SELECTIVE ASSISTANCE AS AN EVIDENTIARY PROBLEM IN GENOCIDE CASES
Abstract:
This Essay investigates the question of the assessment of evidence in cases of genocide when the perpetrator can make a believable claim that the consistency of a relevant pattern of his behavior has not been demonstrated. Cases of this kind have arisen in the international criminal tribunals in particular where questions of so-called “selective assistance” were concerned (i.e., claims by the defense that genocidal intent could not have existed, as the defendant had in fact helped certain members of the group). It is a claim that has led to widely differing responses in the international criminal tribunals: in Kayishema, the International Criminal Tribunal for Rwanda found that the fact that the defendant may have helped Tutsi children had “little direct bearing” on the question whether he possessed the relevant mens rea; but in Jelisić, the International Criminal Tribunal for the former Yugoslavia considered that the defendant, who had killed Bosnian Muslim prisoners and had voiced his hostile feelings towards Bosnian Muslims as a group, but had also allowed some members of the group to leave his prison camp, had committed his acts arbitrarily rather than “with a clear intention to destroy a group”. This Essay suggests a solution to the existing problem by highlighting the temporal dimension of the relevant, seemingly contradictory strands of evidence and by focusing in particular on the principle of simultaneity as a method of resolving cases of seemingly contradictory evidence.
Recommended Citation: Paul Behrens, Selective Assistance as an Evidentiary Problem in Genocide Cases, 47 Fordham Int'l L.J. 593 (2024).