LLM INTERNATIONAL AND EUROPEAN LAW: INTERNATIONAL AND HUMAN RIGHTS LAW

Friend or Foe: Victimised Groups in Cases A Comparative Analysis of the Judgments Before the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court

Source: http://www.toxbank.net/development/toxbank-requirements-analysis-group

Charlotte Aardoom ANR 951815

European and International Public Law Faculty of law, Tilburg University, the

Supervisor: mr. D. Djukic Second Reader: mr. dr. A.K. Meijknecht

January 2016

Academic year 2015-2016 Table of Contents

Abbreviations 3 Summary 4 1. Introduction and Methodology 5 1. Introduction ...... 5 1.2 Methodology and approach ...... 8 1.3 Roadmap ...... 11 2. Genocide 13 2.1 The ...... 13 2.1 Different objective and subjective elements in the definition of genocide...... 15 2.2 The protected groups ...... 16 2.3 Other groups ...... 17 3. International Criminal Tribunal for the former Yugoslavia (ICTY) 19 3.1 The Jelisić Case ...... 19 3.2 The Kristić Case ...... 21 3.3 The Stakić Case ...... 24 3.4 The BrÐanin Case ...... 29 3.5 Conclusion ...... 30 4. International Criminal Tribunal for Rwanda (ICTR) 32 4.1 The Akayesu Case ...... 32 4.2 The Kayishema and Ruzindana Case ...... 35 4.3 The Rutaganda Case , the Bagilishema Case , the Semanza Case , the Gacumbitsi Case , the Ndindabahizi Case and the Muhimana Case ...... 36 4.4 The Karemera et al. Case ...... 39 4.5 Conclusion ...... 40 5. International Criminal Court (ICC) 41 5.1 Report of the International Commission ...... 42 5.2 Pre-Trial Chamber decision on the arrest warrant ...... 45 5.3 Separate and partly dissenting opinion Judge Uŝacka ...... 47 5.4 Conclusion ...... 49 6. Discussion and Comparison 51 6.1 Comparative conclusion ICTR, ICTY, ICC: objective, subjective or mixed? ...... 51 7. Conclusion 59 8. Bibliography 61

2

Abbreviations

AC Appeals Chamber COI Commission of Inquiry GA General Assembly GC Genocide Convention ICC International Criminal Court ICJ International Court of Justice ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia ILC Commission SC Security Council TC Trial Chamber UN United Nations

3

Summary

Four groups are protected against the crime of genocide as envisaged in article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide: national, ethnic, racial and religious groups. Other groups, such as political groups or social groups are excluded from this definition, and as such not protected against genocidal acts. The question however arises as to how international criminal tribunals, dealing with perpetrators of such genocidal acts, define membership of these four groups. Do they determine membership on the basis of objective determination criteria such as citizenship, religion and national laws? Or do they instead rely on subjective factors such as the perceptions of the perpetrator(s) or the perceptions of the victims themselves? This question is not so easy to answer as it appears at first sight. In the Rwandan genocide for example the Tutsi population, which were the victims, were not easy to distinguish from the perpetrators: the Hutu’s. They had the same culture, practices the same religion, had the same physical features and practices of inter-marriage made seeking for distinctions even harder. Neither the Genocide Convention nor the drafting history behind it provides a clear answer to this question, and therefore case law has to step in. This thesis provides a comparative analysis of the case law before the ICTY, ICTR and ICC in which the tribunals have elaborated upon this group requirement. The guiding research question is therefore: “How has the group-requirement in the definition of genocide been interpreted respectively by the ICC, ICTY and ICTR in their judgments?”. Ultimately, the conclusion is drawn that the tribunals all agree on using a case-by-case approach in which both objective and subjective factors are taking into consideration. Furthermore, strong emphasis is placed on the perception of the perpetrator and the identification of targeted groups by positive distinguishable criteria. In addition, identification on the base of negative criteria, by which the group is distinguished by the perpetrator on characteristics which are lacking is considered to be an inappropriate identification method.

4

“There are not just bad people that commit genocide; we are all capable of it. It is our evolutionary history.” - James Ephraim Lovelock 1

1. Introduction and Methodology

1. Introduction Everyone can recall the horrendous stories and images of the concentration camps during the Nazi regime in the Second World War (1st of September 1939 – 2nd of September 1945), also known as the ‘Holocaust’. In these camps, millions of people 2, consisting mostly of the Jewish race died from starvation or deadly diseases. Adolf Hitler, the brain behind the Nazi regime and ideology, referred to the Jews as a ‘parasitic vermin’, which had to be eradicated. 3 A more recent example is the genocide that took place in Rwanda in 1994. Tutsi’s and moderate Hutu’s were called ‘Inyenzi’ or, ‘coackroaches’, which had to be killed and exterminated. The hatred can be read in the words of a broadcast on the radio in Rwanda: “'We must all fight the Tutsis. We must finish with them, exterminate them, and sweep them from the whole country. There must be no refuge for them. They must be exterminated. There is no other way.” 4 These are examples of groups which were targeted with the specific intent to destroy them, in whole or in part. Such acts are now qualified as genocide, a crime in international (criminal) law, distinguished from other international crimes such as war crimes and by its genocidal intent (also called dolus specialis or specific intent 5). This specific intent is one of the three elements present in genocide, the other two elements are the victimised groups and the identifiable acts. 6 The specific intent dictates that the perpetrator must have a specific intent to commit the prohibited acts against the protected groups enumerated in article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter: GC),

1 Brainyquote, Genocide quotes (2001) online retrieved 10-08-2015 from http://www.brainyquote.com/quotes/quotes/j/jameslovel314060.html?src=t_genocide 2 Socio-economic History Blog, ‘Jewish Estimate Sees Number of Holocaust Dead Drop To 2.8 Million!’ (2011) online retrieved 15-07-2015 from https://socioecohistory.wordpress.com/2011/03/02/jewish-estimate-sees- number-of-holocaust-dead-drop-to-2-8-million/. 3 Holocaust Encyclopedia, ‘Victims of the Nazi era: Nazi racial ideology’ (2015) online retrieved 15-07-2015 from: http://www.ushmm.org/wlc/en/article.php?ModuleId=10007457. 4 Peace Pledge Union Information, ‘Genocide Rwanda 1994’ online retrieved 15-07-2015 from http://www.ppu.org.uk/genocide/g_rwanda4.html. 5 R. Cryer, H. Friman, D. Robinson and E. Wilmshurst, An introduction to International Criminal Law and Procedure, (3rd ed., Cambridge University Press 2014) p. 118-119. 6 Y. Aksar, ‘The “victimised group” concept in the Genocide Convention and the development of international humanitarian law through the practice of ad hoc tribunals’, 1 Journal of Genocide Research 5:2 (2010), p. 216.

5 which sets out the legal definition of genocide. 7 Therefore, the ultimate intended victim of genocide is not an individual in his individual capacity, but the group as a whole, to which the individual is a member. It is the destruction of this group which the perpetrator seeks. The individual is targeted, because he or she is a member of that group and not on the account of his or her individual qualities or characteristics 8, making the group requirement a part of the specific intent of genocide. 9 Article 2 enumerates four groups which are protected against genocide, namely: national groups, ethnical groups, racial groups and religious groups. 10 These groups are also called ‘protected groups’ or ‘targeted group’ in literature 11 and are exhaustively listed in the GC, meaning that other groups falling outside this scope, irrespective of their growing importance, are not protected against genocide. One can think of for example political groups or social groups. 12 Political groups were for example excluded from the GC as the fear existed that it would have discouraged States from signing and ratifying the Convention. 13 Although the previously described examples of the Holocaust and the Rwandan genocide could easily be qualified as genocidal acts, at first instance it was not as clear cut as to which of the four protected groups respectively the Jews and Rwandan Tutsi’s belonged to. Jews could be qualified under each of the four groups 14, and in the case of the Tutsi’s the Rwandan Tribunal had the greatest difficulty in determining whether they belonged to a separate ethnic group, as the Tutsi and Hutu population were similar in points of culture and language characteristics. These examples show the controversy which followed the group requirement. Critique has arisen as to whether also political, economic, social, gender and other groups should have been incorporated in the Convention 15 and whether its narrow scope prevents characterising certain

7 UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277, available at: http://www.refworld.org/docid/3ae6b3ac0.html (online retrieved 16-07-2015). Hereinafter: Genocide Convention 1948. 8 A. Cassesse, International Criminal Law (3rd ed., Oxford University press, 2013) pp.118-119. 9 Idem.,, p. 118-119; R. Cryer, above n. 5, pp. 220-224; Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, para. 521. 10 Genocide Convention (1948) above n. 7, article 2. 11 Cassesse, above n. 8, p. 120-122. 12 Ibidem. 13 S. Sungi, ‘Redefining Genocide: The International Criminal Court’s Failure to Indict on the Darfur Situation’, 1 Journal of Theoretical and Philosophical Criminology (2011 Special Edition), p. 64. 14 L. May, ‘Identifying groups in genocide cases’, in: L.May and Z. Hoskins, International Criminal Law and Philosophy (Cambridge University Press 2010), p. 104. 15 W.A. Schabas , ‘Groups Protected by the Genocide Convention’, 6 ILSA Journal of international and Comparative Law 375 (2000), pp. 375-378.

6 mass killings as genocide.16 A frequently used example in literature to support these claims are the atrocities committed between 1975 and 1979 in Cambodia, during the Khmer Rouge regime where the targeted groups were designated as a consequence of the Khmer Rouge’s peculiar theory of social classes. 17 Genocide could not be proven, as social groups as such are not included in the GC. Some national laws have deviated from the alleged strict concept used in the GC. An example is the French Penal Code which protects groups determined by any other arbitrary criterion besides the national, ethnic, racial and religious groups. 18 The GC provides no definition of the four enumerated groups as such, and is also silent on the question what is meant with the concept of a ‘group’ in its totality. Reasons for this absence, are the irreconcilable views and the fact that the four groups often overlap and are used interchangeably. 19 The official records of negotiation leading up to the GC (or also called: traveaux préparatoire) can provide some guidance in answering these two questions, but do not give a decisive answer. 20 Case law from respectively the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC) had to step in, which were each assigned with the task to interpret and apply the elements of the crime of genocide in relation to the events in the cases pending before the court. These cases clarified the substantive content on the crime of genocide and provided more guidance and clarity to these underlying issues. 21 These clarifications by the three tribunals on the question what the group requirement in genocide entails forms the basis of this thesis. There are two approaches to be found in case law on the question what constitutes a ‘group’, namely a subjective approach and an objective approach. The subjective approach focusses on the identification of the group by either the perception from victims themselves or from the perpetrator(s) of the crime. The objective approach relies on objective criteria such as citizenship status determined by national laws, racial heritage of the victims or expert

16 F. Martin, ‘The Notion of ‘Protected Group’ in the Genocide Convention and its Application’, in P. Gaeta, The UN Genocide Convention: A Commentary, (Oxford University Press 2009), p. 113. 17 D. Luban, ‘Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur, and the UN Report’, 7 Chicago Journal of International Law 1 (2006), p. 15. 18 F. Martin, above n. 16, pp. 113-114. 19 G. Kirk McDonald and O. Swaak-Goldman, Substantive and Procedural Aspect of International Criminal Law: The Experience of International and National Courts (Volume 1, Kluwer Law International 2000), p. 131. 20 W.A. Schabas, Genocide in International Law, (1st ed., Cambridge University Press 2000) pp. 106-120. 21 Y. Aksar, above n. 6, p. 216.

7 testimonies. 22 Some scholars argue that there has been a shift from an objective approach to a more subjective approach in case law 23 , which is also supported in the Report of the International Commission of Inquiry on Darfur to the Secretary General. 24 However, there seems to be no clear line in legal doctrine as to whether an objective of subjective approach is preferred in case law, and furthermore different scholars place the same judgment under the different approaches. For example the first case of genocide to be tried by the ICTR, the Akayesu case, is placed by Young25 under the mixed objective-subjective approach, but by Nersessian 26 Verdirame 27 under the objective approach. It is therefore difficult to discern which view must prevail. The GC can also give us no conclusive answer in this regard, as the term ‘group’ and the national, ethnical, racial and religious groups are not defined in article 2. The term ‘group’ is only used in the description of the mental element, and the punishable act of article 2 GC, but no further clarity or guidance is given. 28 The question therefore arises whether or not case law of the three international criminal tribunals can give us a conclusive answer on the matter when an individual belongs to these protective groups, and to discern whether they use either an objective, a subjective or even a mixed approach in determining group membership. This will be the focus of this thesis, as it will examine whether and how the group-requirement has been clarified, broadened or even modified by respectively the ICTY, ICTR and ICC in their judgments and how these tribunal deal with this question. The main research question therefore will be: “How has the group-requirement in the definition of genocide been interpreted respectively by the ICC, ICTY and ICTR in their judgments?”.

1.2 Methodology and approach The central method used in this study is a comparative method, as the research question will be answered by analyzing the judgments from respectively the ICTY, ICTR and ICC. Furthermore,

22 Anonymous (candidate number: 536), ‘What’s in a name? Where the Legal Definition of Genocide Clashes with the popular understanding’, University of Oslo, Faculty of Law (2011), p. 588; G. Verdirame, ‘The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals’, 3 International and Comparative Law Quarterly 49 (2000), p. 588. 23 R. Young, ‘How Do We Know When We See Them? The Subjective Evolution in the Identification of Victim Groups for the Purpose of Genocide’, 1 International Criminal Law Review 10 (2010), p. 1.; Verdirame, above n. 22, p. 594. 24 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/205/60. Hereinafter; Darfur Report 25 R. Young, above n.23, p.11. 26 D.L. Nersessian, ‘The Razor’s Edge: Defining and Protecting Human Groups under the Genocide Convention’, 36 Cornell international Law Journal 2 (2003), p. 308. 27 G. Verdirame, above n. 22, p. 592. 28 W.A. Schabas, above n. 20, p. 110; Young, above n. 23, p.6.

8 the judgments of the three institutions will be compared with each other, to reveal any differences in interpretation of the group requirement in the residing case. The comparative analysis will therefore be two-folded: (i) a comparative analysis of the judgments (relating to the group requirement of genocide) before each institution separately, and (ii) a comparative analysis of the judgments (relating to the group requirement of genocide) between these three institutions, to see whether there are any differences in the application of this requirement. The purpose of this thesis is to analyse the GC’s protected group’s definition by using the judgments of the three international criminal institutions. Differences, but also similarities (if present) will be pointed out. The specific approach followed will be the functionalist approach, as described by Zweigert and Kötz, in which law fulfils a function and only those rules which fulfil the same function are comparable. 29 Law in this respect has to be cut loose from its context, and be compared only in the light of its function with an emphasis on formal rules, leaving a contextualist approach behind. 30 The institutions (and judgments) compared will be those that fulfil the function of investigating and prosecuting violations of international criminal law, specifically genocide. Although this paper follows the functionalist approach, in which there is, according to Zweigert and Kötz a presumption of similarity in which different legal systems produce very similar results for similar problems or 31, differences between these actual solutions of the legal systems in comparison, will also be pointed out. 32 The choice to only include the judgments of the ICTY, ICTR and ICC in this comparative analysis and no other international criminal (ad-hoc) tribunals or courts was a conscious choice, in the way that the ICTY, ICTR and ICC dealt with cases specified to genocide and the group requirement in numerous occasions. These cases show all-important interpretations of concern to the protected groups’ definition and are thus selected on the criteria that it added something new to the concept, changed a certain criteria or requirement within the concept or merely reaffirmed previous judgments. In the judgments of the ICTR for example, it is known that the tribunal had difficulty establishing to which group the Rwandan Tutsis belonged and who the victims of genocide were. This because there were many similarities between the Rwandan Tutsis and Hutus as they for example spoke the same language and practiced the same religion.

29 K. Zweigert and H. Kötz, An Introduction to Comparative Law (Oxford University Press 1992) p.39. 30 Idem., p.43; J.Husa, “About the Methodology of Comparative Law – Some Comments Concerning the Wonderland…”, Maastricht Faculty of Law Working Paper No. 5 (2007), p.10. 31 K. Zweigert and H. Kötz, above n. 29, p.45. 32 Idem., p.43.

9

33 Therefore, the inclusion of cases before the ICTR in this analysis will provide useful insights in the methods and interpretation used to determine group membership. The ICC is also important in this respect because of its involvement in the situation in Darfur, in which the prosecution accused Omar al Bashir of committing genocide. Although the case has not yet been commenced before the Court as Al Bashir is still president of Sudan and therefore enjoys immunity from criminal proceedings, the accompanying decision on the Prosecution’s application for a warrant of arrest against Omar al Bashir from the Pre-Trial Chamber provides us useful insights for the underlying research question. 34 Also the report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General on which the Pre- Trial Chamber based most of its reasoning, represents important views on the identification of victim groups. The sources used in this comparative analysis will mainly concentrate on the judgments of these three institutions and the legal rules clarified in their judgments, as they are vital to answering the underlying research question. These judgments will be accompanied by literature focusing on the group requirement to complete the analysis with more background information. This literature will consist of handbooks relating to the subject of genocide, journal articles and reports of different United Nation (UN) agencies. As to the case law, only the most important judgments will be taken into account in which considerable attention, explanation and clarification of the group requirement will be given to the reader, to avoid over expanding the scope of this study. The judgments of the Trial Chamber are important in this regard, as these offer a first insight into the interpretation of the tribunals. Also the judgments of the Appeals Chamber are important, as they have more authority over the judgments of the Trial Chamber and furthermore represent the latest and most recent interpretation of the case. The sources used can be linked to article 38 of the Statute of the International Court of Justice, describing the available sources in international law. These are inter alia: international conventions, international custom, general principles of law, doctrine and judicial decisions. This analysis will mainly focus on judicial decisions, as they form the basis of the comparative analysis. Also international conventions (such as the GC) and doctrine, as described more accurately above will be referred to and included in the analysis as well. For the purpose of further clarification, it is commendable to take into consideration that the concepts of “victimised groups”, “protected groups” and “targeted groups” will be used

33 W.A Schabas above n. 20, p. 109. 34 Public Redacted Version of the Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad al Bashir, Situation in Darfur, The Sudan (ICC-02/05-01/09), Pre-Trial Chamber I, 4 March 2009.

