Sandeep Menon Nandakumar ((BA LLB (Hons), NUALS, LLM (Cusat), LLM (Exeter, UK), Assistant Professor (Sr.), VIT Law School, Chennai)).
A detailed study on Genocide under the International Criminal Law
The specialty of crime of genocide reside in the fact that unlike other crimes against humanity genocide is dealt within a separate Convention devoted only to genocide which is the Genocide Convention of 1948. The Genocide Convention cannot be said to be a codification of Nuremburg Charter as it is quite evident that it eliminates the nexus between acts and armed conflict and it lacks provisions addressing superior orders ((Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremburg Legacy (1st edn, Clarendon Press, Oxford 1997) 27)). The mental element in the case of genocide has always been an issue of debate as unlike other crimes the mental element in genocide consists of the intention to cause death and an intention to destroy a targeted group, whole or in part. This often gets confused with motive as in certain occasions selecting a group may form part of the intention as well as motive.
Genocide – An outline
According to Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such, killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group and forcibly transferring children of the group to another group ((Article II of the Convention available at http://www2.ohchr.org/english/law/genocide.htm)).” The Convention specifies particular groups and that is due to their stable nature and due to the fact that those groups have suffered persecutions in the past ((Peter Quayle, ‘Unimaginable Evil: The Legislative Limitations of the Genocide Convention’ (2005) 5 Int’l Crim. L. Rev. 363, 367)). But there have been suggestions from various authors to widen the definition so as to include political and economic groups as without including these, the Convention is making millions of people to face abuses by the government ((Konjit Gomar, ‘Heartbreak in Darfur: When does Genocide become Genocide’ (2005) 2 Loy.U.Chi.Intl.L.Rev.153,154)). It is to be noted that the Convention does not require the perpetrator to achieve his aims (the group suffering actual destruction) so as to be liable for committing genocide and instead the crime is committed when certain enumerated acts are done against the group with the required intent and can hence be classified as an inchoate offence in relation to protected groups ((David L. Nersessian, ‘The Razor’s Edge: Defining and Protecting Human Groups Under the Genocide Convention’ (2003) 36 Cornell Int’l L.J. 293, 298-99)).
The requirement of intent to destroy
It is stated that genocide requires a direct manifestation of dolus specialis i.e. the intent to destroy a particular group either in whole or in part and as per the judgment in Akayesu conviction for complicity in genocide may be based on either dolus directus (the consequences are foreseen and are desired by the perpetrator) or dolus indirectus (foreseeability of the secondary consequences by the perpetrator as a certainty though not desired] ((Johan D. Van der Vyver, ‘The International Criminal Court and the Concept of Mens Rea in International Criminal La’w (2004) 12 U. Miami Int’l & Comp. L. Rev. 57, 71)). Genocide has been categorised as the gravest type of crime against humanity involving a combination of extermination ((Attorney-General of the Govt. of Israel v. Eichmann, Dist. Ct. Jerusalem, (1968) 36 ILR 5 decided on 11 Dec. 1961 http://www.ess.uwe.ac.uk/genocide/Eichmann_Index.htm accessed 12 December 2010))and persecution with specific intent ((The Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-I-T, 21 May 1999)). It is the element of ‘intent to destroy’ that distinguishes genocide from other crimes and how much ever atrocious an act is, it can never be termed as genocide if the element of intent is absent. It is also stated that even the worst crimes may be brought only as a crime against humanity and not as genocide due to the peculiarities in the definition of genocide ((Patricia M. Wald, ‘Genocide and Crimes against Humanity’ (2007) 6 Wash.U.Global.Stud.L.R.621, 627)). It should also be noted that recklessness is not a part of mens rea of genocide and it is clear from the fact that destroying one group when it was intended to destroy another group will not amount to the crime of genocide ((Claire de Than & Edwin Shorts, International Criminal Law and Human Rights (1st edn Sweet & Maxwell, London 2003) 73)).
