8.4 A National, Ethnic, Racial, or Religious Group
8.4.1 The group as protected interest
195
The prohibition of genocide is based on the fundamental principle that groups of
people, rather than people as individuals, should be protected and that their in
tended destruction is a crime under international law.131 In other worjs> t^e o^_
ject of the Genocide Convention and of its underlying prohibitions is to safeguard
‘the very existence of certain human groups’.132 The identification of one of these
groups as the ultimate victim of the proscribed acts is thus one of the required
components of the crime of genocide and a prerequisite to the establishment of
this crime.
For the purpose of the law of genocide, a group is to be understood as a section of
the population whose members have common characteristics distinguishing them
from other members of society’.134
Both the Genocide Convention and customary international law protect four
categories of groups, which are characterized by certain features common to their
members: nationality, ethnicity, race, or religion.135 The crime of genocide thus per
tains to the intended destruction in whole or in part of a group with a particular
positive identity that is characterized by one or more of these features.136 It does not
concern itself with the destruction of people lacking such a distinctive identity.137
This focus on the protection of groups is also reflected in the mens rea of the offence, which demands proof that the perpetrator acted pursuant to an inte^
group characterized by one (or more) of the listed features and that victims
selected accordingly.138
197
estroy a -J were
8.4.2 Existence and composition
8.4.2.1 General considerations
The determination that a group of individuals constitutes a national, ethnical, racial,
or religious group under the law of genocide is an exercise fraught with difficulties.
First, such a determination could hardly claim to be scientific in nature.139 it is based
on the perception of the identity of the group and of its membership supported by cer
tain objective features that attach to the group.140 A number of factors, some objective
others subjective, will thus be relevant to that evaluation.
8.4.2.2 Objective and subjective factors
Although the existence of certain groups and membership therein must be objectively
ascertainable, there is also a subjective dimension in that evaluation. A group ‘may
not have precisely defined boundaries and there may be occasions when it is difficult
to give a definite answer as to whether or not a victim was a member of a protected
group?42 In other words, in a given situation, objectively ascertainable factors, such
as the exercise of a particular religion, and a commonly shared perception of one’s or
another’s membership in a group might be relevant to establishing the existence of a
protected group. In all cases, however, a group must have some sort of objective reality
so that purely imagined entities would not, in principle, come within the scope of pro
tection of the Convention.143 The existence of a group protected under the Genocide
Convention cannot therefore be based entirely on the subjective assessment of the vic
tims and/or perpetrators.144 In line with this, tribunals have thus generally approached the question of the existence of a protected group and of its membership using a com
bination of objective and subjective factors.145
8.4.2.3 Subjective considerations
The subjective perception of both victims and perpetrators is a relevant factor in the
determination of the existence and composition of a protected group.146 Evidence may suggest, for instance, that the victims perceived themselves as belonging to a distinct
group.147 In other cases, the perpetrator’s view of the targeted group might be relevant
to determine that a protected group was being targeted.148
8.4.2.4 No necessary legal assessment from the perpetrator
It is not necessary to establish that the accused was aware that the group in question
was a protected group under the Genocide Convention. It is sufficient that he was gen
erally aware of the facts and circumstances upon which the characterization was made
and the victims targeted.
8.4.2.5 Form and structure of the group
201
Under the law of genocide, a ‘group’ need not be structured or organized in any par
ticular way to come within the scope of the law, nor does it need to possess any par
ticular institutional features. Thus, a ‘tribe’—in the sense of group linked by language,
culture, or history in a traditional society—could constitute a group for the purpose
of the definition of genocide.150
8.4.2.6 Targeting based on membership in protected group
That the victims have a common nationality, ethnicity, religion, or race is not enough
to conclude that they were victims of genocide. That feature must further be shown to
have been the reason or one of the reasons why the victims were targeted.151 Thus, the
European Court of Human Rights concluded that Lithuanian ‘partisans’, who were
characterized by their resistance to the Soviet presence in the country, did not come
within the ordinary meaning of a ‘national’ or ‘ethnic’ group.152 The Court noted that
victims did not possess national or ethnic features which would have distinguished
them from the perpetrators, and that they were being targeted not for reasons asso
ciated with their nationality or ethnicity, but by reason of their political resistance to
the occupying power.153 Political groups do not constitute a recognized category of protected group under the law of genocide so that partisans’ could not be said to con
stitute a protected groups under the law of genocide.154
8.4.3 Positive definition of protected group
A national, ethnical, racial, or religious group must consist of a collection of indi
viduals with a particular group identity.155 The protected group must therefore be
defined positively and possess distinguishing—national, racial, religious, or ethnic
characteristics.156 In other words, to be relevant to this prohibition, the group in question must have a particular, distinct—national, ethnic, racial, or religious—
identity and be defined by its common characteristics rather than a lack thereof.157 It is
not sufficient to define a protected group exclusively by reference to negative factors.158
As a result, a group could not be characterized solely by opposition to the perpetrator’s
group (e.g., non-Khmer Rouge; non-Nazis). This led the ICTY to determine that a
protected group of individuals, which factually consisted of Bosnian-Croats and
Bosnian-Muslims, could not be described negatively as ‘non-Serbs’ for the purpose
of the prohibition on genocide as ‘non-Serbs’.159 Instead, the Tribunal made it clear
that it is the positive and common—national, ethnical, racial, or religious—feature or
features of each group, which would characterize a protected group (i.e., in this case,
Bosnian-Muslims and Bosnian-Croats).
