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The Interpretation of the Genocide Convention's Protected Groups Definition

Henriksson, Andreas (2004)
Department of Law
Abstract
The Genocide Convention was created in the aftermath of World War II. The international community was appalled by the Nazi policy of extermination of ''inferior'' groups of people. The word genocide was created during the war to cover these policies and acts committed by the Germans. After the war genocide was defined in the Genocide Convention. The Convention's article II defines genocide as an intentional physical destruction of national, ethnical, racial or religious groups in whole or in part. The Genocide Convention also established the criminal responsibility of individuals committing genocide in time of peace. This was already recognised in time of war through the Nuremberg Principles. The definition of genocide in the Genocide... (More)
The Genocide Convention was created in the aftermath of World War II. The international community was appalled by the Nazi policy of extermination of ''inferior'' groups of people. The word genocide was created during the war to cover these policies and acts committed by the Germans. After the war genocide was defined in the Genocide Convention. The Convention's article II defines genocide as an intentional physical destruction of national, ethnical, racial or religious groups in whole or in part. The Genocide Convention also established the criminal responsibility of individuals committing genocide in time of peace. This was already recognised in time of war through the Nuremberg Principles. The definition of genocide in the Genocide Convention is also most likely identical with the definition of genocide in the customary international law, which according to the ICJ is prohibited in international law. The protected groups are hard to separate from each other and all four of them have common features. One is that they are, more or less, stable and permanent groups. National and ethnical groups are particularly hard to separate from each other since both are mostly defined through a common language, culture or way of life. Racial groups are often described as having special inherited physical traits whereas religious groups are defined by their theistic, non-theistic or atheistic belief. The definition has been strongly criticised and especially the scope of the protected groups has been accused of not covering some of the major post-war mass murders. A second problem is that the four enumerated groups are hard to define clearly. There are no generally accepted definitions in international law of the groups and this leads to problems when the Convention is to be applied in specific cases. This is reflected in the case law of the two UN tribunals, the ICTY and the ICTR. The statutes of the tribunals have the exact same definition of genocide as the Genocide Convention. The ICTR had difficulties fitting the Tutsi into one of the protected groups, whereas the ICTY had an easier task to distinguish the Bosnian Muslims as a protected group under the Genocide Convention. Several Trial Chambers have so far interpreted the protected groups definition differently and there are three clearly distinguishable approaches in the case law: the objective, the subjective and the ensemble or holistic approach. The objective approach is probably the one intended by the drafters while the subjective approach is preferred by most commentators since the concepts of national, ethnical and racial groups are mostly about the perception of the members and others. The ensemble approach recognises the fact that the groups are hard to separate and that at least the national, ethnical and racial groups seem to be forming one larger whole and should therefore not be seen as three different concepts. It is not possible to say which of these approaches that will prevail but future decisions in the ICC will hopefully provide for a more consistent interpretation of the Genocide Convention's protected groups definition. (Less)
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author
Henriksson, Andreas
supervisor
organization
year
type
H3 - Professional qualifications (4 Years - )
subject
keywords
Folkrätt, Straffrätt
language
English
id
1558257
date added to LUP
2010-03-08 15:55:22
date last changed
2010-03-08 15:55:22
@misc{1558257,
  abstract     = {The Genocide Convention was created in the aftermath of World War II. The international community was appalled by the Nazi policy of extermination of ''inferior'' groups of people. The word genocide was created during the war to cover these policies and acts committed by the Germans. After the war genocide was defined in the Genocide Convention. The Convention's article II defines genocide as an intentional physical destruction of national, ethnical, racial or religious groups in whole or in part. The Genocide Convention also established the criminal responsibility of individuals committing genocide in time of peace. This was already recognised in time of war through the Nuremberg Principles. The definition of genocide in the Genocide Convention is also most likely identical with the definition of genocide in the customary international law, which according to the ICJ is prohibited in international law. The protected groups are hard to separate from each other and all four of them have common features. One is that they are, more or less, stable and permanent groups. National and ethnical groups are particularly hard to separate from each other since both are mostly defined through a common language, culture or way of life. Racial groups are often described as having special inherited physical traits whereas religious groups are defined by their theistic, non-theistic or atheistic belief. The definition has been strongly criticised and especially the scope of the protected groups has been accused of not covering some of the major post-war mass murders. A second problem is that the four enumerated groups are hard to define clearly. There are no generally accepted definitions in international law of the groups and this leads to problems when the Convention is to be applied in specific cases. This is reflected in the case law of the two UN tribunals, the ICTY and the ICTR. The statutes of the tribunals have the exact same definition of genocide as the Genocide Convention. The ICTR had difficulties fitting the Tutsi into one of the protected groups, whereas the ICTY had an easier task to distinguish the Bosnian Muslims as a protected group under the Genocide Convention. Several Trial Chambers have so far interpreted the protected groups definition differently and there are three clearly distinguishable approaches in the case law: the objective, the subjective and the ensemble or holistic approach. The objective approach is probably the one intended by the drafters while the subjective approach is preferred by most commentators since the concepts of national, ethnical and racial groups are mostly about the perception of the members and others. The ensemble approach recognises the fact that the groups are hard to separate and that at least the national, ethnical and racial groups seem to be forming one larger whole and should therefore not be seen as three different concepts. It is not possible to say which of these approaches that will prevail but future decisions in the ICC will hopefully provide for a more consistent interpretation of the Genocide Convention's protected groups definition.},
  author       = {Henriksson, Andreas},
  keyword      = {Folkrätt,Straffrätt},
  language     = {eng},
  note         = {Student Paper},
  title        = {The Interpretation of the Genocide Convention's Protected Groups Definition},
  year         = {2004},
}