10 interchangeably and all have the same definition: the groups that are protected against genocide as defined in article 2 of the GC.

1.3 Roadmap In order to answer the main research question it is necessary to divide the question into different sub questions. These sub questions correspond with the following chapters:

 2. What is the concept of genocide all about, specifically focusing on the group requirement? Chapter two will begin with a general understanding of the concept of genocide, discussing the history leading up to the acceptance of its legal definition, the different elements in the definition itself including their critical notes and its role in the statutes of the three above mentioned institutions. The four groups, which are exhaustively listed in the GC will be defined and this chapter will furthermore introduce the two main theories in the field of group identification, namely the subjective and objective theory which will be more elaborated upon in the following chapters by using judgments of the ICTR, ICTY and ICC.  3. How does the ICTY interpret the group requirement in the crime of genocide? This chapter discusses the relevant judgments before the ICTY ad hoc tribunal relating to the group requirement. The cases will be described in chronological order and will be first introduced by the relevant background facts. This chapter will only describe the most important judgments of the ICTY relating to the group-requirement before either the Trial – or Appeals Chamber and will leave aside any commentary present in scholarly debate. Such commentary and discussion will be described in the context of chapter six titled ‘discussion and comparison’.  4. How does the ICTR interpret the group requirement in the crime of Genocide? This chapter discusses the relevant judgments before the ICTR ad hoc tribunal relating to the group requirement. The cases will be described in chronological order and will be first introduced by the relevant background facts. This chapter will only describe the most important judgments of the ICTR relating to the group-requirement before either the Trial – or Appeals Chamber and will leave aside any commentary present in scholarly debate. Such commentary and discussion will be described in the context of chapter six titled ‘discussion and comparison’.

11

 5. How does the ICC interpret the group requirement in the crime of genocide? This chapter will deal exclusively with the case of the Prosecutor vs. Omar Hassan Ahmad Al Bashir, as for now, this is the only genocide case dealt with by the ICC. The chapter will focus on the report of the International Commission of Inquiry (COI) on Darfur, the decision of the Pre-Trial Chamber on the first arrest warrant and the separate and partly dissenting opinion from Judge Uŝacka. This chapter will only describe the Al Bashir case before the ICC relating to the group-requirement before either the Trial – or Appeals Chamber and will leave aside any commentary present in scholarly debate. Such commentary and discussion will be described in the context of chapter six titled ‘discussion and comparison’.  6. Which comparative conclusion can be drawn from the comparative analysis of the case? This concluding chapter will analyse the judgments before the ICTY, ICTR and ICC previously discussed and will give a comparative overview on the concepts used by the three different institutions in explaining and clarifying the group requirement in the crime of genocide. In addition to that, this chapter will highlight and mention existing critiques and scholarly debates on the judgments before the ICTY, ICTR and ICC discussed in the context of chapter three, four and five.

12

“If you act in the name of conscience you are stronger than any government in the world.” - Raphael Lemkin 35

2. Genocide

2.1 The Genocide Convention It was on the initiative of the Polish law professor Raphael Lemkin, that the crime of genocide was construed and introduced in the international world. It was his definition that later on formed the basis of the formation of the GC in 1948. Lemkin, who escaped from the Nazi regime himself, always had a fascination with mass killing in history such as the Jews in his home country in Poland. 36 He sought the right vocabulary for these examples of ‘barbarity’ and ‘vandalism’, as he called them, and eventually chose for a combination of Greek and Latin. 37 He combined the Greek word ‘genos’ meaning race or tribe, with the Latin word ‘cide’, meaning killing, which ultimately led to the birth of the crime of genocide in 1944. 38 He understood the crime of genocide as a two-phase process by which the (i) destruction of the national pattern of the oppressed group and the (ii) imposition of the national pattern of the oppressor were central. 39 His definition focused mainly on the protection of ‘national groups’, instead of ‘groups’ in general, making the scope of the protection of genocide more narrow as it stands today. 40 He associated these national groups with the protection of minorities, linking his idea to the creation of the minority system under the League of Nations at that time. 41 This led to critique, accusing Lemkin of a single-minded focus on nationality and ethnicity. 42 However one can argue that he was not single-minded at all, as he did not only incorporated physical genocide in his work Axis Rule of Occupied Europe, 43 but also included and described forms of political, social, cultural, economic, biological, religious and moral genocide 44 The two key distinguishing factors, namely the requisite intent and the targeting of the individual in

35 AZ Quotes, Rapael Lemkin Quotes, online retrieved 09-08-2015 from: http://www.azquotes.com/author/47038- Raphael_Lemkin 36 A. Jones, Genocide: a comprehensive introduction, (1st edn., Routledge 2007) p.9. 37 Idem., pp. 9-10. 38 D. L. Nersessian, above n. 26, pp. 295-297. 39 S.B. Shah, “The Oversight of the Last Great International Institution of the Twentieth Century: the International Criminal Court’s Definition of Genocide”, 16 Emory International Law Review 351 (2002), p. 354. 40 Schabas above n.20, p. 112. 41 Idem., p.116. 42 A. Jones, above n. 36, p.11. 43 R. Lemkin, Axis Rule in occupied Europe: Laws of Occupation – Analysis of Government – Proposal for Redress, (Washington D.C. 1944). 44 D.L. Nersessian, above n. 26, p.297.

13 his or her group capacity, were the two main elements for Lemkin to characterize these forms of genocide. 45 Ultimately, the crime of genocide was legally defined in the “UN Convention on the Prevention and Punishment of the Crime of Genocide” in article 2, which was adopted and approved unanimously by the General Assembly (GA) on 9 December 1948, after it was put on their agenda after its first session in 1946. It entered into force on 12 January 1951. 46 The definition in article 2 is subsequently incorporated into the statutes of the ICTRY, ICTR and the ICC (respectively article 4, article 2 and article 6). In the preamble of the GC it is set out clearly that international co-operation is required to achieve the two main goals of the convention, namely to (i) criminalize and punish genocide and (ii) to provide for the suppression (prevention) of the crime of genocide. 47 Not only individuals can be held responsible for committing genocide, but according to the ICJ, the GC also gives rise to state responsibility. 48 Therefore States are not only obliged to prevent and punish genocide, but also expected to refrain from genocide. The crime of genocide has a customary character, by which international obligations arise from established state practice, additional to the obligations laid down in the GC. 49 The prohibition on genocide is furthermore held to be a ius cogens norm, or also called a peremptory norm under international law. 50 This status stresses the fundamental importance of the prohibition on genocide as States cannot derogate from this provision in any situation by way of treaty. In addition to this status, the prohibition on genocide is furthermore qualified as an erga omnes obligation, by which States owe the obligation to the international community as a whole to not only prevent and punish genocide, but also to refrain from engaging in genocide. 51 In addition, not only committing genocide as such is prohibited under the Convention, also conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide is prohibited. 52

45 S.B. Shah, above n. 39, p.354. 46 D.L. Nersessian, above n. 26, p.297. 47 A. Cassesse, above n. 8, p. 111. 48 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), International Court of Justice (ICJ), 26 February 2007, para. 163 and 173. 49 According to the North Sea Continental Shelf Case Judgment from the ICJ, customary law has two criteria: (i) settled state practice and (ii) rendered obligatory by a rule requiring it (opinion iuris). Source: North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands) , I.C.J. Reports 1969, p.3, International Court of Justice (ICJ), 20 February 1969, available at: http://www.refworld.org/docid/50645e9d2.html . 50 See: M. Cherif Bassiouni, ‘International Crimes: "Jus Cogens" and "Obligatio Erga Omnes"’, 59 Law and Contemporary Problems 4 (1996), pp. 63–74. 51 A. Cassesse, above n. 8, pp. 109-112. 52 Genocide Convention (1948) above n. 7, article 3

14

2.1 Different objective and subjective elements in the definition of genocide The definition of genocide, as envisaged in article 2 of the GC reads as follows:

‘’In the present Convention, genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; e) Forcibly transferring children of the group to another group. 53

This definition is a combination between objective (actus reus) and subjective elements (mens rea). The objective elements include the conduct that may amount to genocide, described in part a) till e) in the definition. This means, that not every act committed with the requisite genocidal intent to destroy in whole or in part a protected group, will amount to genocide. Only these five enumerated acts can amount to genocide, if the accompanying mental elements are fulfilled. 54 Furthermore, these acts must be directed against members of a “group”, making therefore the group requirement an objective criteria. The subjective elements are distinguished in two parts, the first part consisting of the mental element required for each of the underlying prohibited act, and the second part consisting of the specific mental element which is required to consider those aforementioned prohibited acts as amounting to genocide. 55 Relating to the first part, each prohibited act must have been accomplished intentionally by the perpetrator. This excludes other forms such as recklessness or gross negligence. On the second part, the prohibited acts must have been committed with the intent to destroy, in whole or in part, one of the protected four groups as such. This is also called the specific intent (dolus specialis), or the genocidal intent, which is characteristic and distinguishing for the crime of genocide. 56 The mental element in the second phase is actually three folded, as there is the (i) specific intent to destroy, (ii) in whole or in part, (iii) a protected

53 Idem., article 2. 54 R. Creyer, above n. 9, p.214. 55 A. Cassesse, above n. 8, p. 111. 56 Idem., pp. 111-113.

15 group as such. The requisite specific intent can for example be proven by actions and words of the perpetrator. 57 As the identification of a group is mentioned both in connection to the specific intent, and the prohibited acts as described above, it forms an important element in the prohibition of genocide. So although a prohibited act may be committed against one single individual, the underlying reason therefore must be that he or she is part of an identifiable group and thereby, in the words of Cassesse, “depersonalizing” the victim. 58 The ICTY and the ICTR all have the same definition of genocide incorporated into their statute, with the same objective and subjective criteria. The only difference lies in the Rome Statute of the ICC where an additional objective element is added, namely a contextual element saying that the conduct must have taken place “in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction” 59, as described in the Elements of Crime. 60

2.2 The protected groups The four enumerated protected groups in article 2 GC are: national groups, ethnical groups, racial groups and religious groups. This is an exhaustive list, meaning that other groups which are not protected against genocide. The four groups were specifically chosen to be incorporated in the GC as each of them constitute a group which is characterized by cohesiveness, homogeneity, inevitability of membership, stability and tradition and were historically the target of hostility and hatred. 61 They constitute an important part within the definition of genocide, as the crime of genocide is directed towards the individual in his capacity as a group member, instead of his or her individual capacity. However, the choice whether or not to incorporate the four groups into the Convention was not always without discussion. The incorporation of religious groups into the protective scope of the GC was for example controversial, because of the fact that religious group often have a voluntary membership, in which members are free to join and leave them. One of the States opposing which shared this reasoning was the UK. 62 However, the drafters

57 R. Creyer, above n. 9, p.222. 58 A. Cassesse, above n. 8, p.111. 59 International Criminal Court (ICC), Elements of Crimes, 2011, ISBN No. 92-9227-232-2, available at: http://www1.umn.edu/humanrts/instree/iccelementsofcrimes.html . 60 R. Creyer, above n. 9, p.218. 61 A. Szpak, ‘National, Ethnic, Racial and Religious Groups Protected against Genocide in the Jurisprudence of the ad hoc International Criminal Tribunals’, 23 The European Journal of International Law 1 (2012), p. 159. 62 W.A. Schabas, above n. 20, p. 127.

16 of the Convention considered religious groups as closely analogous to ethnic or national groups as they also had come within the ambit of the post First World War minorities treaties. Furthermore, religious groups deemed more stable than political groups. 63 Although the groups are listed in the GC, a definition on them is absent. The Convention is silent about the concept of a ’group’ as such, and the identification of these four groups. Therefore, case law had to contribute to the clarification of these groups. The most important judgment in this respect is the Akayesu case of the ICTR, which will be discussed in chapter four. The question on what actually constitutes a ‘group’ as such, with the accompanying objective and subjective theory will be discussed and clarified in the context of the judgments of the ICTY, ICTR and ICC separately in the upcoming chapters.

2.3 Other groups Other groups such as political groups, economic and social groups, linguistic groups and groups defined by gender are purposely left out in the definition on genocide. This raised much concern amongst scholars and academics on the scope of groups protected.64 Political groups were for example excluded from the Convention as they lacked the homogeneity and stability that characterized the other protector groups. The guiding idea of the drafters was to include only those stable groups into which human beings are born without an (easy) way out. 65 In that respect, individuals belonging to such a political group had freely chosen their affiliation to the group. The fear in scholarly debate however has arisen that genocidal acts can be committed to such groups, but that the groups are however not protected by the GC as they are not included as a group as such. Schabas 66 however sees it differently as he argues that the exclusion of political groups in the GC is no license to eliminate them. The destruction of such groups is, according to him, protected by customary norms of crimes against humanity. The crime against humanity namely criminalises persecution directed against members of a political group. An important judgment in this respect is the Akayesu judgment of the ICTR which broadened the narrow scope of the four listed groups as they concluded in their trial judgment that protection against genocide should not only be limited to the four groups as envisaged in the definition, but should also be applied to any stable and permanent group, as this respects

63 C. Kreβ, ‘The Crime of Genocide under International Law’, 6 International Criminal Law Review 4 (2006), p. 479. 64 W.A. Schabas, above n. 20, pp. 102-103. 65 C. Kreβ, above n.62, p. 474. 66 W.A. Schabas, above n. 20, p. 144.

17 the intention of the drafters of the GC. 67 More on this particular judgment will be discussed in chapter four.

67 Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, para. 516; A. Cassesse, above n. 20, p. 120; D.L. Nersessian, above n. 26, p.304.

18

“Bosnia is a complicated country: three religions, three nations and those 'others'. Nationalism is strong in all three nations; in two of them there are a lot of racism, chauvinism, separatism; and now we are supposed to make a state out of that.” - Alija Izetbegovic 68

3. International Criminal Tribunal for the former Yugoslavia (ICTY)

Below several judgments of the ICTY will be discussed in the light of the group requirement of genocide (including the subjective or objective theory, or both) in chronological order. Each case is introduced by giving a short summary of the facts of the case at hand. At the end of the chapter, a general conclusion will be drawn out of the analysis of the judgments before the ICTY specified to group determination. The ICTY was established in May 1993 by the UN in response to mass atrocities taking place at that time in Croatia and . The ICTY was the first war crimes court created by the UN. Its key objective is to “try those individuals most responsible for appalling acts such as murder, torture, rape, enslavement, destruction of property and other crimes listed in the Tribunal’s Statute”. The war in former Yugoslavia was situated in ethnic conflicts between the majority population of the Bosnian Serbs and the minority, predominantly the Bosnian Muslims, which resulted in the eventual break-up of the country. 69

3.1 The Jelisić Case 70 The case of Jelisić was the first genocide case to be tried before the ICTY, by the TC on 14 December 1999. In addition to the crime of genocide, he was also charged with and crimes against humanity. He pleaded guilty to all counts, except for the count of genocide. 71 The TC, with confirmation of the AC on 5 July 2001, concluded that the charge of genocide could not be proven beyond reasonable doubt, as the specific intent to destroy a group was not present. Jelisić killed “arbitrarily rather than with the clear intention to destroy a group”. 72 He was found guilty for the counts of war crimes and crimes against humanity and sentenced to 40 years imprisonment.

68 Brainyquote, Bosnia Quotes (2002) online retrieved 15-10-2015 from http://www.brainyquote.com/quotes/keywords/bosnia.html . 69 United Nations International Criminal Tribunal for the former Yugoslavia, ‘About the ICTY’ online retrieved 15-10-2015 from http://www.icty.org/en/about . 70 Judgment, Jelisić, (IT-95-10-T), Trial Chamber, 14 December 1999 and Judgment, Jelisić, IT-95-10-A, Appeals Camber, 5 July 2001. 71 Judgment, Jelisić, (IT-95-10-T), Trial Chamber, 14 December 1999, paras. 8-11. 72 Judgment, Jelisić, IT-95-10-Am, Appeals Camber, 5 July 2001, para. 50.

