DISABLED AS A PROTECTED GROUP FOR THE PURPOSE OF GENOCIDE

Abstract

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.

Full text

MEĐUNARODNI NAUČNI SKUP „DANI ARČIBALDA RAJSA“
TEMATSKI ZBORNIK RADOVA MEĐUNARODNOG ZNAČAJA
INTERNATIONAL SCIENTIFIC CONFERENCE “ARCHIBALD REISS DAYS”
THEMATIC CONFERENCE PROCEEDINGS OF INTERNATIONAL SIGNIFICANCE

MEĐUNARODNI NAUČNI SKUP
INTERNATIONAL SCIENTIFIC CONFERENCE
„DANI ARČIBALDA RAJSA“
“ARCHIBALD REISS DAYS”
Beograd, 10-11. mart 2016.
Belgrade, 10-11 March 2016
TEMATSKI ZBORNIK RADOVA
MEĐUNARODNOG ZNAČAJA
THEMATIC CONFERENCE PROCEEDINGS
OF INTERNATIONAL SIGNIFICANCE
TOM I
VOLUME I
KRIMINALISTIČKOPOLICIJSKA AKADEMIJA
Beograd, 2016
ACADEMY OF CRIMINALISTIC AND POLICE STUDIES
Belgrade, 2016

Publisher
ACADEMY OF CRIMINALISTIC AND POLICE STUDIES
Belgrade, 196 Cara Dušana Street (Zemun)
Editor-in-Chief
DRAGANA KOLARIĆ, PhD
Academy of Criminalistic and Police Studies
Editors
ĐORĐE ĐORĐEVIĆ, PhD, Academy of Criminalistic and Police Studies
MILAN ŽARKOVIĆ, PhD, Academy of Criminalistic and Police Studies
DRAGAN RANĐELOVIĆ, PhD, Academy of Criminalistic and Police Studies
BOBAN MILOJKOVIĆ, PhD, Academy of Criminalistic and Police Studies
DANE SUBOŠIĆ, PhD, Academy of Criminalistic and Police Studies
SAŠA MIJALKOVIĆ, PhD, Academy of Criminalistic and Police Studies
OBRAD STEVANOVIĆ, PhD, Academy of Criminalistic and Police Studies
ZORAN ĐURĐEVIĆ, PhD, Academy of Criminalistic and Police Studies
TIJANA ŠURLAN, PhD, Academy of Criminalistic and Police Studies
NIKOLA MILAŠINOVIĆ, PhD, Academy of Criminalistic and Police Studies
DRAGOSLAVA MIĆOVIĆ, MA, Academy of Criminalistic and Police Studies
ematic Proceedings Reviewers
Full Professor OLIVIER RIBAUX, PhD
School of Criminal Justice, Faculty of Law, Criminal Justice and Public Administration, University
of Lausanne, Switzerland
Associate Professor GABOR KOVACS, PhD
Faculty of Law Enforcement, National University of Public Service, Hungary
Full Professor JOZEF METENKO, LLD
Academy of Police Force in Bratislava, Slovakia
Associate Professor SNEŽANA MOJSOSKA, PhD
Faculty of Security, University “St Climent Ohridski”, Macedonia
Associate Professor GEORGICĂ PANFIL, PhD
“Alexandru Ioan Cuza” Police Academy, Romania
Impression
200 copies
Print
PEKOGRAF, Belgrade
THE CONFERENCE AND THE PUBLISHING OF PROCEEDINGS
WERE SUPPORTED BY THE MINISTRY OF EDUCATION AND SCIENCE
OF THE REPUBLIC OF SERBIA
© 2016 Academy of Criminalistic and Police Studies, Belgrade
ISBN 978-86-7020-356-3
ISBN 978-86-7020-190-3

Izdavač
KRIMINALISTIČKO-POLICIJSKA AKADEMIJA
Beograd, Cara Dušana 196 (Zemun)
Glavni i odgovorni urednik
prof. dr DRAGANA KOLARIĆ
Kriminalističko-policijska akademija
Urednici
prof. dr ĐORĐE ĐORĐEVIĆ, Kriminalističko-policijska akademija
prof. dr MILAN ŽARKOVIĆ, Kriminalističko-policijska akademija
prof. dr DRAGAN RANĐELOVIĆ, Kriminalističko-policijska akademija
prof. dr BOBAN MILOJKOVIĆ, Kriminalističko-policijska akademija
prof. dr DANE SUBOŠIĆ, Kriminalističko-policijska akademija
prof. dr SAŠA MIJALKOVIĆ, Kriminalističko-policijska akademija
prof. dr OBRAD STEVANOVIĆ, Kriminalističko-policijska akademija
prof. dr ZORAN ĐURĐEVIĆ, Kriminalističko-policijska akademija
prof. dr TIJANA ŠURLAN, Kriminalističko-policijska akademija
doc. dr NIKOLA MILAŠINOVIĆ, Kriminalističko-policijska akademija
DRAGOSLAVA MIĆOVIĆ, MA, Kriminalističko-policijska akademija
Recenzenti Zbornika radova
prof. dr OLIVIJE RIBO
Univerzitet u Lozani, Švajcarska
prof. dr GABOR KOVAČ
Policijska akademija, Nacionalni univerzitet za javnu službu, Mađarska
prof. dr JOZEF METENKO
Policijska akademija, Bratislava, Slovačka
prof. dr SNEŽANA MOJSOSKA
Fakultet bezbednosti, Univerzitet “Sv. Kliment Ohridski”, Makedonija
prof. dr George Panl
Policijska akademija “Aleksandru Joan Kuza”
Tiraž
200 primeraka
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PEKOGRAF, Beograd
ODRŽAVANJE SKUPA I ŠTAMPANJE OVOG ZBORNIKA PODRŽALO JE
MINISTARSTVO PROSVETE, NAUKE I TEHNOLOŠKOG RAZVOJA
REPUBLIKE SRBIJE
© 2016 Kriminalističko-policijska akademija, Beograd
ISBN 978-86-7020-356-3
ISBN 978-86-7020-190-3

