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How Do We Know Them When We See Them? The Subjective Evolution in the Identification of Victim Groups for the Purpose of Genocide
Abstract
Despite more than a decade of jurisprudence from the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia, the manner in which the victim group is defined for the purpose of genocide remains an area in which the espousal of principle is not always matched by practice. This article undertakes a comprehensive analysis of whether international criminal law identifies the victim of genocide based on objective indicators of the group's existence or based on subjective perceptions in relation to that group. This article tests the claim in the Report of the International Commission of Inquiry on Darfur that the identification of victim groups has evolved to such an extent that it is now based on a purely subjective standard. This article first considers the Genocide Convention, its travaux preparatoires and the method of identification of victim groups in other areas of international law, concluding that none of these sources offer clear guidance as to whether the victim group is to be understood as a subjective or objective concept. The jurisprudence of the ad hoc tribunals is then closely analysed. Despite the common claim that the tribunals have been moving towards the adoption of increasingly subjective standards, this article suggests that upon closer analysis such development is not so pronounced. Although the tribunals have shown increased willingness to espouse, in principle, the value of a subjective approach, in reality the tribunals have looked to the same forms of evidence of a group's existence since its earliest jurisprudence. However, although no clear change has occurred in the practice of the ad hoc tribunals, it is becoming increasingly evident that the tribunals are acknowledging the blurred boundaries between objective and subjective indicators of a group's existence. The
... 25 Shaw invokes an essentially teleological objection to purely subjectively defined group as a victim of genocide because it loses sight of the crime's purpose of addressing the destruction of real collectivities as opposed to simply addressing indiscriminate terror. 26 In regard to the operation of the objective and subjective criteria for the determination of the protected group Schabas's suggestion appears to be the most acceptable. He considers that "the determination of the relevant protected group should be made on a case-by-case [basis], relying upon both objective and subjective criteria". ...
The intent of this article is to explore whether the group of the disabled people could be considered as a protected group under the international instruments referring to the crime of genocide. To that end, it has been discussed whether the listed groups (national, ethnical, racial and religious) are the only groups that are protected against the “ultimate crime”. The discussion refers to the theoretical understanding and judicial interpretations of the protected groups and their scope. Considering that the theory and case law provide grounds for both, exclusive and extensive, understanding of the protected groups and their scope, it has been addressed what are the common features of the groups that are indisputably protected. The findings that were reached through the discussion are that the group of the disabled has all the characteristics as the other protected groups, which qualifies them for the victim status. Bearing this in mind as well as the historical context of the concerning crime and its purpose, the teleological interpretation appears to be the most appropriate when defining which groups are protected for the purpose of genocide. Perhaps there is no possibility for the repetition of the Holocaust due to the present day historical circumstances, at least not in its latter scope. But, there is a latent tendency toward the creation of new threats against humanity arising out of new technologies. There lies the main value of this article. It contributes to the development of the ability to detect potential violations beyond those committed against the disabled people during the WWII.
This chapter critically examines the prevailing understanding of grouphood within the context of genocide law, highlighting the challenges and shortcomings of current interpretations. A thorough critique of the increasingly popular perpetrator-based subjectivity in constructing the four groups, particularly among legal scholars, is offered. By revisiting the concept of grouphood from historical, teleological, and victimological perspectives, the chapter aims to illuminate its original conceptualization by the drafters, its interpretation by international lawyers at the time, and its evolution in State practice prior to the 1990s. Through a contextual analysis of the first significant international criminal trial on genocide, the case against Jean-Paul Akayesu at the ICTR, core criticisms of the so-called ‘objective’ interpretation of the four groups are reassessed, the ‘permanent and stable’ formula is reconstructed, and the notion of involuntariness in defining protected grouphood is explored.
This chapter explores the trajectory of genocide (iter criminis) within international legal scholarship. The previous chapters presented doctrinal and practical arguments against a purely subjective perpetrator-based interpretation of genocide, particularly concerning the definition of protected groups. While it is undeniable that the perpetrator plays a crucial role in shaping the criminal trajectory, an exclusive focus on the perpetrator’s perspective can lead to unreasonable or even absurd legal outcomes. By analysing a classic example from the law of attempts (inverted mistake of fact, impossible attempts), this chapter demonstrates the limitations of a perpetrator-centred approach in applying genocide law. An alternative exegesis is then proposed, which incorporates not only the subjective dimension of perpetration but also considers the trans-subjective nature of the protected legal values, offering a more balanced and comprehensive framework for understanding the crime of genocide.
