The Rutaganda Trial Chamber observed that:

"[...] the concepts of national, ethnical, racial and religious groups have been researched
extensively and that, at present, there are no generally and internationally accepted precise
definitions thereof. Each of these concepts must be assessed in the light of a particular
political, social and cultural context. Moreover, the Chamber notes 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
himself/herself as belonging to the said group."[4]

According to the Akayesu Trial Chamber:

"An ethnic group is generally defined as a group whose members share a common language
or culture."[7]
The United Nations Security Council is the organization entitled to mandate the International
Criminal Court with investigations relating to breaches of the genocide convention.

Article 2 of the Convention 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.
— Convention on the Prevention and Punishment of the Crime of Genocide, Article
2[4]

Article 3 defines the crimes that can be punished under the convention:

(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
 (e) Complicity in genocide.

— Convention on the Prevention and Punishment of the Crime of Genocide, Article

3[4]

Disputes between the Contracting Parties relating to the interpretation, application or

fulfilment of the present Convention, including those relating to the responsibility of a State
for genocide or for any of the other acts enumerated in article III, shall be submitted to the
International Court of Justice at the request of any of the parties to the dispute.

— Convention on the Prevention and Punishment of the Crime of Genocide, Article 9[4]

P.2.2. Evidence of members sharing a common language., P.2.3. Evidence

of members sharing a common culture.

According to the Akayesu Trial Chamber:

"An ethnic group is generally defined as a group whose members share a common language
or culture."
Citation:- ICTR, Prosecutor v. Akayesu, "Judgement", ICTR-96-4-T, 2 September 1998,
para. 513.

P.8. Evidence that a group is perceived as such by the perpetrators.

P.8.1. Evidence of use of pejorative terms by the perpetrator.
In the Nahimana, Barayagwiza and Ngeze Case the Chamber considered that:
"The accuracy of the statement is only one factor to be considered in the determination of
whether a statement is intended to provoke rather than to educate those who receive it. The
tone of this statement is as relevant to this determination as is its content. […] A statement of
ethnic generalization provoking resentment against members of that ethnicity would have a
heightened impact in the context of a genocidal environment. It would be more likely to lead
to violence. At the same time the environment would be an indicator that incitement to
violence was the intent of the statement."
[5] ICTR, Nahimana, Barayagwiz and Ngeze Trial Judgement 3 December 2003,
para. 1022.

The Rutaganda Trial Chamber found that in the case of genocide the incitement can be
punishable, even when it fails to produce a result, which has been confirmed in
the Kajelijeli case[17]:
"Instigation is punishable only where it leads to the actual commission of an offence desired
by the instigator, except with genocide, where an accused may be held individually
criminally liable for incitement to commit genocide under Article 2(3)(c) of the Statute, even
where such incitement fails to produce a result.
[6] ICTR, Rutaganda Judgement 6 December 1999, para. 38.

ICTR Trial Chamber in The Prosecutor v. Pauline Nyiramasuhuko et al.:

"5987. In discussing the "public" element of this crime, the Appeals Chamber has noted that
"all convictions before the Tribunal for direct and public incitement to commit genocide
involve speeches made to large, fully public assemblies, messages disseminated by the
media, and communications made through a public address system over a broad public area".
Moreover, the Appeals Chamber has taken into account the travaux preparatoires of the
Genocide Convention, which confirm that "public" incitement to genocide pertains to mass
communications. Conversely, the travaux preparatoires indicate that "private" incitement -
understood as more subtle forms of communication such as conversations, private meetings,
or messages - was specifically removed from the Convention." [1]

[1] ICTR, The Prosecutor v. Pauline Nyiramasuhuko et al., Trial Judgement, 24 June
2011, para. 5987

The Trial Chambers of the Akayesu, Niyitegeka and the Kajelijeli Cases stated that:

"The public element of incitement to commit genocide may be better appreciated in light of
two factors: the place where the incitement occurred and whether or not assistance was
selective or limited.
[2] ICTR, Akayesu Judgement 2 September 1998, para. 556; ICTR, Niyitegeka
Judgement 16 May 2003, para. 431, ICTR, Kajelijeli Judgement 1 December 2003,
para. 851.