INTERNATIONAL SCIENTIFIC CONFERENCE
“ARCHIBALD REISS DAYS”
THE HONORARY COMMITTEE
Mladen Bajagić, PhD, Acting Dean of the Academy of Criminalistic and Police Studies, President
Dragana Kolarić, LLD, Acting Vice Dean of the Academy of Criminalistic and Police Studies
Tijana Šurlan, LLD, Acting Vice Dean of the Academy of Criminalistic and Police Studies
Sima Avramović, LLD, Dean of the Faculty of Law, Belgrade
Zoran Stojanović, LLD, Full Professor, Faculty of Law, Belgrade
Ivica Radović, PhD, Dean of the Faculty of Security, Belgrade
Major-General Goran Zeković, Spec., Head of the Military Academy, Belgrade
Ambassador Ljiljana Nikšić, PhD, Head of the Department for Migration Policy and Diaspora,
Ministry of Foreign Aairs of the Republic of Serbia
Academician Dragoljub Živojinović, Serbian Academy of Sciences and Arts
Jovan Ćirić, PhD, Director of the Institute of Comparative Law, Belgrade
Branislav Đorđević, PhD, Director of the Institute of International Politics and Economics, Belgrade
Momčilo Pavlović, PhD, Director of the Institute for Contemporary History, Belgrade
International members
Zvonimir Jovanović, President of the Serbian-Swiss Friendship Association “Dr. Archibald Reiss”
Olivier Ribaux, PhD, Director of the School of Criminal Justice, University of Laussane, Switzerland
Marcelo Aebi, PhD, Deputy Director of the School of Criminal Justice, University of Laussane, Switzerland
Barry Lituchy, PhD, University of California, Berkeley, Director of the Jasenovac Research Institute, USA
Wang Shiquan, PhD, President of the National Police University of China
Vladimir Tretyakov, LLD, Chief of the Volgograd Academy of the Russian Internal Aairs Ministry
José García Molina, PhD, Director of the National Police Academy, Ávila, Spain
Major Knut oresen, Researcher of the „Simon Wiesenthal“ Centre, Norwey
Hélène Martini, PhD, Director of the France’s National Police College and President of the Associa-
tion of European Police Colleges
Norbert Leitner, PhD, Vice President of the Association of European Police Colleges and Director of
SIAK, Vienna, Austria
Major-General Valeriy Vyacheslavovich Sereda, LLD, Rector of the Lviv State University of Internal Aairs, Ukraine
Major-general Vladimir Bachila, LLD, Head of the Academy of the Interior Ministry of the Republic of Belarus
Gheorghe Popa, PhD, Rector of the Police Academy “Alexandru Ioan Cuza”, Bucharest, Romania
Simon Carp, PhD, Rector of the Academy “Stefan cel Mare”, Ministry of Interior of the Republic of Moldova
Piotr Bogdalski, LLD, Commandant-Rector of the Police Academy, Szczytno, Poland
Lucia Kurilovská, PhD, Rector of the Academy of Police Force, Bratislava, Slovakia
Jozef Meteňko, PhD, Academy of Police Force, Bratislava, Slovakia
Milorad Kojić, PhD, Centre for the Investigation of War, War Crimes and the Search
for Missing Persons, Republika of Srpska
Duško Pena, MA, Director of the Police College, Republic of Srpska
Mile Šikman, PhD, MoI of the Republic of Srpska
Count Philippe Piccapietra, Honourable President of the the Serbian-Swiss Friendship Association
“Dr. Archibald Reiss”, Switzerland
Nedžad Korajlić, PhD, Dean of the Faculty for Criminal Justice, Criminology and Security Studies,
University of Sarajevo, Bosnia and Herzegovina
Zoltán Rajnai, PhD, Bánki Donát Faculty, Óbuda University, Hungary
Andrej Sotlar, PhD, Dean of the Faculty of Criminal Justice and Security, Ljubljana, University of Maribor, Slovenia
Ivan Toth, PhD, Dean of the University of Applied Sciences Velika Gorica, Croatia
Oliver Bačanović, PhD, Dean of the Faculty of Security, Skopje, Macedonia
Dragan Radonjić, LLD, Dean of the Faculty of Law, Podgorica, Montenegro
Milica Pajović, Dean of the Police Academy, Danilovgrad, Montenegro
THE PROGRAMME COMMITTEE
Đorđe Đorđević, PhD, Academy of Criminalistic and Police Studies, President
Milan Žarković, PhD, Academy of Criminalistic and Police Studies
Dragan Ranđelović, PhD, Academy of Criminalistic and Police Studies
Boban Milojković, PhD, Academy of Criminalistic and Police Studies
Dane Subošić, PhD, Academy of Criminalistic and Police Studies
Saša Mijalković, PhD, Academy of Criminalistic and Police Studies
Obrad Stevanović, PhD, Academy of Criminalistic and Police Studies
Zoran Đurđević, PhD, Academy of Criminalistic and Police Studies
Nikola Milašinović, PhD, Academy of Criminalistic and Police Studies
Dragoslava Mićović, PhD, Academy of Criminalistic and Police Studies