Sustainable Development, International Criminal Justice, and Treaty Implementation provides a serious and timely perspective on the relationship between two important and dynamic fields of international law. Comprising chapters written by leading academics and international lawyers, this book examines how the principles and practices of international criminal law and sustainable development can contribute to one another's elaboration, interpretation and implementation. Chapters in the book discuss the potential and limitations of international criminalization as a means for protecting the basic foundations of sustainable development; the role of existing international crimes in penalizing serious forms of economic, social, environmental and cultural harm; the indirect linkages that have developed between sustainable development and various mechanisms of criminal accountability and redress; and innovative proposals to broaden the scope of international criminal justice. With its rigorous and innovative arguments, this book forms a unique and urgent contribution to current debates on the future of global justice and sustainability.
When can a group legitimately form its own state? Under international law, some groups can but others cannot. But the standard is unclear, and traditional legal analysis has failed to elucidate it. In The Theory of Self-Determination, leading scholars chart new territory in our theoretical conception of self-determination. Drawing from diverse scholarship in international law, philosophy, and political science, they attempt to move beyond the prevailing nationalist conceptions of group definition. At issue are such universal questions as, when does a group qualify as a 'people'? Does history matter? Or is it a question of ethnic status? Are these matters properly solved by popular vote? Anchored in modern analytical political philosophy but with implications for a wide range of scholarship, this volume will prove essential for scholars and practitioners of international law, global justice, and international relations.
First article investigates if the group of disabled could be granted with victim status for the purpose of genocide. The discussion refers to the theoretical understanding and judicial interpretations of the protected groups and their scope. Considering that the theory and case law provide grounds for both, exclusive and extensive, understanding of the protected groups and their scope, it has been addressed what are the common features of the groups that are indisputably protected. The findings that were reached through the discussion are that the group of the disabled has all the characteristics as the other protected groups, which qualifies them for the victim status.
It was published at KOLARIĆ, Dragana (ed.). Archibald Reiss Days: International Scientific Conference, Belgrade, 10-11 March 2016, Thematic Conference Proceedings of International Significance. Vol. 1. Belgrade: Academy of Criminalistic and Police Studies; 2016, pp. 296-305. ISBN 978-86-7020-356-3
Second article investigates if there is specific element or, equivalent, of the crime of genocide in abortion laws which introduce fetal malformation as absolute abortion defense. The inquiry referred to psychological element of the crime – intent. The findings that were reached through the discussion are that the equivalents of genocidal intent exist in laws that introduce fetal malformation as the absolute defence of abortion. The application of these laws directly results in a drastic reduction of the number of disabled persons. Time-unlimited abortion on the grounds of fetal disability discriminates against disabled persons providing them with a narrower “right to a safe life” zone.
It was published at Gorazd Meško, Branko Lobnikar (eds.). Criminal justice and security in Central and Eastern Europe : safety, security, and social control in local communities, Ljublјana, 26-27. September 2016., Thematic Conference Proceedings of International Significance. T. 1: Faculty of Criminal Justice and Security, pp. 300- 312. ISBN: 978-961-6821-59-9
Following an introduction to the changes in how ethno-racial identity is conceptualized in the social sciences and humanities by the destabilization of categorical frameworks, the author looks at how law reacts to these discussions and paradigm shifts, and argues that legal and administrative approaches face severe linguistic and conceptual limitations by operating within a “choice” and “fraud” binary. The article then questions if the free choice of identity exists as a principle of international minority protection law, a legal field that arguably represents a global political and ethical consensus. The author makes two claims. First, according to the basic tenet of legal logic, a proper right to free choice of identity allowing people to opt out of racial, ethnic, or national (minority) communities would necessitate the freedom to opt in to the majority or to any chosen group. The second claim, however, is that international law would not actually construct an approach to opting in. Thus, the right to free choice of identity is not an autonomous, sui generis right under international law.
