In 1994, Raphael Lemkin described as genocide crimes committed against individuals, not because of their status as individuals, but because of their membership in a group. The extermination of nearly a million Armenians residing in Turkey during World War I and the horrific events of the Holocaust, which resulted in the deaths of millions of Jews by the Nazi regime during World War II, are among the most unforgettable events in history. incidents of genocide. Say no to plagiarism. Get a tailor-made essay on “Why Violent Video Games Should Not Be Banned”? Get the original essay The crime of genocide found in the Convention on the Prevention and Punishment of the Crime of Genocide (1948). It is defined as a crime committed "with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group" through murder, causing serious bodily and mental harm and the forcible transfer of children to another group. among others. Thus, the intention and the unlawful act must be directed against one of these groups identified by the convention for the crime to have been committed. These are the groups that are identified as “protected groups”. The argument made in this essay will be that since the ICC has yet to rule on a case involving genocide, the Tribunals' interpretation is, in fact, sub-inclusive and unprincipled, although scholars provide solid reasons to justify this decision. the first and the refusal of the second. The essay will first explore the jurisprudence of the ICTY and the ICTR and analyze the interpretation of the Tribunals with regard to the scope of “protected groups”. It will then show that such an interpretation is under-inclusive in that it does not allow for negative identification and allows for the outright exclusion of certain groups, such as political groups, and as such is considered to be unscrupulous. Next, the essay will consider that there is an opposing literature that seeks to justify under-inclusiveness and deny that such under-inclusiveness is in fact unprincipled. We will ultimately conclude that the interpretation, while understandable to the extent that courts are constrained by the Convention, is in fact under-inclusive and unprincipled since at the very least other "stable and permanent" groups should be included . Protected groups: interpretation Official recognition of genocide as a prosecutable crime dates back to 1964, with the adoption of General Assembly resolution 96(1). [5] It created a crime that would result in a "denial of the right to exist of entire human groups" on the basis of religious, racial, political or any other grounds.[6] The Convention was, however, drafted differently. Although initially political groups were included in the draft, the Sixth Committee excluded this group from the final draft, which was adopted unanimously on December 9, 1948.[7] Thereupon, the International Court of Justice (ICJ) upheld the prohibition of genocide as a matter of jus cogens and the Convention as creating erga omnes obligations. The Genocide Convention fails to define membership in these protected groups. As can be seen, it was deliberately left open to the interpretation of national governments.[9] Thus, within the framework of international justice, it has been left to the courts to determine the conditions necessary to be considered a protected group. The crime of genocide was not specifically identified at the Nuremberg Trials, although it was undoubtedly a case of genocide.[10] Thus, the first official incident of individual conviction for the crime ofgenocide by an international criminal court took place in the Akayesu case. The trial concerned the atrocities committed during the Rwandan genocide, which resulted in the extermination of the majority of the Tutsi population by the Hutus. Akayesu exercised control over both the local and national police and ordered the killings of Tutsis during his tenure. However, in order to prosecute Akayesu for the crime of genocide, the courts had to prove that the Tutsis were part of the protected group. To do this, the court first had to define the parameters of “protected groups”. The protected groups, in this case, were defined in a rather objective manner. A national group was stated to comprise individuals sharing a common citizenship and reciprocity of rights and duties. An ethnic group was defined as a group of individuals sharing a common language or culture. A racial group is said to be identified on the basis of hereditary traits that are often identified with a geographic region, regardless of linguistic, cultural, national, or religious factors. A religious group includes those who share the same religion, faith or way of worship. This case was infamous, not only as the first conviction for genocide, but also because it extended the definition of the crime beyond that provided by the Convention, based on the expansion of protected groups. This was mainly because the court recognized that the fact that Tutsis shared the same culture and language as Hutus could not objectively be considered a distinct ethnic group. The different classification was therefore simply a product of social prescription. Thus, the Chambers found themselves in the need to find a protected group to which the Tutsis could belong in order to avoid impunity. In light of this, the Chambers in their decision considered that, in accordance with the preparatory work, a protected group can be extended beyond the 4 groups set out in the Convention as long as they are "stable and permanent groups ". '.[15] Having decided that the Tutsis fell into this category and that all other elements of genocide were met, Akayesu was found guilty of the crime. This decision, however, means that the crime would be expanded to include the protection of groups beyond the four explicitly set out in the Convention. The list of groups would therefore not be exhaustive. However, this decision has been heavily criticized over the years as a misreading of the documents. Although stable and permanent groups were used in committee discussions to decide which groups were protected, there was never any question of allowing these criteria to be used to expand the groups. The groups were intended to be comprehensive.