19

The TC in this case made some important points with regard to the determination of the groups targeted by genocide. First of all, the Court acknowledged the fact that the prohibited act must be committed against the individual because he or she is a member of a particular group. Therefore it is their membership, and not their individual capacity for which they become a target of genocide. In addition to that, the act committed by the alleged perpetrator must also have been committed as part of a wider plan to destroy the group as such. 73 The TC refers to the prepatory work of the Convention in which the wish was expressed to “limit the field of application of the Convention to protect only stable groups which are objectively defined and to which individuals belong regardless of their own desires”. 74 However, the Court states that to only objectively define national, ethnical or racial groups on the base of ‘scientifically irreproachable’ criteria will lead to a discrepancy between this categorisation and the perception of the persons concerned. In the words of the Court it would be a ‘perilous exercise’. 75 The objective determination of religious groups still remains possible according to the Court. In case the other three groups, it is more appropriate to evaluate the status of the groups from the point of view of those persons who wish to single out that group from the rest of the community: the alleged perpetrator. The TC refers in this respect to the subjective theory and concludes that the stigmatisation 76 of a group as a distinct national, ethnical or racial group by the community determines whether the targeted population falls within the scope of the protected groups under the GC in the eyes of the alleged perpetrator. 77 By making the perpetrator-defined groups possible, they link the group determination to the specific intent of the perpetrator, which is characteristic for the crime of genocide. 78 This stigmatization, which can loosely be defined as “to mark with a mark of disgrace or infamy; a stain or reproach; as on one’s reputation”79 , occurs in two ways: by way of positive or negative criteria. Identification by positive criteria on the one hand, consists of the distinguishing a group by the alleged perpetrator on the base of characteristics which they deem to be particular, and or essential to a national, ethnical, racial or religious group. On the other hand, when the

73 Judgment, Jelisić, (IT-95-10-T), Trial Chamber, 14 December 1999, paras. 66-67. 74 Idem., para. 69. 75 Idem., para. 70. 76 With this conclusion the Tribunal follows the approach from the ICTR in the Kayishema and Ruzindana judgment (Judgment, Kayishema and Runzindana, (ICTR-95-1) and (ICTR-96-10), Trial Chamber, 21 May 1999), which will be discussed in the next chapter. 77 Judgment, Jelisić, (IT-95-10-T), Trial Chamber, 14 December 1999, para. 70. 78 R. Young, above n. 23, p.13. 79 Dictionary.com, ‘stigma’, online retrieved 20-10-2015 from http://dictionary.reference.com/browse/stigma .

20 perpetrator negatively stigmatises a group he identifies individuals as not being part of the group to which he himself belongs, identifying the other group as one of the victimised groups. The second criteria, the negative determination, is far broader in scope as every individual who is rejected from the group the perpetrator himself belongs to, will constitute a distinct group by way of exclusion. The TC does not further elaborate upon the question which method should prevail, they only refer to the opinion of the Commission of Experts 80, to which they agree, stating that it corresponds “with the object and the purpose of the Convention to consider that its provisions also protect groups defined by exclusion where they have been stigmatized by the perpetrators of the act in this way”, thereby accepting both the positive and negative stigmatization criteria. 81 The TC in this case used the positive approach was and determined that the crimes committed were directed against the Bosnian Muslim population qualified as a religious group under the ICTY Statute. Evidence used to support this claim were the general context in which the acts of the accused fitted but also his statement and deeds. Although this perfectly falls under the heading of subjective evidence, a fully subjective approach was not followed as the prosecution also relied on objective evidence in the form of statistical evidence was used in the form of statistics proving that the majority of victims who were killed were in fact Muslims. 82

3.2 The Kristić Case 83 Kristić was charged with the principal perpetration of genocide, complicity to genocide, war crimes and crimes against humanity for his involvement in the context of the Srebrenica massacres committed in July 1995 as his capacity of Chief of Staff/Deputy Commander. 84 Kristić was initially sentenced to 46 years imprisonment by the TC which found him guilty for genocide, war crimes and crimes against humanity. It was the tribunal’s first conviction on genocide. His sentence was however reduced by the AC to 35 years imprisonment as they concluded that he was not the principal perpetrator of genocide, but an aider and abettor to the

80 This Commission of Experts was established by UN Security Council Resolution 780 and examined the alleged crimes in the former Yugoslavia. For more information see: M. Cherif Bassiouni, ‘The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)’, 88 The American Journal of International Law 4 (1994). 81 Judgment, Jelisić, (IT-95-10-T), Trial Chamber, 14 December 1999, para. 71. 82 Judgment, Jelisić, (IT-95-10-T), Trial Chamber, 14 December 1999, paras. 69-74. 83 Judgment, Kristic, (IT-98-33-T), Trial Chamber, 2 August 2001 and Judgment, Kristic, (IT-98-33-A), Appeals Chamber, 19 April 2004. 84 He was Chief of Staff/ Deputy Commander of the Drina Corps of the Army of the Serb Republic of Bosnia- Herzegovina, Republika Srpska. See Judgment, Kristic, (IT-98-33-T), Trial Chamber, 2 August 2001, paras. 1-25.

21 crime. In this judgment the Court determined that the was an act of genocide. 85 The TC had to determine whether the Bosnian Muslim population or another group was targeted during these events and whether they could be placed under the protected groups of the GC. The TC first refers to the preparatory work of the GC and by using a historical analysis in combination with texts of similar human rights instruments, it concluded that the four categories which are protected by the GC correspond to the notion of the protection of ‘national minorities’. 86 National, ethnic, racial or religious groups are therefore not clearly defined in the Convention or elsewhere. The list of the four groups in the Convention was intended to describe a single phenomenon, namely that of national minorities, rather than to refer to the “several distinct prototypes of human groups”. 87 Therefore, the identification of the different groups could not be determined on the basis of scientifically objective criteria, as this would be inconsistent with the object and purpose of the Convention. Instead of using scientifically objective criteria, the cultural, religious, ethnical or national characteristics of the group must be identified within the socio-historic context it inhabits. 88 The Court refers to the use of subjective criteria in the process of identifying the relevant protected group(s), namely the stigmatisation of the group. This stigmatisation is based on the perception of the alleged perpetrator on the characteristics of national, ethnic, racial and religious groups. In this instance the Court refers to the Jelisić case were the positive and negative stigmatisation is discussed. 89 The use of subjective criteria is however broadened by the Court in comparison to the Jelisić case, as they now also apply to religious groups and not only to national, ethnical or racial group, as was the case in Jelisić. 90 The Court chooses an approach between the objective and subjective theory to prove that the Bosnian Muslims fell within the scope of the protected groups of the GC. This mixed objective-subjective approach is reflected in the use of the Yugoslav Constitution of 1963, in which the Bosnian Muslims were recognized as a ’nation’, to be qualified as an objective determination factor. Furthermore, they relied upon the subjective evidence of the perceptions

85 W.A Schabas, ‘Genocide, Crimes Against Humanity and Darfur: The Commission of Inquiry’s Findings on Genocide’, 27 Cardozo Law Review 4, p. 1707. 86 W.A. Schabas, ‘Was Genocide Committed in Bosnia and Herzegovina?’, 25 Fordham International Law Journal 1 (2001), p. 5. 87 Judgment, Kristić, (IT-98-33-T), Trial Chamber, 2 August 2001, paras. 555-556. 88 Idem., para. 556. 89 Idem., paras. 556-557. 90 R. Young, above n. 23, p. 14.

22 of the highest Bosnian Serb political authorities and the Bosnian Serb forces, stating that the Bosnian Muslims constituted a specific national group. 91 This combination of evidence made the TC conclude that the Bosnian Muslims constituted a specific distinct national group, falling within the meaning of article 4 of the ICTY Statute. This differed from the conclusion in the Jelisić case, where the Bosnian Muslims were identified as a religious group. 92 The Bosnian Muslims of Srebrenica, or the Bosnian Muslims of Eastern Bosnia constituted part of the protected group of the Bosnian Muslims (interpreting the words ‘in whole or in part’ in the GC). 93 Evidence used by the TC to support this claim mainly highlighted the strategic importance for the Bosnian Serb leadership to take over control of the region of Srebrenica. Without such control, the “ethnically Serb state of Republica Srpska they sought to create would remain divided into two disconnected parts, and its access to would be disrupted”. 94 Although the Prosecution referred to the targeted group as the ‘Bosnian Population of Srebrenica’, instead of the Bosnian Muslims as a whole as used in the indictment, the TC concluded (which was later on also affirmed by the AC 95) that these only constituted a part of the whole group. 96 The men of military age were furthermore not viewed by the TC as another distinct group, as opposed to the Defence’s view, which according to the AC ‘misunderstands’ the TC analysis, but instead formed the evidence to support the fact that Kristić and other VRS Main Staff had the requisite intent to destroy all the Bosnian Muslims of Srebrenica. 97 The AC stressed the fact that genocide could only be proven when the alleged perpetrator intends to destroy at least a substantial part of the protected group. This is the so-called substantiality requirement, which can be proven on the base of numerical evidence and should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. 98 This requirement is however not exhaustive nor dispositive according to the AC and only represents useful guidelines. The applicability of these factors, as well as their relative weight, will vary depending on the circumstances of a particular case.99 The Bosnian Muslims of Srebrenica constituted a substantial part from the Bosnian Muslims. The group of the Bosnian Population of Srebrenica, as proposed by the Prosecution was merely

91 Judgment, Kristić, (IT-98-33-T), Trial Chamber, 2 August 2001, para. 556. . 92 Ibidem. 93 Idem., para. 560. 94 Judgment, Kristić, (IT-98-33-A), Appeals Chamber, 19 April 2004, para. 15. 95 Idem., para. 6. 96 Judgment, Kristić, (IT-98-33-T), Trial Chamber, 2 August 2001, para. 558. 97 Judgment, Kristić, (IT-98-33-A), Appeals Chamber, 19 April 2004, para. 18. 98 Idem., para. 12 and 8. 99 Idem., para. 13.

23 determined on the base of a geographical location. According to the Defence, limiting its scope to a geographical area would create an artificial group, as ‘geographic region’ as such is not a criterion contemplated by the Convention. 100 They contended that the TC definition on the part of the national group Kristić was found to have intended to destroy was ‘unacceptably narrow’. 101 The Defence’s appeal on this issue was however dismissed, and the AC concluded that the TC determination of the substantial part of the protected group was correct. 102 This reasoning was later adopted by the ICJ in the Bosnian Genocide case 103 of 2007 in which the Court declared that it is “widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area”. 104 The Court also touched upon the substantiality requirement and determined it as an “essential starting point” in establishing the group requirement but emphasised that such a qualitative approach cannot stand alone.105 In this case, the TC specifically referred to a mixed objective-subjective approach in the process of identification of a group and interpreted the meaning of the words “in whole or in part” by determining that the Bosnian Muslims of Srebrenica formed a substantial part of the targeted group as a whole, namely the Bosnian Muslims. In the first aspect it differs from the judgment by the Court in the Jelisić case, as in this case the Court specifically stresses the use of subjective criteria, although in their use of evidence they also made reference to objective criteria. Furthermore, the Court now also acknowledges that religious groups can be qualified by way of subjective criteria, and not only on objective criteria as was said in the Jelisić case. The Bosnian Muslims are not categorised as a religious group as in the Jelisić judgment, but as a distinct national group.

3.3 The Stakić Case 106 M. Stakić was elected Vice-president of the Serbian Democratic Party Municipal Board in Prijedor during the time of the Bosnian genocide. During his presidency, the party seized power and imposed severe restrictions on the non-Serb population. He perpetrated attacks against the

100 Judgment, Kristić, (IT-98-33-T), Trial Chamber, 2 August 2001, para. 558. 101 Judgment, Kristić, (IT-98-33-A), Appeals Chamber, 19 April 2004, para. 5. 102 Idem., para. 23. 103 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), International Court of Justice (ICJ), 26 February 2007. 104 Idem., para. 199. 105 Idem., paras. 200-201. 106Judgment, Stakić, (IT-97-24-T), Trials Chamber, 31 July 2003 and Judgment, Stakić, (IT-97-24-A), Appeals Chamber, 22 March 2006.

24

Bosnian Muslims and Croats, and organized and supported deportations and forced expulsions of more than 20.000 non-Serbs. 107 Stakić was charged with genocide and complicity in genocide, crimes against humanity and murder as a violation of the laws and war crimes. In the end, he was acquitted from genocide and complicity in genocide, because the TC was unable to prove the requisite special intent. His sentence was later upheld by the AC 108, sentencing him to 40 years imprisonment. 109 The TC only referred shortly to the notion of the protected groups, but included an important reasoning. It concluded that the negative stigmatisation approach taken in the Jelisić case, was not the appropriate method to define the group in cases where more than one group is targeted. 110 In this conclusion one clearly sees that the Court moves away from the previously established method to define groups in the Jelisić case. The identification of a group by exclusion, would, after this judgment, not count anymore in identifying a distinct group and therefore will not be awarded protection under the GC. Therefore, the group the prosecution referred to, namely all non-Serbs, is as such not protected under the Convention. The TC further states that a “targeted group may be distinguishable on more than one basis and the elements of genocide must be considered in relation to each group separately”. This means that the TC acknowledges the use of objective and subjective criteria as opposed to identification of the group on solely one criteria, and that these criteria must be evaluated for each group separately, instead of evaluation of the group as a whole. 111 This indicates that the criteria had to be evaluated for the Bosnian Muslims and the Bosnian Croats separately as it were two different prosecutions. The TC found that the majority of victims of genocidal acts belonged to the Bosnian Muslim group. However, the TC concluded that the Bosnian Croats group was not separately targeted because the number of Croats in the municipality of Prijedor was limited, which led to insufficient evidence. 112 This conclusion was disputed by the Prosecution in the AC judgment. The Prosecution contended that the finding was inconsistent with the TC own correct assertion that “no numeric threshold of victims necessary to establish genocide”. The fact that there were relatively few Bosnian Croats in Prijedor does not mean according to the Prosecution that they were not targeted at al. 113 The AC dismissed the reasoning of the Prosecution and concluded that the TC did not err in law by finding that the Bosnian Croat

107 A. Szpak, above n. 60, p.170. 108 Judgment, Stakić, (IT-97-24-A), Appeals Chamber, 22 March 2006, paras. 55-57. 109 A. Szpak, above n. 60, p. 170. 110 Judgment, Stakić, (IT-97-24-T), Trials Chamber, 31 July 2003, para. 512. 111 Ibidem. 112 Idem., para. 545. 113 Judgment, Stakić, (IT-97-24-A), Appeals Chamber, 22 March 2006, para. 29.

25 group was not separately targeted for genocide. In their opinion, “the fact that some Croats, some Croat properties, and some sites of importance to Croats were victimised does not necessarily compel the conclusion that the Croat group as such was targeted by acts that could constitute the actus reus for genocide”. 114 The TC does not provide the reader with any more details on this shift in reasoning. However, the judgment of the AC does, as it elaborates in more detail upon the problematic of the negative and positive approach in identifying groups. This question is even determined by the AC as “one of its first impressions for the Appeals Chamber”. 115 The Prosecution appealed the TC judgment on three grounds: (i) the TC erred by finding that the target group for genocide could not be defined negatively, (ii) the TC erred by finding that the requisite specific intent for genocide was lacking and (iii) the TC erred in its application of the law on cumulative convictions. 116 For the purpose of this analysis, only the first ground of appeal will be discussed. In the first ground of Appeal the prosecution argued that the TC mistakenly concluded that the target group of genocide, could not be the non-Serbs in Prijedor Municipality as this group was negatively defined. The prosecution argued that the TC had no legal basis for explicitly rejecting such a negative approach, and in addition to that argued on the basis of case law from the ICTY and ICTR 117 that targeted groups should be defined subjectively by the manner in which the alleged perpetrator perceived the group. They furthermore support their claim by referring to the final report of the Commission of Experts which stated that it “may be permissible to define target groups by reference to national, ethnical, racial or religious characteristics that individuals lack”. The prosecution finally added that proving that the groups were targeted separately does not accord with the practical realities of conflicts of this nature or with the facts of the case and that to add such a requirement is not supported by any authority. 118 The AC counter argument on the negative group definition can be roughly divided into three parts: (i) the wording of the definition of genocide itself, (ii) etymology of the term genocide and (iii) the drafting history of genocide. 119

114 Idem., paras. 35-36. 115 Idem., para. 19. 116 C. Mitchell, ‘Case Note: Prosecutor v. Milomir Stakić [IT-97-24-A] (Appeals Chamber) (22 March 2006’, 13 Australian International Law Journal (2006), p. 271. 117 Judgment, Kristić, (IT-98-33-T), Trial Chamber, 2 August 2001 and Judgment, Rutaganda, (ICTR-96-3), Trial Chamber, 6 December 1999. 118 Judgment, Stakić, (IT-97-24-A), Appeals Chamber, 22 March 2006, paras. 16-17. 119 C. Mitchell, above n. 123, pp. 272-273.