Intent to destroy in whole or in part
The definition is satisfied even if the intent to destroy a protected group even if not wholly but in part. As regards what constitutes ‘in part’, the 1985 study on Genocide ((Whitaker Report on Genocide, 1985 http://www.preventgenocide.org/prevent/UNdocs/whitaker accessed 10 December 2010))suggested that a reasonably significant number in comparison with the total number of the group or a significant section of the group, for example, its leadership would constitute ‘in part ((Para 29 of the Whitaker Report on Genocide, 1985 http://www.preventgenocide.org/prevent/UNdocs/whitaker accessed 10 December 2010)).” The former approach is called the quantitative one and the later one is termed as the qualitative one. In the quantitative approach there can be the percentage test as well as the numeric test where the former compares the number of victims to the size of the overall group and the latter focuses on whether the number of victims, in and of itself, is sufficiently large ((David L. Nersessian, ‘The Razor’s Edge: Defining and Protecting Human Groups Under the Genocide Convention’ (2003) 36 Cornell Int’l L.J. 293, 319)). Where the extermination of leadership is taken into account, i.e. the qualitative approach, as to whether it constitutes genocide depends upon the impact upon the rest of the group and it has been held in Jelisic case that if the remaining members of the group are later victimized, deported or compelled to flee, then the act against the leadership may constitute genocide ((The Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, )). ‘In part’ has been held to be a considerable number of individuals who are part of the group ((The Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-I-T, 21 May 1999, 97))and destruction of a limited number of persons which will affect the survival of the group ((The Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, )). The figurative representation has been considered by the court as had happened in Prosecutor v. Sikirica ((Prosecutor v. Sikirica Case No. IT-95-8-1 (ICTY Trial Chamber Sept. 3, 2001), <www.un.org/icty> accessed 13 December 2010))where it was held that the killing of 1400 Muslims cannot be held to be a substantial part of the Bosnian Muslim group and cannot form a basis for an intent to destroy a substantial number but at the same time it should be noted that the accused was acquitted on charges of genocide by taking into consideration other evidences too. Apart from the numbers the element of victimization and the social and political context should also be taken into account so as to refer the genocidal intent ((David L. Nersessian, ‘The Contours of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribunals’ (2002) 37 Tex. Int’l L.J. 231, 266)).
Specificity of Genocidal Intent – The contentious and unsettled issue
In genocide the special intent is not only to carry out a persecutory attack against the group but also to annihilate the group in whole or in part as a separate and distinct entity ((Nina H.B. Jorgensen, ‘The Definition of Genocide: Joining the Dots in the light of recent practice’ (2001) 1IntlCrimLRev285, 292)). The specific intent to destroy was held in The Prosecutor v. Jean Paul Akayesu ((Prosecutor v. Jean Paul Akayesu Case No. ICTR-96-4-T, 2d September 1998 ))to be a necessary element in the case of an individual accused of committing genocide or a person accused of abetting or aiding genocide and that the offender is liable only when there is a clear intent to destroy a particular group. Another difficulty is that even if the genocidal intent is established, it should be attributed to individual perpetrators so as to punish them and in most cases it is seen that it is possible only to attribute that mostly to high ranked officials and not to others. In relation to this it is pertinent to note that for the crime of genocide the commanding officer should not be made vicariously responsible unless he becomes a partner in crime (socius criminis) by way of knowledge or negligence for the acts committed by his subordinates ((Johan D. Van der Vyver, ‘The International Criminal Court and the Concept of Mens Rea in International Criminal La’w (2004) 12 U. Miami Int’l & Comp. L. Rev. 57, 86)). In close connection with the intent requirement is the fact that the intent to destroy should be directed at the group as a protected group. If the perpetrator has a specific intent and not a specific motive, i.e if the target is not a protected group then the crime will not be qualified to be a genocide but instead will only be crimes against humanity or mass murder and at the same time complicity and conspiracy to commit genocide required only specific intent without specific motive ((Daniel M. Greenfield, ‘The Crime Of Complicity In Genocide: How The International Criminal Tribunals For Rwanda And Yugoslavia Got It Wrong, And Why It Matters’ (2007) 98 J. Crim. L. & Criminology 921, 935, 940)). It is the membership of the individual in a particular group and not the identity if the individual that is the decisive criterion in determining the immediate victims of the crime of genocide ((P.45 of Draft Code of Crimes against the Peace and Security of Mankind, Titles and texts of Articles adopted by the International Law Commission at its forty-eighth session <http://untreaty.un.org/ilc/documentation/english/a_cn4_l532.pdf> accessed 13 December 2010))and this is primarily the reason why certain acts of massive killings would not constitute genocide especially when it is directed against an unprotected group.