Nteziryayo, Joseph Kanyabashi and Élie Ndayambaje, Case No. ICTR-98-42-A, Judgement
(AC), 14 December 2015, para. 3338:

"3338. The Appeals Chamber recalls that a person may be found guilty of direct and public
incitement to commit genocide pursuant to Article 2(3)(c) of the Statute if he directly and
publicly incited the commission of genocide (actus reus) and had the intent to directly and
publicly incite others to commit genocide (mens rea). Direct incitement to commit genocide
requires the speech to be a direct appeal to commit an act referred to in Article 2(2) of the
Statute; it has to be more than a vague or indirect suggestion."

Akayesu case:
"The mens rea for the crime of direct and public incitement to commit genocide […] lies in
the intent to directly prompt or provoke another to commit genocide […] the person who is
inciting genocide must have himself the specific intent to commit genocide[…]"[3]

The Appeals Chamber's standard of review for appeals under article 82 (1) (d) of the Statute
is a settled question. At issue in this appeal are exclusively errors of law. The Appeals
Chamber stated recently with respect to such errors: The Appeals Chamber has repeatedly
held that its review is corrective in nature and not de novo. On questions of law, the Appeals
Chamber will not defer to the Trial Chamber's interpretation of the law. Rather, it will arrive
at its own conclusions as to the appropriate law and determine whether or not the Trial
Chamber misinterpreted the law. If the Trial Chamber committed such an error, the Appeals
Chamber will only intervene if the error materially affected the Impugned Decision, [footnote
omitted].^^

Citation:- Appeals Chamber, Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh
Mohammed Jerbo Jamus, "Judgment on the appeal of the Prosecutor against the decision of
Trial Chamber IV of 12 September 2011 entitled 'Reasons for the Order on translation of
witness statements (ICC-02/05-03/09- 199) and additional instructions on translation'", 17
February 2012, ICC-02/05-03/09-295 (OA 2), para. 20.

There is evidence that West intended to destroy, in part, the distinct group of ethnic Lengians.
He possessed the dolus specialis required for genocide, "which demands that the perpetrator
clearly seeks to produce the act charged., 74 In the absence of a confession, the intent of an
accused may be inferred from his "words or deeds." There are two key inferences that may be
drawn from West's actions and words. First, the language in the audiotape evinces an intent to
destroy the ethnic Lengians. Secondly, West's intention to destroy can also be evidenced by
the fact that he intended that the audiotape be disseminated. The language on the audiotape
clearly evinces an intention to destroy ethnic Lengians. Ethnic Lengians were deliberately
targeted by West's language by virtue of their membership of a specific group. West urged
Arkamians to rid Yuggott of its "Lengian occupiers," and directed them to "[e]liminate them
all: men, women, and children. Eliminate them all!" (Compromis 10). Furthermore, West's
intention to destroy may be evidenced by the fact that he has "frequently recorded audiotapes
with messages denouncing ethnic Lengians and supporting GALA." (Clarification 4). The
repetition of destructive or discriminatory acts is a fact from which intention to destroy may
be inferred.75 West's intention to disseminate his audiotape can be inferred from his language
and from his actions. West specifically addressed his audio recording to "my Arkamian
brothers and sisters" (Compromis 10). By necessary implication, his intention was that the
recorded message be communicated to a wider audience than the GALA member to whom he
handed the audiotape. The medium through which West communicated his message further
demonstrates an intention that the message be widely disseminated. An audio recording can
be readily re-produced and re-played. The tape was played on Radio Yuggott, a station
controlled by members of GALA, repeatedly for a ten day period (Compromis 11). GALA is
"organized in a formal hierarchy with corresponding command structures." (Clarification 2).
These facts are relevant in establishing an intention to disseminate, from which an intention
to destroy may be inferred.

