Extermination (crime)

Elements

Like other crimes against humanity, extermination must be "committed as part of a widespread or systematic attack directed against any civilian population" but can occur in peacetime as well as wartime (unlike war crimes). Similar to other international crimes, extermination includes both an actus reus (an act of large-scale killing) and mens rea (the intent to participate in this action). The definition of the crime according to the Rome Statute is mostly aligned with that of customary international law. According to William Schabas and other jurists, the only difference from customary international law was to specify that the crime of extermination includes "the intentional infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population"—phrasing that Schabas argues was inspired by one of the elements of the crime of genocide, "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part."

Actus reus

The perpetrator's action must have composed part of a large-scale killing, whether one that took place at one time or one location, or a series of incidents that accumulate to sufficient massiveness. A plan or policy is not necessary. Separate incidents must be sufficiently connected to each other to be understood as one operation. There is no minimum size threshold for the crime; it is assessed based on the circumstances, although case law has recognized incidents ranging from dozens to thousands of victims. The collective nature of the crime is satisfied by being of sufficient scale. The victims may be targeted as individuals, and it is not required that the crime target a particular group of civilians or aim at the extermination of part of this group. (Similar acts not connected to large-scale killing are likely to count as the crime against humanity of murder instead). Playing a role in the part of killing at least one person as part of a mass killing event is sufficient, although the prosecution does not need to prove that the accused caused the death of any particular person. The accused's role might be commission, omission, or a combination of both; encouragement; assistance; or indirect planning. The method of killing is not relevant; it could be carried out indirectly, for example, depriving civilians of food or medicine, "creating a humanitarian crisis," blocking aid delivery, forcing people on a death march, or refusing shelter.

Mens rea

The accused must have intended to engage in large-scale killings, or to subject a large number of people to conditions that would be likely to cause their deaths. It is not required that the accused personally intended to kill on a large scale if it can be proven that their action was committed with the knowledge that it formed part of a sufficiently large-scale killing event. This might be proved by various means, such as large-scale logistics needed for certain types of killing. The motives for committing the crime are irrelevant; unlike persecution, discriminatory intent is not required.

Comparison with other international crimes

Extermination (as well as the crime against humanity of murder) is similar to genocide and could cover the same events. Unlike genocide, extermination as a crime against humanity is not required to be committed with intent to destroy an ethnic, religious, or national group. Extermination is a crime committed against individuals, although on a large scale.

The same underlying events might support a prosecution for extermination as well as the war crime of starvation.