MEĐUNARODNI NAUČNI SKUP
„DANI ARČIBALDA RAJSA”
POČASNI ODBOR
prof. dr Mladen Bajagić, v. d. dekana Kriminalističko-policijske akademije, predsednik
prof. dr Dragana Kolarić, v. d. prodekana Kriminalističko-policijske akademije
prof. dr Tijana Šurlan, v. d. prodekana Kriminalističko-policijske akademije
prof. dr Sima Avramović, dekan Pravnog fakulteta, Beograd
prof. dr Zoran Stojanović, redovni profesor Pravnog fakulteta, Beograd
prof. dr Ivica Radović, dekan Fakulteta bezbednosti, Beograd
general-major spec. Goran Zeković, načelnik Vojne akademije, Beograd
ambasador dr Ljiljana Nikšić, načelnik Odeljenja za migracionu politiku, dijasporu,
socijalne sporazume i kulturu sećanja, Ministarstvo spoljnih poslova
akademik Dragoljub Živojinović, Srpska akademija nauka i umetnosti
dr Jovan Ćirić, direktor Instituta za uporedno pravo, Beograd
prof. dr Branislav Đorđević, direktor Instituta za međunarodnu politiku i privredu, Beograd
dr Momčilo Pavlović, direktor Instituta za savremenu istoriju, Beograd
Članovi iz inostranstva
Zvonimir Jovanović, predsednik Društva srpsko-švajcarskog prijateljstva „Dr Arčibald Rajs“
prof. dr Olivier Ribaux, direktor Fakulteta za kriminalistiku, Univerzitet u Lozani, Švajcarska
prof. dr Marcelo Aebi, zamenik direktora Instituta za kriminologiju, Lozana, Švajcarska
prof. dr Barry Lituchy, Univerzitet Berkli, direktor Institut za istraživanje zločina u Jasenovcu, SAD
prof. dr Wang Shiquan, predsednik Nacionalnog policijskog univerziteta Kine
prof. dr Vladimir Tretjakov, načelnik Volgogradske akademije Ministarstva unutrašnjih poslova Rusije
prof. dr José García Molina, direktor Nacionalne policijske akademije, Ávila, Španija
major Knut oresen, istraživač Centra „Simon Vizental“, Norveška
Hélène Martini, predsednica Asocijacije evropskih policijskih koledža i direktorka
Francuskog nacionalnog policijskog koledža
dr Norbert Leitner, potpredsednik Asocijacije evropskih policijskih koledža i direktor
SIAK Policijske akademije, Beč, Austrija
general-major prof. dr Valerij Vjačeslavovič Sereda, rektor Državnog univerziteta
unutrašnjih poslova, Lavov, Ukrajina
general-major doc. dr Vladimir Bačila, načelnik Akademije MUP R. Belorusije
prof. dr Gheorghe Popa, rektor Policijske akademije „Alexandru Ioan Cuza“, Bukurešt, Rumunija
prof. dr Simon Carp, rektor Akademije “Stefan cel Mare”, MUP R. Moldavije
prof. dr Piotr Bogdalski, komandant-rektor Policijske akademije, Ščitno, Poljska
doc. dr Lucia Kurilovská, rektor Policijske akademije, Bratislava, Slovačka
prof. dr Jozef Meteňko, Policijska akademija, Bratislava, Slovačka
dr Milorad Kojić, Republički centar za ratne zločine, Banja Luka, R. Srpska
mr Duško Pena, direktor Visoke škole unutrašnjih poslova, Republika Srpska
dr Mile Šikman, MUP Republike Srpske
grof Philippe Piccapietra, počasni predsednik Društva srpsko-švajcarskog prijateljstva
„Dr Arčibald Rajs“, Švajcarska
prof. dr Nedžad Korajlić, dekan Fakultet za kriminalistiku, kriminologiju i sigurnosne studije,
Univerzitet u Sarajevu, BiH
prof. dr Zoltan Rajnai, Fakultet Banki Donat, Univerzitet Obuda, Mađarska
prof. dr Andrej Sotlar, dekan Fakulteta bezbednosnih studija, Ljubljana,
Univerzitet u Mariboru, Slovenija
prof. mr. sc. Ivan Toth, dekan Veleučilišta Velika Gorica, Hrvatska
prof. dr Oliver Bačanović, dekan Fakulteta bezbednosti, Skoplje, Makedonija
prof. dr Dragan Radonjić, dekan Pravnog fakulteta, Podgorica, Crna Gora
Milica Pajović, direktorka Policijske akademije, Danilovgrad, Crna Gora
PROGRAMSKI ODBOR
prof. dr Đorđe Đorđević, Kriminalističko-policijska akademija, predsednik
prof. dr Milan Žarković, Kriminalističko-policijska akademija
prof. dr Dragan Ranđelović, Kriminalističko-policijska akademija
prof. dr Boban Milojković, Kriminalističko-policijska akademija
prof. dr Dane Subošić, Kriminalističko-policijska akademija
prof. dr Saša Mijalković, Kriminalističko-policijska akademija
prof. dr Obrad Stevanović, Kriminalističko-policijska akademija
prof. dr Zoran Đurđević, Kriminalističko-policijska akademija
doc. dr Nikola Milašinović, Kriminalističko-policijska akademija
dr Dragoslava Mićović, Kriminalističko-policijska akademija

