Protection of The Genocide Victims: Research in Recent Icty Case Law

In 1994, Raphael Lemkin termed crimes committed against individuals, not by their capacity as an individual, but because of their membership in a group, as Genocide. The extermination of almost a million of Armenians residing in Turkey during the first World War I and the horrific events of the Holocaust, resulting in millions of deaths of the Jewish population by the Nazi Regime, during World War II, are some of history’s most unforgettable incidents of Genocide.

The crime of genocide found in The Convention for the Prevention and Punishment of the Crime of Genocide (1948). It is defined as a crime which is committed ‘with an intent to destroy, in whole or in part, a national, ethnical, racial or religious group’ through killings, causing serious bodily and mental harm and forcible transfer of children to another group, amongst others.

Thus, it requires that the intention and the unlawful act must be directed against one of these groups identified under the convention for the crime to have been committed. It is these groups that are identified as ‘protected groups’.

This argument put forward in this essay will be that, since the ICC is yet to decide on a case involving genocide, the interpretation of the Tribunals is, in fact, under-inclusive and unprincipled, although academics provide strong reasons for the justification of the former and the denial of the latter. The essay will initially explore the ICTY and ICTR case law and analyze the interpretation of the Tribunals with regards to the scope of ‘protected groups’. It will then move on to showcase that such an interpretation is under-inclusive to the extent that it doesn’t allow for negative identification, and allows for the outright exclusion of certain groups, such as political groups, and is as such argued to be unprincipled.

Thereupon, the essay will move on to consider that there exists opposing literature which seeks to justify the under-inclusivity and deny that such an under-inclusivity is in fact unprincipled. It will finally be concluded that the interpretation, although understandable as Tribunals are constricted by the Convention, is, in fact, under-inclusive and unprincipled since at the very least other ‘stable and permanent’ groups ought to be included.

The Protected Groups: Interpretation

The formal recognition of genocide as a prosecutable crime was in 1964, with the adoption of the General Assembly resolution 96(1). [5] It created a crime which would entail a ‘denial of the right of existence of entire human groups’ on the basis of religious, racial, political, or any other grounds.[6] The Convention, however, was drafted differently. Although initially, political groups were included in the draft, the sixth committee excluded this group from the final draft, which was unanimously adopted on 9th of December 1948.[7] Thereupon, the International Court of Justice (ICJ) confirmed prohibition of genocide as a matter of jus cogens and the Convention as creating erga omnes obligations.

The Genocide convention fails to define the membership of these protected groups. It was, as is seen, purposefully left open for the interpretation of national governments.[9] As such, in the course of international justice, it has been left to the courts to determine the conditions necessary to qualify as a protected group.

The crime of Genocide was not identified by name in the Nuremburg Trials, although it was undoubtedly a case of genocide.[10] As such, the first official incident of an individual conviction for the crime of genocide by an international criminal tribunal was in the Akayesu case. The trial concerned the atrocities committed during the Rwandan Genocide, which resulted in the extermination of a majority of the Tutsi population by the Hutus. Akayesu exercised control over both local and national police and commanded the murders of Tutsis during his time in charge. In order to prosecute Akayesu for the crime of Genocide, however, the courts needed to prove that the Tutsis were part of the protected group. To do this, the court had to initially define the parameters of ‘protected groups’.

The protected groups, in the case, was defined rather objectively. A national group was stated to include individuals with sharing common citizenship, and a reciprocity of rights and duties. An ethnic group was defined as a group of individuals sharing a common language or culture. A racial group is said to be identified on hereditary traits which are often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors. A religious group would include those sharing the same religion, denomination or mode of worship.

This case was infamous, not only as the first conviction of Genocide but as having extended the definition of the crime beyond that provided in the Convention, on the basis of it extending the protected groups. This was mostly because the court recognized that Tutsi’s sharing the same culture and language as the Hutus could not objectively be decided to be a separate ethnic group. The different classification was thus, merely a product of social prescription. Thus, the Chambers found themselves in the need to find a protected group that the Tutsis could fall under in order to avoid impunity. In the light of this, the Chambers in their decision was of the opinion that, in accordance with the travaux pr?aratoires, a protected group can be extended beyond the 4 groups stated in the Convention as long as they were ‘stable and permanent groups’.[15] Having decided the Tutsis fell under this category, and all other elements of Genocide being fulfilled, Akayesu was convicted of the crime. This decision, however, means, the crime would be extended to include the protection of the groups beyond the four explicitly stated in the Convention. Thus, the list of groups would not be exhaustive.

However, this decision has been highly criticised over the years for being a misreading of the documents. Although the stable and permanent groups were used in the discussions by the committee to decide upon the protected groups, there was never an intention to allow the criteria to be used to extend the groups. The groups were intended to be exhaustive.[16] Going beyond those groups explicitly named was incompatible with nullum crimen sine lege (the principle of legality). However, there are certain critics who believed the decision to be rightly taken and justifiable. This is on the basis that the documents do in fact showcase a desirability to include only ‘stable’ groups within the definition of Genocide as the common criteria amongst all the groups rests on the fact that the members are automatically assigned to it by birth, have continuous membership that is often difficult, if not impossible, to end. This, however, doesn’t necessarily cancel out membership in groups which are by personal choices, such as religion. Thus, if religion, despite its lack of complete permanency is included, so ought to be stable groups, such as Tutsis.