26

Concerning the first part, the AC referred to the words “as such” in the GC and concluded that it shows that the offence requires an intent to destroy a collection of people who have a particular group identity. When specific intent concerns individuals lacking a particular national, ethnical, racial or religious characteristics, the intent to destroy would not be specified to particular groups with particular identities as such, but merely would indicate the intention to destroy the individual as they lack certain characteristics. 120

Referring to the etymology of the term genocide the AC argues that Lemkin defined the term as “the destruction of a nation or of an ethnic group” and “aiming at the destruction of essential foundations of the life of national groups”. This destruction constitutes a serious offence as it is aimed to destroy the groups’ “genuine traditions, genuine culture and well-developed psychology”. Therefore the AC concludes that the term genocide was originally conceived as the destruction of a race, tribe, national or other group with a particular positive identity and not of the destruction of a group lacking a certain distinct identity. 121

The AC described two points in the drafting history of the Genocide to justify their reasoning that the GC was not meant to have a negative definition of the target groups as this would go contrary to the understanding of the term genocide. The first point was the declined inclusion of political groups within the definition of genocide. The AC referred to the reasoning of the countries which said that they only wanted to protect “definite groups distinguished from other groups by well-established, immutable criteria” in the Convention. The AC puts the negatively defined groups in the category of ‘lacking specific characteristics’, without further elaboration, and therefore concludes that a negative identification would go contra to the intention of the drafters of the Convention. The second point refers to the possible inclusion of the term cultural genocide which refers to the suppression of a group by extinguishing specific traits, as well as by physical destruction. The AC uses this consideration to argue that the intention of the drafters was to include only target groups which have specific distinguishing characteristics, which are lacking in groups defined by negative criteria as they have no such unique distinguishing characteristics that could be destroyed. 122 Lastly, the AC points out that since the GC was adopted there appeared no relevant change in how the GC’s provisions on target groups is understood on the base of leading commentaries, debates between experts and studies. 123

120 Judgment, Stakić, (IT-97-24-A), Appeals Chamber, 22 March 2006, para. 20. 121 Idem., para. 21. 122 Idem., para. 23. 123 Idem., paras. 24.

27

As to the Prosecutions’ statement that a subjective approach of group determination should be preferred, the Court considers that this argument is to be rejected for two reasons. Firstly, the Court refers to the Kristić judgment in which the TC said that “stigmatisation by the perpetrators can be used as a criterion when definition target groups”. 124 Here it is in the words ‘a criterion’ which tells us that this subjective criteria of stigmatisation is not to be used as the sole criteria. The AC also refers to the Rutaganda case of the ICTR 125, in which the TC concluded that a subjective definition alone is not enough to define a victim group. The second reason refers to the separation of on the one hand the positive and negative determination criteria and on the other hand the subjective and objective identification criteria. The AC notes that “whether or not a group is subjectively defined is not relevant to whether a group is defined in a positive or negative way”, and therefore divides these two issues. When a group is defined negatively, it does not matter if this group is identified on the basis of objective or subjective criteria, because negatively defined groups are either way not included in the Convention. 126 The AC furthermore states that the Prosecution only referred to one single source to prove the permissibility of a negative approach, namely the report of the Commission of Experts, which made their statement non persuasive. The AC concludes that only when a target group is positively defined, the other protected groups may be assembled into a larger negative group. 127 This means that when you have a large negative group A, the smaller groups B, C and D have to be defined positively, in order for the at first hand negatively defined group A to be included in the protection of the Convention. Not all judges agreed with the reasoning of the AC on this point. Judge Shahabuddeen delivered a separate dissenting opinion on this matter.128 She argued that it would be inconsistent with the purpose of the GC to prove for each smaller group in the bigger encompassing (negatively defined group) all the elements of the crime of genocide. Furthermore she finds it unobjectionably to determine these criteria only once, also in respect for the negatively defined group. 129 In addition to this, she also states that the final report of the Commission of Experts, which the AC used to justify their reasoning, actually acknowledged the notion of mixed groups and that they accepted as a matter of fact, and not as a legal necessity that each of the smaller

124 Idem., para. 25. 125 Judgment, Rutaganda, (ICTR-96-3), Trial Chamber, 6 December 1999, paras. 55-57. 126 Judgment, Stakić, (IT-97-24-A), Appeals Chamber, 22 March 2006, paras. 23 and 26. 127 Idem., para. 27. 128 Partly Dissenting Opinion of Judgment Shahabuddeen in Judgment, Stakić, (IT-97-24-A), Appeals Chamber, 22 March 2006. 129 Idem., para. 17.

28 groups constituted a protected group. Thereby acknowledging the positively defined basis of the larger negative defined group. 130 For all the reasons stated above, the AC concluded that the TC had not erred in law by concluding that the target group of Bosnian Muslims and Bosnian Croats must be considered separately and that a negative approach to one of the targeted groups is not possible under the GC. 131 Later, in the more recent judgment of Popović132, the TC affirmed the judgment conclusions by the AC in Stakić by adapting a positive approach in order to identify targeted groups and concludes that a negative approach does not meet the definition of genocide as envisaged in article 4 of the ICTY Statute. This definition adopts the understanding that genocide is the destruction of distinct human groups with particular identities, for example religious communities united by a single spiritual idea. Negative defined groups therefore do not meet the definition, as targeted groups are then identified by a lack of certain national, ethnic, racial or religious characteristics. 133

3.4 The BrÐanin Case134 BrÐanin was a leading political figure in the Autonomous Region of Krajina, and was the acting deputy prime minister for production, minister for construction, traffic and utilities and in addition to that acting vice-president of the government of the Serb Republic during the conflict. He was convicted of crimes against humanity and war crimes such as torture, deportation, destruction of cities and town and wilful killing. He was sentenced to 30 years’ imprisonment. 135 The TC in this case repeats the reasoning of the TC in the Kristić judgment 136 in that the relevant protected group may be identified by means of subjective criterion. This criterion is the stigmatisation of the group by the perpetrator(s) on the basis of perceived national, ethnical, racial or religious characteristics. However, here the TC adds that the process of determination of the relevant protected group has to be made on a case-by-case basis, consulting both objective

130 Idem., paras. 13-14. 131 Judgment, Stakić, (IT-97-24-A), Appeals Chamber, 22 March 2006, para. 28 and 36. 132 Judgment, Popović et al, (IT-05-88-T), Trial Chamber, 10 June 2010. 133 A. Szpak, above n. 60, p. 172; Judgment, Popović et al, (IT-05-88-T), Trial Chamber,10 June 2010, paras. 807- 809. 134 Judgment, BrÐanin, (IT-99-36-T), Trial Chamber, 1 September 2004 and Judgment, BrÐanin, (IT-99-36-A), Appeals Chamber, 3 April 2007. 135 ICTY, ‘Case Information Sheet Krajina (IT-99-36) Radoslav BrÐanin’, online retrieved 22-11-2015 from: http://www.icty.org/x/cases/brdanin/cis/en/cis_brdjanin_en.pdf . 136 Judgment, Kristić, (IT-98-33-T), Trial Chamber, 2 August 2001, para. 556.

29 and subjective criteria, as subjective criteria alone may not be sufficient to determine the targeted group to be protected under the GC/ ICTY Statute. The TC furthermore agreed with the position taken by the TC in Kristić that a negative approach towards a protected group, which consist of identifying a relevant group by exclusion, is not possible and that to define a group in general terms in the situation that more than one group is targeted is not appropriate. In such cases, the elements of crime must be considered in relation to each group separately.137 With this latest and recent judgment the Court specifically concludes that a mixed objective- subjective approach should be taken in the process of identifying the relevant groups and that a negative approach is not appropriate and even more: not possible. With this judgment the Court repeats their earlier conclusions to affirm their position in the relevant judgments. The TC in the Blagojević and Dragon Jokić case affirmed the case-by-case basis determination of the relevant protected groups and the consultation of both objective and subjective criteria. 138

3.5 Conclusion The early case law from the ICTY shows a shift in the determination of group membership from using objective criteria to subjective criteria. In one of the first cases concerning genocide, the TC in the Jelisić case was the first to conclude that it is more appropriate to evaluate the status of the groups from the point of view of the perpetrator, which is qualified as a subjective criterion. This method is referred to by the Court as stigmatisation, which can occur on the base of positive or negative criteria. According to the Court in Jelisić, both approaches are possible. However, cases following to the Jelisić decision confirmed that identification on the basis of negative criteria is inappropriate, and that only a positive approach in which a group is identified on the distinct characteristics present in the group, is possible. The tribunal justifies their conclusion by referring to the drafting history of genocide, the etymology of the term and the wording of the definition of genocide itself. Negative determination of group membership is only possible in situations in which more than one group is targeted: when the larger group is defined negatively, the smaller sub groups have to be defined positively, in order for the first larger negatively defined group to be included in the protection of the Convention. Deviating from its earlier decisions, the tribunal in the most recent judgment stresses the importance of a mixed approach using both objective and subjective criteria in determining group membership, as a subjective approach may not be sufficient to determine the targeted

137 Judgment, BrÐanin, (IT-99-36-T), Trial Chamber, 1 September 2004, paras. 682-686. 138 Judgment, Blagojević, (IT-02-60), Trial Chamber, 17 January 2005, para. 667.

30 group to be protected under the definition of genocide. Such an approach must be made on a case-by-case basis.

Besides the objective/subjective debate the tribunal has also shed light on the substantiality requirement by which genocide can only be proven when the alleged perpetrator intends to destroy at least a substantial part of the protected group. Furthermore, a targeted group may be determined on the base of a geographic region, although this criterion is as such not provided for in the definition of genocide. Later it will become evident that such an approach is allowed, as the ICJ in its Bosnian Genocide judgment specifically states that determining a group on the base of a geographic region is allowed.

Ultimately, the Bosnian Muslims were qualified as a distinct national group under article 4 of the ICTY statute, affording them protection against the crime of genocide.

31

“Rwanda can be a paradise again, but it will take the love of the entire world to heal my homeland. And that is as it should be, for what happened in Rwanda happened to us all – humanity was wounded by the genocide”

- Immaculee Ilibagiza 139

4. International Criminal Tribunal for Rwanda (ICTR)

As in the former chapter, the judgments of the ICTR relating to the group requirement of genocide will be discussed in chronological order, starting with the TC judgment. Each case will be introduced by its accompanying facts. At the end of the chapter, a general conclusion will be drawn out of the analysis of the judgments before the ICTR specified to group determination. The ICTR was established by the UN in November 1994 to “prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighboring states, between 1 January 1994 and 31 December 1994”. 140 The conflict in Rwanda took place in the context of the Rwandan Civil War, which was an ongoing conflict since 1990. However, with the killing of the president of Habyaimana and Burundi in April 1994 the conflict worsened and ultimately emerged into a genocidal policy of the Hutu’s against the Tutsi’s and moderate Hutu’s. In an approximate 100-day period an estimated 500.000 – 1.000.000 Rwandans were killed. 141

4.1 The Akayesu Case 142 The first genocide case to be tried before an International Criminal Tribunal was the case of Jean-Paul Akaysu, who was a former mayor (bourgemestre 143) of Taba at the time the alleged crimes alleged in the indictment were perpetrated. Akayesu stood trial for 15 counts and was charged with genocide, crimes against humanity and war crimes. Crimes committed were amongst others extermination, mutilation, killing, rape of a systematic nature and other sexual

139 Brainyquote, Rwanda quotes (2002) online retrieved 15-11-2015 from http://www.brainyquote.com/quotes/keywords/rwanda.html . 140 United Nations Mechanism for International Criminal Tribunal for Rwanda, online retrieved 16-11-2015 from: http://www.unictr.org/en/tribunal . 141 History, ‘The Rwandan Genocide’ (2003) online retrieved 16-11-2015 from http://www.history.com/topics/rwandan-genocide . 142 Judgment, Akayesu, (ICTR-96-4-T), Trial Chamber, 2 September 1998 and Judgment, Akayesu, (ICTR-96-4- A), Appeals Chamber, 1 June 2001. 143 Judgment, Akayesu, (ICTR-96-4-T), Trial Chamber, 2 September 1998, para. 1.

32 violence. 144 According to the indictment he directly and indirectly participated in the genocide of 1994 in Rwanda. He was found guilty for nine counts of genocide and crimes against humanity and was sentenced to life imprisonment after an affirmative appeal on 1 June 2001. 145 The Akayesu trial before the ICTR is in two ways important for the group requirement of genocide: firstly, the Court had to define the four protected groups in the GC in their judgment and secondly, they had to distinguish between the Hutu and the Tutsi group for the first time, and determine whether the Tutsi population constituted a protected group under the Convention. Relating to the first task, the Court in the TC judgment provided for a definition of national, ethnic, racial and religious groups whose definitions were later on subsequently used in other decisions of not only the ICTR, but also the ICTY. National groups were defined by the TC in Akayesu as a “collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties”. 146 With this definition, the ICTR links nationality to its legal aspects, as we see in the choice of words: rights and duties. In this regard, nationality is linked to the concept of citizenship. 147 The ICTR in its clarifying judgment cited the Nottebohm 148 case of the ICJ as authority for its statement. This case considered a German businessman named Frederic Nottebohm who lived in Guatemala for over 30 years. During World War II, Nottebohm applied for citizenship in Liechtenstein, which was granted to him under a special law. But when he returned to Guatemala in 1940 with his Liechtenstein passport, he was considered as an enemy alien and was reported, leaving his property to be expropriated by the government. Liechtenstein initiated a case before the ICJ, alleging that Nottebohm was its citizen and therefore claiming damages from the Guatemalan government. The contra argument from the Guatemalan government was that Nottebohm was not a genuine national of Liechtenstein under international law. The ICJ ultimately decided that Nottebohm was not a national of Liechtenstein under international law but of Guatemala, assessing nationality on the base of a legal bond having its basis in a social fact of attachment, a genuine connection of existence, interest, and sentiments, together with the existence of reciprocal rights and duties. 149 With

144 United Nations Mechanism for International Criminal Tribunal for Rwanda, online retrieved 16-11-2015 from: http://www.unictr.org/en/tribunal . 145 A. Szpak, above n. 60 p. 157. 146 Judgment, Akayesu, (ICTR-96-4-T), Trial Chamber, 2 September 1998, para. 511. 147 D.L. Nersessian, above n. 26, pp. 302-303. 148 Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ), 6 April 1955, para 24. 149 D.L. Nersessian, above n. 26, pp.300-303.

33 this decision, the ICJ made a distinction between the formal grant of nationality, and the reality of the bonds linking an individual and his or her State of nationality. 150 Ethnical groups were defined by the tribunal as a “group whose members share a common language or culture”. 151 The ICTR defined racial groups on the basis of “hereditary physical traits often associated with a geographical region, irrespective of linguistic, cultural, national or religious factors’’. 152 Religious group were defined as groups “whose members share the same religion, denomination or mode or worship”. 153 Relating to the charges of genocide, the TC concluded first of all that genocide was directed towards members of a ‘group’ as such, namely the Tutsi population 154 who were the subject of extermination. 155 To support their claims the Court relied on several witness testimonies, propaganda campaigns and the issuing of identity cards. 156 However, the difficulty was in the questions which of the four groups the Tutsi belonged to. Although the tribunal considered ethnicity the closest identification factor, the Tutsi’s were difficult to distinguish from the Hutu’s as they shared the same nationality, race and religion, language and culture. 157 The small differences, such as economic and genomic features, were not visible in all cases and it was difficult to uphold therefore that the Hutu and Tutsi population belonged to separate ethnic groups. 158 Mixed marriages were common, which only made things more difficult. These difficulties were already known in the Belgian colonisation period of Rwanda, which made them decide to introduce a system of identity cards in 1933 by which the ethnic origin of the Rwandan population was based on the number of cattle owned by the family. 159 The TC had to come up with a different definition, if they wanted to include the Tutsi population into the protective scope of the Convention. By looking at the travaux préparatoires the tribunal concluded that: “the crime of genocide was allegedly perceived as targeting only ‘stable’ groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more ‘mobile’ groups which one joins through individual voluntary commitment, such as political and economic groups”. The omission of political

150 W.A. Schabas above n. 20, p. 115. 151 Judgment, Akayesu, (ICTR-96-4-T), Trial Chamber, 2 September 1998, para. 513. 152 Idem., para. 514. 153 Idem., para. 515. 154 Idem.. 124-125. 155 Idem., paras. 116-118. 156 Idem., paras. 112-123. 157 S.B. Shah, above n. 39, p. 368. 158 W.A. Schabas, above n. 15, p. 378. 159 Idem., p. 379.

34 groups in the GC is seen as an indicator that the crime of genocide was allegedly perceived as targeting stable groups. 160 The tribunal continued that the common criterion to the four types of groups in the GC is the inability to challenge membership of the group, because they belong automatically to the group by birth, in a continuous and often irremediable manner. 161 After giving the definition of the four groups in the Convention as previously discussed the tribunal considered whether protection should only be limited to the four groups expressly mentioned, or whether other stable and permanent groups similar to the four groups should also be taken into consideration. They concluded that in order to respect the intention of the drafters of the GC, which was to ensure the protection of any stable and permanent groups, other stable and permanent groups should indeed be afforded protection.162 In the factual findings of the case, the tribunal listed several sorts of evidence to prove that the Tutsi population indeed constituted such a stable and permanent group. Firstly, according to the identity cards system, the Tutsi constituted an ethnic group, as they were referred as such in these official classifications. Secondly, all the Rwandan witnesses before the Court answered “spontaneously and without hesitation the question of the prosecutor regarding their identity”, proving their distinction from the Hutu population by way of self-perception. 163 Thirdly, reference to the Rwandan Constitution and laws in force in 1994 were made in which the Rwandans were referred to by their ethnicity. 164

4.2 The Kayishema and Ruzindana Case 165 This case concerned the sentencing of Clément Kayishema and Obed Ruzindanda who were accused of genocide, war crimes and crimes against humanity relating to their participation in four massacres perpetrated in the period between 17 April 1994 and 30 June 1994. These massacres took place in public places such as a Catholic Church, a Stadium and the region of Bisesero. By these attacks, more than thousand people were killed. Kayishema was sentenced to life in imprisonment and Ruzindana to 25 years’ imprisonment. 166

160 Judgment, Akayesu, (ICTR-96-4-T), Trial Chamber, 2 September 1998, para. 515. 161 Idem., para. 511. 162 Idem., para. 516. 163 Idem., para. 702. 164 Idem., paras. 703-705. 165 Judgment, Kayeshima and Ruzindana, (ICTR-95-1) and (ICTR-96-10), Trial Chamber, 21 May 1999 and Judgment, Kayeshima and Ruzindana, (ICTR-95-1-A) and (ICTR-96-10-A), Appeals Chamber, 1 June 2001. 166 Judgment, Kayishema and Ruzindanda, (ICTR-95-1) and (ICTR-96-10), Trial Chamber, 21 May 1999, para. 1-35.

