ABSTRACT

The definition of the crime of genocide requires an extremely high standard of proof

regarding the mental element in the sense that a very specific intent to destroy the

group as such must exist to qualify the crime as genocide. Indeed, the different

acts covered by the Genocide Convention constitute only one element of the crime

of genocide; the other element being a very specific criminal intent: those acts

constitute genocide only if committed with ‘the intent to destroy in whole or in part, a national, ethnical, racial, or religious groups, as such’.1 The reference to ‘intent’

in the Convention indicates that not only must the offender have meant to engage in

the conduct or to cause its consequences; he must also have had a ‘specific intent’

or dolus specialis. It indeed appears from the debates during the drafting of the text that the drafters chose the intent to destroy the group as the distinctive element

in genocide2 and wanted to clearly distinguish ‘the international crime of genocide

from the municipal crime of homicide’.3 As a result, if such a specific intent is not

established, the crime remains punishable but not as genocide and, in this respect,

Schabas pointed out that it may be classified as a crime against humanity (2000,

p.214). In fact, echoing the District Court of Jerusalem in the Eichmann case,4 the ILC also noted that, where the specific intent cannot be established, the crime may

still meet the conditions to qualify as a crime against humanity, namely, that of

1 Article II of the Genocide Convention. Emphasis added.