[16] Going beyond explicitly named groups was incompatible with nullum crimen sine lege (the principle of legality). However, some critics believe the decision was made rightly and justifiably. This is based on the fact that the documents actually show that it is desirable to include only "stable" groups in the definition of genocide, because the criteria common to all groups is based on the fact that the members are there automatically affected by birth, a continued membership that is often difficult, if not impossible, to end. However, this does not necessarily negate membership in groups that result from personal choices, such as religion. Thus, if religion, despite its lack of complete permanence, is included, the same should be true for stable groups, such as the Tutsi. Akayesu's reluctance to move away from objective determination is understandable based on the existence of aprecedent which favors an objective interpretation, such as that of the International Court of Justice. However, the cases following Akayesu's decision completely abandoned the attempt to expand an exhaustive list to include "stable and permanent" groups. They also developed a more subjective approach to determining categories. This subjective criterion would thus be determined according to the perception of the perpetrator and that of the victims themselves. At the ICTR, the evolution of jurisprudence highlights an interpretation of protected groups which moves away from the extension to include categories beyond the four already present. However, there is a tendency to choose a more subjective approach, which is actually more flexible than a strict objective criterion. In the Nchamihigo case, while agreeing with the classifications of the four groups in the Akayesu, the court stated that the perception of the members themselves (self-identification) and that of the perpetrator (identification by d 'others) may, in certain circumstances, be taken into account. taken into account when determining membership. This means that if the member was perceived to belong to the group, with the aim that his extermination would contribute to the group's goal of extermination, then he could belong to the group to which he was perceived to belong. Then, in the Rutaganda case, the ICTR considered that, since there is no universal definition of groups, they must be analyzed according to the social, political and cultural context in which they are determined. Thus, membership is more or less a subjective criterion. In the Kayishema and Ruzindana case, the Chambers formulated a broader definition of an ethnic group, encompassing both self-identification and identification by others, among the sharing of a language and culture communities. Regarding the ICTY jurisprudence on genocide, it dealt with the events of the Bosnian genocide, during which Bosnian Serb forces, supported by the Yugoslav People's Army, carried out ethnic cleansing of a large part of the population Muslim and Croatian with the aim of creating a state free of these groups of individuals. In the Jelisic case, the ICTY ruled that the Convention demonstrated an intention to limit its application to the protection of objectively defined “stable” groups. However, the chambers recognize that apart from a possible religion, the other categories would be difficult to define objectively. They therefore conclude that it is more appropriate to use a subjective criterion. There must be a stigmatization of a group as a distinct group in the eyes of the alleged perpetrator, either through positive criteria (distinguishing a group by characteristics that they consider particular to said group), or negative criteria ( identify individuals as not part of the attacker). group, thus making the excluded a distinct group). In the Krstic case, the Trial Chamber states that the objective characteristics of the group (while recognizing that this will be limited to the four groups identified in the Convention) must be determined in the socio-historical context. However, it also highlights the need to consider group stigmatization, primarily from perpetrators, based on these perceived national, ethical, religious, or racial characteristics. Thus, the Chambers use a mixed, objective and subjective approach. The Stakic judgment marked a break in ICTY jurisprudence. The court rejected the negative approach taken in the Jelisic case, according to which a group cannot be defined negatively, for example, as "non-Serbs". This was confirmed in the Popovic et al. case which confirmed the position that thequalification requires the identification of a positive identity as opposed to those lacking a distinctive identity. The group should be defined as “Bosnian Muslims” as opposed to “non-Serbs”. Thus, the exclusion of the author's group will no longer be sufficient to qualify as a group within the meaning of the Convention. There must be a distinct group that can be identified by positive criteria. The ICC has yet to rule on a genocide case, although the UN Security Council has referred the situation in Darfur, Sudan, to the ICC prosecutor in accordance with Security Council Resolution 1593. The ICC has since issued an arrest warrant for Omar. Al Bashir, suspected of three counts of genocide. The Secretary-General appointed a committee of experts which concluded that since protected groups were limited to national, ethnic, religious and racial groups, victims should belong to one of these groups. He recognized that under the objective criteria it would fail to qualify since the Fur, Massalit and Zaghawa tribes did not constitute ethnic groups distinct from those of the authors since they shared the same language, among other similarities. However, because the victims considered themselves to be members of a group other than the hostile group, they may qualify under the subjective criteria.