73. Id. (H 544, 569-580; Akayesu, 1998 I.C.T.R. U 498-99, 517, 540; Prosecutor v. Ignace
Bagilishema, 2001 I.C.T.R. No. 95-1A-T [ 60-62 (Jun. 7),
http://www.ictr.org/ENGLISH/cases/Bagilishema/judgement/index.htm (Judgement);
Musema, 2000 I.C.T.R. U 164-166; Rutaganda, 1999 I.C.T.R. 59-61; Kayishema, 1999
I.C.T.R. 91.

74. Akayesu, 1998 I.C.T.R. 498.

75. Id. [524. 2004] 274 ILSA Journal of International & Comparative Law [Vol. 11:253
West, a GALA leader, passed his audiotape to a fellow member of GALA (Compromis 10).

d Directly and Publicly Inciting Genocide

Pursuant to Article 25(3)(e) of the Rome Statute, West has been charged with directly and
publicly inciting genocide. In the context of Article 6(a), the Elements of Crimes, as modified
mutatis mutandis for this charge, does not require that West actually killed any Lengians, nor
that genocide occurred or was attempted.82 The Elements of Crimes requires that West
possessed the requisite intent to destroy Lengians, as a distinct group, which has been dealt
with above. The element of direct incitement requires "specifically urging another individual
to take immediate criminal action rather than merely making a vague or indirect
suggestion."83 West's language constitutes a direct incitement. He calls for the elimination of
Lengians living in Yuggott. His words were "Eliminate them all-men, women and children"
(Compromis 10). He urged the commission of genocide against a specific group in a specific
area. This is not a vague or indirect suggestion. It was acted upon immediately. Euphemistic
language can satisfy the directness requirement. 84 However, in inciting the "elimination" of
Lengians, West did not appear to have relied upon euphemism. Public incitement "requires
communicating the call for criminal action to a number of individuals in a public place or to
members of the general public at large."85 The employment of technological means of mass
communication such as radio constitutes a public incitement.86 Indeed, "this public appeal
for criminal action ... encourages the kind of mob violence in which a number of individuals
engage in criminal conduct., 87 West handed his audiotape to a GALA member who then
distributed this to Radio Yuggott, a private radio station controlled by members of GALA,
which has supported GALA's goals in its broadcasts (Compromis 11). The recording was
repeatedly played on Radio Yuggott between May 15 and 25. The massacres commenced on
May 16 and approximately ten percent of the Lengian population of Yuggott was killed by
the end of the month. Contemporaneous media reports acknowledged the likely impact of
West's broadcasted message on the massacres (Compromis 12).

82. SeeAkayesu, 1998 I.C.T.R. 1562; Nahimana, 2003 I.C.T.R. 1029; Prosecutor v. Ruggiu,
2000 I.C.T.R. No. 97-32-I 16 (Jun. 1) (Judgment and Sentence); Musema, 2000 I.C.T.R. 120;
Rutaganda, 1999 I.C.T.R. 38; ESER, supra note 76, at 803-5.

83. Draft Code of Crimes Against Peace and Security of Mankind 1996, I.L.C. at art. 2 16.

84. U.N. GAOR, Hum. Rts. Comm., 51st Sess. 24, U.N. Doc. E/CN.4/1995/71 (1995); See
Prosecutor v. Jean Kambanda, 1998 I.CT.R. No. 97-23-S I 39(x) (Sept. 4),
http://www.ictr.org/ENGLISH/cases/Kambanda/judgement/kambanda.html (Judgment and
Sentence); See Akayesu, 1998 I.C.T.R. $ 557; Mugesera v. Can., (The Minister of
Citizenship and Immigration) 2003 F.C.A. 325, 17 (Sept. 8); ESER, supra note 76, at 805;
See AMBOS, supra note 76 at 487.

