It is remarkable that, more than six decades after the Genocide Convention, confusion still surrounds what “genocide” means in law. Nowhere is clarity more urgent than in Africa, where cycles of mass violence and the gravest human rights abuses persist and have left indelible marks on all sectors of life. In many parts of Africa, the obsessive nurturing of ethnicism for political and economic gains by its leaders has often snowballed into genocide and large-scale atrocities while the world looks the other way.

In recent weeks, a nationwide debate has raged in Nigeria after U.S. President Donald Trump publicly threatened possible airstrikes or a troop deployment to “protect Christians” from an ongoing “genocide” against Christians. Nigeria’s reaction to Trump’s threat has been mixed.

While many Nigerians, exasperated by years of jihadist and various forms of organised violence, welcomed any meaningful assistance, the government, mindful of Libya and other U.S. interventions, cautiously rejected the idea of an outright invasion.

What the evidence establishes is that violence against Christians in parts of northern and central Nigeria is real and severe, but available data and analyses also show a broader, more complex crisis in which both Christians and Muslims are targeted, with patterns varying by region and actor.

That complexity is worth noting because international criminal law is invoked not on the basis of numbers or media characterisation but on legally defined elements, most importantly the special intent (dolus specialis) “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” articulated in the Rwandan Tribunal’s ground breaking case of Prosecutor V Akayesu, the first judgment ever to convict for genocide.

This article sets out, drawing on that jurisprudence, the elements that distinguish genocide, the “crime of crimes,” from other atrocity offences, so public argument can proceed on law and evidence rather than hearsay.

The term ‘genocide’ had not always been known to international criminal law nor considered part of customary international law before it was used to describe a crime in the Convention on the Prevention and Punishment of the Crime of Genocide signed in Paris on December 9, 1948. Prior to that, the term was first used by the Polish jurist Rafael Lemkin in 1943 to characterise the deliberate plan of the Nazis to exterminate the Jews and Gypsies then taking place in Europe.

In apparent response to Churchill’s disquieting statement of August 1941 that ‘we are in the presence of a crime without a name’, Lemkin had coined the term “genocide” from a union of the Greek word genus, “race” and the Latin word cide, “killing”. Thus, the word “genocide” was used for the first time in his book- Axis Rule in occupied Europe, to denote a state sponsored, coordinated plan aimed at the physical destruction of a national group or groups.

The Genocide Convention, now widely ratified, codified a precise legal meaning that later informed the statutes of the ICTR and ICTY and, subsequently, the Rome Statute of the ICC. The definition of genocide and related punishable acts in Article 2 of the ICTR Statute reproduces Articles II and III of the 1948 Convention: Article 2: Genocide 1.

The International Tribunal for Rwanda shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or committing any of the other acts enumerated in paragraph 3 of this article. 2. 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: 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.

The following acts shall be punishable: a) Genocide; b) Conspiracy to commit genocide; c) Direct and public incitement to commit genocide; d) Attempt to commit genocide; e) Complicity in genocide. a) Genocide Article 2 of the Statute stipulates that the tribunal shall have the power to prosecute persons responsible for genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in Genocide.

Genocide has been charged in almost all the indictments presented before the ICTR. Many of the trial chambers, accordingly, made important pronouncements which have greatly enhanced the understanding of the elements of genocide and its derivatives. Pursuant to Article 2(2) of the Statute, it is necessary that one of the acts listed under that provision be committed, with the specific intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.

Thus, it was held in Akayesu that, contrary to popular belief, the crime of genocide does not imply the actual extermination of a group 2, in its entirety, but is understood as such, once any of the acts mentioned under Article 2(2)(a) through Article (2) (2) e) of the statute is committed against any particular group with the requisite intent. Undoubtedly, many killings and other egregious human-rights violations perpetrated against the Tutsi population in 1994 qualified as acts enumerated in the definition of genocide.

The central question, however, was whether members of the political and military leadership—and their foot soldiers—who allegedly planned and executed the atrocities possessed the requisite dolus specialis to sustain a genocide conviction. A further question was whether the Tutsi constituted a “national” or “ethnic” group within the meaning of the Convention.

These and related issues were adjudicated by the Tribunal’s Trial Chambers. i). Are the Tutsi a Protected Group? In Akayesu, the Trial Chamber reasoned that since the special intent required to convict for genocide lies in the intent to destroy, in whole or in part, a national, ethnical, racial, or social group, it was necessary, as a starting point, to determine the meaning of these social categories.

The Genocide Convention and the ICTR Statute, having failed to define the terms, the task fell on the Chamber itself and on the basis of its reading of the travaux preparatoires of the Genocide Convention, the chamber concluded that it was best to respect the intention of the drafters of the convention which was clearly to ensure the protection of any stable and permanent group whose membership is determined by birth. More mobile groups, such as political and economic groups which one joins through individual voluntary commitment, are thus excluded.

Hence, relying on the decision of the International Court of Justice in the Nottebohm case, the trial chamber proceeded to define the mentioned group as follows: (i) (ii) (iii) (iv) a national group as a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties; an ethnic group is generally defined as group whose members share a common language or culture; the conventional definition of a racial group is based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors. a religious group is one whose members share the same religion, denomination or mode of worship.

While it was essential to define the protected groups in Article 2(2) to apply the genocide provision to Rwanda, the Chamber faced a major hurdle: the Tutsi-Hutu-Twa distinction did not neatly fit any of those categories.

The Tutsi belong to the same religious groups and national group as do the Hutu and Twa, and the three groups share a common language and culture. To compound the problem, the hereditary physical traits widely believed to distinguish Tutsi from Hutu have become hardly recognisable or outright obliterated in majority of cases owing to generations of intermarriage.

Consequently, had the trial chamber not made further enquiries it would have concluded that genocide as legally defined in the Convention and Statute, had not occurred in Rwanda.
To be continued tomorrow.
Jegede is a lawyer and former United Nations Prosecutor.