Indicators relevant for the evaluation of the alleged genocidal intent to destroy a national group

Special intent to destroy a protected group in whole or in part is a central legal ingredient distinguishing the crime of genocide from other international crimes. At the same time, it also remains one of the most complicated and multi-layered elements to prove. Since direct evidence pointing to the existence of genocidal intent is rare and often impossible to obtain, the analysis usually rests on circumstantial evidence considering the requirement that genocidal nature of the intent is the only reasonable inference from the available evidence. This article presents a methodology for evaluating the existence of genocidal intent in cases where a national group is alleged to be the target. It is of particular relevance for the Ukrainian justice actors in their investigation of genocide in the context of the Russian atrocities in Ukraine. The article presents an algorithm involving several stages, whereby filtering down the pool of underlying acts is the first critical step aimed at discerning acts bearing discriminatory character from those that are inherently indiscriminate and devoid of the signs of special intent. Further, it highlights the importance of establishing the alleged intent’s direction at the group in whole or, alternatively, in part, as well as evaluating the substantiality of the targeted part. The article presents the methodology for the substantiality assessment via both quantitative (i.e., numeric) and qualitative approaches, with the latter involving the evaluation of the targeted part’s prominence. Adopting the lenses of international jurisprudence, the article elaborates on the importance of various contextual factors in analysing the alleged existence of genocidal intent. The first set of factors for the analytical focus relates to the modus operandi of underlying acts. It highlights the examination of various circumstances, such as the repetition and consistency of the pattern of conduct, the acts’ brutality, orchestrated and coordinated manner of their commission. Additionally, the article underscores the importance of a thorough evaluation of the identities of victims of underlying acts, particularly their significance to the group’s survival. Among them, the leadership of the group plays a critical role, especially when national groups are targeted for destruction. The article concludes with an analysis of the role of socio-cultural targeting, the perpetrator forces’ rhetoric and utterances, as well as the existence of a plan or policy for the intent’s determination.