PREFACE
Dear readers,
In front of you is the ematic Collection of Papers presented at the International Scientif-
ic Conference “Archibald Reiss Days”, which was organized by the Academy of Criminalistic
and Police Studies in Belgrade, in co-operation with the Ministry of Interior and the Ministry
of Education, Science and Technological Development of the Republic of Serbia, National Po-
lice University of China, Lviv State University of Internal Aairs, Volgograd Academy of the
Russian Internal Aairs Ministry, Faculty of Security in Skopje, Faculty of Criminal Justice
and Security in Ljubljana, Police Academy “Alexandru Ioan Cuza“ in Bucharest, Academy of
Police Force in Bratislava and Police College in Banjaluka, and held at the Academy of Crim-
inalistic and Police Studies, on 10 and 11 March 2016.
e International Scientic Conference “Archibald Reiss Days” is organized for the sixth
time in a row, in memory of the founder and director of the rst modern higher police school
in Serbia, Rodolphe Archibald Reiss, PhD, aer whom the Conference was named.
e ematic Collection of Papers contains 165 papers written by eminent scholars in
the eld of law, security, criminalistics, police studies, forensics, informatics, as well as by
members of national security system participating in education of the police, army and other
security services from Belarus, Bosnia and Herzegovina, Bulgaria, China, Croatia, Greece,
Hungary, Macedonia, Montenegro, Romania, Russian Federation, Serbia, Slovakia, Slovenia,
Spain, Switzerland, Turkey, Ukraine and United Kingdom. Each paper has been double-blind
peer reviewed by two reviewers, international experts competent for the eld to which the
paper is related, and the ematic Conference Proceedings in whole has been reviewed by ve
competent international reviewers.
e papers published in the ematic Collection of Papers contain the overview of con-
temporary trends in the development of police education system, development of the police
and contemporary security, criminalistic and forensic concepts. Furthermore, they provide us
with the analysis of the rule of law activities in crime suppression, situation and trends in the
above-mentioned elds, as well as suggestions on how to systematically deal with these issues.
e Collection of Papers represents a signicant contribution to the existing fund of scientic
and expert knowledge in the eld of criminalistic, security, penal and legal theory and prac-
tice. Publication of this Collection contributes to improving of mutual cooperation between
educational, scientic and expert institutions at national, regional and international level.
e ematic Collection of Papers “Archibald Reiss Days”, according to the Rules of pro-
cedure and way of evaluation and quantitative expression of scientic results of researchers,
passed by the National Council for Scientic and Technological Development of the Republic
of Serbia, as scientic publication, meets the criteria for obtaining the status of thematic col-
lection of papers of international importance.
Finally, we wish to extend our gratitude to all the authors and participants in the Confer-
ence, as well as to all those who contributed to or supported the Conference and publishing of
this Collection, especially to the Ministry of Interior and the Ministry of Education, Science
and Technological Development of the Republic of Serbia.
Belgrade, June 2016 e Programme Committee

THE DISABLED AS A PROTECTED GROUP
FOR THE PURPOSE OF GENOCIDE
Dragan Dakić, PhD candidate1
University of Banja Luka, Bosnia and Herzegovina
Abstract :e 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”. e 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. e ndings that were reached
through the discussion are that the group of the disabled has all the characteristics as
the other protected groups, which qualies 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 dening 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. ere 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.
Key words: disabled, genocide, protected groups.
INTRODUCTION
As it has been settled through the theory and case law, there must be three elements pres-
ent to consider an act as constituting the crime of genocide. ose elements are: the iden-
tiable act (actus reus), the victimized group and the intent (mens rea). is article refers
to the second element, the victimized group, in order to explore whether the group of the
disabled people could be considered as a protected group under the international instruments
prohibiting the crime of genocide. e investigation begins with a general discussion about
the possible ways to identify if some group could obtain the victim status. In this regard, the
theory and case law of the relevant judicial bodies oer both exclusive and extensive approach
to identifying protected groups.
Within the section which addresses the exclusive approach it has been referred to the
travaux préparatoires of the Conventionon the Prevention and Punishment of the Crime
ofGenocide (Genocide Convention), the case law of the tribunal for the Former Yugoslavia
(ICTY), and scholarly arguments. Bearing in mind considerable support that the exclusive
1 E-mail: dragan.dakic@unibl.rs.

THE DISABLED AS A PROTECTED GROUP FOR THE PURPOSE OF GENOCIDE 297
approach receives, it has been further discussed which is the scope of the protected groups
and which are the operating criteria for dening the meaning of the enumerated categories.
Unlike the rm exclusive approach to the issue of which groups are protected, a relaxed ap-
proach appears to dominate when dening the scope and meaning of the concepts of nation-
al, ethnical, racial and/or religious groups. In this light, the interpreting strategies applied by
the international tribunals unequivocally opt for the extensive approach when dening the
scope of the enumerated categories. However, in order to be identied as a victim of genocide,
the targeted group needs to be exhaustive and exclusive; substantially valuable to mankind;
and permanent to the degree that membership is, for the most part, involuntary. In this re-
gard, the operation of the subjective and objective criteria for group identication have been
presented which were applied in case law and argued in favor of a combined criterion, which
is from its own part, inclusive in regard to the recognition of new victimized groups. is gave
rise to the investigation of whether the group of the disabled could be subsumed under any
of the protected groups.
e following subsection briey addressed whether the disabled could be subsumed un-
der the category of a national group, which has been rejected. It has been noted, however,
that the disabled could be associated with the notion of a racial group since they could meet
the requirements of the legal denition of that group. Considering the additional common
features of the protected groups, that is, the recognition of the general group rights under
the international human rights law, the following subsection addressed what reections the
group rights of the disabled could have to their recognition as a protected group. e group
rights are the formal criterion, for the discussion in this subsection refers to the importance
and operation of formal criteria in the relevant case law. Bearing in mind that other groups
such as political or social also have recognized group rights under the human rights law but
they are explicitly precluded from protection against genocide, it has been pointed to perma-
nency as the distinctive trait between the group of the disabled and other comparable groups.
e group permanency has been emphasized as a decisively signicant property in the group
identication by the International Criminal Tribunal for Rwanda (ICTR).
e latter section is concerned with the most appropriate interpretative approach to the
group identication for the purpose of genocide keeping in mind the ndings from the previ-
ous discussion that the disabled could obtain the victim status. In this section, the teleological
interpretation of the Genocide Convention has been proposed. e teleological interpretation
is vindicated by the historical context of the crime and its doctrinal background.
GROUP IDENTIFICATION EXCLUSIVE APPROACH
Following the wording of the cited instruments, it appears that only national, ethnical, ra-
cial or religious groups are protected against genocide while the members of any other group
are precluded of collective protection. Although suchlike narrowness has been the subject of
criticism,2 it appears that the exclusive approach dominates. As to the travaux préparatoires,
the social and economic groups for instance, were purposely excluded from the Genocide
Convention,3 which settles the limits to its interpretation4 in regard to them. Also, the case
2 In this regard Schaack argues that the Genocide Convention merely sets a “basic minimum.” See Beth
Van Schaack, e Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot, 106 YALE
L.J. 2277 (1997).
3 See David Shea Bettwy, e Genocide Convention and Unprotected Groups: Is e Scope of Protection
Expanding under Customary International Law, Notre Dame Journal of International & Comparative
Law (2011) 167-196.
4 Vienna Convention on the Law of Treaties, art. 31(1), UN Doc. A/CONF.39/27 (1969)

