How Do We Know Them When We See Them? The Subjective Evolution in the Identification of Victim Groups for the Purpose of Genocide

Abstract

AbstractDespite more than a decade of jurisprudence from the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia, the manner in which the victim group is defined for the purpose of genocide remains an area in which the espousal of principle is not always matched by practice. This article undertakes a comprehensive analysis of whether international criminal law identifies the victim of genocide based on objective indicators of the group's existence or based on subjective perceptions in relation to that group. This article tests the claim in the Report of the International Commission of Inquiry on Darfur that the identification of victim groups has evolved to such an extent that it is now based on a purely subjective standard. This article first considers the Genocide Convention, its travaux preparatoires and the method of identification of victim groups in other areas of international law, concluding that none of these sources offer clear guidance as to whether the victim group is to be understood as a subjective or objective concept. The jurisprudence of the ad hoc tribunals is then closely analysed. Despite the common claim that the tribunals have been moving towards the adoption of increasingly subjective standards, this article suggests that upon closer analysis such development is not so pronounced. Although the tribunals have shown increased willingness to espouse, in principle, the value of a subjective approach, in reality the tribunals have looked to the same forms of evidence of a group's existence since its earliest jurisprudence. However, although no clear change has occurred in the practice of the ad hoc tribunals, it is becoming increasingly evident that the tribunals are acknowledging the blurred boundaries between objective and subjective indicators of a group's existence. The "evolution" towards a subjective approach referred to in the Darfur Report might be properly understood as a more evolved understanding of the factors which lawyers are quick to regard as objective, but which in the field of sociology have long been regarded as part of subjective processes of group identification. Thus, the issues in this article are framed by the broader debate as to the divergences between the legal and sociological conceptions of genocide is article concludes by placing this discussion in the context of the International Criminal Court's first foray into genocide in the case of The Prosecutor v. Omar Hassan Ahmad Al Bashir.