Akayesu’s unwillingness to move away from an objective determination is understandable on the basis of the existence of precedent which favors an objective interpretation, such as, the International Court of Justice. However, the cases that followed the decision of Akayesu completely moved away from attempting to expand an exhaustive list through including in it ‘stable and permanent’ groups. They also developed a more subjective approach to determining the categories. This subjective criterion would thus be determined upon the perception of the perpetrator and those of the victims themselves. In the ICTR, the development of the case law showcases an interpretation of protected groups that moves away from extending it to include categories beyond the four already present. However, there is a tendency to select a more subjective approach, which in effect is more flexible than strict objective criterion. The Nchamihigo case, while agreeing with the classifications of the four groups in Akayesu, the court stated that the perception of the members themselves (self-identification) and that of the perpetrator (identification by others) may, in certain circumstances, be taken into account when determining membership.

This means that if the member was perceived to belong to the group, for the purpose that their extermination would further the objective of exterminating the group, then they may fall within the group they were perceived to belong to.

Next, in the Rutaganda case, the ICTR was of the opinion that since there exists no universal definition of the groups, they must be analyzed in terms of the social, political and cultural context in which they are determined. Thus, the membership is more or so a subjective criterion. In the Kayishema and Ruzindana case, the Chambers formulated a broader definition of an ethnic group, encompassing both self-identification and identification by others, amongst the sharing of a common language and culture.

In terms of the ICTY case law on Genocide dealt with the events of the Bosnian genocide, during which Bosnian Serb forces, backed by the Yugoslav People’s Army, conducted the ethnic cleansing of a large part of the Muslim and Croat population with the aim of creating a state free from these groups of individuals.

In Jelisic, the ICTY held that the Convention demonstrated the intention to limit its application to protecting objectively defined ‘stable’ groups. However, the chambers recognize that apart from possible religion, the other categories would be difficult to objectively define. They, thus, conclude that it is more appropriate to utilize a subjective criterion. There must be a stigmatization of a group as a distinct group in the eyes of the alleged perpetrator, either through positive criteria (distinguishing a group by characteristics they deem particular to said group) or negative criteria (identifying individuals as not being part of the perpetrator’s group, thus making those excluded a distinct group).

In Krstic, the Trial Chamber states that group’s (recognizing that this will be limited only to the four groups identified in the Convention) objective characteristics must be determined within the socio-historic context. However, it also notes the need to consider the stigmatization of the group, mainly by the perpetrators, on the basis of these perceived national, ethical, religious or racial characteristics. Thus, the Chambers utilize a mixed, objective and subjective, approach.

The Stakic judgment saw a break in the jurisprudence of the ICTY. The court disagreed with the negative approach endorsed in Jelisic stating that a group cannot be negatively defined, for example, as ‘non-Serbs’.

This was upheld in the Popovic et al. case which confirmed the position stating that the characterization requires an identification of a positive identity as opposed to those lacking a distinctive identity. The group must be defined as ‘Bosnian Muslims’ as opposed to ‘non-Serbs’. Thus, the exclusion from the perpetrator’s group will no longer be sufficient to be classified as a group under the Convention. There must be a distinct group that can be identified by positive criteria.

The ICC is yet to decide a case on Genocide, although the UN Security Council has referred the situation in Darfur, Sudan to the Prosecutor of the ICC as per Security Council Resolution 1593. The ICC has since then issued a warrant for the arrest of Omar Al Bashir, who is suspected of three counts of genocide. The Secretary-General appointed a Committee of experts who concluded that since the protected groups were limited to national, ethnic, religious and racial groups, the victims would have to fall under one of these groups.

It recognized that under the objective criteria it would fail to qualify since the Fur, Massalit, and Zaghawa tribes were not separate ethnic groups from the perpetrators since they shared the same language, amongst other similarities. However, since the victims did perceive themselves as persons belonging to a group, other than the hostile group, they may qualify under the subjective criteria.[34] This, however, may seem to be a negative stigmatization, since African tribes could be said to be targeted by Arab perpetrators on account of them having characteristics different from Arabs.

Thus, as per the ICTY judgments in Stakic and Popovic et all, this might not allow the victims to amount to a protected group.

It will, therefore, ultimately depend on whether the ICC believes that there is a negative or positive stigmatization, and whether they will agree with the Stakic and Popovic et all decisions as opposed to that of the Jelisic. This is yet to be seen.

Thus, it can be seen that the ICTR and the ICTY have favored a subjective approach to dealing with the identification of the protected groups. Although Akayesu attempted to allow an expansion of the 4 mentioned categories to include any ‘stable and permanent’ categories, this has been strongly rejected in most of the case law that followed. It is still to be seen how the ICC will handle the situation. It must then be considered if such an approach adopted by the Chambers, and possibly adopted by the ICC, is underinclusive and, as such, unprincipled.