Dragan Dakić
298
law dominantly upheld the exclusive approach when considering protected groups.5 In this
regard, the prosecutor of the ICTY explained that a strict interpretation is needed to “justi-
fy the appellation of genocide as the ‘ultimate crime.’”6 ere is also considerable academic
support to such approach: Bettwy considers that the departure from the Convention’s enu-
meration is in danger of disregarding the object and purpose of the Convention, and that the
interest in maintaining the prestige of the crime of genocide is an ongoing force that limits the
scope of the protected groups;7 Schabas maintains that the Convention “does not even invite
application to what might be called analogous groups.”8 A subsequent normative activity in
this branch also follows a restrictive approach in the interpretation of the protected groups.
e protection of social, political, and cultural groups has been considered by the draers of
the Rome Statute,9 but the nal version settled on the Convention’s four-group enumeration.10
In this regard, Plessis argues that “[i]n respect of the Rome Statute, the draers have evinced
a clear intention to limit the groups to the four identied by the Genocide Convention.”11
For, we can grant that it is crucial to determine whether the victimized group falls within the
scope of one or more of the listed groups in the Article 2 of the Genocide Convention, i.e. to
determine the scope of the protected groups.
THE MEANING OF ENUMERATED CATEGORIES
AND OPERATING CRITERIA
As to the meaning of the categories enumerated in the Genocide Convention it should be
emphasised that those are “social constructs, not scientic expressions.”12 According to the
case law of the ICTR, “the concepts of national, ethnical, racial and religious groups have been
researched extensively and that, at present, there are no generally and internationally accepted
precise denitions thereof.”13 Similarly, ICTY considered that “to attempt to dene a national,
ethnical or racial group today using objective and scientically irreproachable criteria would
be a perilous exercise” and, accordingly, suggested that the targeted groups be categorized
based on the specic context of each case.14 Aer comprehensive analysis of the concerning
case law of the ICTR and the ICTY, taking into consideration the criteria that were applied
when determining the victim group, Young concludes that the Genocide Convention oers
no decisive guidance as to how a victim group is to be dened.15 erefore, considering that
5 Except in Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, pars 511, 516.
6 See Prosecutor v. Karadžić and Mladić, Case No. IT-95-18-I, Transcript of Hearing, Opening Statement
of Eric Ostberg, Prosecutor of the ICTY at 25 (Int’l Crim. Trib. for the Former Yugoslavia Jun. 27, 1996),
7 David Shea Bettwy, e Genocide Convention and Unprotected Groups: Is e Scope of Protection
Expanding under Customary International Law Notre Dame Journal of International & Comparative
Law (2011) 174.
8 William A. Schabas, Genocide in International Law (Cambridge University Press 2d ed. 2009) 117.
9 See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the
International Criminal Court, Rome, It., Text of the Dra Statute for the International Criminal Court, 2
UN Doc. A/AC.249/1998/CRP.8 (Mar.–Apr. 1988).
10 See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International
Criminal Court, Rome, It., June 15–17, 1998, Report of the Preparatory Committee on the Establishment of
an International Criminal Court, 13, n.2, U.N. Doc. A/CONF.183/2/Add.1 (Apr. 14, 1998).
11 Max du Plessis, ICC Crimes, in THE PROSECUTION OF INTERNATIONAL CRIMES 35, 36 (Ben
Brandon & Max du Plessis eds., 2005) 11
12 William A. Schabas, Genocide in International Law (Cambridge University Press 2d ed. 2009) 129.
13 Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment and Sentence, para 55 (Dec. 6, 1999),
14 Prosecutor v. Jelisić, Case No. IT-95-10-T, Judgment, para 70 (Int’l Crim. Trib. for the Former
Yugoslavia Dec. 14,1999), http://www.icty.org/x/cases/jelisic/tjug/en/jel-tj991214e.pdf.
15 Rebecca Young, How Do We Know em When We See em? e Subjective Evolution in the Identi
cation of Victim Groups for the Purpose of Genocide International Criminal Law Review 10 (2010) 21.