85. Draft Code of Crimes Against the Peace and Security of Mankind 1996, I.L.C. art. 2, 16.

86. Id.; Nahimana, 2003 I.C.T.R. 1031; Akayesu, 1998 I.C.T.R. 1556; See Ruggiu, 2000
I.C.T.R. 17; ESER, supra note 76, at 805.

87. Draft Code of Crimes Against the Peace and Security of Mankind, art. 2, 1 16.

Incitement qualifies as ‘direct’ when the formulation of the message is an actual invitation
for the commission of genocidal acts.74 It can be implicit (coded language),75 or explicit.76

The mens rea of incitement to genocide is double: the act of incitement must be intentional
and the inciter must have genocidal intent (dolus

Citation Prosecutor v Akayesu (Judgment) ICTR-96-4-T (2 September 1998) para 556-557,

561-562; affirmed in Prosecutor v Kalimanzira (Judgment) ICTR-05-88-T (22 June

2009) para 515, Prosecutor v Nahimana et al (Judgment) ICTR-99-52-A (28

November 2007) para 431; Prosecutor v Ruggiu (Judgment and Sentence) ICTR-97-

21-1 (1 June 2000) para 44; W Timmermann and WA Schabas, ‘Incitement to

Genocide’ in P Behrens and R Henham (eds), Elements of Genocide (Routledge

2012) 156, WA Schabas, Genocide in International Law: The Crime of Crimes (2nd

edn, 2009) 331–32ff. 75 Mugesera v Canada (Minister of Citizenship and Immigration)

[2005] 2 S.C.R. 100,

2005 SCC 40, paras 90–95 (the ‘river’ passage: send ‘the cockroaches’ back to Ethiopia

through the river Nyabarongo) conveying the message of sending Tutsi corpses to

Ethiopia by disposing them into the particular river. 76 Prosecutor v Simon Bikindi
(Judgment) ICTR-72-1-T (2 December 2008) para 423(message: call ‘not to spare anybody’).
this gravity threshold, including the act’s “nature” and “context,” the “personal circumstances of the
victim” and the “impact of the act upon the victim.”36Case 002/01 Judgment, ¶438.

To assess the gravity threshold, the Court has previously considered: a. The nature, manner of
commission and impact of the alleged crime; 35 b. The quantitative and qualitative dimension of the
alleged crime;36 and c. The extent of damage, especially the harm to victims and their families.37

35 OTP Regulations, reg 29(2); Lubanga (Documents), annex 1 [41]-[43]. 36 Bahar, [31]. 37 RPE, r
145(1)(c); Bahar, [32].

Incitement in all of its forms is often confused with other types of inflamma tory, hateful, or
offensive speech. Incitement can be distinguished from these broader categories of speech,
however, with reference to the intended or actual effects of speech. . . . When inflammatory speech
inspires one audience to harm another person or group, that is . . . successful incitement. . . . [M]any
acts of hate speech that are aimed directly at the victim group do not have . . . [such] effects and
therefore do not constitute incitement.27

Susan Benesch, Consultant to UN Special Advisor on the Prevention of Genocide, Con tribution to
OHCHR Initiative on Incitement to National, Racial, or Religious H OHCHR 2011 Expert Workshop on
the Prohibition of Incitement to National, Racial or Religious Hatred, Vienna (Feb. 2011), available at
http://www.ohchr.org/Documents/ls sues/Expression/ICCPR/Others2011/SBenesch.doc [hereinafter
OHCHR Expert Workshop on Incitement]
The General Recommen dation also insists on "strict measures" being taken "against any incitement
to discrimination or violence against the communities, including through the Internet

General Recommendation XXIX on Article I, Paragraph I, of the Convention (Descent), U.N. GAOR,
Comm. on Elim, of Racial Discrim., 61st Sess., U.N. CERD/C/GC/29 (11 Jan. 2002. Id. 1 19