It has also been stated that “the genocidal intent does not depend upon the fortuity of the perpetrator having good information for targeting purposes. So long as an attack was intended to destroy a protected group and a prohibited act was committed against group members, it suffices as genocide under the Convention ((David L. Nersessian, ‘The Razor’s Edge: Defining and Protecting Human Groups Under the Genocide Convention’ (2003) 36 Cornell Int’l L.J. 293, 316)).” Similar is the case of rape as all forms of physical or sexual violence against women cannot be termed as genocide and only if it is committed with genocidal intent, that is to say, committed against those women who were selected due to the fact that they belong to a particular group, the acts can be punished as genocide and otherwise not. In Akayesu Case, the Tribunal found that rape and other sexual violence was committed specifically targeting Tutsi women so as to destroy the group as such and hence will be qualified as acts of genocide ((The Prosecutor v. Jean Paul Akayesu Case No. ICTR-96-4-T, 2d September 1998 )).
The specificity of intent is also to be looked upon from the point of complicity and aiding and abetting genocide. It is stated that there is a heightened mens rea in aiding and abetting genocide and not a heightened mens rea in complicity ((Daniel M. Greenfield, ‘The Crime Of Complicity In Genocide: How The International Criminal Tribunals For Rwanda And Yugoslavia Got It Wrong, And Why It Matters’ (2007) 98 J. Crim. L. & Criminology 921, 927; the author terms the former mens rea the specific intent with specific motive nexus and the latter the specific intent without specific motive nexus. According to the other the genocide Convention as well as the statutes of the ICTR and ICTY provides provision to convict two distinct classes of criminals, those who plans genocide but doesn’t not kill and the ones who do not plan but genocide is a foreseeable result)). To the contrary, in Kristic case it was held that the special genocidal intent is not a prerequisite in aiding and abetting genocide ((Michael G. Karnavas, ‘Prosecutor v. Vidoje Blagojevic, Dragan Jokic, Case No. IT-02-60-T, Trial Judgment, 17 January 2005’ (2005) 5 Int’l Crim. L. Rev. 609; the author states that there is no lowered liability for complicity in genocide as that notion has been created by judicial decisions and not by the statute.)). It has been observed in Prosecutor v. Akayesu that genocide and complicity in genocide are mutually exclusive and one cannot be convicted of both the crimes based on same act ((Johan D. van der Vyver, ‘Prosecution And Punishment Of The Crime Of Genocide’ (1999) 23 Fordham Int’l L.J. 286, 313)). In Prosecutor v. Vidoje Blagojevic, Dragan Jokic ((Prosecutor v. Vidoje Blagojevic, Dragan Jokic Case No. IT-02-60-T, Trial Judgment, 17 January 2005)), the ruling in Kristic case was relied on and observed that if there is proof to show that the accused had knowledge of the principal perpetrator’s specific intent, then it is permissible to convict him for aiding and abetting genocide. It was also held in Prosecutor v. Georges Ruggiu ((Prosecutor v. Georges Ruggiu Case No. ICTR-97-32-I, 1st June 2000))that a person who incites another to commit genocide so as to be made liable for the crime of genocide must himself have a specific intent to commit genocide ((Kriangsak Kittichaisaree, International Criminal Law (1st ed. 2001, OUP New York) 75)). In Prosecutor v. Nikolic((Prosecutor v. Nikolic Case No. IT-94-2-R61 (20 Oct. 1995), ))the extreme gravity of discriminatory acts against a distinct section of the community was held to be indicative of the genocidal intent. In the very same case it was observed that physical targeting of both the group and the property, use of derogatory language toward members of the targeted group, the nature of weapons used, the extent of bodily injury, planning and systematic manner of killing are all relevant considerations in relation to the factor of specific intent to destroy in genocide.