THE DISABLED AS A PROTECTED GROUP FOR THE PURPOSE OF GENOCIDE 299
the introduced groups are unaccompanied by authoritative denitions, 16 there is room for
examination if the disabled could be subsumed under the scope of the one or more listed
groups. e starting point herein could be the determination of general features shared by
the listed categories. When examining the Genocide Convention’s travaux préparatoires and
consideration of subsequent international practice Bettwy maintains that it demonstrates that
the scope of protected groups is governed by three fundamental rules:17
1. the scope of protected groups must be exhaustive and exclusive so as to respect the
prestige of the crime of genocide;
2. the groups included must be substantially valuable to mankind, so that their loss would
be a great loss to the human race as a whole; 18 and
3. the groups included must be permanent and stable to the degree that membership is,
for the most part, involuntary.
As to the rst rule, it could be noted that membership in the group is involuntary and
mostly grounded on objective traits. As to the remaining rules it should be stated that (the
second rule) the inclusive concept embraces disability as a universal human variation rather
than an aberration19 and as such it is valuable to mankind; (the third rule) membership in
this group is for the most part permanent and doesn’t depend upon the will of its members.
For, the group of the disabled meets the fundamental rules that determine the scope of the
protected groups.
e case law even considers the subjective traits of the group as seen by the perpetrators
leaving the determination of the group to their subjective approach.20 e subjective determi-
nation of the protected groups was, in fact, the only applicable standard in the situation as it
was in Darfur (victim and perpetrator oen share a common language, religion and physical
appearance). 21 e Darfur Report said that objective approaches have not been superseded,
but that groups “are no longer identied only by their objective connotations but also on the
basis of the subjective perceptions of the members of groups”22 According to Verdirame, this
is due to the fact that social constructs such as collective identities, and in particular ethnic-
ity, “are not veriable in the same manner as natural phenomena or physical facts.”23 is is
line with the fact that Shaw considers that the “genocide is an attempt to destroy a group of
people, regardless of how far the groups dened by perpetrators correspond to ‘real’ groups,
inter subjectively recognized by their members or objectively identiable by observers”.24 At
the pin of the pro-subjective approach are Chalk and Jonassohn who suggested that the group
16 David Shea Bettwy, e Genocide Convention and Unprotected Groups: Is e Scope of Protection
Expanding under Customary International Law, Notre Dame Journal of International & Comparative
Law (2011) 167-196.
17 David Shea Bettwy, e Genocide Convention and Unprotected Groups: Is e Scope of Protection
Expanding under Customary International Law Notre Dame Journal of International & Comparative
Law (2011) 167-196.
18 According to the Lemkin central conception of genocide involves the loss of a unique group which
impoverishes the human community. See David Luban, Calling Genocide by Its Rightful Name: Lemkin’s
Word, Darfur and the UN Report, (2006) 7 Chicago Journal of International Law 1, 16 (note added).
19 Michael Ashley Stein, Disability Human Rights, California Law Review (2007), 76.
20 Prosecutor v. Jelisic, Judgment, IT-95-10-T, 14 December 1999, para. 70.
21 See Yusuf Aksar, e “victimized group” concept in the Genocide Convention and the development
of international humanitarian law through the practice of ad hoc tribunals, Journal of Genocide Research
(2003), 5(2), June, 212.
22 Report of the International Commission of Inquiry on Darfur to the Secretary-General pursuant to
Security Council resolution 1564 (2004) of 18 September 2004, 1 February 2005, UN Doc S/2005/60
para. 512.
23 Guglielmo Verdirame,  e Genocide Denition in the Jurisprudence of the Ad Hoc Tribunals,
International and Comparative Law Quarterly (2000):49, 578-598, at 588.
24 Martin Shaw, What is Genocide? (Polity Press, 2007), 102,3

Dragan Dakić
300
for the purpose of genocide may even be imaginary.25 Shaw invokes an essentially teleological
objection to purely subjectively dened 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”.27 Evi-
dently, the case law favors the combined approach to group identication.28 As to the disabled,
they are objectively determined group, but due to the widespread social model of disability,
there is also room for subjective perception of the disability.
EXTENSIVE APPROACH
In any event, the scope of the listed categories cannot be interpreted narrowly. In this
regard Amann suggests that the Genocide Convention denition should extend not only to
the paradigm categories, but also to groups properly associated with one or more enumerated
adjective.29 If we examine whether the disabled could be subsumed under the national group
we should recall that the genesis of the crime of genocide itself can be traced back to earlier
international legal protection of the so-called national minorities.30 Young oers the consid-
eration that a national group also cannot be identied entirely subjectively or objectively.31 An
interesting parallel could be drawn from Quigley who argued that Khmers should be consid-
ered as a national group, and that the Khmer Rouge committed “auto-genocide” with intent to
destroy, “in part,” the Khmers as a national group in order to support his determination of the
genocide in Cambodia.32 But, considering that mass killing that occurred in Cambodia was
not qualied as genocide, subsuming the disabled under the national group would require too
extensive interpretation of the scope of that group. More likely, the disabled could be iden-
tied within the scope of the racial group. A racial group has been dened as “based on the
hereditary physical traits oen identied with a geographical region, irrespective of linguistic,
cultural, national or religious factors.”33
GROUP RIGHTS AND FORMAL CRITERION
Another feature common to the four protected groups is the possession of general group
rights under the international human rights law. 34 e possession of the general group rights
25 Frank Chalk and Kurt Jonassohn,  e History and Sociology of Genocide: Analyses and Case Studies
(New Haven: Yale University Press, 1990), at 23, 25-26.
26 Martin Shaw, What is Genocide? (Polity Press, 2007), 102,3
27 W. A. Schabas, e Law and Genocide, in D. Bloxham and A. D. Moses (eds.). e Oxford Handbook
of Genocide Studies (2010), 134.
28 Prosecutor v Brdanin , Case IT-99-36, Judgment of 1 September 2005 (Trial Chamber), para. 684.
29 Diane Marie Amann, Group Mentality, Expressivism, and Genocide, International Criminal Law
Review 2:141.
30 Matthew Lippman, e Convention on the Prevention and Punishment of Genocide: Fiy Years
Later, Arizona Journal of International and Comparative Law (1998):15, 415, 422;
31 Rebecca Young, How Do We Know em When We See em? e Subjective Evolution in the
Identication of Victim Groups for the Purpose of Genocide International Criminal Law Review 10
(2010) 1–22, 9.
32 John Quigley, Introduction to Genocide in Cambodia 1, 2 (Howard J. De Nike et al. eds., 2000).
33 Trial Chamber, Akayesu Judgement, paras 6.3.1.304–305; Trial Chamber, Kayishema and Ruzindana
Case, Judgement, para 98
34 David Shea Bettwy, e Genocide Convention and Unprotected Groups: Is e Scope of Protection
Expanding under Customary International Law Notre Dame Journal of International & Comparative
Law (2011) 191.

