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resulted in only a single victim, or at any rate very few victims [Verhoeven, 1991; Glaser, 1970;
Planzer, 1956].53 This argument is a bold one. It maintains that aggravated discrimination
directed against a single person or a small number of persons belonging to a minority or an
ethnic or religious group can indeed have a genocidal aspect, provided that there is a proved and
well-founded intent on the part of its perpetrator to use the person or persons in question to arrive
at the destruction of the group or minority as such.
47.
This argument is far from whimsical and should be taken very seriously54 as a faithful
interpretation of the relevant instruments shows that what is required is not the destruction in
whole or in part of a group, but “the intent to destroy, in whole or in part, a group [...] as such”.
Of course, such an intent will be difficult to prove. In practice, however, genocidal intent can
often be proved through the material element. Genocide is usually expressed through acts
(killings, disappearances, massacres, deportations, measures intended to prevent births within a
group, rape, etc.) committed on so vast and so serious a scale as to make it possible to infer their
perpetrators’ intent.
48.
This is what the judgements of the International Criminal Tribunal for the Former
Yugoslavia appear to indicate: in the Nikolic case,55 the Tribunal does not refer to a number of
victims in particular, but cites the magnitude of the “ethnic cleansing” conducted in the
Vlasenica region; it indicates, precisely, that intent may be linked to the acts which fall within
the purview of the “ethnic cleansing” policy being conducted in the region, and may generally be
inferred from this policy. The Tribunal states as follows:
“The record shows that the discriminatory policy introduced at Vlasenica, which formed
the backdrop for the acts committed by Dragan Nikolic, was aimed more particularly at
‘cleansing’ the region of its Muslim population. In the case at hand, this ‘ethnic
cleansing’ policy took the form of extremely serious acts of discrimination, which would
tend to indicate that it was of a genocidal nature.”56
49.
Similarly, in the Karadzic and Mladic case, the Tribunal notes the link between the
massively destructive effects of the acts before it and genocidal intent.57 In this case the judges
tend to regard intent as taking precedence over the number of victims: “the mere number of
victims selected solely because of their membership in a group” could indicate genocidal
intent.58 In other cases, the Tribunal develops the same argument of the causal link between
“planned ethnic cleansing” or “the serious nature of the ethnic cleansing involved” and
“genocidal intent” (Vukovar hospital and Srebrenica cases.59 However, in the Karadzic and
Mladic case, the Tribunal develops the idea that genocidal intent may be either explicit or
implicit.60 It may even be inferred from acts which would not necessarily be listed in article 4,
paragraph 2 of its Statute.61 For example, the judges have regarded the transmission of a new
ethnic identity to a child through forced conception or even the destruction of mosques, Catholic
churches or libraries as possibly constituting an attack on the group's foundations. Such
discriminatory acts must, however, be part of a general philosophy underlying a political project
aimed at attacking, through the repetitive nature of the acts, the group’s very foundations.62
Hence, as said earlier, “ethnocide” or “cultural genocide” was not excluded from the judges’
reasoning, despite the fact that the human rights treaties seem to accord a narrow meaning to acts
constituting the crime of genocide.