The law on genocide protects the national, ethnical, racial and religious group, as such, from their destruction. The protected groups seemingly are part of the crime’s actus reus and mens rea, since they appear both in the provision’s chapeau as well as in each of the enumerated prohibited acts (Art. 2 lit. a-e Convention on the Prevention and Punishment of Genocide, hereafter: Genocide Convention). Notably, there is no recognized legal definition of race. Jurisprudence and scholarly writing are incoherent and unclear in their approach to the concept of race, which results in a risk of inconclusive protection for the victims of mass atrocities.
The judgments of the two ad hoc international criminal tribunals cautiously refined the definition of a racial group. Simultaneously, hardly any matter is as disputed as race itself; its taboo and contentiousness do not contribute to clarifying its contours. There is a discernible trend towards a subjective definition of the victim groups of genocide, including the racial group. According to a subjective approach, the perpetrator – possibly also the victim group itself – defines the victims’ differentness. The group is thereby created through a person’s perception. In increasingly relying on a subjective approach, the significance of an objective approach is gradually weakened, albeit not fully removed. A consequence of an augmented reliance on the subjective approach to defining the victim groups of genocide is that, theoretically, groups that only exist in the mind of the perpetrator could fall under the protection of the law of genocide. If the perpetrator’s imagination alone defines the group, the principle of legality and its elements of foreseeability and specificity might be breached by broadening the protection beyond the four exhaustive categories of ethnical, racial, religious and national groups. In other words, a subjective approach challenges the principle of legality.
According to the principle of effectiveness, no word of a treaty can be left out and each term has its own legal significance. Both the above-mentioned principle of legality and the principle of effectiveness are general principles of law and as such sources of law according to Art. 38 (1)(c) ICJ Statute. The principle of effectiveness has been widely recognized as a guiding principle in the interpretation of law. If race is ignored, not only is the principle of effectiveness hindered, but the chances for a successful prosecution of the crime of genocide are reduced by 25%, because – in effect – one of four exhaustive groups is removed. Instead of shying away from defining race because of its controversy, it should be defined effectively and, most importantly, contemporaneously.
Historically, race developed to adapt a biological meaning based on innate, inherited and visible physical traits. Nowadays, however, race is seen as a social concept, based on the perception of a group’s differentness and irrespective of factual differences. The international judiciary begun to deal with race in the first ever genocide trial in 1998, when the International Criminal Tribunal for Rwanda (ICTR) in the case of Akayesu defined a racial group as “based on hereditary physical traits often identified with a geographical region” (The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, para. 514). In relying on physical traits, the ICTR objectively defined race. This approach is not unexpected. If race is part of the actus reus (objective elements), courts will attempt to define it objectively. Unfortunately, an objective definition of race will inevitably lead to reverting to outdated conceptions. It is scientifically, morally and ethically incorrect to speak of distinct human races; there is no DNA for race. However, if race is viewed as part of the mens rea only, it can be defined subjectively, taking into account the perpetrator’s perception of the victim group. In perceiving his victims as members of a racial group and attacking them for their membership, the legal approach to race becomes coherent with the contemporary understanding of race as the perception of a person’s differentness. Such a subjective approach conforms to an evolutionary interpretation: the concept of race has developed since 1948 when the Genocide Convention was adopted. In the aftermath of the Holocaust there was no discussion on what race signified. For example it was undisputed that Jews and Poles were distinct racial groups. Surprisingly there was no discussion on race when the Rome Statute of the International Criminal Court (ICC) was drafted. Reason for this omission was the customary status of the prohibition of genocide, as articulated in Art. 2 Genocide Convention, which was incorporated into the Rome Statute.
Furthermore, a subjective definition of race is coherent with the structure of genocide as an intent-based crime. Unlike any other crime, genocide requires a special intent, the dolus specialis, to destroy a group. This intent is based on the perpetrator’s perception of the victims as inferior to his own group. The perpetrator identifies, singles out, dehumanizes and aims at destroying the group. The victims become the ‘others’ as opposed to the ‘us’. This process of ‘othering’ is inherent to any genocide, and inferiorization and dehumanization are observable in all past genocides.
By gradual formation the targeted group acquires discernible contours, notwithstanding any prior objective existence. Founded on stigmatization and prejudice, the perpetrator’s perception of the group becomes the singular defining element and shapes the victim group. Even though the group might not be real, it is treated as real. Due to labelling that has been applied to it over a longer period of time, the group eventually considers itself as real too.
The perpetrator's perception and his intent to destroy the victim group are manifested in his behavior. As such, his understanding of the victim group and the subjective definition of the racial group become an issue of proof. The prosecution will, instead of trying to objectively prove the existence of a racial group, have to prove the perpetrator's perception, which is reflected in his pre-genocidal behavior. In sum, the racial group will gain increased importance in the prosecution of perpetrators of mass atrocities if it is released from the actus reus and instead fully integrated into the mens rea.
PhD fellow, Faculty of Law, University of Oslo (Norway)
Author note: Carola Lingaas is a PhD candidate at the University of Oslo (Norway). Her research explores the concept of race in international criminal law, with a particular focus on the crime of genocide. After obtaining a Master of Law degree at the University of Zürich (Switzerland), she worked at the Public Prosecutor's Office, the District Court and a law firm. She then joined the International Committee of the Red Cross (ICRC), where she worked as a field delegate (2002-2003) in South Sudan during the second civil war. She completed an LL.M. in Public International Law at the University of Oslo in 2005. From 2006-2013, Carola worked for the Norwegian Red Cross.