THE DISABLED AS A PROTECTED GROUP FOR THE PURPOSE OF GENOCIDE 301
in international human rights law Bettwy nds as supportive to the addition of new groups to
the enumeration.35 Under this approach the group which has recognized collective rights has
the victim standing for the purpose of genocide. e merit of this approach is explained by Bet-
twy who pointed to the example of the indigenous peoples.36 Essentially this approach is also
formalistic. e importance of the formal criterion in the identication of the protected group
has been rearmed through relevant case law. Namely, the Tutsi were recognized as a stable
and permanent protected group based on the existence of an ocial classication system in the
legal system.37 Also, in Krstić, the constitutional recognition of Bosnian Muslims as a nation
has been used to identify them as a protected group.38 e disabled meets the collective rights
criterion as they are recognized at the national as well as at the international level39 as a group
which possesses group rights in the international human rights law. e protection against
genocide could be considered as a status-dierentiated right possessed by the disabled in the
meaning of the term as dened by Baisley.40
If the disabled are to be classied as a social group it should be emphasized that they be-
come identiable members of the group even prior to birth, “in a continuous and oen irreme-
diable manner,” in contrast to “the more “mobile” groups which one joins through individual
voluntary commitment, such as political and economic groups.”41 For, the disabled should be
clearly distinguished from other social groups for the purpose of genocide, and excluded from
other social groups42 that are non-stable and non-permanent Aksar, among others, rmly crit-
icizes this.43 He maintains that the political, economic and social groups have become more
important than national, ethnic, racial or religious groups which is one of the reasons why
non-prosecution and punishment of responsible persons involved in mass killings of human
being should not be dependent on the deciency of the denition of genocide in the Conven-
tion. 44 Aksar argues that the case law of “the ICTR proved that the protected groups are not
limited to national, ethnic, racial or religious groups, and that any groups, as long as they are
stable and permanent, can fall under the protection of the Genocide Convention.”45 When ex-
amining if the enumerated groups are limited or not, the ICTR considered that “the intention
of the draers of the Genocide Convention, which … was patently to ensure the protection of
any stable and permanent group.”46
HOW TO INTERPRET
At this point, it could be nally granted that the disabled could obtain the victim standing
either through one of the enumerated groups or separately based on their group permanency.
Also, this approach could be rmly supported through the teleological interpretation of the
Genocide Convention. e teleological interpretation is one of the crucial when it comes to
the implementation of the international treaties that “shall be interpreted in good faith in
35 Ibid.
36 Ibid, 167-196.
37 Judgment, Akayesu , (ICTR-96-4-T), Trial Chamber, 2 September 1998, §§ 170, 702.
38 Judgment, Krstić , (IT-98-33-T), Trial Chamber, 2 August 2001, § 559.
39 adopted UN General Assembly December 2006, GA Res A/RES/61/106, 24 January 2007,
40 Elizabeth Baisley Status-Dierentiated Rights, Journal of Human Rights, (2012):11, 365–383.
41 Trial Chamber, Akayesu Case, Judgement, paras 6.3.1.296–297.
42 Political groups are not included in the list of protected groups; see U.N. GAOR, 3rd session, 6th
Committee, p. 664.
43 Yusuf Aksar, e “victimized group” concept in the Genocide Convention and the development of
international humanitarian law through the practice of ad hoc tribunals Journal of Genocide Research
(2003), 5(2), June, 218.
44 Ibid.
45 Ibid, 217.
46 Trial Chamber, Akayesu Case, Judgement, paras 6.3.1.306–307.

