The intent to destroy a group in whole or in part is a critical element of genocide. That's what separates a genocide from murder, which you can commit in peacetime as well as in war. However, to decide to eradicate a racial group, ethnic group, religious group or national group, and to eradicate them in whole or in part is what makes that difference.
It is something that can be established if there is direct evidence of it and that somebody who is involved in that enterprise of killing or destruction had intent to destroy a group in whole or in part. That can be evidenced, as can people saying, “This is what we want to do.” Otherwise, you could also use circumstantial evidence to say, “Hang on, what were you thinking when you were doing this?” You can also bring in circumstantial evidence, but the intent element is critical to genocide. There are a lot of killings that happen.
The case law of the ICTR, International Criminal Tribunal for Rwanda, in a case called Akayesu was the first case of genocide in international law—where James and I used to work many years ago as prosecutors. It says that once you have that intent element, you can kill a few people. Even one person raped with that intent can amount to genocide, so you don't need to have, as I said, 400 people, 800,000 people or six million people killed. That is very critical.
We need to have intent to have a case of genocide, and it's not an easy thing to prove. It's not impossible, because ICTR convicted a lot of people of the crime of genocide, but it requires careful attention to what evidence we have of direct implication of that intent or circumstantial evidence of it.