As regards the difference in the terminologies used in the English version and the French version where the former uses ‘killing’ and the latter uses ‘murder’, it is suggested that there is no need for a secondary element of mens rea in the first two clauses of Article 2 of the Convention mainly because of the reason that if there was the need for a secondary element, it would have been made clear in the text like it appears in other clauses, for example, in Article 2(d) where it is stipulated ‘intended to prevent births’ and due to the above mentioned logic it can be stated that the decision in Akayesu interpreting the word ‘killing’ as intentional homicide is incorrect and will give rise to manifestly absurd results ((David L. Nersessian, ‘The Contours of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribunals’ (2002) 37 Tex. Int’l L.J. 231, 271)).
Intent and knowledge
The intent requirement in the crime of genocide is explained in the Darfur Report ((Report of the International Commission of Inquiry on Darfur to the Secretary-General, Pursuant to Security Council resolution 1564 (2004) of 18 September 2004, Annex to U.N. Doc. S/2005/60, 1 February 2005))to mean the conscious desire of the perpetrator for his act to result in destruction of the group wither in whole or in part ((Claus Kreb, ‘The Crime of Genocide under International Law’ (2006) 6 Int’l Crim. L. Rev. 461, 493)). This is often termed as the purpose based approach where there may be no criminal responsibility for genocide if it is done with knowledge of the genocidal campaign but without sharing the overall goal of group destruction, but on the other hand, the knowledge based approach gives importance to commission of the prohibited act with the knowledge of the collective goal by which the individual perpetrator furthers the concerted campaign ((Claus Kreb, ‘The Crime of Genocide under International Law’ (2006) 6 Int’l Crim. L. Rev. 461, 497)).
In Jelisic case ((The Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, ))the Trial Chamber brought out an element of knowledge and held that the accused by killing an individual member of the group ‘knowingly’ commits the act as part of a wider-ranging intention to destroy but observed that one is not guilty of genocide if he does not share the goal of destroying the group even if he knew that he was contributing to the destruction of a group ((The Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, )). It is also stated that irrespective of the fact as to whether the perpetrator is a high ranked official or an ordinary person it is necessary to show that he had the clear knowledge or the intent to achieve the destruction of a protected group so as to make him liable for committing genocide ((Kriangsak Kittichaisaree, International Criminal Law (1st edn OUP, New York 2001) 74)).
According to Article 30 of the ICC statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge ((Available at <http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94 0A655EB30E16/0/Rome_Statute_English.pdf> accessed 14 February 2010)). But the provision starts by stating “unless otherwise provided” and hence the knowledge element may not be so crucial to the crime of genocide apart from the specific intent to destroy. To the contrary it is also thought by some that the clause in the ICC statute which states “unless otherwise provided” requires that the crime must be committed with intent and knowledge ((Johan D. Van der Vyver, ‘The International Criminal Court and the Concept of Mens Rea in International Criminal La’w (2004) 12 U. Miami Int’l & Comp. L. Rev. 57, 84)).
Requirement of a Plan
In The Prosecutor v. Clement Kayishema and Obed Ruzindana, it wasobserved that the mens rea must be formed prior to the commission of the act of genocide and that premeditation is not a sufficient element and that which is to be proved is only that the act was done in furtherance of a genocidal intent ((The Prosecutor v. Clement Kayishema and Obed Ruzindana Case No. ICTR-95-I-T, 21 May 1999, 97 ))and that if the specific intent is proved it doesn’t matter whether there was a personal motive behind the acts committed ((The Prosecutor v. Clement Kayishema and Obed Ruzindana Case No. ICTR-95-I-T, 21 May 1999, 97 ))but at the same time motive has got a probative value in establishing genocidal intent ((David L. Nersessian, ‘The Contours of Genocidal Intent: Troubling Jurisprudence from the International Criminal Tribunals’ (2002) 37 Tex. Int’l L.J. 231, 268)). It was held in Jelisic case ((The Prosecutor v. Goran