LJIL Symposium: Genocide and Discrimination: A Response

[Mónika Ambrus is an assistant Professor at the Erasmus University in Rotterdam]

The interpretation of the expression ‘members of the group’ in the different actus rea under Article 2 of the Genocide Convention through which genocide can be committed as well as that of ‘racial, ethnic or national origin or religious affiliation’ in the chapeau of the same article essentially boils down to who can be seen as victim of genocide (how the protected groups and their members can be identified). As simple an exercise this might seem to be, both case law and scholarly discussion, including this online symposium of the Leiden Journal of International Law, have shown that this is, indeed, not the case. Two main reasons could be identified underlying the different positions: (1) the one relates to the dimension one focuses on in the definition of genocide and the conceptualization of the relationship between the two dimensions, and (2) the other concerns the question of interpretation and the role of the judiciary.

Dimensions of genocide

The definition of genocide, arguably, has two dimensions: the ‘collective’ and the ‘subjective’. The collective dimension incorporates the broader action that is characterized by the shared intent to destroy a particular group (or part of it). The subjective dimension incorporates the prohibition to target individuals based on their racial, ethnic or national origin or religious affiliation.

As Professor Schabas also explained in his insightful historical overview of the drafting process of the Genocide Convention in his comment, the definition of genocide was formulated with a strong focus on its collective dimension. Indeed, when proposing a definition, Lemkin explained that ‘[w]hile society sought protection against individual crimes, or rather crimes directed against individuals, there has been no serious endeavour hitherto to prevent and punish the murder and destruction of millions.’ (R. Lemkin, ‘Genocide’, 1946 American Scholar 227, at 227 (emphasis added).) The tragedy of WWII made the international community realize the importance of prohibiting crimes that has such a collective dimension. This focus is also illustrated by generally referring ‘only’ to two ‘subjective’ elements for establishing that genocide has been committed: the intent to destroy a particular group (dolus specialis) and the intent to commit one of the conducts enumerated in the definition (dolus actus). There is no (or hardly any) mention of the subjective nature of choosing a particular individual and targeting a particular group other than in the context of proving the special intent (dolus specialis). In a similar manner, the discussion on knowledge vs intent also reflects this collective dimension.

However, focusing on proving the collective dimension and the related evidential difficulties has, to some extent, resulted in losing sight of the subjective dimension of the crime. Moreover or even as a consequence, this strong focus on the collective dimension creates the impression that the existence of these protected groups is an objective fact. This ‘objectivization’ of the existence of a particular group carries the danger of quasi-normalization of these choices or reinforcing ‘a sense of groupness’, as also highlighted by Professor Mégret. In his comment, he provides valuable insights to the historical development of the concepts of ‘race’ or ‘ethnicity’ constructively supplementing the LJIL article.

On the one hand, it is, indeed, essential to address the collective dimension and punish mass killing. On the other hand, the subjective dimension of the crime of genocide is also embodied in the definition of genocide taking up the root cause of the crime of genocide, that is discrimination against individuals on the grounds of their racial, ethnic, national belonging or religious affiliation. It can, thus, convincingly be argued that in order to reject genocide, one does not only need to reject mass murder, but also discrimination on these grounds.

(Judicial) interpretation

The other possible reason for disagreement on which approach to follow for the identification of protected groups and their members is what method of interpretation one accepts and how one perceives the role of the judiciary in this regard. This vision, in turn, has impact on whether a certain approach is regarded as ‘expansion’ of the definition or as a possible interpretation.

The historical interpretation of the definition seems to support the so-called objective approach, in that it adopts the drafters’ conceptualization of these groups and their members. As Professor Mégret highlights, the definition in the Genocide Convention was born out of the 19^th century conceptualization of these groups. In that case, one might argue that adopting the subjective approach towards the identification of the groups and their members, that is relying on the perception of the perpetrator, would lead to an expansion of the definition of genocide. Any (or most) remaining gaps in that case, as Professor Schabas explained, can be and has been filled by the expansion of crimes against humanity.

Whether or not one is willing to accept this approach it is worth exploring what happens if one relies on other methods of interpretation. It seems that the VCLT’s ‘ordinary meaning’ interpretation does not bring us closer to the meaning of these groups and ‘the members of these groups’, since this is the essence of the debate – what is presently the ordinary meaning of these terms? If one, however, turns to any other applicable rules in the relations between the parties for interpretation purposes (irrespective of which form of interpretation this actually takes (e.g. evolutive, systematic, teleological etc.), the conceptualization of groups in discrimination law seems difficult to disregard. In that case, accepting the subjective approach would not mean an expansion of the definition of genocide, but would be one possible interpretation.

One cannot but agree, as Professor Schabas also revealed, that the broad concept of crimes against humanity might cover most (if not all) victims of mass atrocities who due to the objective approach would not fall under the definition of genocide. Nevertheless, this position raises the more general question about the role of judiciary in international criminal law (or even the purposes of international criminal law in general). Relying on the objective approach seems to emphasize the role played by the judiciary through the final outcome of the case – as long as an impunity gap is filled by bringing a conduct under a crime, it fulfilled its task. In other words, this approach seems to focus on the need to punish the perpetrators. As opposed to this, the adoption of the subjective approach by the judiciary underscores their role in moderating the negative effect and questioning the ‘validity’ of the creation of groups based on certain physical or other characteristics through judicial reasoning. In addition to the perpetrators, this view takes into consideration the effects of genocide on the victims and the society in general. Arguably, this latter approach would, as a consequence, contribute to preventing the occurrence of future genocide by highlighting the ‘inadequateness’ of a division along such groups, and thus, would go beyond what at first sight might seem a sterile exercise.

As closing words, I would like to thank the Editorial Board of the Leiden Journal of International Law for facilitating this great virtual discussion as well as to Professor Schabas and Professor Mégret for their constructive comments.