Crimes committed by the Khmer Rouge in Cambodia in the 1970s are known as being among the most violent atrocities of the 20th century. Yet, the legal characterization of such acts as genocide has been subject of serious legal controversies beyond the ECCC. As a consequence genocide charges have only been retained in Case 002 against the last Khmer Rouge senior leaders, and those charges are very restricted and does not include the majority of the Cambodian victims. Such a decision irrefutably disappoints many victims who consider that their suffering was not recognized by the ECCC. This chapter identifies and analyses the legal constraints with respect to the legal characterization of the Khmer Rouge atrocities as a crime of genocide.
The interaction between and compatibility of peace and security, on the one hand, and justice on the other, are at the heart of a raging debate that plays out in most if not all postconflict settings, as well as in situations of ongoing violence and human rights abuses. Yet, the idea that individual criminal accountability for the gravest international crimes is an essential component of postconflict recovery is now firmly embedded in both practice and rhetoric at the international level. This chapter provides an overview and critically assesses some of the actual and potential contributions of international criminal justice to sustainable peace and development. Criminal accountability is part of an array of measures that can be adopted in a postconflict environment to address past violations while contributing to a peaceful present and building a sustainable future: ‘[T]he idea that a durable peace requires countries to address past violence is now widely held and promoted by influential leaders and institutions under the broad heading of “transitional justice.”’ Crucial discussions are taking place regarding the relevance, meaning, and scope of transitional justice, concerning both its justifiability as a legal discipline and its complex interaction with other aspects of post-conflict peace building, such as development programmes and rule of law reforms. This chapter has a more modest aim. Its focus is on the specific contributions of criminal accountability measures in conflict and postconflict environments.
A survey of the case law of the ICTY and ICTR reveals inconsistencies and conceptual discrepancies in the approach to genocide cases, in particular with respect to the cornerstones of such cases, the identification of the protected group and its members resulting in different levels of protection against genocide. A review model might help to address these issues, which are, arguably, preconditions of the legitimacy of these courts and of the effective enforcement of the prohibition of genocide. Given the close relationship between genocide and discrimination, this review model might be built on the 'building blocks' of discrimination law. The purpose of this contribution is twofold: (1) by unfolding the relationship between direct discrimination and genocide to devise a model of review; and (2) to analyse the consequences of the consistent application of this model on the identification of the protected groups and their members.
Genocide is included in most Latin American Criminal Codes that were enacted long before the adoption of the Rome Statute. Genocide's criminalization in Latin America has, to a large extent, deviated from the Genocide Convention definition with respect to the actus reus, mainly concerning the protected groups. However, the existing jurisprudence does not shed much light on the reasons or justifications for such a deviation; it is rather inconsistent in some instances. The implementation of the Rome Statute offers mixed signals as to the legal and policy trends in Latin America with regard to the scope of genocide. The fact that the codification of crimes against humanity has gained momentum with the entry into force of the Rome Statute implies an increasing need to reflect on the coherence of the domestic criminalization of core crimes.
The article sets out the nature, the history and the general structure of the crime of genocide and provides a comprehensive analytical commentary of the elements of the crime. Against the current trend of the international case law to expand the boundaries of the definition at the risk of the crime's trivialization this article develops a strict construction even if the results may appear politically unattractive. The article starts from the premise that, for all practical purposes, the occurrence of a crime of genocide entails a collective destructive act. This collective act forms the objective point of reference of the required intent to destroy a protected group in whole or in part; the vain hope of an individual to contribute, by way of commission of one of the underlying offences, to the destruction of a group falls short of this concept of a realistic genocidal intent. The article rejects a purely subjective definition of the various categories of protected groups and cautions against the conversion of the crime of genocide into an unspecific crime of massive human rights violations based on discriminatory motive. At the same time, it is submitted that not every campaign of so-called
The report of the International Commission of Inquiry on Darfur, set up pursuant to a UN Security Council resolution, is an important contribution to the evolving law of genocide. The Commission concluded that genocide had not been committed, but that the case should be referred to the International Criminal Court for prosecution as crimes against humanity and war crimes. The Commission did not find significant evidence of genocidal intent. It looked essentially for a plan or policy of the Sudanese state and, in its absence, concluded that genocide was not being committed. The Commission endorsed the ‘stable and permanent groups’ approach taken by one trial chamber of the International Criminal Tribunal for Rwanda (ICTR). On this point, it exaggerated the acceptance of this interpretation, which has been ignored by other trial chambers of the international tribunals. However, the Commission found that the better approach to determination of the groups covered by the Convention is subjective, and that the targeted tribes in Darfur meet this criterion.
