The crime of genocide involves both individual intent elements and a collective intent element, the latter involving an intent to destroy a group. The Convention on Genocide, article 2, says: genocide is “any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, religious, racial or religious group, as such.” In this respect, genocide is different from crimes, even other international crimes. There is a significant difference between persecution, a crime against humanity, and genocide, although there are also significant similarities. In the Kupreskic case, the International Criminal Tribunal for the Former Yugoslavia said that “In both categories, what matters is the intent to discriminate … from the perspective of mens rea, genocide is an extreme and most inhuman form of persecution.” Persecution involves an assault on a population of persons because of their group membership. Like persecution, genocide also involves an assault on a population because of their group membership, but in addition it involves the intent to destroy the group, not merely to harm or kill various members of the group. In this chapter I examine what it means to have such a collective intent, and how it can be proved.

The term “collective intent” in international law is not well understood. Sometimes the term is used to mean that a number of people are working loosely toward the same end, perhaps unbeknownst to one another.