Genocide - (3) - Further points

Previous posts -

Watching the Law: Genocide - (1) - Basic details

Watching the Law: Genocide - (2) - The elements of the offence

Aim of this post -

This post considers three further questions concerning genocide - (i) identifying the protected group or groups, (ii) whether acts of genocide always require an underlying genocidal policy by a state or organized authority, (iii) how to discern genocidal intent.

Identifying the protected group -

The 1948 convention applies to protected groups -

which are stated to be national, ethnical, racial, and religious. The Convention does not define the groups further.

Case law of the International Criminal Tribunals for both Former Yogoslavia and Rwanda have contributed considerably to clarification of the term "group."

According to the judgment in AKAYESU, the word "group" refers to 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. Therefore, a common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.

AKAYESU - International Criminal Tribunal for Rwanda (Appeals Chamber), Tanzania -  Akayesu - Asser Institute (internationalcrimesdatabase.org)

National groups - a collection of people who are perceived to share a legal bond of common citizenship, coupled with reciprocity of rights and duties 

Ethnic group - a group where members share a common language or culture

Racial group - a group based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors

Religious group - a group whose members share the same religion, denomination or mode of worship.

Essentially, membership of a protected group, is a question of fact. A court will have to establish that the individuals in question were in fact treated as belonging to one or more of the protected groups AND also whether those individuals considered themselves as belonging to one or more of the protected groups.

See also the judgments in - 

KAYISHEMA and RUZINDANA - International Criminal Tribunal for Rwanda - Kayishema & Ruzindana - Asser Institute (internationalcrimesdatabase.org)

and in

RUTAGANDA - International Criminal Tribunal for Rwanda - Rutaganda - Asser Institute (internationalcrimesdatabase.org)

Further light is thrown on this aspect of genocide by the Report of the International Commission of Inquiry on Darfur - FINAL REPORT.doc (un.org)

Does genocide always require an underlying genocidal policy by a state or organized authority -

On 20 January 1942, a discussion held at Wannsee (Berlin) and attended by senior Nazi officials formed a policy to exterminate the European Jews. Minutes of the meeting were drafted by Adolf Eichmann.

The Wannsee Conference, 1942 – The Holocaust Explained: Designed for schools

On 4 October 1943, Henrich Himmler addtressed SS officers to the same effect.

Under the 1948 Genocide Convention, this would be clear evidence of a policy of genocide mounted by the then German State against the Jewish (and other) peoples. However, it is important to ask whether such a policy is required to constitute the modern offence.

The modern view is that existence of such a policy is NOT a legal requirement but it is, of course, evidential.

This view is based on statements in -

Kayishema & Ruzindana - Asser Institute (internationalcrimesdatabase.org)

and, in 

Jelisić (IT-95-10) | International Criminal Tribunal for the former Yugoslavia (icty.org)

Identifying genocidal intent -

The existence at the relevant time of a genocidal intent has to be deduced from all the factual circumstances.  Again, a policy by the State would assist in determining this question but, in relation to particular defendants, may not be enough.

In AKAYESU and also in KAYISHEMA / RUZINDANDA, there was evidence of matters such as speeches made by the accused as well a high number of deliberate and systematic atrocities.

Selected additional reading -

International Crimes Database December 2015 Carola Lingaas - DEFINING THE PROTECTED GROUPS OF GENOCIDE THROUGH THE CASE LAW OF INTERNATIONAL COURTS - ICD Format.pdf (internationalcrimesdatabase.org)

On What Conditions Can a State Be Held Responsible for Genocide? Paola Gaeta - chm037.indd (ejil.org)

Proving genocidal intent - Ryan Y. Park 2010 - Genocide Paper Final.doc (dccam.org)

How genocide is defined—and why it’s so difficult to prove (msn.com)

For an interesting article see -  The Killing Fields – Museum of Communist Terror

11 April 2022