ABSTRACT
This chapter examines the recognition of particular acts, such as ethnic cleansing and systematic rape, as amounting to genocide in the jurisprudence of the Tribunals. The ad hoc Tribunals have clarified some of the issues pertaining to intent, in particular the quantum and the proof of intent. The chapter considers a thorny issue, which has perhaps received unduly scant attention to date: the determination of the membership of the some protected groups. It is argued that the approach based on the idea that membership of these collective groups is a "social fact" has progressively been superseded by a better approach, which recognises that membership of these groups is a "social construct" and that the perceptions of the victims and of the alleged perpetrators must be taken into account. The chapter analyses the mental element and its application by the Tribunals. It discusses the Convention definition and outlines some of the theoretical problems underlying it.
