Instituttlunsj: In the eyes of the perpetrator: The perpetrator-based approach in defining the victim groups of genocide
Stipendiat Carola Lingaas presenterer sin forskning. Instituttleder Ulf Stridbeck leder lunsjen.
Carola Lingaas. Foto: privat.
In defining the four protected groups of genocide, the international criminal tribunals have gradually shifted from an objective to a subjective approach. The group membership is accordingly not determined by means of dubious objective parameters such as skin color, but by the perception of differentness. Increasingly, the tribunals determine the group membership by means of the perpetrator’s perception of the group that he wishes to single out and destroy. The Genocide Convention, however, exclusively protects four groups and a broadening of this protection to include any group created by the imagination of the perpetrator has consistently been rejected by tribunals and legal scholarship. The perpetrator’s perception thus has to be limited to what he understands to be a racial, national, ethnical or religious group. To further complicate matters, the perception in defining the group cannot be confused with the special intent that the provision on genocide requires.
This presentation gives an overview over judgments by international criminal tribunals with regard to the perpetrator’s approach in defining the victim group, taking into account the limitations of the group membership as listed in the Convention. An incoherent practice will be revealed as well as a continued judicial uncertainty in distinguishing between the crime’s mental element, the mens rea, and the perpetrator’s perception. This presentation will attempt to clarify these contentious issues and evaluate this perpetrator-based approach in defining the victims of genocide.