35

The TC repeated the definitions of the racial and religious groups from the Akayesu decision but however expanded the definition of ethnic groups. The Court stated that, groups whose members do not share a common language and culture can still be a distinct ethnic group when it “distinguishes itself, as such (self-identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others)”. 167 By these words, the TC included a subjective element in the determination process of the group requirement, which was not anticipated for by the TC in the Akayesu judgment. The TC did not offer any definition of national groups. The TC found beyond reasonable doubt that the Tutsis were an ethnic group under article 2 (2) of the ICTR statute and were targeted as such, based on the identification card system and on the witness testimonies given during trial. 168 In this respect the decision differed from the conclusion the TC reached in the Akayesu decision, in which the Court said that the Tutsi’s could not be considered as a separate ethnic group but were however protected under the GC as they were like the four other groups sufficiently stable and permanent.

4.3 The Rutaganda Case 169, the Bagilishema Case 170, the Semanza Case 171, the Gacumbitsi Case 172, the Ndindabahizi Case 173 and the Muhimana Case 174 Rutaganda, accused of war crimes, crimes against humanity and genocide was sentenced to life imprisonment. He was held responsible for several acts supporting the genocide in Rwanda such as his encouragement on the radio to commit acts, the distribution of weapons and the capturing, rape and torture of Tutsi women. 175 The Court in the TC decision stated that the concepts of national, ethnical, racial and religious groups have been researched extensively and that, at present no generally and internationally accepted precise definitions exist. Therefore, these concepts must be assessed in the light of a particular political, social and cultural context. It furthermore stresses that membership of a group is in essence a subjective concept, rather than an objective one. They emphasize the possibility of self-identification by the victim himself/herself as belonging to the

167 Idem., para. 98. 168 Judgment, Kayishema and Ruzindanda, (ICTR-95-1) and (ICTR-96-10), Trial Chamber, 21 May 1999, para. 526. 169 Judgment, Rutaganda, (ICTR-96-3), Trial Chamber, 6 December 1999 170 Judgment, Bagilishema, (ICTR-95-1A-T), Trial Chamber, 7 June 2001. 171 Judgment, Semanza, (ICTR-97-20-T), Trial Chamber, 15 May 2003. 172 Judgment, Gacumbitsi, (ICTR-2001-64-T), Trial Chamber, 17 June 2004. 173 Judgment, Ndindabahizi, (ICTR-07-71), Trial Chamber I, 15 July 2004. 174 Judgment, Muhimana, (ICTR-95-1B), Trial Chamber, 28 April 2005. 175 Indictment, Rutaganda, (ICTR-96-3), Pre-Trial Chamber, 13 February 1996, paras. 1-19.

36 group, and identification by others, namely the perception of the perpetrator. In this instance, the TC repeats these possibilities from its earlier judgment in the Kayishema et all. case. 176 Although the TC stresses that the determination of membership is in essence a subjective process, it nevertheless concludes that such a subjective definition alone is not enough to determine victim groups, and that a case-by-case approach is required taking into account both the relevant evidence offered, and the relevant political and cultural context. 177 They base this approach on the traveux préparatoires, which reads that certain groups were excluded from the GC as they were considered to be ‘mobile groups’. Such groups are for example political and economic groups, which one joins through individual and political commitment. According to the TC, this means “a contrario that the Convention was presumably intended to cover relatively stable and permanent groups”. 178 Whether a victim belongs to such a stable and permanent group must thus be considered on a case-by-case approach taking into account relevant evidence and the political, social and cultural context, based on both objective and subjective features. 179 The mixed approach is subsequently affirmed by the TC in the Bagilishema decision 180, the Semanza decision 181 and the Gacumbitsi decision. 182 Reading these three judgments in combination with the Rutaganda decision it appears that although the Court stresses the importance of subjective concepts over objective features 183, it sticks to its mixed approach by which determination of a targeted group must be made on a case-by-case basis, consulting both objective and subjective criteria.184 The Bagilishema judgment also added a historical context into the already present political, social and cultural context in Rutaganda by which the four groups should be assessed. The reason to add a subjective dimension in the Bagilishema judgment was found in the argument that “a group may not have precisely defined boundaries and there may be occasions when it is difficult to give a definitive answer as to whether or not a victim was a member of a protected group”. Relating to these subjective features, the perception of the perpetrator is important, as

176 Judgment, Rutaganda, (ICTR-96-3), Trial Chamber, 6 December 1999, paras. 55-56. 177 Idem., para. 58. 178 Idem., para. 57. 179 Idem., para. 58. 180 Judgment, Bagilishema, (ICTR-95-1A-T), Trial Chamber, 7 June 2001, para. 65. 181 Judgment, Semanza, (ICTR-97-20-T), Trial Chamber, 15 May 2003, para. 317. 182 Judgment, Gacumbitsi, (ICTR-2001-64-T), Trial Chamber, 17 June 2004, para. 254. 183 The TC in Gacumbitsi paragraph 254 notes that “membership of a group is a subjective rather than an objective concept” and that in a given situation, “the perpetrator, just like the victim, may believe that there is an objective criterion for determining membership of an ethnic group on the basis of an administrative mechanism for the identification of an individual’s ethnic group”. 184 Judgment, Gacumbitsi, (ICTR-2001-64-T), Trial Chamber, 17 June 2004, para. 254.

37 according to the Court “perpetrators of genocide may characterize the target group in ways that do not fully correspond to conceptions of the group shared generally, or by other segments of society”. If the perpetrator perceives the victim to belong to a protected group, the chamber could consider this victim as a member of the protected group on the available evidence for the purposes of genocide. 185 This corresponds to the conclusion given by the TC in the succeeding Muhimana decision, by which the Prosecution has the burden of proving that either the victim belongs to the four protected groups in the GC or that the perpetrator of the crime believed that the victim belonged to the group. In that case it is not per se necessary for the victim to actually belong to the group.186 One such example of a genocide case before the ICTR in which the victim of genocide was perpetrator-defined is the Ndindabahizi case of 2004. In this case the victim had a German father and a Rwandan mother 187, and therefore his ethnic identity was ambiguous. In this instance, the Chamber notes that the “subjective intentions of the perpetrators are of primary importance”. 188 Nors fell within the protective scope of the GC, as he was killed because the perpetrator believed he was part of the Tutsi population.189 Relating to the Tutsi population, the TC in Rutaganda acknowledges the conclusion of the TC in Akayesu that the Tutsi and Hutu population as such do not have a distinct culture and language in relation to each other and in this aspect represent non-distinctive groups. However, they indicate that there are a number of other objective indicators for groups with a distinctive identity. These objective indicators are three-folded: (i) the identity card system which included an entry for ethnic group, (ii) the Rwandan Constitution and laws in force in 1994 which identified Rwandans by reference to their ethnicity and (iii) customary rules which existed in Rwanda governing the determination of ethnic groups, tracing back to ancestral lines. Based on these three objective indicators, the TC concluded that the identification of persons as belonging to either the Hutu or Tutsi or Twa group had become embedded in the Rwandan culture, and could therefore be qualified as a stable and permanent group, in the eyes of Rwandan society and the international community. The TC perceived the Tutsi as an ethnic group in Rwanda in 1994. 190

185 Judgment, Bagilishema, (ICTR-95-1A-T), Trial Chamber, 7 June 2001, para. 65. 186 Judgment, Muhimana, (ICTR-95-1B), Trial Chamber, 28 April 2005, para. 500; Judgment, Nchamihigo, (ICTR-01-63-T), Trial Chamber, 12 November 2008, para. 338. This was also subsequently affirmed by the AC in the Media case in para. 496 (Judgment, Nahimana et al, (ICTR-99-52-T), Appeals Chamber, 28 November 2007) 187 Judgment, Ndindabahizi, (ICTR-07-71), Trial Chamber I, 15 July 2004, para. 467. 188 Idem., para. 468. 189 Idem., para. 469.; R. Young, above n. 23, pp. 14-15. 190 Judgment, Rutanganda, (ICTR-96-3), Trial Chamber, 6 December 1999, paras. 374.

38

The Rutaganda decision, and subsequent decisions of the ICTR following to that were particularly important as they emphasize a case-by-case approach in which not only objective features should be taken into account in the group determination process, but also subjective indicators should play a role. These indicators do not only concern the perception of the victims themselves, but particularly the perception of the perpetrator. The decisions reveal that although the tribunal opts for a mixed approach in which both objective and subjective indicators should be taken into account, emphasis is placed on the subjective approach. 191

4.4 The Karemera et al. Case 192 This judgment in which Karemera and Ngirumpatse were sentenced to life imprisonment on their involvement in the Rwandan massacre, is particularly important as the TC established, in accordance with all previous jurisprudence of the tribunal, that the Tutsi ethnicity must be considered as a protected group and that the groups were stable and permanent. 193 However, the Prosecution wished to file an appeal on this point, as they argued that the TC should have used the designation ‘ethnic’ in order to correspond with their decision in the Semanza decision in which the TC concluded that the Tutsi’s were an ‘ethnic group’ instead of a ‘protected group’ as used in the current judgment of the TC. The AC however argued that the Prosecution failed in proving whether or not this discrepancy had any potential to prejudice the Prosecution or render the proceedings less fair and expeditious. Instead, the AC stated that the formulation the TC used in this instance equally, or even more clearly, relieved the Prosecution’s burden to introduce evidence proving protected-group status under the GC. The Prosecution’s Interlocutory Appeal on this point was dismissed. 194 Although the interlocutory appeal was dismissed by the AC, it shows that the determination of group membership still remains an important point in the genocide judgments of the ICTR. By this last judgment important for the group determination process, the TC and AC acknowledges previous jurisprudence of the tribunal which states that the Tutsi ethnicity must be considered as a protected group, equally stable and permanent as the other four groups under

191 The TC in Gacumbitsi notes in paragraph 254 that “membership of a group is a subjective rather than an objective concept”. 192 Judgment, Karemera et al., (ICTR-98-44-T), Trial Chamber, 2 February 2012 and Judgment, Karemera et al., (ICTR-98-44-A), Appeals Chamber, 29 September 2014. 193 Judgment, Karemera et al., (ICTR-98-44-T), Trial Chamber, 2 February 2012, para. 108. 194 Judgment, Karemera et al., (ICTR-98-44-A), Appeals Chamber, 29 September 2014, paras. 65-75.

39 the GC and as such protected against the crime of genocide for which the perpetrators must be held responsible.

4.5 Conclusion The most important decision, and at the same time the first judgment on genocide before the tribunal, was the Akayesu decision in which the TC not only defined the four protected groups as stated in the GC but also concluded that the protective scope of the GC was too narrow as it stood now. They therefore determined that the GC not only protected the four groups as envisaged in the definition, but also was there to protect stable and permanent groups similar to the other four groups. This conclusion made it possible to include the Tutsi group into the protective scope of the GC, as the Hutu and the Tutsi’s were inseparable in terms of culture, language, appearance and religion. In identifying targeted groups the tribunal mentions the possibility of self-identification by the victims themselves, and identification by others by the perpetrator(s). It are these two possibilities which determined the evidence used by the tribunal. Testimonies of witnesses and perpetrators, legislation and ID-cards where all used to conclude that the identification of persons as belonging to either the Hutu or Tutsi group had become embedded in the Rwandan culture. Although the tribunal has stressed the importance of subjective indicators, in which the four groups have to be assessed in the light of a particular political, social, cultural and historical context, their latest decisions reveal that they follow the reasoning of the ICTY in stressing the importance of a mixed objective-subjective approach on a case-by-case basis in determining group membership. The tribunal ultimately concluded that the Tutsi’s were protected against genocide as they constituted a separate ethnic group under the ICTR statute. However, the tribunal also used the designation ‘protected group’ and ‘stable and permanent group’ in other decisions in relation to the Tutsi population. It is therefore unclear whether the judges considered the Tutsi as an ethnic, stable and permanent group falling within the definition of article 2 of the GC or as a group protected by reason of its stability and permanency, regardless of its qualification under article 2 of the GC. 195

195 F. Martin, above n. 16, p. 119.

40

“Punishment is justice for the unjust” - Saint Augustine 196

5. International Criminal Court (ICC)

This chapter will focus on the referral of the situation in Darfur by the UN Security Council to the ICC in March 2005. The case of Omar Hassan Ahmad Al Bashir, the president of the Republic of Sudan since October 1993, is the first pending case of genocide before the ICC. The conflict in the Darfur region of Sudan dates back to July 2002 197, when two rebel groups (Sudan Liberation Movement and the Justice and Equality Movement) fought against the government, claiming years of political, economic and social marginalisation. The government in turn responded to the attacks by carrying out a campaign of against Darfur’s non-Arabic population. 198 Since the conflict, UN officials claim that over two million civilians are displaced and at least 400.000 civilians were killed. Most of these victims belong to the Zaghawa, Massalit and Fur ethnic groups. 199 As Al Bashir is still sitting president, enjoying immunity under international law, the proceedings are not yet commenced before the Court. However the Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir 200, including the separate and partly dissenting opinion of judge Uŝacka, does give us useful insights in the reasoning of the Pre-Trial Chamber as regard to the group requirement of genocide. Furthermore, the Report of the International COI on Darfur to the UN Secretary General 201 of 2004 will also be discussed in this chapter, as this report was the trigger for the UN Security Council to refer the case to the ICC by SC resolution, and formed the basis on which the Pre-Trial Chamber made its decision on the first arrest warrant against Al Bashir.

196 Brainyquote, Justice Quotes (2007) online retrieved 23-12-2015 from: http://www.brainyquote.com/quotes/quotes/s/saintaugus148558.html?src=t_justice . 197 UN Security Council, Security Council Resolution 1593 (2005) on Violations of International Humanitarian Law and Human Rights Law in Darfur, Sudan, 31 March 2005, S/RES/1593 (2005), available at: http://www.refworld.org/docid/42bc16434.html 198 J.A. Matthew, ‘The Darfur Debate: Whether the ICC Should determine that the Atrocities in Darfur Constitute Genocide’ , 18 Florida Journal of International law (2006), pp. 519-527. 199 Hague Justice Portal, ‘Situation in Darfur, Sudan’ (2005-2016) online retrieved 28-12-2015 from: http://www.haguejusticeportal.net/index.php?id=6177 . 200 Public Redacted Version of the Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad al Bashir, Situation in Darfur, The Sudan (ICC-02/05-01/09), Pre-Trial Chamber I, 4 March 2009. 201 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/205/60. Hereinafter; Darfur Report.