The Interpretations as Under-Inclusive and Unprincipled

The criticism that the interpretation of protected groups by the Adhoc Tribunals is under-inclusive stems from the Tribunal’s hesitance to include groups beyond those expressly provided for in the Constitution, such as political groups, and groups that are negatively identified. Critics argue that this makes the interpretation under-inclusive and as a result unprincipled. The case law of the ICTR and ICTY, as shown above, is evidence that these criticisms aren’t mere fiction.

The non-recognition by recent ICTY case law of negatively identified groups is criticised heavily as narrowing, what is already, a narrow interpretation.[38] However, the Appeals Chamber during the Stakic judgment justified this interpretation since including such groups would be interpreting in a manner contrary to what is intended in the Convention.[39] As per the Chambers, ‘the term “as such” has great significance, for it shows that the offense requires intent to destroy a collection of people who have a particular group identity. Yet when a person targets individuals because they lack a particular national, ethnical, racial, or religious characteristic, the intent is not to destroy particular groups with particular identities as such, but simply to destroy individuals because they lack certain national, ethnical, racial or religious characteristics.’

The next criticism deals with the lack of inclusivity, in the Tribunal’s interpretation protected groups, of groups other than those expressly provided for in the Convention, such as homosexuals and women, although the main focus of such debate has been political groups. Both the ICTY and ICTR have been vocal in their interpretations that the Convention does not make space for the and interpretation which facilitates the inclusion of political groups. The ICTY in Jelisic, for instance, references that the Convention chose the four groups on the basis of their characteristic of being ‘stable and permanent’. Political groups aren’t necessarily comprised of individuals who have permanent membership assigned since birth. However, this is also true of religious groups. Religious affiliations, like political affiliations, are chosen by members exercising their individual choice. Just as political groups, it lacks the permanency and stability of, say, racial groups. Thus, it is difficult to see why the characteristic of ‘stable and permanence’ ought to restrict the interpretation.

Furthermore, denying individuals protection under the Convention on account of their being a political group seems rather unprincipled if one is to argue that it will motivate individuals to target political groups since they cannot be convicted of genocide. There is also the argument that genocidal acts against political groups have taken place throughout history. The atrocities committed by Khmer Rouge in Cambodia resulted in a death toll of an estimated two million people who were targeted on the basis of their political or social affiliations.[46] However, the Extraordinary Chambers of the Courts of Cambodia were only able to prosecute the genocidal acts committed against Vietnamese and other ethnic minorities.[47] Critics argue, thus, that it seems unfair that situations like these would not be considered Genocide by the Tribunals, even though the death toll is similar to situations in Rwanda and Bosnia. To this extent, it could be argued that it is unprincipled for the Tribunals to interpret in a manner which is under-inclusive. There are, however, opposite sides to these arguments. Academics argue that this under-inclusivity is justifiable. Allowing an interpretation which includes political groups will open floodgates into which groups can be included under the crime. Genocide is considered the ‘crime of all crimes.’ It is thus necessary that it is not interpreted too widely so as to make the crime commonplace.

Labeling crimes as genocide ‘create irresistible public pressures on governments to act’[51], and ‘motivate and mobilize’ intervention.

Thus, it is necessary that such a crime remains somewhat within an exclusive realm. Certain other academics argue that this under-inclusivity may not necessarily be unprincipled. A decision of a Tribunal to not prosecute perpetrators of genocide does not mean that it will result in impunity. Rather, these individuals will be prosecuted for other crimes, such as crimes against humanity or war crimes. Neither of which carry soft penalties.

It must be understood that Tribunals are effectively limited by the provisions of the Genocide Convention. Apart from the Chambers in Akayesu, the Tribunals have been clear that the Convention only allows for the exhaustive list of protected groups mentioned, and only in circumstances where they are positively identified. This does seem to be the case when one reads the entire provision as a whole, and in the context of which it was drawn. The Convention came into being post Second World War and it is the groups that were targeted during these periods that were included.[54]

Thus, it is understandable that the courts restricted by such a Convention have interpreted protected groups in a manner which seems both under-inclusive, and to an extent, unprincipled.

It can be said that a provision such as Genocide which carries with its name a penalty in itself is important for victims who have experienced genocidal acts committed against them, although they form political, homosexual, gendered groups. Ironically, it is this very argument that other academics utilize to showcase why it’s necessary to maintain the exclusiveness of genocide; the ‘crime of all crimes.’

In conclusion, it may be immoral to deny victims the comfort afforded with describing their atrocity as ‘crime of all crimes.’ The solution may be in, as suggested by --, naming all crimes under one heading of ‘atrocities’.

Until such a time, the interpretation will be unprincipled, and under-inclusive, regardless of the justifications afforded to each. It is, however, a change that can be initiated not merely by more radical interpretation, but by a change in the Convention itself.

The case law is limited to the ICTY and ICTR. One can be hopeful that the interpretation of the ICC, showcases a willingness to be more inclusive, and more principled while remaining within the boundaries of the Convention. This, however, remains to be seen.