[34] This may, however, appear to be a negative stigma, as African tribes could be seen as targets of Arab authors due to their different characteristics from Arabs. Thus, according to the ICTY judgments in the Stakic and Popovic cases and others, this may not allow victims to constitute a protected group. So it will ultimately depend on whether the ICC believes that there is a negative or positive stigma, and whether it will agree with the decisions of Stakic and Popovic and all the decisions, as opposed to that of Jelisic. That remains to be seen. Thus, we can see that the ICTR and the ICTY have favored a subjective approach in the management of the identification of protected groups. Although Akayesu attempted to allow an expansion of the 4 categories mentioned to include all "stable and permanent" categories, this was soundly rejected in most of the jurisprudence that followed. It remains to be seen how the ICC will handle the situation. One must then ask whether such an approach adopted by the Chambers, and possibly adopted by the ICC, is under-inclusive and, as such, unprincipled. Interpretations as Under-Inclusive and Unprincipled The criticism that the ad hoc tribunals' interpretation of protected groups is under-inclusive stems from the Tribunal's hesitation to include groups beyond those expressly provided for in the Constitution , such as political groups and groups that are negatively identified. Critics argue that this makes the interpretation sub-inclusive and, therefore, unprincipled. The jurisprudence of the ICTR and the ICTY, presented above, proves that these criticisms are not a simple fiction. The non-recognition by recent ICTY jurisprudence of negatively identified groups is heavily criticized because it restricts what is already a narrow interpretation.[38] However, the Appeals Chamber in the Stakic judgment justified this interpretation because to include such groups would amount to an interpretation contrary to what is provided for in the Convention.[39] According to the Chambers, “the term “as such” has great meaning, because it shows that the offense requires the intention to destroy a group of people with a particular group identity. However, when someone targets individuals because they do notdo not possess particular national, ethnic, racial or religious characteristics, the intention is not to destroy particular groups with particular identities as such, but simply to destroy individuals because they lack certain national characteristics , ethnic, racial or religious. religious characteristics. The next criticism concerns the lack of inclusiveness, according to the Court's interpretation, of protected groups, of groups other than those expressly provided for by the Convention, such as homosexuals and women, although this debate has mainly focused on political groups. The ICTY and the ICTR have clearly expressed their interpretation that the Convention leaves no room for and an interpretation that facilitates the inclusion of political groups. The ICTY in Jelisic, for example, refers to the fact that the Convention chose the four groups based on their characteristic of being “stable and permanent”. Political groups are not necessarily composed of individuals who have held permanent membership status since their birth. But this is also true for religious groups. Religious affiliations, like political affiliations, are chosen by members exercising their individual choice. Just like political groups, they lack the permanence and stability of racial groups, for example. It is therefore difficult to see why the characteristic of "stability and permanence" should restrict interpretation. Furthermore, denying individuals the protection provided by the Convention on the grounds that they belong to a political group seems rather contrary to the principles if the claim is that this will incentivize individuals to target political groups since they cannot be convicted of genocide. There is also the argument that acts of genocide against political groups have occurred throughout history. Atrocities committed by the Khmer Rouge in Cambodia resulted in the deaths of approximately two million people who were targeted because of their political or social affiliations.[46] However, the extraordinary chambers of the Cambodian courts were only able to prosecute acts of genocide committed against Vietnamese and other ethnic minorities.[47] Critics therefore argue that it seems unfair that situations like these are not considered genocide by the Courts, even though the death toll is similar to the situations in Rwanda and Bosnia. To this extent, it could be argued that it is contrary to principles that courts interpret in a sub-inclusive manner. There are, however, opposing sides to these arguments. Scholars argue that this under-inclusiveness is justifiable. Allowing an interpretation that includes political groups will open the floodgates in which groups can be included in crime. Genocide is considered the “crime of all crimes”. It must therefore not be interpreted too broadly in order to trivialize the crime. Labeling crimes as genocide “creates irresistible public pressure on governments to act”[51] and “motivates and mobilizes” intervention. It is therefore necessary that such a crime remains somehow in an exclusive domain. Some other scholars argue that this under-inclusiveness is not necessarily unprincipled. A court's decision not to prosecute the perpetrators of genocide does not mean that it will result in impunity. These individuals will instead be prosecuted for other crimes, such as crimes against humanity or war crimes. Neither carries light penalties. It must be understood that the courts are indeed limited by the provisions of the Genocide Convention..