Discriminatory speech has been distinguished from hate speech by David O. Brink: There is much
speech that is discriminatory but does not count as hate speech. It reflects and encourages bias and
harmful stereotyping, but it does not employ epithets in order to stigmatize and insult. . . vilify and
wound. . . . [H]ate speech is worse than discriminatory speech . . . hate speech's use of traditional
epithets or symbols of derision to vilify on the basis of group membership expresses contempt for its
targets and seems more likely to cause emotional distress and to provoke visceral, rather than
articulate, response.

David O. Brink, Millian Principles, Freedom of Expression, and Hate Speech, 7 Legal Theory 119, 138-
39 (2001)

The point of intersectional analysis is ... to analyse the differential ways in which different social
divisions are concretely enmeshed and constructed by each other and how they relate to political
and subjective constructions of identities.66 The intersectional analysis in itself by no means implies
that the same response should be utilized in response to all forms of discrimination. The very
strength of the intersectional approach is in its ability to be context specific. This context-specificity
means that, for example,

(i) the precise gravity,

(ii) the historical background and institutional nature, and

(iii) all the human rights of the alleged perpetrator(s) and victim(s)

can all be taken on board. The questions of gravity and historical background have already been
touched upon in commending the CERD approach in its General Recommendations on Gender,
Descent and Roma. Attention will therefore be focused on consideration of (iii) all the relevant rights
pertaining to alleged perpetrator(s) and victim
With the words ‘in whole or in part’, the definition indicates a quan-titative dimension. The quantity
contemplated must be significant, and an intent to kill only a few members of a group cannot be
genocide. The prevailing view is that where only part of a group is destroyed, it must be a
‘substantial’ part.184 There is much confusion about this because it is often thought that there is
some precise numerical threshold of real victims before genocide can take place. But the reference
to quantity is in the description of the mental element of the crime, and what is important is not the
actual number of victims, but rather that the perpetrator intended to destroy a large number of
members of the group. Where the number of victims becomes genuinely significant is in the proof of
such a genocidal intent.

Citation book from satyender page 46 of pdf

Bbok page number 91

DEFENCE

genocide would not be susceptible of punishment by domestic authority. Genocide, as distinguished

from a series of individual crimes such as assault or murder, must involve the planned destruction of
a group. To carry such a program to successful completion would almost necessarily require active or
silent support of the State having territorial jurisdiction of the offense4 0 Either domestic law would
be modified to give legal endorsement to the acts,41' or else the State would refuse to enforce
existent law by failing judicially to characterize the acts as genocide or by completely ignoring their
existence.

40. It is difficult to conceive of a major, successful plan of genocide unless the perpetrators were first
to gain control of the State. From the time of the internecine massacres described in the Bible until
the present, few reported instances of genocide have been accomplished without such control.

41. Germany, during the period of Nazi control, provides an example. See note 3 supra :-. The Nazi
policies are analyzed and documented in LEAIKIN, oP. cit. sUpra note 1. For the State policy of
deliberate starvation of "racially inferior" groups, see Snun, STAnVATION OVER EUROPE (MADE IN
GERMANY): A DOCUMENTED RECORD (1943).

ARTICLE IX Disputes between the Contracting Parties relating to the interpretation, application or
fulfilment of the present Convention, including those relating to the responsibility of a State for
genocide or any of the other acts enumerated in article III, shall be submitted to the International
Court of Justice at the request of any of the parties to the dispute.

Prosecutor Moreno-Ocampo, who seemed to prefer the version of the US Department of State to
that of the United Nations Commission of Inquiry, probably pursued the charge of genocide in Sudan
more as a matter of rhetorical effect than legal reality.161 The annual reports on preliminary
examinations by the Prosecutor do not indicate that any other situations where genocide is
suspected are being considered.