Dragan Dakić
302
accordance with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose”.47 For instance, theological interpretation has been
applied by the Trial Chamber in Kambanda which found that the Genocide Convention is a
milestone international eort to “liberate humanity” from this “unique” crime.48 Perhaps the
root of suchlike interpretation in this eld extends to Nuremberg times, “[t]he destruction of
the human group is the actual aim in view.”49 In this regard, the doctrinal background of this
crime together with the purpose for its introduction should be considered. Raphael Lemkin
who had proposed the term ‘genocide’ intended to cover by this crime the broad and system-
atic policy of destruction carried out by the Nazis against the Jews during the Second World
War. Lemkin tried to explain the crime of killing the members of a group by the term ‘geno-
cide’, which he combined from the Greek word genos (community, people, race) and the word
cide (killing). Lemkin thought that the crime of genocide involves a wide range of actions,
including not only deprivation of life, but also the prevention of life (abortions, sterilisations),
etc.50 In the Resolution 96(1) of 11 December 1946 of the General Assembly of the United
Nations it has been stated that: 51
Genocide is a denial of the right of existence of entire human groups, as homicide is the
denial of the right to live of individual human beings; such denial of the right of existence
shocks the conscience of mankind, results in great losses to humanity in the form of cultural
and other contributions represented by these human groups, and is contrary to moral law and
to the spirit and aims of the United Nations.
erefore, this crime occurs if the right to existence is denied to human group regardless
of the basis on which a certain group was formed. For, ‘the crime of genocide exists to pro-
tect certain groups from extermination or attempted extermination’.52 e domestic codes of
Romania and France rmly stand in harmony with suchlike position. Romanian code refers
to “community” as to the protected groups.53 Under the French law the genocide can be per-
petrated against “[a] particular group, apart from other arbitrary criteria.”54 It oers room for
the tragedies of tomorrow.55 Amann considers that the proscription against genocide should
remain open to application in novel contexts.56
47 Vienna Convention on the Law of Treaties, art. 31(1), UN Doc. A/CONF.39/27 (1969), quoted in
Jelišić Appeal Judgement, supra note 61, para. 35 (describing principle as part of “settled jurisprudence
of the Tribunal”).
48 Prosecutor v. Kambanda, Case No. ICTR 97-23-S, Trial Chamber, Judgement and Sentence, para. 16
(September 4, 1998), available at http://www.ictr.org/
49 U.N. Econ. & Soc. Council, Ad Hoc Comm’n on Genocide, Relations Between the Convention on
Genocide on the One Hand and the Formulation of the Nuremberg Principles and the Preparation of
a Dra Code of Oences Against Peace and Security on the Other, 6, by the Secretariat, U.N. Doc. E/
AC.25/3/Rev.1 (Apr. 12, 1948).
50 See Aydin Devrim, e Interpretation of Genocidal Intent under the Genocide Convention and the
Jurisprudence of International Courts e Journal of Criminal Law (2014) 78 JCL 424
51 UN Doc A/BUR.50.
52 Prosecutor v. Akayesu, ICTR-96.4.T, Judgment, 2 September 1998, para. 469.
53 See Romanian Criminal Code, art. 172 (Rom.), LEGISLATIONONLINE.ORG, http://legislationline.
org/download/action/download/id/1695/le/c1cc95d23be999896581124f9 dd8.htm/preview (last
visited Nov. 12, 2015).
54 See CODE PÉNAL [C. PÉN.] art. 211-1 (Fr.) available at http://195.83.177.9/pdf/code_33.pdf (last
visited Nov. 5, 2011).
55 Diane Marie Amann, Group Mentality, Expressivism, and Genocide, International Criminal Law
Review 2:141.
56 Ibid.

THE DISABLED AS A PROTECTED GROUP FOR THE PURPOSE OF GENOCIDE 303
CONCLUSION
rough the discussion of whether the group of the disabled could be recognized as vic-
tims of genocide we saw that the theory and case law of the relevant judicial bodies oer both,
exclusive and extensive approach to the issue. As to the exclusive approach, it refers to the
claim that only groups (national, ethnical, racial and religious) that were enumerated in the
Genocide Convention, the Statute of the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law in the Territory of the
Former Yugoslavia Since 1991 and the Rome Statute, are protected against collective extermi-
nation through genocide. e exclusive approach is supported by the travaux préparatoires of
the Genocide Convention, draing history of the Rome Statute, the case law of the ICTY, and
a signicant proportion of academics. Regardless of numerous objections that could be put
forward to the exclusive approach, it provides the legal certainty and the exact criteria for the
identication of victimized groups.
As to the extensive approach it mostly rests on relaxed judicial interpretation of the scope
of protected groups and the meaning of the enumerated categories within the international
instruments. Namely, case law recognized dierent criteria to dene the notions of national,
ethnical, racial and/or religious group(s). In this regard, the international tribunals argued
that there are no generally and internationally accepted precise denitions of the enumerated
categories and that the objective and scientically irreproachable criteria would be a perilous
exercise if used to dene the scope of the protected groups. International tribunals even rec-
ognized that a subjective perception of the perpetrators in regard to the group membership of
their victims suces to constitute the crime of genocide. e formal criterion for the group
identication has been also sucient for the crime of genocide to occur. Under the latter
criterion, the victimized group shared all features with perpetrators; the only dierence was
a formal declaration of group membership which was certicated with identication card.
All of this brought me to the following conclusions: the group of the disabled has all the
general features of a protected group that are required under the exclusive approach; if nec-
essary, the group of the disabled could be subsumed under one of the listed groups, most
likely under the racial group following objective criteria; considering the international human
rights law recognition of their group rights and group permanency, the group of the disabled
is distinguished from other comparable groups whose victim status has been explicitly de-
nied; considering the historical context of the crime, its doctrinal background and the con-
sequent interpretative strategy, the group of the disabled could obtain victim standing for the
purpose of genocide.
e conclusion that the disabled could obtain victim standing either through one of the
enumerated groups or separately based on their group permanency, could signicantly aect
other branches of law such as those that regulate abortion or prenatal diagnostic at the na-
tional level. In this regard, the operation of the malformation as a ground for abortion is high-
ly questionable. is specially refers to actus reus “imposing measures intended to prevent
births within the group” introduced under the article 2 of the Genocide Convention, Article 4
of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Se-
rious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia
Since 1991 and Article 6 of the Rome Statute.

Dragan Dakić
304
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THE DISABLED AS A PROTECTED GROUP FOR THE PURPOSE OF GENOCIDE 305
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