Although a group cannot be defined negatively, the fact that a group is different from
the perpetrator’s group and is targeted for that reason may be relevant as evidence that
destructive intent existed in relation to one or more protected groups. This would be
the case, for instance, if the evidence established (i) a pattern of similar criminal con
duct, or (ii) a coherent approach and method on the part of the perpetrators which
might provide evidence of their dolus specialis in relation to each or some of these
groups. In such a case, however, the protected character of the targeted groups must be
verified and established in relation to each group.161 An illustration would consist, for
instance, of the targeting of Bosnian-Muslims and Bosnian-Croats by Bosnian-Serb
force, with each and both of these groups being targeted for destruction.162
8.4.4 National, ethnic, racial, or religious character of group
8.4.4.1 General considerations
8.4.4.1.1 From ‘national minorities’ to national, ethnical, racial, and
religious groups
Article II of the Genocide Convention is applicable to four categories of groups: na
tional, ethnical, racial, and religious groups. The same list of protected groups has
since been replicated in the statutory instruments of international criminal tribu
nals with jurisdiction over the crime of genocide. As a whole, this set of protected
groups effectively reflect a single phenomenon which had been historically—but quite
misleadingly—described as ‘national minorities’.163 The Trial Chamber in the Krstit
case thus pointed out that ‘the preparatory work of the Convention shows that setting
out such a list was designed more to describe a single phenomenon, roughly corres
ponding to what was recognised, before the second world war, as “national minor
ities”, rather than to refer to several distinct prototypes of human groups’.164 The Krstic
Chamber added that ‘[t]o attempt to differentiate each of the named groups on the basis of scientifically objective criteria would thus be inconsistent with the object and
purpose of the Convention’.165 The notion of protected group has now shed both its
focus on nationality (embracing other features—racial, religious, and ethnic) and any
requirement of‘minority’ status on the part of the protected group.
8.4.4.2 National
A ‘national’ group has been defined as ‘a collection of people who are perceived to
share a legal bond based on common citizenship, coupled with reciprocity of rights
and duties’.185 This definition must be applied with caution as citizenship and legal
bonds do not appear to have been a core consideration behind the adoption of that
term in the Convention.186 Furthermore, the strict application of such requirements
might disqualify the very groups that the Convention seeks to protect. The notion of
nationality’ in this context must not, therefore, be construed too narrowly and cannot
be reduced to a question of citizenship or legal status.187 The ICTY has thus held that Bosnian-Muslims were a national group distinct from other fellow Bosnians (Bosnian-
Serbs and Bosnian-Croats) who shared a common (Bosnian) citizenship.188 Similarly,
the ECCC applied this notion broadly and found that Cambodians of Vietnamese eth
nicity were a distinct national group within Cambodia.189
8.4.4.3 Ethnic(al)
The category of‘ethnical* groups was introduced in the Convention pursuant to a pro
posal from Sweden.190 The introduction of this category was intended to avoid any
confusion between a ‘national’ and ‘political’ group and to account for the fact that
a minority might be distinguished by its language.191 If a linguistic group did not co
incide with the state, it was thought that it would be protected as an ‘ethnical’ rather
than a ‘national’ group.192
An ‘ethnic(al)’ group has been defined as ‘a group whose members share a common
language or culture’.193 Such a definition has limitations. First, it is extremely vague and provides little guidance about the sort of groups relevant to this notion.194
Furthermore, this definition could fail to capture the very sort of‘ethnic’ groups that
the Convention had in mind. The fact that individuals share a common language
(such as, for instance, the English language for many Nigerians and Australians), or a
common culture (as with Bosnian-Serbs and Bosnian-Muslims, in most relevant re
spects) seems barely sufficient to suggest that, on that basis alone, they may be said
to constitute a single ‘ethnic’ group for the purpose of the Genocide Convention.