This article explores the abiding question of how to construe the state of mind set forth in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; that is "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." The question promises to challenge the International Criminal Court just as it has judges of the ad hoc tribunals established in the 1990s, the International Criminal Tribunals for Rwanda and for the former Yugoslavia. First the article traces the development of the group mentality element from its early and broad outline to the narrow formula in the Convention. It then looks at how the ad hoc tribunals have endeavored to construe the 1948 definition in light of much more recent events. In particular, the article contrasts the seriatim approach employed in most opinions with the ensemble approach adopted by the ICTY in Prosecutor v. Krstic. Analysis of this divide begins by posing a question sometimes overlooked in debates about the definition of genocide: What does it matter? Conduct that satisfies the actus reus component of genocide - murder, sexual assault, starvation - is without doubt reprehensible. Does naming an act "genocide" bring added significance? This article answers that question in the affirmative. Law operates as a means for articulation and nourishment of societal values. This expressive function has special force in international criminal law, only now entering an era in which ongoing international criminal tribunals reinforce pronouncements of norm, such as the proscription against genocide in the 1948 Convention. This offense - commission of a heinous act with the desire to eliminate a human group - is deemed the most serious of crimes, in legal writings no less than in popular media. That social meaning of genocide, this article argues, imposes constraints. Tribunals must act in a manner that recognizes and nurtures the status of the norm against genocide. Extending protection to too many groups could upset the singular status of the proscription against genocide; denying it to deserving groups could undermine the tribunal's authority. This article recommends answering the protected group question according to a synthesis of seriatim and ensemble construction. Key to the inquiry is the particular context in which an atrocity occurred. Resort to appropriate components of each method of construction will permit a tribunal to identify a group within its own social context, and thus to determine whether the particular group falls within the aegis of the Convention definition. This reasoned inquiry into individual culpability both strengthens the authority of the tribunal and assures that only those perpetrators whom society consider the very worst will receive the indelible brand of génocidaire.
The
permanence of the genocide definition
1
over more than five decades is remarkable considering how much criticism has been directed against it since the adoption of the Genocide Convention in 1948.
2
The existence of a stable internationally agreed definition of genocide presents indubitable advantages, particularly if compared with the lasting uncertainties in the definition of other international crimes, such as crimes against humanity. However, the genocide definition is also characterised by a number of problematic aspects and unresolved interpretative questions, some of which have been addressed in the decisions of the
ad hoc
Tribunals for the Former Yugoslavia and for Rwanda.
3
Divergent approaches to the
mens rea
requirement, to the definition of the four protected groups against whom genocide can be committed, or to the identification of acts that constitute genocide had been confined to an exclusively academic ambit until not long ago, but can now be determinative of an acquittal or conviction. With the exception of one decision by the ICTY,
4
all other judgments on genocide have come from the ICTR, in whose custody are some of the most prominent members of the interim government and of the militias accused of having organised and carried out the 1994 Rwandan genocide.
5
This article examines the psychological and cultural-societal origins of genocide and mass killing, with a focus on the Holocaust. Difficult conditions of life in a society, like severe economic problems or political conflict and violence, give rise to powerful needs—for security, protection of the psychological self, comprehension, connection, and hope. Certain cultural-societal characteristics create a predisposition for group violence. They include devaluation of a subgroup, strong respect for authority, a monolithic culture, certain societal self-concepts, and a history of aggression. They intensify needs and make it probable that the group deals with them by scapegoating, usually a subgroup of society “preselecte” by the history of cultural devaluation, by adopting nationalistic and/or “better world” ideologies that identify the victims as the enemy, and by joining movements. As perpetrators begin to harm victims, they change. Their evolution, with steps along a continuum of destruction, ends in genocide or mass killing. Both internal bystanders, members of the society, and external ones including other nations, usually remain passive, which encourages perpetrators. Internal bystanders share with perpetrators a “societal tilt” and psychological processes like just world thinking, moral equilibration, and the exclusion of victims from the moral realm. Passivity changes bystanders and some evolve into perpetrators. People who endanger themselves to help victims are guided by moral values and empathy and in contrast to perpetrators (and bystanders) are “inclusive.” They also change as a result of their own actions, and even if at first motivated by ties to specific victims, many develop intense commitment to helping.