41

Since its publication, the arrest warrant has received lots of criticism and countries such as China, Egypt and Qatar refused to cooperate with the warrant and extradite Al Bashir to the ICC once he visited their country. 202

5.1 Report of the International Commission By UN resolution of 18 September 2004 the UN established an International COI, which had the task to immediately “investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties”. Within this task they had to determine whether acts of genocide had occurred. 203 To fulfil this task, they had to investigate whether there was the requisite special intent to destroy a group. Their reasoning on the targeted groups in the Darfur conflict is discussed in the paragraphs 494 and further of the report. Firstly, the COI notices the criticism that is present on the broad and loose terminology when indicating the various groups against which one can engage in genocide and argues that when interpreting international rules, one should give maximum effect to such rules. This is also referred to as the principle of effectiveness. They defined national groups as “those sets of individuals which have a distinctive identity in terms of nationality or of national origin”. Racial groups comprise “those sets of individuals sharing some hereditary physical traits or characteristics”. Ethnical groups, according to the COI refer to “sets of individuals sharing a common language, as well as common traditions or cultural heritage”. Lastly, religious groups are defined as “sets of individuals having the same religion, as opposed to other groups adhering to a different religion”. 204 Although the report does not provide any further information on how the COI came up with these definitions, the definitions show overlap with the definitions provided by the ICTR in the Akayesu decision. Secondly, as the conflict in Darfur victimised tribal populations such as the Fur groups, the COI had to consider whether or not tribal groups are protected by the international rules proscribing genocide. In their answer, they referred to the report of the UN International Law Commission (ILC) on the ‘Draft Code of Crimes Against Peace and Security of Mankind’ of 1996 which stated that the crimes mentioned in article 17 of the draft code 205 also covers

202 See: S. Williams and L. Sherif, ‘The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court’, 14 Journal of Conflict and Security Law 1 (2009), pp. 71-92. 203 Darfur report, paras. 1-10. 204 Idem., para. 494. 205 Article 17 reads: “A crime of genocide means any of the following acts committed with intent to destroy, in whole or in part, a national ethnic, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent

42 prohibited acts committed with the necessary intent against members of a tribal group. From this conclusion, the Darfur report moves further to an anthropological definition of a tribe, in which a tribe is defined as a “territorial division of certain large populations, based on kinship or the belief that they descend from one ancestor: these aggregates have a chief and call themselves by one name and speak one language”. 206 However, contrary to the ILC in 1996, the COI concludes that tribal groups are only protected against acts of genocide on the condition that they also constitute a distinct racial, national, ethnical or religious group and therefore must possess distinctive characteristics of one of the four categories of groups protected under the Convention. This conclusion was derived from a ruling of the Australian Federal Court in 1999 which concerned the allegation of the destruction of the Aboriginal people as an ethnic or racial group by the Ministers of Commonwealth and Commonwealth parliamentarians. 207 As such, tribal groups therefore do not constitute a protected group under the GC. 208 Lastly, the COI discusses the situation by which genocidal acts against groups not perfectly match the definition of the four groups in the GC. To answer this question, the COI referred to the situation in the Rwandan genocide, in which the Tutsi and the Hutu population at first glance did not constitute a distinct ethnic, racial, religious or national group. The COI highlights the objective criterion of a “stable and permanent group” as determined by the ICTR in the Akayesu decision, and supplements that this criteria could be rather questionable, and therefore, in case of doubt should be accompanied by the subjective standard of perception of the perpetrator and self-perception as a member of a group, according to the case law of the ICTR and the ICTY. 209 From this practice, they deduce the decisive conclusion that the approach taken to determine whether a group is protected under the GC has “evolved from an objective to a subjective standard to take into account that collective identities, and in particular ethnicity, are by their very nature social constructs, “imagined” identities entirely dependent on variable and contingent perceptions, and not social facts, which are verifiable in the same manner as natural phenomena or physical facts.” This subjective standard may supplement, develop and elaborate upon the standard laid down in the GC and the customary rules on genocide. This interpretative expansion of the concept of protected groups by the ICTR and ICTY is according to the COI

births within the group; (e) forcibly transferring children of the group to another group. Text available at: http://legal.un.org/ilc/texts/instruments/english/commentaries/7_4_1996.pdf 206 Darfur report, para. 495. 207 That, for the purpose of the legal notion of genocide, a tribe or a group of tribes may the regarded as the target of genocide only if it also constitutes a racial, ethnic or religious group, is borne out by the ruling of the Australian Federal Court in 1999 in Nulyarimma v. Thompson and Buzzacott v. Hill. (footnote 181 Darfur report, p. 126). 208 Darfur report, paras. 496-497. 209 Idem., para. 498.

43 not contradictory to the object and scope of the rules on genocide, which are to protect stable and permanent human groups against deliberate annihilation. Furthermore, the interpretation does not depart from the text of the GC and its accompanying customary rules. Also the fact that the interpretation has not been challenged by States is regarded by the COI as an indicator that the interpretation and expansion has become part and parcel of international customary law. 210 The COI regards the earlier used criteria to interpret and apply the treaty provisions by courts in genocide cases either too loose or too rigid and inadequate to address situations in which there existed a stark opposition between two distinct sets of persons in which one set carried out genocidal acts with the intent to destroy the other in whole or in part. In the process of group determination a crucial factor is the process in which a formation of a perception and self-perception of another group as distinct emerges. This process may begin as a subjective view, but ultimately will crystallise into a real and factual opposition, leading to an objective contrast. The conflict from subjective, becomes objective.211 The COI thus concludes that the approach taken to determine whether a group is protects has evolved from an objective to a subjective standard, but that the underlying conflict has evolved from a subjective to an objective conflict, taking into account the self-perception of the victimised groups and the perception of the alleged perpetrator. Eventually, the COI reaches the question whether the tribes who were victims of the attacks and killings in Darfur make up a protected group under the GC. They argue that objectively, these tribes do not appear to make up a distinct ethnic group from the other ethnic groups to which the persons that attacked them belong. This because they speak the same language and embrace the same religion. Practices of inter-marriage and coexistence in both social and economic terms have blurred the distinction between these groups even more. The only distinction that can be found between these two groups is the sedentary and nomadic character of the groups and the existence of an own dialect in addition to the Arabic language. 212 However, subjectively, the tribes do make up a protected group under the GC and are therefore protected against genocidal acts. The COI proves their conclusion by referring to the breach between the tribes and the “political polarisation around the rebel opposition to the central authorities that has extended itself to issues of identity”. Furthermore the tribes in Darfur who support the rebels were identified as ‘African’ and those supporting the government as

210 Darfur Report, para. 501. 211 Idem., para. 500. 212 Idem., para. 509.

44

‘Arab’. Those directly affected by the conflict perceived themselves either as African and Arab, and this contrast gradually led to a market polarisation in the perception and self-perception of the groups concerned. Also the use of “derogatory epithets” used when attacking the ‘African’ villages (words such as ‘slaves’ and ‘blacks’) was seen by the COI as an indicator of the self- perception on the two distinct groups, although they also acknowledge that not in all instances the derogatory language was linked to the ethnicity or race of the group. 213 For the reasons as mentioned above, the COI ultimately comes to the conclusion that the tribal groups, although not objectively but subjectively, make up a protected group and are therefore as such protected under the GC against genocidal acts. However, on the question whether or not a genocidal policy had been pursued and implemented in Darfur by the government authorities they answered negatively. This because the genocidal intent on the side of the Sudanese government was missing, one of the crucial elements in genocide. This genocidal intent could however be present on an individual basis, but this has to be determined by a competent court on a case-by-case basis. 214

5.2 Pre-Trial Chamber decision on the arrest warrant The Pre-Trial Chamber was asked to decide on the underlying matters relating to the issuing of the arrest warrant for Al Bashir for his alleged responsibility in the commission of genocide, crimes against humanity and war crimes against the members of the Fur, Masalit and Zaghawa groups in Darfur. One of these underlying matters was the question whether there were reasonable grounds to believe that the crime of genocide had been committed. The reasoning of the Pre-Trial Chamber on this question underlines important aspects relating to the group determination in the Darfur conflict. Firstly, the Chamber notes that the targeting of specific national, ethnic, racial or religious groups characterises the crime of genocide as the purpose of the crime is to destroy in whole or in part the existence of these specific group or people. 215 In this case, the Prosecution is of the opinion that three different groups have been targeted, namely the Fur, Masalit and the Zaghawa, and therefore a separate analysis of the alleged underlying facts in relation to each of the three targeted groups is necessary. 216

213 Idem., paras. 510-511. 214 Idem., paras. 15-25. 215 Public Redacted Version of the Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad al Bashir, Situation in Darfur, The Sudan (ICC-02/05-01/09), Pre-Trial Chamber I, 4 March 2009, para. 114. 216 Idem., paras. 115-116.

45

The determination on whether a victim belongs to a particular national, ethnic, racial or religious group must be determined on the base of particular positive characteristics, and not a lack thereof, as determined by the ICTR in Akayesu 217and the ICTY in Kristić and Stakić. 218 Negative definitions of a targeted group do not suffice for the purpose of the crime of genocide in the Rome Statute of the ICC and furthermore does not correspond with the intention of the drafters of the GC which gave “close attention to the positive identification of groups with specific distinguishing well-established, some said immutable, characteristics”. The Chamber refers in this instance to the ICJ Bosnian genocide case 219 in which the ICJ decided that genocide is about targeting groups with particular positive characteristics relating to the four groups in the GC, in which the aim is to destroy in whole or in part a group with a particular group identity. It is about who those people are, and not who they are not. Not only does the drafting history of the Convention confirm such an approach, also the etymology of the word genocide confirms this stance. The ICJ furthermore repeats the conclusion reached by the ICTY in the Stakić decision, in which the AC confirmed that a targeted group must be defined positively. 220 Relating to the targeted groups of the Fur, Masalit and Zaghawa in Darfur, the Pre-Trial Chamber considers that there are no distinctive features present on the base of nationality, race and/or religion and that therefore it has to be determined whether these three groups constitute a distinct ethnic group. The Chamber answers this question in the affirmative, as they find that “there are reasonable grounds to believe that each of the group has its own language, its own tribal customs and its own traditional links to its lands”. 221 In a footnote, the Chamber notes

217 In a footnote, the Pre-Trial Chamber refers to paras. 510-516 of the Akayesu Trial Judgment. However, in these paragraphs a specific reference to adopting a positive approach is lacking. Such a conclusion could however be deduced from these paragraphs, as the TC describes in these paragraphs the definition of the four groups in which it is about groups ‘possessing’ certain characteristics, instead of ‘lacking’ these characteristics. 218 Public Redacted Version of the Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad al Bashir, Situation in Darfur, The Sudan (ICC-02/05-01/09), Pre-Trial Chamber I, 4 March 2009, para. 135. 219 The Bosnian Genocide case before the ICJ concerned the allegation from Bosnia- Herzegovina of Serbia to have attempted to exterminate the Bosnian Muslim population of Bosnia-Herzegovina. The ICJ concluded that the Srebrenica massacre was indeed an act of genocide as there was a specific intent to destroy in part the group of the Muslims of Bosnia and Herzegovina as such perpetrated by the members of the national army. However, it was found (non-unanimously) that Serbia was neither directly responsible for the Srebrenica genocide, nor that it was complicit in it, but that they were breaching the Genocide Convention as they failed to prevent genocide from occurring and did not cooperate with the ICTY to punish perpetrators, especially Mladic. (Source: Hague Justice Portal, ‘The Genocide case: Reflections on the ICJ’s Decision in Bosnia-Herzegovina v. Serbia’ (2007) online retrieved 29-12-205 from: http://www.haguejusticeportal.net/index.php?id=7266 ). 220 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), International Court of Justice (ICJ), 26 February 2007, paras. 192-196. 221 Public Redacted Version of the Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad al Bashir, Situation in Darfur, The Sudan (ICC-02/05-01/09), Pre-Trial Chamber 1, 4 March 2009, para. 137.

46 that a definition of an ethnic group is not provided for in the Statute nor in rules and international case law. It continues by referring to the ICJ in the recent Bosnian genocide case in which the Court was indecisive on the question whether a wholly objective (based on anthropological considerations), a wholly subjective (based only upon the perception of the perpetrators) or a combined objective/subjective approach to such a definition should be adopted. 222 The fact that the parties in the ICJ case essentially agreed that international jurisprudence accepts a combined objective/subjective approach played an essential factor in the decision of the ICJ not to take up the issue further.223 The Pre-Trial Chamber followed this reasoning and also decided not to take up this issue further as it was of the opinion that this was unnecessary for the purpose of the present decision. It is however unclear whether the parties and/or judges in the Al Bashir case also agreed on such a combined objective/subjective approach. Ultimately, the Pre-Trial Chamber reached the conclusion that the alleged responsibility for the crime of genocide on the side of Al Bashir could not be proven, and that the arrest warrant therefore could only contain the counts of war crimes and crimes against humanity. However, the Pre-Trial Chamber in the decision on the second warrant of arrest for Al Bashir decided that an ‘erroneous standard of proof’ was used 224and that based on the new standard of proof, identified by the Appeals Chamber, genocidal intent could be proven and that the arrest warrant should indeed include the count of genocide, alongside the counts of war crimes and crimes against humanity.225

5.3 Separate and partly dissenting opinion Judge Uŝacka Not all the judges in the Pre-Trial Chamber which decided on the Prosecution’s application for an arrest warrant against Al Bashir were of the same opinion as the majority of the judges in this decision. Judge Uŝacka reached another conclusion in her separate and partly dissenting opinion on the element of the existence of a protected group in the crime of genocide: Firstly, she argued that the government of Sudan did not only targeted “that part of the civilian population of Darfur – belonging largely to the Fur, Massalit and Zaghawa groups –

222 See footnote 152, Public Redacted Version of the Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad al Bashir, Situation in Darfur, The Sudan (ICC-02/05-01/09), Pre-Trial Chamber 1, 4 March 2009. 223 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), International Court of Justice (ICJ), para. 191. t 224 Public Document Second Warrant of Arrest for Omar Hassan Ahmad AL Bashir, Situation in Darfur, the Sudan (ICC-02/05-01/09), Pre-Trial Chamber 1, 12 July 2010, p.4. 225 Ibidem., p. 8.

47 perceived by the GoS 226 as being close to the SLM/A 227, the JEM 228 and the other armed groups opposing the GoS (…)”. But instead argued that the “Fur, Masalit and Zaghawa population itself was targeted as an result of a perception and affiliation between the Fur, Masalit and Zaghawa and the rebel groups” (emphasis added). 229 In her plea on the determination of the existence of an ethnic group she repeats the case law of the ICTR and ICTY 230 in which it said that the “existence of an ethnic group must be assessed on a case-by-case basis using both subjective criteria, such as the stigmatisation of the group by the perpetrators, as well as objective criteria, such as the particulars of a given social or historical context”. 231 She agrees with the Prosecution that the Fur, Masalit and Zaghawa indeed differ from each other, as this is seen in their separate tribal structure, social structures and the fact that they each speak their own language, in addition to Arabic. 232 She however disagrees with the analysis of the majority in the Pre-Trial judgment on the protected group in connection with genocide. The majority determines, as was seen above, that the protected groups falling under the GC are the three distinct ethnic groups of the Fur, Masalit and the Zaghawa. 233 Judge Uŝacka however concludes that the protected group, and the target of the ‘counter-insurgency’ campaign of the Government of Sudan was a “single ethnic group of the ‘African tribes’, which is in turn comprised of smaller groups, including the Fur, Masalit and Zaghawa”. She believes therefore, that these three populations were targeted as an unitary entity of ‘African tribes’, instead of three separate sub-groups as the majority had concluded. 234 Even though “neither the perceived entity nor the Fur, Masalit or Zaghawa are, in fact, racially distinct from the perceived ‘Arab’ tribes”, she supports her claim by referring to the ‘derogatory

226 GoS in this context means ‘Government of Sudan’. 227 SLM/A in this context means ‘Sudan Liberation Movement/Army’. 228 JEM in this context means ‘The Justice and Equality Movement’. 229 Separate and Partly Dissenting Opinion of Judge Uŝacka, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Prosecutor v. Omar Hassam Ahmad Al Bashir, (ICC- 02/05-01/09-3), Pre-Trial Chamber, 4 March 2009, para. 22. 230 These cases are: Judgment, Brdanin, ( IT-99-36-T), Trial Chamber, 1 September 2004, para. 684; Judgment, Blagojevic, (IT-02-60-T), Trial Chamber, 17 January 2005, para. 667; Judgment, Gacumbitsi, (ICTR-2001-64-T), Trial Chamber, 17 June 2004, para. 254; Judgment, Semanza, ,(ICTR-97-20-T), Trial Chamber, 15 May 2003, para. 317. 231 Separate and Partly Dissenting Opinion of Judge Uŝacka, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Prosecutor v. Omar Hassam Ahmad Al Bashir, (ICC- 02/05-01/09-3), Pre-Trial Chamber, 4 March 2009, para. 23. 232 Idem., para. 24. 233 Public Redacted Version of the Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad al Bashir, Situation in Darfur, The Sudan (ICC-02/05-01/09), Pre-Trial Chamber I, 4 March 2009, para. 215. 234 Separate and Partly Dissenting Opinion of Judge Uŝacka, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Prosecutor v. Omar Hassam Ahmad Al Bashir, (ICC- 02/05-01/09-3), Pre-Trial Chamber, 4 March 2009, para. 25.

48 epithets’ used as reported by witnesses, including for example the terms ‘Zurga’, ‘Nuba’ and ‘black’, which indicated the perceived unitary entity of African tribes, instead of a distinction between the Fur, Masalit and Zaghawa. Furthermore she makes mention of various reports which describe “how persons most affected by a perceived African-Arab polarization have come to perceive themselves as either ‘African’ or ‘Arab’. 235

5.4 Conclusion The report of the International COI of 2004 and the arrest warrant from the Pre-Trial Chamber of 2009 with the separate and partly dissenting opinion of Judge Uŝacka provides useful information on the determination of group membership. In the conflict of Darfur, the question at hand was whether the tribal groups of the Zaghawa, Massalit and Fur could be qualified under the four groups in the GC. The Inquiry Commission concluded that tribal groups are only protected against acts of genocide on the condition that they also constitute a distinct racial, national, ethnical or religious group. In the conflict at hand, the three tribal groups of the Zaghawa, Massalit and Fur could not be distinguished on the basis of objective criteria according to the Commission, but did however made up a distinct ethnic group subjectively, based on the present political polarisation and issues of identity between the rebel groups and central authorities. Relating to the objective/subjective debate the Commission refers to the case law of the ICTR and the ICTY from which they see the standard evolve from an objective to a subjective standard, taking into account the fact that collective identities are by their very nature social constructs and not social facts. They attach great value to the use of perception and self- perception of another group which begins as a subjective view, but ultimately will crystallise into a real and factual opposition, leading to an objective contrast. The conflict evolves from a subjective to an objective conflict. The evolution from an objective to a subjective standard is thus accompanied by an underlying objective conflict in which there is real and factual opposition. This ‘interpretative expansion’ as they call it, is not contested by the rules on genocide, the text of the GC, customary law and state practice. The Pre-Trial Chamber in its decision first repeats the judgments of the ICTR and ICTY by concluding that the determination on whether a victim belongs to one of the four groups must be determined on the base of particular positive characteristics, and not a lack thereof, rejecting determination by negative criteria. In addition, they conclude that the three tribal groups must

235 Ibidem.

49 be considered as a distinct ethnic group as they find that there are reasonable grounds to believe that each of the group has its own language, its own tribal customs and its own traditional links to its land. Judge Uŝacka disagrees on this point from the majority as she concludes that the three tribal groups were targeted as an unitary entity of ‘African tribes’ instead of three separate sub-groups as the majority had concluded. The Chamber is however silent on the important question whether a wholly objective, a wholly subjective or a combined objective/subjective approach should be followed, as in their opinion, it was unnecessary to decide on this matter for the purpose of the present decision.

