Midway assessment: The Concept of Race in International Criminal Law by Carola Lingaas

PhD candidate Carola Lingaas at the Department of Public and International Law is presenting her doctorate project "The Concept of Race in International Criminal Law" on Wednesday June 17th.

Photo of Carola Lingaas

PhD candidate Carola Lingaas

Photo: Carola Lingaas

Commentator:

  • Prof. William Schabas

Leader of the assessment:

  • Professor Benedikte Moltumyr Høgberg

Supervisors:

  • Professor Ulf Stridbeck
  • Associate Professor Gentian Zyberi

 For outline and draft text, contact Carola Lingaas

The Concept of Race in International Criminal Law

In international criminal law, the provisions on the crime of genocide, persecution and apartheid all include references to the concept of race. In each instance, the law seeks to protect individuals recognized as belonging to an identifiable group or collectivity. The perpetrator targets an individual precisely because of his membership to such a group, including the racial group.

International criminal tribunals have largely tried to avoid defining race, racial groups and group membership. Their jurisprudence has resulted in the application of inconsistent thresholds for determining whether a victim of an international crime is to be classified as a member of one of the  protected groups. However, precisely because the law contains these terms, the courts applying them have no choice but to get engaged in their narrower, contemporary and correct definition. The aim of the thesis is to clarify the concept of race.

International criminal law does not define race. The obvious lack of a reliable and precise definition of race is in itself a cause for concern because of the overarching principle of strict legality, or nullum crimen sine lege stricta. In order for a conduct to be punishable, the respective criminal articles have to be construed in a clear, accessible and foreseeable way. Containing the undefined notion of race, these statutory provisions remain unclear.

The difficulties for international criminal law caused by the concept of race, originate in the legal necessity for an objective determination of the victim’s group membership. In order to sentence a perpetrator for the crime of genocide, apartheid or persecution, it has to be proven that he targeted (amongst others) a racial group. This requirement leads courts to objectively defining race through the victim’s complexion. As long as a racial group is considered a material element of a crime, it has to be objectively determinable. As a result, international courts resort to outdated ways of classifying human beings. This thesis will show that a subjective approach in defining the group membership will lead to a legally sound result, without having to rely on the victim’s skin color, which inevitably leads to an offensive result. Instead, the subjective approach builds on the perception of differentness: the perpetrator’s perception, the victim’s perception or a combination of both determine whether or not a victim is considered member of one of the protected groups.

Published Aug. 10, 2016 10:15 AM - Last modified Sep. 18, 2017 8:03 AM