Jelisic, Case No. IT-95-10-T ))by the appeal chamber that though the existence of a plan is not a prerequisite for the crime of genocide, it may act as a relevant factor when it comes to proving the specific intent. The existence of a plan and the element of knowledge were also stated by the Trial Chamber in Kristic Case but the Appeal Chamber rejected this approach of the Trial Chamber ((Stylianos Malliaris, ‘Assessing the ICTY Jurisprudence in Defining the Elements of the Crime of Genocide: The Need for a ‘Plan’’ (2009) 5 Rev. Int’l L. & Pol. 105, 109)). Moreover in Kayishema and Ruzindana Case the requirement of a genocidal plan was emphasized for evidentiary purposes as the Trial Chamber held that it is not easy to carry out genocide without a plan or organisation and that to prove the requirement of specific intent the existence of a plan would be a strong proof ((Stylianos Malliaris, ‘Assessing the ICTY Jurisprudence in Defining the Elements of the Crime of Genocide: The Need for a ‘Plan’’ (2009) 5 Rev. Int’l L. & Pol. 105, 113; the author also states that the ICTY should make a consistent approach rather than applying inconsistent standards on the issue of the requirements of a plan for the crime of genocide after analyzing the prosecutor’s application in ‘Prosecutor v. Omar Hassan Ahmad Al Bashir’, Case No. ICC-02/05, 14 July 2008)). This is also clear from the observation made by the ICJ in Application of the Conventionon the Prevention and Punishment of the Crime of Genocide that “the dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist ((Bosnia and Herzegovina v. Serbia and Montenegro, 2007 I.C.I. 70 (26 February).)).” It is also true that in reality the acts of genocide are not carried out spontaneously and carried out only by careful planning ((Claire de Than & Edwin Shorts, International Criminal Law and Human Rights (1st edn Sweet & Maxwell, London 2003) 75)). The Elements of crimes adopted by the Preparatory Commission for the International Criminal Court (PCNICC) for the acts of genocide under Article 6 of the statute of the International Criminal Court also gives importance to the fact that the conduct must have taken place in the context of a manifest pattern directed against the protected group or a conduct that could itself cause such destruction ((Kriangsak Kittichaisaree, International Criminal Law (1st edn OUP, New York 2001) 77)).
Evidence to prove the ‘intent to destroy’
With regard to establishing the intent to destroy the Draft Convention on the Crime of Genocide concluded that if the members are placed in concentration camps and the death rate is 30-40 percent, the intention to commit genocide is unquestionable but even when there are high death rate if the reason can be attributable to lack of attention, negligence or inhumanity it may not constitute an intent to commit genocide ((Draft Convention on the Crime of Genocide prepared by the S.G. of the U.N. in pursuance of the resolution of the ECOSOC dated 28th March 1947 <http://www.un.org/ga/search/view_doc.asp?symbol=E/447> accessed 13 December 2010)). The 1985 UN study on Genocide ((Whitaker Report on Genocide, 1985 http://www.preventgenocide.org/prevent/UNdocs/whitaker accessed 10 December 2010))revealed that “the intent may be inferred from the actions or omissions of a degree of negligence or recklessness that the defendant must reasonably be assumed to have been aware of the consequences of his conduct where documentary evidence is lacking ((Para 39 of the Whitaker Report on Genocide, 1985 http://www.preventgenocide.org/prevent/UNdocs/whitaker accessed 10 December 2010)).” In regard to the slaughter of Tutsis in 1994, the UN Commission on Human Rights identified the intent to commit genocide from the incitements in the media and in leaflets, the preparations made, the number of persons killed and practice of separating out Tutsis at roadblocks by the army ((Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremburg Legacy (1st edn, Clarendon Press, Oxford 1997) 35)). The difficulty to prove the specificity can be seen as in The Prosecutor v. Semanza ((The Prosecutor v. Semanza ICTR-90-27-T, 15th May 2003)), the Trial Chamber held that the indictments supporting incitement to commit genocide are impermissibly vague and refused conviction. The same was the ruling of the Appeal Chamber which overturned the decision of the Trial Chamber in The Prosecutor v. Radislav Krstic((The Prosecutor v. Radislav Krstic Case No. IT-98-33-T, 2 August 2001))as the evidence was insufficient to constitute genocide.