50

6. Discussion and Comparison

In chapter three, four and five the different judgments from the ICTY, ICTR and ICC were discussed in light of the group requirement of genocide, relating to the primary research question in this thesis, namely: How has the group-requirement in the definition of genocide been interpreted respectively by the ICC, ICTY and ICTR in their judgments?”. In order to answer this question, this chapter will summarise the most important conclusions drawn from the judgments, accompanied by critique and debate in scholarly literature. The chapter draws a comparative conclusion between the tree tribunals on which approach they follow when determining the targeted groups of genocide: either an objective approach, a subjective approach or a mixed objective/subjective approach.

6.1 Comparative conclusion ICTR, ICTY, ICC: objective, subjective or mixed? The first case of genocide to be tried ever before any international criminal tribunal was the case of Akayesu before the ICTR in September 199. In this decision, the TC made some important conclusions which would become leading precedent in the future. In order to determine whether the Tutsi population fell within the protective scope of the GC, they first had to come up with a definition on the national, ethnic, racial and religious groups. Nationality, ethnicity, race and religion are determined by factors such as language, culture, physical traits and common citizenship. In the definition on these four groups, objectivity is dominant. A reference to subjective factors, such as the perception of the perpetrator or the group members themselves, are not yet mentioned in this decision. Discussion in scholarly debate particularly focusses on the definition of nationality, in which the TC used the Nottebohm case of the ICJ to justify their definition. However, according to Schabas, the two cases before the ICJ on the one hand, and the ICTR on the other were two completely different cases, and therefore the ICJ judgment could not be used to clarify the notion of ‘national groups’ as envisaged in the GC. The ‘sharing of a legal bond and common citizenship’ which the ICTR describes as a criterion for determining membership to a national group are not sufficient, as according to Schabas members of these groups may also hold the nationality of another state or may even be stateless. 236 Kreβ agrees on this point as he concludes that it is not required for members of a protected national group to have the nationality of the state in which they live. 237 As the TC in the Akayesu decision determined that ethnicity came closest in identifying the target group of the

236 W.A. Schabas, above n. 20, p. 115. 237 C. Kreβ, above n. 62, p. 476.

51

Tutsi population, its definition on ethnic groups (“group whose members share a common language or culture”) was subsequently used in other judgments. 238 These definition on the four groups were however expanded and accompanied by contextual, subjective elements in judgments following to the Akayesu decision. In the Kayishema and Ruzindanda judgment, the TC expanded the earlier definition of ethnic groups, as the Court stated that, besides the common language and culture, an ethnic group is also a group “which distinguishes itself, as such (self-identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others)”. 239 It is this judgment of 1999 in which the Court adds a subjective dimension to their determination process, in addition to the already existing objective features of the four groups as determined by the TC in Akayesu. Although such an expansion may be considered appealing, as the crime of genocide is based around the specific intent of the perpetrator, scholars disagree on whether this approach is indeed a welcome shift. Schabas fears that with this expansion, it becomes possible to define genocide against groups that do not even have any real objective existence. Such objective existence should therefore be assured. 240 Luban repeats his point, as he fears for targeted groups of genocide only present in the “imaginations of its persecutors”. 241 Kreβ even takes it a step further, as he sees the risk of converting the crime of genocide “into an unspecific crime of group destruction based on discriminatory motive”. 242 Nersessian also agrees as he concludes that a purely subjective test conflicts with the object and purpose of the Convention itself, in which it was specifically determined to include only a restricted number of enumerated groups for protection. Therefore, at a minimum, “some colorable evidence that the victim group has some recognised racial, national, ethnic or religious existence outside the mind of the perpetrator” has to be present. 243 It seems that all four scholars agree that following a purely subjective approach is undesirable. Verdirame disagrees as he concludes that ethnicity is completely determined by “variable and contingent perceptions”. No objective existence in the case of determining ethnicity is required according to him. 244 He however makes no reference to the other three groups in his conclusion.

238 Judgment, Kayishema and Ruzindanda, (ICTR-95-1) and (ICTR-96-10), Trial Chamber, 21 May 1999, para 98 and 155. 239 Ibidem., para. 98. 240 W.A. Schabas, above n. 15, p.384. 241 D. Luban, above n. 17, pp. 15-18. 242 F. Martin, above n. 16, p. 126. 243 D.L. Nersessian, above n.26, pp. 312-312. 244 G. Verdirame, above n. 22, pp. 592-594.

52

Cases following the Kayishema decision 245 determined the dominant approach used by the tribunal. In these cases the tribunal adopted a more holistic approach, by which the determination of membership to the four groups must be assessed in the light of a particular political, social, cultural and historical context. 246 This assessment has to be conducted on a case-by-case basis, consulting both objective and subjective features . 247 These cases have brought the ICTR closer to acknowledging the interaction between the objective and subjective factors. 248 Although the tribunal follows a mixed objective/subjective approach in determining group membership 249, they however stress in their conclusions the importance of subjective concepts, in the possibility of self-identification and identification by others. 250 Particularly the perception of the perpetrator remains important as “perpetrators of genocide may characterize the target group in ways that do not fully correspond to conceptions of the group shared generally, or by other segments of society”. 251 Cases of genocide can be proven on the sole perception of the perpetrator: if the perpetrator of the crime believed that the victim belonged to the group, it is not per se necessary for the victim to actually belong to the group. 252 Ultimately, the Tutsi population was regarded by the ICTR as constituting a distinct ethnic protected group under the Statute. The AC in the Karemera decision determined this factual identification ‘beyond dispute’. This conclusion would later on be used in all pending and future trials before the ICTR. 253 The ‘revolutionary’ expansion 254 on the four protected groups under the GC by the TC in Akayesu, by which also other equally ‘stable and permanent’ groups are protected under the Convention as this was, according to the Chamber, the intention of the drafters, is however never subsequently re-affirmed by any AC or other TC different from the TC in Akayesu. The TC invented this common denominator, which excluded other more ‘mobile’ groups which one joins through individual voluntary commitment from the protective scope, as they could not distinguish between the Hutu and Tutsi population on the base of their own invented criteria

245 Zie 4.3 zake 246 Judgment, Bagilishema, (ICTR-95-1A-T), Trial Chamber, 7 June 2001, para. 65; Judgment, Rutaganda, (ICTR- 96-3), Trial Chamber, 6 December 1999, paras. 55-57. 247 Judgment, Gacumbitsi, (ICTR-2001-64-T), Trial Chamber, 17 June 2004, para. 254. 248 R. Young, above n.23, p. 16. 249 This mixed approach can be seen in the evidence used by the Tribunal: id-cards, legislation, testimonies etc. 250 Judgment, Rutaganda, (ICTR-96-3), Trial Chamber, 6 December 1999, paras. 55-56. 251 Judgment, Bagilishema, (ICTR-95-1A-T), Trial Chamber, 7 June 2001, para. 65. 252 Judgment, Nchamihigo, (ICTR-01-63-T), Trial Chamber, 12 November 2008, para. 338 253 F. Martin, above n.16, p. 126. 254 Or as Schabas calls it ‘imaginative interpretation’, or Verdirame’s ‘improbable interpretation’. Opposite arguments are also found: Szpak determines that it is a ‘justified and correct interpretation’. And Martin calls it a ‘far reaching precedent’.

53 for ethnicity: language and culture. Because they did not want the Tutsi population to slip through the safety net, they concluded that the Tutsi population constituted such a stable and permanent group and where therefore protected. Evidence used was for example witness testimonies, the present ID-card system and the Rwandan Constitution and laws in force in 1994. The ‘stable and permanent’ denominator provokes much criticism in literature. Schabas notes that three of the four categories in the GC, namely: national, ethnic and religious groups, seem to be neither stable nor permanent. Only racial groups in his opinion, when they are defined genetically can be perceived as stable and permanent. Nationality may be changed, religious groups may come into existence and disappear and members of ethnic groups may come and go. Also the intention of the drafters used as ajustification used by the TC is being attacked by Schabas, as he simply says that if the drafters intended to protect those other ‘stable and permanent groups’ they would simply “have said so”. The role of the travaux préparatoires is not to add elements that were left out. 255 Although the TC in its earliest judgment had chosen to fulfil the role of a ‘progressive’ law maker by expanding the protective scope of the GC, in subsequent judgments from other Trial – and Appeals Chambers they chose the more ‘safe option’ and determined the Tutsi’s to be a distinct ethnic group under article 2 of the ICTR statute. Having determined the dominant approach of the ICTR when determining group membership, the comparison brings us to the case law of the ICTY. The first case before the ICTY relating to genocide was the Jelisić case. The most important conclusion in this case is given by the TC, in which they determined that in cases of national, ethnic and religious groups, determination of membership must be evaluated from the point of view of the alleged perpetrator: a subjective criterion (this subjective criterion would be later on extended to also incorporate religious groups by the TC in the Kristić decision256) 257. To use only ‘scientifically irreproachable criteria’ will lead to a discrepancy between the categorisation of the four stable groups and the perception of the person concerned who wishes to single out the groups. What exactly is meant by these ‘scientifically irreproachable criteria’ is not further explained by the Court. Young equates these criteria with biological or physical objective criteria 258, and Nersessian with scientific and historic evidence. 259 This perception

255 W.A. Schabas, above n. 15, p. 382. 256 R. Young, above n. 23, p.14;kristic 555-556 tc 257 According to the TC, objective determination of religious groups still remains possible (Judgment, Jelisić, (IT- 95-10-T), Trial Chamber, 14 December 1999, para. 70). 258 R. Young, above n. 23, p.16. 259 D.L. Nersessian, above n. 26, p. 310.

54 is called ‘stigmatisation’ and occurs by way of positive criteria, by which the group is distinguished on the base of characteristics which the perpetrator(s) deem to be essential to each of the four groups, or negative criteria, by which the group is distinguished on the base of exclusion. The negative approach remained theoretical, as the TC followed a positive approach in determining that genocide was directed against the Bosnian Muslim population. The ICTY in his conclusion on stigmatisation by the perpetrator stayed close to the ICTR decision in Kayishema and Ruzindana, although making no reference to this case in their footnotes. The TC in the following case, Kristić, adds the assessment on socio-historic contexts which the groups inhabit to the determination process, which closely corresponds to the holistic approach taken by the ICTR in the Rutagana and Bagilishema judgments, where the four groups should be assessed in the light of their political, social, cultural and historical context. The AC in the Stakić case of 2003 made an end to the possible determination of targeted groups on a lack of particular characteristics essential to the four groups in the GC. The qualification of ‘all-non Serbs’ was deemed impossible by the AC on grounds of wording of the definition on genocide, etymology of the term and its drafting history. From this judgment onwards, members of a targeted group may only be identified as such as they have a particular positive identity with specific distinguishing characteristics. 260 Negative defined groups may only come into existence when it is a larger group, comprised of smaller positively defined sub- groups. This process of positive and negative stigmatisation is as such not mentioned in any judgment of the ICTR. The AC also used the opportunity to elaborate their reasoning on the use of both objective and subjective criteria to define the victim groups. They refer to the previous judgment of the ICTY in Kristić, by which stigmatisation can be used as ‘a criterion’, and the ICTR in its Rutaganda decision by which the TC concluded that a subjective definition alone is not enough to define the victim group. 261 These two cases indicate that subjective criteria should be accompanied by other objective criteria in determining group membership. The ICTY and ICTR agree with each other on this point. The ICJ in its Bosnian Genocide Case of 2007 262 and the Pre-Trial Chamber on the first arrest warrant of Al Bashir 263 followed the approach taken by the ICTY and confirmed in addition that a negative approach towards identified groups is not possible.

260 Judgment, Stakić, (IT-97-24-A), Appeals Chamber, 22 March 2006, paras. 56-25. 261 Idem., para. 26. 262 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), International Court of Justice (ICJ), 26 February 2007, paras. 192-196. 263 Public Redacted Version of the Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad al Bashir, Situation in Darfur, The Sudan (ICC-02/05-01/09), Pre-Trial Chamber 1, 4 March 2009, paras. 135-137.

55

Not everyone agreed on the rejection of a negative approach towards group identification. Judge Shahabuddeen in her partly dissenting opinion rejects the conclusion drawn by the AC that all the elements on the crime of genocide should be proven in relating to each smaller group in a bigger encompassing negatively defined group. Mitchells, concludes that the TC could have gone for a more expansive finding consistent with the purpose of the GC and argues that the Court did not make clear why a negatively defined group should not be afforded protection under the Convention. Nersessian and Szpak however agree with the approach taken by the TC as they consider a negative approach too far reaching, enabling to claim and prove genocide on criteria which are vague and too broad in scope. 264 The last case to be discussed in the context of the ICTY is the BrÐanin case of 2004 in which the TC repeated its earlier decisions, and in which their conclusion furthermore corresponds closely to the Bagilishema decision of the ICTR and other decisions following to that. 265 The TC in BrÐanin emphasised the use of both objective and subjective criteria on a case-by-case basis. To use only subjective criteria may not be sufficient to determine the target group to be protected. The most recent decision from an international criminal Court on the determination of group identification is the decision on the arrest warrant for Al Bashir in 2009 by the Pre-Trial Chamber. The Pre-Trial Chamber in this instance had to determine whether the three groups of the Fur, Massalit and Zaghawa could be qualified under the protective scope of the GC. They first repeat the conclusions drawn by the ICTY, ICTR, and ICTY 266 that a negative approach towards group determination is impossible and that the determination on whether a victim belongs to a particular national, ethnic, racial or religious group must be determined on the base of particular positive characteristics, and not a lack thereof. They regard this matter to be settled in international law. 267 The Chamber finds that the three groups are indeed distinct ethnic groups, as they state that there are “reasonable grounds to believe that each of the group has its own language, tribal customs and its own traditional links to its land”. They however do not elaborate upon the used method to come to this identification. The use of language, tribal

264 A. Szpak, above n. 60, p. 167; D.L. Nersessian, above n.26, p. 310. 265 Judgment, Bagilishema, (ICTR-95-1A-T), Trial Chamber, 7 June 2001; Judgment, Semanza, (ICTR-97-20-T), Trial Chamber, 15 May 2003; Judgment, Gacumbitsi, (ICTR-2001-64-T), Trial Chamber, 17 June 2004. 266 They make reference to the following cases: Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), International Court of Justice (ICJ), 26 February 2007, paras. 191-194; Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, paras. 510-516; Judgment, Kristic, (IT-98-33-A), Appeals Chamber, 19 April 2004, paras. 551-561; Judgment, Stakić, (IT-97-24-A), Appeals Chamber, 22 March 2006, paras. 20-28. 267 C. Kreβ, ‘The ICC’s First Encounter with the Crime of Genocide: The Case against Al Bashir’, in: C. Stahn, The Law and Practice of the ICC (Oxford University Press, 2015), pp. 682-687.

56 customs and traditional links to land however suggests that objective indicators where used. It leaves however room for considering collective perceptions at a later point as common culture, history or language may give rise to a collective sense of group identity. Furthermore, the perception of the perpetrator can play a limited role in a later stage when the group’s outer fringes have to be delineated. 268 The question whether an objective, subjective or mixed method should be used, and how this method must be used, is left aside as answering this question was unnecessary for the purpose of the present decision. They refer to the ICJ Bosnian Genocide case, in which the parties agreed on a combined objective/subjective approach accepted in international jurisprudence. 269 Implicitly, the Pre-Trial Chamber, by referring to this conclusion, acknowledges this combined objective/subjective approach as established in international jurisprudence. The Pre-Trial left an important chance pass by, in their decision they could have gone in depth on the method used in determining group membership. Instead they left this decision untouched and followed plainly the reasoning of the ICJ, although the situation at hand was a completely different one than the situation the ICJ had to deal with. Judge Uŝacka in her separate and partly dissenting opinion disagrees with the determination criteria used by the Pre-Trial Chamber and places more emphasis on subjective factors such as the use of derogatory epithets and the perception of the victims themselves. She concludes that the target group is a unitary entity, namely the ‘African tribes’. The Darfur report from the International COI, which formed the basis for the decision of the Pre-Trial Chamber draws two important conclusions in relation to the group identification. It firstly concludes that the approach taken to determine whether a group is protected under the GC has evolved from “an objective to a subjective standard to take into account that collective identities, and in particular ethnicity, are by their very nature social constructs, “imagined” identities entirely dependent on variable and contingent perceptions, and not social facts, which are verifiable in the same manner as natural phenomena or physical facts”. Young sees this ‘evolution’ as a more modest evolution towards increased reflection of social reality in which the ad hoc tribunals acknowledge the interrelation between objective and subjective factors and that each objective evidence has an underlying subjective essence. 270 According to the Commission, this interpretative expansion, focussing on subjective indicators alongside the objective indicator of stability and permanency from the ICTR, has become part of customary

268 Idem., pp. 685-687. 269 See footnote 152, Public Redacted Version of the Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad al Bashir, Situation in Darfur, The Sudan (ICC-02/05-01/09), Pre-Trial Chamber 1, 4 March 2009. 270 R. Young, above n. 23, pp. 16-22.

