Targeted / protected group
|Appeal Judgement - 22.03.2006||
In the Trial Judgement, the Trial Chamber decided that the elements of genocide had to be considered separately in relation to each specific group targeted, in that case Bosnian Muslims and Bosnian Croats; it held that targeted group of genocide could not be defined negatively, in that case as the “non-Serbs”. After considering inter alia the plain text of Article 4 of the Genocide Convention, its drafting history, commentaries thereof, and exploring the Prosecution’s arguments based on a subjective definition of genocide, the Appeals Chamber concluded that the targeted group of genocide can only be defined positively. It held the following:
25. […] First, contrary to what the Prosecution argues, the Krstić and Rutaganda Trial Judgements do not suggest that target groups may only be defined subjectively, by reference to the way the perpetrator stigmatises victims. The Trial Judgement in Krstić found only that “stigmatisation … by the perpetrators” can be used as “a criterion” when defining target groups – not that stigmatisation can be used as the sole criterion. Similarly, while the Rutaganda Trial Chamber found national, ethnical, racial, and religious identity to be largely subjective concepts, suggesting that acts may constitute genocide so long as the perpetrator perceives the victim as belonging to the targeted national, ethnical, racial, or religious group, it also held that “a subjective definition alone is not enough to determine victim groups, as provided for in the Genocide Convention.” Other Trial Judgements from the ICTR have also concluded that target groups cannot be only subjectively defined.
26. Second, the Appeals Chamber notes that whether or not a group is subjectively defined is not relevant to whether a group is defined in a positive or a negative way, which is the issue now before the Chamber. Consequently, when a target group is defined in a negative manner (for example non-Serbs), whether the composition of the group is identified on the basis of objective criteria, or a combination of objective and subjective criteria, is immaterial as the group would not be protected under the Genocide Convention.
 Trial Judgement, para. 512.
 Judgement, paras 20-28.
 Rutaganda Trial Judgement, paras 56-57.
 In the Musema Trial Judgement, para. 162, the Trial Chamber stated that “a subjective definition alone is not enough”. In the Semanza Trial Judgement, para. 317, the Trial Chamber held that “the determination of whether a group” can be defined as a target group “ought to be assessed … by reference to the objective particulars of a given social or historical context, and by the subjective perceptions of the perpetrators” (emphasis in original). In the Bagilishema Trial Judgement, para. 65, the Trial Chamber was even more explicit, noting that the concept of a national, ethnical, racial, or religious group “must be assessed in light of a particular political, social, historical, and cultural context,” and that membership in “the targeted group must be an objective feature of the society in question”.
|ICTR Statute Article 2(2) ICTY Statute Article 4(2)|
|Appeal Judgement - 28.11.2007||
NAHIMANA et al. (Media case)
496. […][T]he acts committed against Hutu political opponents cannot be perceived as acts of genocide, because the victim of an act of genocide must have been targeted by reason of the fact that he or she belonged to a protected group. In the instant case, only the Tutsi ethnic group may be regarded as a protected group under Article 2 of the Statute and Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, since the group of “Hutu political opponents” or the group of “Tutsi individuals and Hutu political opponents” does not constitute a “national, ethnical, racial or religious group” under these provisions. Furthermore, although the jurisprudence of the ad hoc Tribunals acknowledges that the perception of the perpetrators of the crimes may in some circumstances be taken into account for purposes of determining membership of a protected group, in this instance neither the Trial Chamber nor the Prosecutor cited any evidence to suggest that the Appellants or the perpetrators of the crimes perceived Hutu political opponents as Tutsi. In other words, in the present case Hutu political opponents were acknowledged as such and were not “perceived” as Tutsi. Even if the perpetrators of the genocide believed that eliminating Hutu political opponents was necessary for the successful execution of their genocidal project against the Tutsi population, the killing of Hutu political opponents cannot constitute acts of genocide.
 UN GA Resolution 260 A (III) of 9 December 1948 (“Genocide Convention”).
 In this regard, see Stakić Appeal Judgement, para. 22, which recalls that the drafters of the Genocide Convention declined to include destruction of political groups within the definition of genocide.
 See Stakić Appeal Judgement, para. 25; Muhimana Trial Judgement, para. 500; Ndindabahizi Trial Judgement, para. 468; Gacumbitsi Trial Judgement, para. 255; Kajelijeli Trial Judgement, para. 813; Bagilishema Trial Judgement, para. 65; Musema Trial Judgement, para. 161; Rutaganda Trial Judgement, para. 56.
|ICTR Statute Article 2(3)(a) ICTY Statute Article 4(3)(a)|