent required for the crime of genocide to be constituted had not been conclusively established for each individual incident (para. 370). Indeed, the Court ruled that the massacres in Srebrenica in July 1995 were committed with the specific intent to partially destroy the Bosnian Muslim population in that area, and that what happened in Srebrenica was indeed genocide (para. 297).

In its judgment of 3 February 2015 in the case of Croatia v. Serbia brought before the ICJ on 2 July 1999, the Court rejected Croatia’s application and Serbia’s counterclaim under the Genocide convention. It held that despite the reality of the killings of Croatian nationals or ethnic groups, it had not been sufficiently established that the acts in question reflected genocidal intent (para. 440). The Court found that Croatia had not established that “the only reasonable inference to be drawn from the pattern of conduct on which it relies was an intent to destroy, in whole or in part, the Croat group. The acts constituting the actus reus of genocide within the meaning of Article II (a) and (b) of the Convention were not committed with the specific intent required for them to be characterised as acts of genocide” (paras. 143-148, 440-441 and 510-511).

In its order of 2 June 1999 in the case of Yugoslavia v. Belgium concerning the application of the Genocide convention to the North Atlantic Treaty Organisation (NATO) bombing in Kosovo, the ICJ reaffirmed that “the threat or use of force against a State cannot in itself constitute an act of genocide within the meaning of Article II of the Genocide Convention.” In this order, the ICJ rejected the request for provisional measure considering that “it does not appear at the present stage of the proceedings that the bombings which form the subject of the Yugoslav Application ‘indeed entai1 the element of intent, towards a group as such, required by the provisions’” of the Genocide convention (paras. 40, 41 and 51).

-The UN Special Advisor on the prevention of genocide:

On 10 November 2020, Ms. Alice Wairimu Nderitu of Kenya was appointed as the Special Adviser on the Prevention of Genocide, succeeding to Mr. Adama Dieng of Senegal. Ms. Wairimu Nderitu acts as an early warning messenger to the Secretary-General and the UNSC, raising awareness about potential situations that could develop into genocide, and makes recommendations to the UNSC about how the UN can prevent these events.

➔ Immunity ▸ International Court of Justice , International Criminal Court ▸ International Criminal Tribunals ▸ Non-applicability of statutory limitations ▸ Universal jurisdiction ▸ War crimes/Crimes against humanity

1. Definition of Genocide*

1. General Elements*

   The ICTY Trial Chamber ( Krstić case, Judgment, 2 August 2001, para. 550) defined genocide as follows:

   Genocide refers to any criminal enterprise seeking to destroy, in whole or in part, a particular kind of human group, as such, by certain means. Those are two elements of the specific intent requirement of genocide: [1)] the act or acts must target a national, ethnical, racial or religious group; [and 2)] the act or acts must seek to destroy all or part of that group.

   In the same judgment, the Trial Chamber recognised that customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. This was confirmed by the ICTR Trial Chamber in the Semanza case ( Judgment and Sentence , 15 May 2003, para. 315). The ICTR Trial Chamber recalled that “the crime of genocide is considered part of international customary law and, moreover, a norm of jus cogens” ( Kayishema and Ruzindana, Trial Judgment , 21 May 1999, para. 88; Rutaganda case, Judgment and Sentence , 6 December 1999, para. 46; and Musema case, Judgment and sentence , 27 January 2000, para. 151).

   b. Interpretation of article 2(2)b) of the ICTR Statute: “Genocide means […] causing serious bodily or mental harm to members of the group”

   In the Semanza case ( Judgment and Sentence , 15 May 2003, para. 320), the ICTR Trial Chamber found that “serious bodily or mental harm” encompasses torture, sexual violence including rape, as well as “non-fatal physical violence that causes disfigurement or serious injury to the external or internal organs or senses.” See also the Seromba case ( Appeal Judgment , 12 March 2008, para. 46) and Renzaho case ( Trial Judgment ,14 July 2009, para. 762).

   *c. No Numeric Threshold

In the*Seromba case ( Trial Judgment, 13 December 2006, para. 319), the ICTR Trial Chamber held that there is no numeric threshold of victims necessary to establish genocide. See also the Bagosora et al. case ( Judgment and Sentence , 18 December 2008, para. 2115), Simba case ( Simba case (13 December 2005, 13 December 2005, para. 412), Muvunyi case ( Judgment and Sentence , 12 September 2006, para. 479), and Muhimana case ( Judgment and Sentence , 28 April 2005, para. 514).

With regard to the notion of group, the ICTR Trial Chamber was flexible in its interpretation. In the*Rutaganda case ( Judgment and Sentence , 6 December 1999), the Trial Chamber noted that “for the purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept. The victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction. In some instances, the victim may perceive him/herself as belonging to the said group.” (para. 56). Nevertheless, the Chamber was of the view that “a subjective definition alone is not enough to determine victim groups, as provided for in the Genocide Convention. It appears, from a reading of the travaux préparatoires of the Genocide Convention, that certain groups, such as political and economic groups, have been excluded from those protected because they are considered “mobile groups” that one joins through individual political commitment. That would seem to suggest, a contrario , that the Convention was intended to cover relatively stable and permanent groups (para. 57). […] The Chamber holds that in assessing whether a particular group may be considered as protected from the crime of genocide, it will proceed on a case-by-case basis, taking into account both the relevant evidence proffered and the political, social and cultural context” (para. 373). See also the Musema case (J udgment and Sentence , 27 January 2000, paras. 160–163), and the Seromba case ( Trial Judgment , 13 December 2006, para. 318).

In the*Nahimana et al. case ( Appeal Judgment, 28 November 2007, paras. 344, 894 and 896), the ICTR Appeals Chamber recalled that the conspiracy to commit genocide is defined as “an agreement between two or more persons to commit the crime of genocide.” The Chamber found that:

In the*Seromba case ( Appeal Judgment , 12 March 2008, para. 161), the ICTR Appeals Chamber held that “committing genocide” is not limited to direct and physical perpetration and that other acts can constitute direct participation in the actus reus of the crime, notably aiding and abetting, as well as direct and public incitement to commit genocide.

@Office on Genocide prevention and the Responsibility to Protect: https://www.un.org/en/genocideprevention/office-mandate.shtml#:~:text=The%20Special%20Adviser%20on%20the,and%20mobilize%20for%20appropriate%20action.

ICTY: https://www.icty.org/en

• ICTR: http://unictr.unmict.org/en

International Residual Mechanism for Criminal Tribunals: https://www.irmct.org/en

Becker, Annette,*Messagers du désastre . Raphael Lemkin, Jan Karski et les génocides , Paris, Fayard, 2018. Bloxham, Donald, MOSES, A. Dirk (dir.), The Oxford Handbook of Genocide Studies, Oxford/New York, Oxford University Press, 2010.