57 law. According to Schabas, such an interpretative expansion, focussing on the permanent and stable groups, is not only totally unnecessary, but also works at cross purposes with the real reasoning of the Darfur Commission. According to him, it is about the consideration of the perpetrator that perceives these groups to be distinct. Once a subjective approach which relies on this perception is adopted, there is no longer a need to enlarge, by interpretation, the accepted definition as such an approach in itself is already a broad definition. 271 Secondly, it concludes that the formation of a perception and self-perception of another group may begin as a subjective view, but ultimately will crystallise into a real and factual opposition, leading to an objective contrast. In this instance, the subjective conflict, becomes objective. 272 This conclusion can be brought into connection with the conclusion of the TC in the Rutaganda decision by which the Court states that the identification of persons as belonging either to the Hutu, Tutsi or Twa group has been embedded in the Rwandan culture, and part of customary law. These perceptions have become part of a real and factual opposition, in which the Tutsi’s were placed in stark contrast against the Hutu’s.

271 W.A. Schabas, above n. 85, pp. 1717-1721. 272 Darfur Report, paras. 500-501.

58

7. Conclusion

As having the discussed the existent case law before the ICTR, ICTY and ICC a clear pattern in the followed approach on determining group membership can be deduced. First of all, it seems apparent that the tribunals, including the ICJ in its recent judgment on genocide, agree on a mixed objective/subjective approach in determining group membership. Such an approach should be followed on a case-by-case basis. To follow either a purely objective approach, or a purely subjective approach is dissatisfactory, a balance between these two have to be struck, and it has to be determined on the facts of each case at hand which factors are best suited to determine whether genocide has been perpetrated against an identifiable group. That the tribunals follow such a mixed approach is also reflected in their use of evidence. A broad spectrum of indicators, both objective and subjective are accounted for such as witness testimonies, ID-cards, the use of derogatory words, statistical evidence, legislation and laws, constitutions and physical appearances of the targeted groups. The Chamber in the most recent decision on the question which approach should be followed (the Pre-Trial Chamber in the arrest warrant of Al Bashir) repeats the mixed objective/subjective approach and uses the ICJ judgment on the Bosnian genocide case as a justification. Relating to subjective indicators, particular emphasis by the tribunals is placed on identification by others in which the perception of the person who wishes to single out the group, namely the alleged perpetrator is central. This perception links the identification of groups to the most distinctive feature of genocide: specific intent. It is this specific intent, which makes the crime of genocide punishable, and distinctive from other international crimes as war crimes and crimes against humanity. Taking this most important feature into account, it is only reasonable to attribute an equal importance to the perception of the perpetrator in determining victimised groups. Besides this perception, broader indicators also play a role as the groups have to be assessed in the light of their political, social, cultural and historical context. Groups are not static social facts, but social constructs, which live and thrive not separately but in companion, subject to different factors. Another point on which the tribunals, the ICJ and also the COI agrees is the impossibility of group determination on a ‘lack of’ certain criteria, i.e. the negative stigmatisation. Only groups with specific distinctive and particular characteristics relating to one of the four groups in the GC can be qualified as a targeted group. This corresponds to the intention of the drafters, the etymology of the word and the drafting history of the term, as the AC in Stakić confirmed.

59

Although the tribunals roughly agree on these three points, disagreement remains as is seen in the existing separate and partly dissenting opinions of judges in the cases before the ICTY and ICC. Also commentators in scholarly literature disagree on the best approach to be followed and sometimes even disagree the qualification of the cases as either following an objective or subjective approach. The main fear scholars dictate is the so-called fear of ‘imaginative groups’ existing only in the mind of the perpetrator, making the crime of genocide a boundless crime bearing more resemblance towards discriminatory motives then a true specific intent. Such fear can be understood. The crime of genocide is intended to protect only four groups which at that time deemed sufficiently cohesive and stable, worthy of protection as they were the historical target of hostility and hatred. However, we live in a different era now, where there exist different actors in international law, different weapons, different types of conflict, and above all: different groups. Political groups, gender groups and social groups are all groups that have grown in numbers and importance since the adoption of the GC. Who or what justifies the fact that if all other elements of genocide can be fulfilled, that genocide could still not be proven because the victims do not fall within one of the specified four groups as provided for in the GC? The solution of the Akayesu TC can provide an answer in these situations, as they concluded that the GC also protects other ‘stable and permanent groups’, similar to the four groups already provided for. I agree however with scholars such as Schabas, Nersessian, Kreβ and Luban that some objective existence must be guaranteed to prevent the risk that genocide can be committed towards ‘imaginative groups’. However, such objective indicators must be interpreted in a broad sense, in which reference should be made to the second conclusion drawn by the COI in the Darfur situations in which the Commission concluded that perception and self-perception may eventually evolve to such a degree that it will ultimately form a real and factual opposition: an objective contrast. One conclusion however rises strong above all other conclusion: the fact that objective and subjective are not as clear cut as the terms may suggest. Objective features may have a subjective essence, and subjective features may turn in to objective facts. It remains to be seen whether the ICC, as the permanent international criminal court, will follow up on their drawn conclusion by their Pre-Trial Chamber in the situation of Darfur, Sudan to follow a mixed approach based on both objective and subjective criteria to determine group membership. But objective, subjective or both, one may never lose sight of the true reason why the definition of genocide was invented: to protect those groups which are threatened by destruction.

60

8. Bibliography

Articles Aksar, Y, ‘The “victimised group” concept in the Genocide Convention and the development of international humanitarian law through the practice of ad hoc tribunals’, 1 Journal of Genocide Research 5:2 (2010), pp. 211-216. Cherif Bassiouni, M ‘The United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)’, 88 The American Journal of International Law 4 (1994), pp. 784-805. Cherif Bassiouni, M ‘International Crimes: "Jus Cogens" and "Obligatio Erga Omnes"’, 59 Law and Contemporary Problems 4 (1996), pp. 63–74. Husa, J ‘About the Methodology of Comparative Law – Some Comments Concerning the Wonderland…’, Maastricht Faculty of Law Working Paper No. 5 (2007), pp.1-20. Kreβ, C ‘The Crime of Genocide under International Law’, 6 International Criminal Law Review 4 (2006), pp. 661-502. Kreß, C, ‘The International Court of Justice and the Elements of the Crime of Genocide’, 18 The European Journal of International Law 4 (2007), pp. 619-629. Luban, D ‘Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur, and the UN Report’, 7 Chicago Journal of International Law 1 (2006), pp 1-18. Matthew, JA‘The Darfur Debate: Whether the ICC Should determine that the Attrocities in Darfur Constitute Genocide’ , 18 Florida Journal of International law (2006), pp. 518- 547. Mitchell, C ‘Case Note: Prosecutor v. Milomir Stakić [IT-97-24-A] (Appeals Chamber) (22 March 2006’, 13 Australian International Law Journal (2006), pp. 270-280. Nersessian, DL ‘The Razor’s Edge: Defining and Protecting Human Groups under the Genocide Convention’, 36 Cornell international Law Journal 2 (2003), pp 294-326. Schabas, WA , ‘Groups Protected by the Genocide Convention’, 6 ILSA Journal of international and Comparative Law 375 (2000), pp. 375-378. Schabas, WA ‘Was Genocide Committed in Bosnia and Herzegovina?’, 25 Fordham International Law Journal 1 (2001), pp 23-53. Schabas, WA ‘Genocide, Crimes Against Humanity and Darfur: The Commission of Inquiry’s Findings on Genocide’, 27 Cardozo Law Review 4 (2006), pp. 1703-1721.

61

Shah, SB ‘The Oversight of the Last Great International Institution of the Twentieth Century: the International Criminal Court’s Definition of Genocide’, 16 Emory International Law Review 351 (2002), pp 551-391. Sungi, S, ‘Redefining Genocide: The International Criminal Court’s Failure to Indict on the Darfur Situation’, 1 Journal of Theoretical and Philosophical Criminology (2011 Special Edition), p. 63-88. Szpak, A ‘National, Ethnic, Racial and Religious Groups Protected against Genocide in the Jurisprudence of the ad hoc International Criminal Tribunals’, 23 The European Journal of International Law 1 (2012), pp 155-173. Verdirame, G ‘The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals’, 3 International and Comparative Law Quarterly 49 (2000), pp. 578-598. Williams, S and Sherif, L ‘The Arrest Warrant for President al-Bashir: Immunities of Incumbent Heads of State and the International Criminal Court’, 14 Journal of Conflict and Security Law 1 (2009), pp. 71-92. Young, R ‘How Do We Know When We See Them? The Subjective Evolution in the Identification of Victim Groups for the Purpose of Genocide’, 1 International Criminal Law Review 10 (2010), pp 1-22.

Books Cassesse, A International Criminal Law (3rd ed., Oxford University press, 2013). Cryer, R, Friman, H, Robinson, D and Wilmshurst, E An introduction to International Criminal Law and Procedure (3rd ed., Cambridge University Press 2014). Gaeta, P The UN Genocide Convention: A Commentary (Oxford University Press 2009). Jones, A Genocide: a comprehensive introduction (1st edn., Routledge 2007). Kirk McDonald, G and Swaak-Goldman, O Substantive and Procedural Aspect of International Criminal Law: The Experience of International and National Courts (Volume 1, Kluwer Law International 2000). Lemkin, R Axis Rule in occupied Europe: Laws of Occupation – Analysis of Government – Proposal for Redress (Washington D.C. 1944). May, L and Hoskins, Z International Criminal Law and Philosophy (Cambridge University Press 2010). Schabas, WA Genocide in International Law (1st ed., Cambridge University Press 2000). C. Stahn, The Law and Practice of the ICC (Oxford University Press, 2015). Zweigert, K and Kötz, H An Introduction to Comparative Law (Oxford University Press 1992).

62

Case Law

 ICTY Judgment, Blagojević, (IT-02-60), Trial Chamber, 17 January 2005. Judgment, BrÐanin, (IT-99-36-T), Trial Chamber, 1 September 2004. Judgment, BrÐanin, (IT-99-36-A), Appeals Chamber, 3 April 2007. Judgment, Jelisić, (IT-95-10-T), Trial Chamber, 14 December 1999. Judgment, Jelisić, IT-95-10-A, Appeals Camber, 5 July 2001. Judgment, Kristić, (IT-98-33-T), Trial Chamber, 2 August 2001. Judgment, Kristić, (IT-98-33-A), Appeals Chamber, 19 April 2004. Judgment, Popović et al, (IT-05-88-T), Trial Chamber, 10 June 2010. Judgment, Stakić, (IT-97-24-T), Trials Chamber, 31 July 2003. Judgment, Stakić, (IT-97-24-A), Appeals Chamber, 22 March 2006.

 ICTR Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998. Judgment, Akayesu, (ICTR-96-4-A), Appeals Chamber, 1 June 2001. Judgment, Bagilishema, (ICTR-95-1A-T), Trial Chamber, 7 June 2001. Judgment, Gacumbitsi, (ICTR-2001-64-T), Trial Chamber, 17 June 2004. Judgment, Karemera et al., (ICTR-98-44-T), Trial Chamber, 2 February 2012 Judgment, Karemera et al., (ICTR-98-44-A), Appeals Chamber, 29 September 2014. Judgment, Kayeshima and Ruzindanda, (ICTR-95-1) and (ICTR-96-10), Trial Chamber, 21 May 1999. Judgment, Kayeshima and Ruzindana, (ICTR-95-1-A) and (ICTR-96-10-A), Appeals Chamber, 1 June 2001 Judgment, Muhimana, (ICTR-95-1B), Trial Chamber, 28 April 2005. Judgment, Nahimana et al, (ICTR-99-52-T), Appeals Chamber, 28 November 2007 Judgment, Nchamihigo, (ICTR-01-63-T), Trial Chamber, 12 November 2008. Judgment, Ndindabahizi, (ICTR-07-71), Trial Chamber I, 15 July 2004. Judgment, Rutaganda, (ICTR-96-3), Trial Chamber, 6 December 1999 Judgment, Semanza, (ICTR-97-20-T), Trial Chamber, 15 May 2003.

63

 ICC Public Document Second Warrant of Arrest for Omar Hassan Ahmad AL Bashir, Situation in Darfur, the Sudan (ICC-02/05-01/09), Pre-Trial Chamber 1, 12 July 2010. Public Redacted Version of the Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmad al Bashir, Situation in Darfur, The Sudan (ICC- 02/05-01/09), Pre-Trial Chamber I, 4 March 2009. Separate and Partly Dissenting Opinion of Judge Uŝacka, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Prosecutor v. Omar Hassam Ahmad Al Bashir, (ICC-02/05-01/09-3), Pre-Trial Chamber, 4 March 2009.

 ICJ Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ), 6 April 1955, para 24. North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), International Court of Justice (ICJ), 20 February 1969. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), International Court of Justice (ICJ), 26 February 2007.

 Other Wadjularbinna Nulyarimma & Ors v Phillip Thompson; Buzzacott & Ors v Minister for the Environment (Nulyarimma v. Thompson and Buzzacott v. Hill), Australian Federal Court, 2 September 1999.

Legislation UN General Assembly, Convention on the Prevention and Punishment of the Crime of

Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78. International Law Commission, Draft Code of Crimes against Peace and Security of Mankind with Commentaries, 1996, vol 2 International Criminal Court (ICC), Elements of Crimes, 2011, ISBN No. 92-9227-232-2, available at: http://www1.umn.edu/humanrts/instree/iccelementsofcrimes.html .

64

UN Security Council, Security Council Resolution 1593 (2005) on Violations of International Humanitarian Law and Human Rights Law in Darfur, Sudan, 31 March 2005,

S/RES/1593 (2005).

Online Sources AZ Quotes, Rapael Lemkin Quotes, online retrieved 09-08-2015 from: http://www.azquotes.com/author/47038-Raphael_Lemkin Brainyquote, Bosnia Quotes (2002) online retrieved 15-10-2015 from http://www.brainyquote.com/quotes/keywords/bosnia.html . Brainyquote, Genocide quotes (2001) online retrieved 10-08-2015 from http://www.brainyquote.com/quotes/quotes/j/jameslovel314060.html?src=t_genocide Brainyquote, Justice Quotes (2007) online retrieved 23-12-2015 from: http://www.brainyquote.com/quotes/quotes/s/saintaugus148558.html?src=t_justice . Brainyquote, Rwanda quotes (2002) online retrieved 15-11-2015 from http://www.brainyquote.com/quotes/keywords/rwanda.html Dictionary.com, ‘stigma’, online retrieved 20-10-2015 from http://dictionary.reference.com/browse/stigma . Hague Justice Portal, ‘Situation in Darfur, Sudan’ (2005-2016) online retrieved 28-12-2015 from: http://www.haguejusticeportal.net/index.php?id=6177 . History, ‘The Rwandan Genocide’ (2003) online retrieved 16-11-2015 from http://www.history.com/topics/rwandan-genocide . Holocaust Encyclopedia, ‘Victims of the Nazi era: Nazi racial ideology’ (2015) online retrieved 15-07-2015 from: http://www.ushmm.org/wlc/en/article.php?ModuleId=10007457. ICTY, ‘Case Information Sheet Krajina (IT-99-36) Radoslav BrÐanin’, online retrieved 22- 11-2015 from: http://www.icty.org/x/cases/brdanin/cis/en/cis_brdjanin_en.pdf Peace Pledge Union Information, ‘Genocide Rwanda 1994’ online retrieved 15-07-2015 from http://www.ppu.org.uk/genocide/g_rwanda4.html. Socio-economic History Blog, ‘Jewish Estimate Sees Number of Holocaust Dead Drop To 2.8 Million!’ (2011) online retrieved 15-07-2015 from https://socioecohistory.wordpress.com/2011/03/02/jewish-estimate-sees-number-of- holocaust-dead-drop-to-2-8-million/. United Nations International Criminal Tribunal for the former Yugoslavia, ‘About the ICTY’ online retrieved 15-10-2015 from http://www.icty.org/en/about .

65

United Nations Mechanism for International Criminal Tribunal for Rwanda, online retrieved 16-11-2015 from: http://www.unictr.org/en/tribunal United Nations Mechanism for International Criminal Tribunal for Rwanda, online retrieved 16-11-2015 from: http://www.unictr.org/en/tribunal

Other documents Anonymous (candidate number: 536), ‘What’s in a name? Where the Legal Definition of Genocide Clashes with the popular understanding’, University of Oslo, Faculty of Law (Thesis, 2011). Indictment, Rutaganda, (ICTR-96-3), Pre-Trial Chamber, 13 February 1996. Partly Dissenting Opinion of Judgment Shahabuddeen in Judgment, Stakić, (IT-97-24-A), Appeals Chamber, 22 March 2006 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/205/60.

66