What the Tribunals Have Stated

As mentioned above, the Convention and the Statutes of the ICC and Tribunals did not provide a
requirement for a contextual element for genocide. However, the ICC Elements of Crimes has provided
language that, depending on the reader, may result in a requirement for context. As mentioned above,
the ICC also discussed the issue. Since the ICTY and ICTR are the only tribunals that have either
sentenced or acquitted anyone of genocide, their case law is the only source of a court or tribunal
assessing this possible requirement. It is, therefore, important to examine what has been stated on
whether there is a requirement for a contextual element in the case law of these two Tribunals.

The ICTR has confirmed that genocide, as it was defined in the Statute of the Tribunal, was a
reproduction of the crime’s definition in the Convention.1 The same was confirmed by the ICTY, that its
Statute represented an identical prohibition on genocide as the Convention.2 Genocide is its own
international crime and is distinct from crimes against humanity. The essential difference between these
two crimes is that genocide requires a specific intent, which we examined briefly earlier, and that crimes
against humanity require a widespread or systematic attack.3 By stating these essential differences, the
Tribunal has found that there may not be a requirement for contextual elements and that courts and
tribunals must work according to the literal definition provided in their statutes. Since the definition
does not provide such a requirement and the two Tribunals' statements above mention that their
statutes are copies of the Convention, it is still important to examine if the Tribunals have made any
definitive statements on the possibility of a requirement.

The position that genocide ordinarily includes a certain gravity and scale and, thus, in practice, requires
the involvement of several individuals perpetrating the crime was identified by the

"The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment" by Phil Clark (2018)

"Prosecuting Slobodan Milošević: The Unfinished Trial" by Timothy William Waters (2016)

"The International Criminal Tribunal for the Former Yugoslavia: Law, Diplomacy, and the Politics of International Justice" by Rachel Kerr (2019)

Clark, P., Justice in Conflict: The ICC and Africa (2016)

) [128]-[133].

1
"The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment" by Phil Clark (2018)
2
"The International Criminal Tribunal for the Former Yugoslavia: Law, Diplomacy, and the Politics of International
Justice" by Rachel Kerr (2019)
3
Ibid
ICTY in one of its cases.4 Later, in the same case, the Trial Chamber made a statement regarding
contextual elements: “acts of genocide must be committed in the context of a manifest pattern of
similar conduct, or themselves constitute a conduct that could in itself effect the de- struction of the
group, in whole or in part, as such”.5 The Tribunal used the same phrasing as the ICC Elements of
Crimes. However, this was challenged by the Appeals Chamber in the same case when it stated that
“the offence of genocide, as defined in the Statute and in interna- tional customary law, does not
require proof that the perpetrator of genocide participated in a widespread and systematic attack”. 6
The Appeals Chamber called the Trial Chambers’ reli- ance on the Elements of Crimes “inapposite”
and said that the definition in the Elements of Crimes did not reflect customary law when the crimes
were committed.7 The Appeals Cham- ber concluded that the Trial Chamber thus could not use the
Elements of Crime to support its conclusion.8 The same Appeals Chamber also said that the Elements
of Crimes “are not bind- ing rules, but only auxiliary means of interpretation.9

Cases from the ICTR support the Appeals Chamber’s findings. For instance, the Trial Chamber of the
ICTR held that although it does not appear easy to carry out genocide without a plan or organisation,
such an element is not one of the constitutive elements of the crime, and it does not need to be
proven.10 This view, that context is not a legal ingredient in genocide has been repeated in the case
law of the Tribunals. It was confirmed in the first case of genocide by the ICTR in 1998 when the Trial
Chamber listed the three elements that must be committed: one of the listed physical acts needed to
be committed, it had to be against a specifically targeted group and it had to be done with the intent
to destroy.11 In a later case, the ICTY found that the issue of the requirement of context was a settled
manner and cited cases from both Tribunals as support for that claim.12

Since the Tribunals have stated that contextual elements are not a legal ingredient and do not need
to be proven, it may make it possible for one individual acting alone to commit acts of genocide, a
concept known as the lone genocidaire. This possibility was confirmed by the ICTY: “it is a priori
possible to conceive that the accused harboured the plan to exterminate an entire group without
this intent having been supported by any organisation in which other indi- viduals participated”. 13
This possibility is also reflected in the second part of the Elements of Crimes if the act were such
“that could itself effect such destruction”.

However real this concept may be in theory, the Trial Chamber observed that it would be diffi- cult to
provide proof of a genocidal act without any state or state-like entity involvement.14 The tribunals
seem to be in agreement, to some degree at least, with the definition in the Con- vention, that a

4
Prosecutor v Radislav Krstic (Judgment) IT-98-33-A (19 April 2004) [223]
5
Ibid
6
Ibid
7
Ibid
8
Ibid
9
Ibid
10
Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Judgement), ICTR-95-1-T,
11
"Prosecutor v Akayesu (Jean-Paul), Trial judgment, Case No ICTR-96-4-T
12
Prosecutor v Vujadin Popovic (Judgment) IT-05-88-T (10 June 2010) [828
13
Prosecutor v. Goran Jelisic, Case No.: IT-95-10-A
14
Ibid
contextual element is not a legal ingredient that needs to be proven. If that defi- nition is followed, it
should theoretically open the possibility for the concept of the lone geno- cidaire.