Substantial part of targeted group
| Notion(s) | Filing | Case |
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| Appeal Judgement - 30.01.2015 |
POPOVIĆ et al. (IT-05-88-A) |
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422. […] Although the substantiality requirement is textually indicated in the provision describing the specific intent required for genocide, i.e. the requirement that there must exist an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”,[1] it is the objective, contextual characteristics of the targeted part of the group, including, inter alia, its numeric size relative to the total size of the group,[2] that form the basis for determining whether the targeted part of the group is substantial.[3] […] [1] Article 4(2) of the Statute (emphasis added). See Krstić Appeal Judgement, paras 6, 8-9. See also Article II of the Genocide Convention. [2] Krstić Appeal Judgement, para. 12. [3] See Krstić Appeal Judgement, paras 12-17 (where substantiality is discussed by reference to various contextual and objective characteristics of the targeted part of the group, the Bosnian Muslims of Srebrenica); Benjamin Whitaker, Revised and Updated Report on the Question of Prevention and Punishment of the Crime of Genocide, U.N. Doc. E/CN.4/Sub.2/1985/6, para. 29 (“‘In part’ would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group, such as its leadership.”). |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 08.06.2021 |
MLADIĆ Ratko (MICT-13-56-A) |
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576. The Appeals Chamber recalls that, where a conviction for genocide relies on the intent to destroy a protected group “in part”, the targeted part must be a substantial part of that group.[1] The ICTY Appeals Chamber in the Krstić case identified the following non-exhaustive and non-dispositive guidelines that may be considered when determining whether the part of the group targeted is substantial enough to meet this requirement: (i) the numeric size of the targeted part as the necessary starting point, evaluated not only in absolute terms, but also in relation to the overall size of the entire group; (ii) the targeted part’s prominence within the group; (iii) whether the targeted part is emblematic of the overall group or essential to its survival; and/or (iv) the perpetrators’ areas of activity and control, as well as the possible extent of their reach.[2] The applicability of these factors, together with their relative weight, will vary depending on the circumstances of the particular case.[3] See also para. 577. […] 578. The Appeals Chamber recalls that, because the intent to destroy formed by perpetrators of genocide will always be limited by the opportunity presented to them, the perpetrators’ areas of activity and control, as well as the possible extent of their reach, should be considered when determining whether the part of the protected group they intended to destroy was substantial. [4]In this respect, the Trial Chamber determined that, from the perspective of the physical perpetrators, the Count 1 Communities were the only parts of the Bosnian Muslim group within their respective areas of control, and that the perpetrators’ authority did not extend beyond each of the Count 1 Municipalities in which they committed prohibited acts. [5]The Appeals Chamber considers that these conclusions, when viewed in the light of the Trial Chamber’s finding that the perpetrators intended to destroy the Count 1 Communities,[6] evince that the perpetrators targeted as substantial a part of the overall Bosnian Muslim group for destruction as they could. While this factor alone will not indicate whether the targeted group is substantial, it can – in combination with other factors – inform the analysis.[7] The Trial Chamber in the present case considered this factor, among others, in its analysis concluding that the physical perpetrators did not have the intent to destroy the Count 1 Communities as a substantial part of the Bosnian Muslim group. [8] […] 580. The Appeals Chamber recalls that it is not just any impact on a protected group that supports a finding of genocidal intent; rather, it is the impact that the destruction of the targeted part will have on the overall survival of that group which indicates whether there is intent to destroy a substantial part thereof.[9] […] […] 588. As recalled above, where a conviction for genocide relies on the intent to destroy a protected group “in part”, the targeted part must be a substantial part of that group.[10] […] 589. The Appeals Chamber recalls ₣…ğ that a substantiality assessment considers the impact that the destruction of the targeted part will have on the overall survival of that group.[11] Noting that the Count 1 Communities collectively comprised approximately 6.7 per cent of the Bosnian Muslim group,[12] the Appeals Chamber considers that a reasonable trier of fact could reasonably have concluded that the Count 1 Communities, individually as well as cumulatively, formed “a relatively small part” thereof.[13] The Appeals Chamber therefore concludes that a reasonable trier of fact could also have found that the destruction of the Count 1 Communities, individually as well as cumulatively, was not sufficiently substantial to have an impact on the group’s overall survival at the relevant time.[14] See also paras. 577-581.
[1] See Krstić Appeal Judgement, para. 8. See also 18 U.S.C. § 1093(8) (2006) (“the term ‘substantial part’ means a part of a group of such numerical significance that the destruction or loss of that part would cause the destruction or loss of that part would cause the destruction of the group as a viable entity within the nation of which such group is a part”). [2] See Krstić Appeal Judgement, paras. 12-14. See also Karadžić Appeal Judgement, para. 727 and references cited therein; Revised and Updated Report on the Question of the Prevention and Punishment of the Crime of Genocide Prepared by Mr. B. Whitaker U.N. Doc. E/CN.4/Sub.2/1985/6, 2 July 1985, para. 29 (“‘In part’ would seem to imply a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group, such as its leadership.”). [3] See Krstić Appeal Judgement, para. 14. The ICTY Appeals Chamber in the Popović et al. case noted that “it is the objective, contextual characteristics of the targeted part of the group, […] that form the basis for determining whether the targeted part of the group is substantial”. Popović et al. Appeal Judgement, para. 422. [4] See Krstić Appeal Judgement, para. 13. [5] See Trial Judgement, paras. 3530-3534. See also Trial Judgement, para. 3535. [6] Trial Judgement, para. 3526. [7] See Krstić Appeal Judgement, para. 13. In this respect, the Appeals Chamber notes that a relevant factor in the determination of the ICTY Appeals Chamber in the Krstić case that the Bosnian Muslims of Srebrenica formed a substantial part of the Bosnian Muslim group was that the authority of the Bosnian Serb forces charged with the take-over of Srebrenica did not extend beyond the Central Podrinje region, and that the Bosnian Muslims of Srebrenica were the only part of the Bosnian Muslim group within the perpetrators’ area of control. See Krstić Appeal Judgement, para. 17. [8] Trial Judgement, para. 3535. [9] See Krstić Appeal Judgement, para. 8 (“the substantiality requirement both captures genocide’s defining character as a crime of massive proportions and reflects the Convention’s concern with the impact the destruction of the targeted part will have on the overall survival of the group”). See also Tolimir Appeal Judgement, para. 261 and references cited therein. [10] See supra [Mladić Appeal Judgement] para. 576, referring to Krstić Appeal Judgement, para. 8. [11] See supra [Mladić Appeal Judgement] para. 580, referring to, inter alia, Krstić Appeal Judgement, para. 8 (“the substantiality requirement both captures genocide’s defining character as a crime of massive proportions and reflects the Convention’s concern with the impact the destruction of the targeted part will have on the overall survival of the group”). [12] The Count 1 Communities collectively comprised 128,443 Bosnian Muslims, whereas the overall size of the Bosnian Muslim group in 1991 was approximately 1.9 million people, noting that 43.7 per cent of 4.4 million is 1,922,800. See Trial Judgement, paras. 3529-3534. See also supra para. 577; Prosecution Appeal Brief, n. 122. [13] See Trial Judgement, para. 3535. See also supra [Mladić Appeal Judgement] para. 577. [14] See supra [Mladić Appeal Judgement] Section IV.A. |
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