Current Developments at the Ad Hoc International Criminal Tribunals

Abstract

In Stakić,1 the Appeals Chamber2 held that the intent to destroy a group must be expressed positively (i.e. whether the accused intended to destroy Bosnian Muslims and Bosnian Croats) rather than negatively (i.e. whether he intended to destroy all non-Serbs).3 It said that the reference in the definition of genocide to intent to destroy a group as such demonstrated that the intent to destroy must relate to a collection of people with a particular group identity.4 The Chamber held that ‘genocide was originally conceived of as the destruction of a race, tribe, nation or other group with a particular positive identity — not as a destruction of various people lacking a distinct identity.’5 Dissenting, Judge Shahabuddeen said that a group protected against genocide may be defined negatively.6 The Appeals Chamber7 in Gacumbitsi8 held by 4–1 majority that the accused had ‘committed’ genocide because he ‘was present at the crime scene to supervise and direct the massacre, and participated in it actively by separating the Tutsi refugees so that they could be killed.’9 Dissenting, Judge Güney said that playing a leading role in conducting and supervising the attack and directing the refugees to separate did not constitute the physical perpetration of any act listed in the definition of genocide.10