Defining the Protected Groups of Genocide Through the Case Law of International Courts
By Carola Lingaas, Researcher, Department of Public and International Law
This blog post is a shorter version of a policy brief with the same title, which you can read at the International Crimes Database (ICD Brief No. 18, December 2015).
The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) of 1948 protects four exclusive groups. Its Art. II reads: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such (…)”. This definition is reproduced verbatim in Art. 6 Rome Statute of the International Criminal Court (ICC), Art. 2 Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and Art. 4 Statute of the International Criminal Tribunal for Rwanda (ICTR). They all meet the same definitional difficulties in identifying the members of the protected victim groups of genocide.
An unclear definition
Ever since the creation of the Genocide Convention, the definition of the four protected groups has remained unclear for three reasons. First, the Genocide Convention was long believed to be a dead letter. It was not applied until fifty years after its creation, when in 1998 for the first time an international tribunal convicted a person for the crime of genocide. Second, the understanding of race, ethnicity, nationality and religion has changed parallel with technological, scientific and sociological developments. Thirdly, the interpretation of the protected groups was on purpose left to the implementing governments of the Genocide Convention.
In 1998, with the judgment against Akayesu by the ICTR, for the first time ever an international criminal tribunal tried an individual for the crime of genocide. For the outcome of the trial, it was of paramount importance to correctly define the Tutsi victim group. Had the Tutsis not been classified as members of one of the four protected victim groups, the atrocities committed in Rwanda in 1994 could not have been legally qualified as genocide. The primarily objective definition of the protected groups by the Tribunal was later heavily criticized.
Re-defining groups: The perpetrator-based approach
Drawing on examples from the international jurisprudence, I demonstrate that the understanding of the protected groups has significantly been transformed. From initially defining the groups in an objective manner, courts increasingly determine the group membership subjectively, by relying on the perception of the group’s differentness. This groundbreaking shift, which is analyzed in the brief, radically changed the approach to the group definition of genocide. In particular, it is demonstrated how a reliance on perception challenges the exclusivity of the four protected groups. Despite creating jurisdictional difficulties of establishing and proving the victim groups, the subjective perpetrator-based approach is coherent with any pre-genocidal process. Indeed, the perpetrator’s prejudice towards a group other than his own is essential to any genocidal act. The perpetrator identifies, names and stigmatizes the members of this out-group. In genocide, he ultimately aims at their destruction. This phenomenon is widely-recognized as “othering” in the social sciences. With the recognition of the perpetrator-based approach, the pre-genocidal process of othering has been translated into law. It is therefore of significance who the perpetrator perceives as victim.
The perpetrator’s perception of a group becomes the defining element for the crime of genocide and as such considerably challenges international criminal jurisprudence. The reason for this is the principle of legality that demands a clear and specific designation of the victim groups. Indeed, a reliance on the perpetrator’s imagination hinders tribunals in an objective and uniform determination of the victim group because each perpetrator will perceive his victims differently. Since the provisions on genocide assign protection to the national, ethnical, racial and religious group only, the perception of the perpetrator cannot go beyond these four categories.
Mens rea only
It has to be recalled that every crime has two elements: the actus reus and the mens rea. In the past, the protected groups of genocide were subsumed under both elements. This caused definitional difficulties with regard to the actus reus by demanding an objective determination of the victim group. Time has come to release the group notion from that hold. By defining the protected groups as part of the mens rea only, an adherence to the subjective approach will be allowed. This cannot, however, lead to a broadening of the protected categories. Instead, a reliance on the perpetrator’s stigmatization because of perceived – or even real – national, ethnical, religious or racial characteristics of the victim group is the right way to go. Once the stigmatization leads to discriminatory acts, the group becomes identifiable. Coupled with its pre-genocidal existence, in order to avoid the protection of completely imaginary groups, the group has acquired the objectivity that international criminal law is seeking for and thereby becomes a protected group under Art. II of the Genocide Convention. The brief therefore ends by suggesting a release of the group notion from the actus reus and instead to fully incorporate it into the mens rea.