Instead, as outlined at 8.4.4.1.2 infra, groups with a common language and culture
(e.g., Rwanda’s Tutsis and Hutus, and Cham and Vietnamese Cambodians) have been
said to constitute distinct ‘ethnic’ groups. It therefore appears that ‘ethnicity’ in its
contemporary understanding would reflect a mixture of objective linguistic, religious,
and cultural peculiarities which result in the subjective perception of‘ethnic’ differ
ences between different groups. Such a nuanced approach would help explain how
Tutsis have been said to constitute a distinct ‘ethnic’ group in the Rwandan context,
despite the fact that they objectively shared a great deal of cultural, linguistic, and re
ligious characteristics.195 Relying upon a similar approach, the ECCC has determined
that the Cham and Vietnamese minorities in Cambodia could both be regarded as ‘ethnic’ groups.196 In relation to the Darfur situation, a Pre-Trial Chamber of the ICC
determined that three targeted tribes (the Fur, the Masalit, and the Zaghawa) could be
regarded as distinct ethnic groups having first established that there were no reason
able grounds to believe that these groups were distinct by reason of nationality, race,
and/or religion.197 Bosnian-Serbs and Bosnian-Muslims have also been said to consti
tute distinct ‘ethnic’ groups for the purpose of the prohibition on genocide despite the
great cultural and linguistic overlap between the two groups.198
8.4.4.4 Racial
A ‘racial’ group is one that ‘is based on the hereditary physical traits often identified with
a geographical region, irrespective of linguistic, cultural, national or religious factors’.199
As with other categories of protected groups, the perception of victims and perpetrators
of their own, and the other’s, race may be relevant in establishing that a grouping of in
dividuals indeed constitutes a ‘racial’ group for the purpose of the Genocide Convention.
Regarding the practice of international(ized) criminal tribunals, it has not been sug
gested that either Tutsis and Hutus on the one hand or Serbs, Croats, or Bosniaks on
the other constituted different races. In contrast, the ECCC has hinted at the view that
Vietnamese victims of the Khmer Rouge could be characterized as a specific ‘race’ for
the purpose of genocide.200 As reiterated throughout this chapter, the inquiry is in
tensely context-sensitive and the determinations are legal in character, not scientific.
8.4.4.5 Religious
A ‘religious’ group is ‘one whose members share the same religion, denomination or
mode of worship’.201 The UN Economic and Social Council also defined groups quite broadly as “any religious community united by a single spiritual ideal’.202 This defin
ition of‘religion’ is generic and circular, as the attribute of the group (as a ‘religious’
group) is defined by the exercise of those features which makes the group a distinct
religious group (for instance, its mode of worship). In most cases differences in reli
gion between two or more groups of individuals will be self-evident, as for instance
between Bosnian-Muslims and Bosnian- (Christian Orthodox) Serbs.203 Sometimes,
it may be less so, as in the case of a sect or the extremist expression of a given religion.
The Human Rights Committee has suggested that ‘religion’ should not be limited
to ‘traditional religions or to religions and beliefs with institutional characteristics
analogous to those of traditional religions’.204 It is also clear that the notion of religion
has been interpreted quite broadly in the present context and could include spiritual
beliefs that might not possess all the typical features of traditional religions.205
In the practice of international(ized) criminal tribunals, the ECCC has suggested
that the Cham (Muslim) minority could be said to constitute a religious group for
the purpose of the Convention.206 Interestingly, the ICTY did not describe Bosnian-
Muslims as a ‘religious’ group under the Convention, although the Prosecution had
argued in a number of cases that Bosnian-Muslims (and Bosnian-Croats) should be
regarded as, inter alia, a ‘religious’ group under the Convention.207 In contrast, the State Court of Bosnia-Herzegovina has sometimes described the Bosnian-Muslim
group in religious terms.208
S.4.4.6 Exhaustiveness of the list of protected groups?
8.4.4.6.1 The Convention and customary law
The Convention exhaustively provides for only four, distinct, categories of protected
groups. The Travaux Prtparatoires suggest that, besides these four, no other group was to
be protected under the Convention.209 The statutory instruments of international(ized)
criminal tribunals with jurisdiction over the crime of genocide list the same four
groups.210 Similarly, it is generally accepted that customary international law protects
only these four groups.211
8.4.4.6.2 ‘Stable and permanent’ groups
In two successive judgments,212 Trial Chamber I of the ICTR (composed of the same
judges) suggested that the notion of genocide could extend beyond these four pro
tected groups and may include all ‘stable and permanent’ groups.213 Whilst the Chamber thus seemingly sought to expand the reach of the crime of genocide, its
holding is supported by little evidence of state practice and hardly any indication of
opinio juris.214 As such, it is difficult to support the proposition that groups outside
the list of protected groups in the Genocide Convention are recognized by the cus
tomary international law of genocide.