It was observed in Jelisic Case that it will be difficult to prove the genocidal intent if the crime is not widespread and not backed by an organization ((The Prosecutor v. Goran Jelisic, Case No. IT-95-10-T)). In Prosecutor v. Vidoje Blagojevic, Dragan Jokic((Prosecutor v. Vidoje Blagojevic, Dragan Jokic Case No. IT-02-60-T, Trial Judgment, 17 January 2005))the evidence was gathered from the practical assistance that was provided by the accused with the knowledge that the principal perpetrators had the intent to destroy the Muslim group. Moreover in The Prosecutor v. Clement Kayishema and Obed Ruzindana it was observed that though a specific plan may not constitute genocide it would be difficult to commit genocide without such a plan but held that genocidal intent could be inferred from deeds, words and actions in the absence of explicit manifestations on criminal intent ((The Prosecutor v. Clement Kayishema and Obed Ruzindana Case No. ICTR-95-I-T, 21 May 1999, 97 [94, 159])).
In short, the factors that may act as guidance to prove genocide include the number of victims, the pattern of genocidal conduct, acts and statements done or made before the act, other relevant factors such as political doctrine that gave rise to the acts, the repetition of discriminatory acts such as targeting of members or their property, use of weapons, methodological planning and the nature of bodily injury caused ((David L. Nersessian, ‘The Razor’s Edge: Defining and Protecting Human Groups Under the Genocide Convention’ (2003) 36 Cornell Int’l L.J. 293, 314-15)).
It has been suggested that to prove genocide, the first step should be to prove that the person had knowledge of the conduct and then to infer the special intent from all the evidence including that relating to knowledge and thus the tribunals can avoid substituting knowledge for specific intent and can easily differentiate between genocide and complicity in genocide ((Nina H.B. Jorgensen, ‘The Definition of Genocide: Joining the Dots in the light of recent practice’ (2001) 1IntlCrimLRev285, 298)).
Though there is a separate Convention for dealing with genocide and though it was thought that it will provide more stability to the definition of genocide, not only does the definition with respect to certain elements of genocide remain controversial but also that the genocide could not be prevented or dealt with effectively which is clear from the instances that happened in Rwanda, Yugoslavia and Cambodia. Though genocide had been dealt with in the case of Eichmann ((Attorney-General of the Govt. of Israel v. Eichmann, Dist. Ct. Jerusalem, (1968) 36 ILR 5 decided on 11 Dec. 1961 http://www.ess.uwe.ac.uk/genocide/Eichmann_Index.htm accessed 12 December 2010)), the judgment for the most of its part remains silent as the prosecution was based on Nazis and Nazi Collaborators (Punishment) Law of 1950.
Mostly the element of intent is difficult to prove and often it is established with the help of indirect or circumstantial evidence which is in turn not very sufficient to derive the intention from. Moreover there can always be a probability of defending the question of whether the persons are victims or not by arguing that they were just a political opposition group or its members thereby eliminating the issue of genocide. Though premeditation is not a sufficient element in the crime of genocide it can be seen reflected in a limited way in Article 2 (c) of the Genocide Convention where it states “calculated to bring about its physical destruction in whole or in part” as the term ‘calculated’ may signify an element of planning. Yet another problem lies in the application of the provisions of the Convention where the perpetrators and members belong to the same group as had happened in the Khmer Rouge incident where acts were committed by Khmer group against the Khmer national group where obviously the intention is not to destroy the Khmer nation as a whole. It would also have been good from the point of law if Zarqawi, instead of being murdered, was captured and made to stand trial for the atrocities he had committed in Iraq especially to the Shia sect as a ruling on those issues would also have constituted certain additional clarifications as to whether the speeches made and activities he did would constitute intent to destroy the religious group and if so whether that will amount to genocide and conspiracy to commit genocide as a separate offence. It cannot be laid down with utmost precision as to what constitutes intent to destroy as it varies from case to case and a clear understanding of the nature and the context of the situation also becomes relevant sometimes apart from other things to judge the specific intent of the perpetrator to commit genocide. Needless to say that in certain cases it becomes extremely difficult to prove the specific intent to destroy the particular group in whole or in part which leaves the prosecutor with a tough job in identifying those facts and circumstances from which the perpetrator’s specific intent could be inferred and in some cases it leaves room for perpetrators to escape liability due to the requirement of high standard of proof of intent.