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”.[1] 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.[2] 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.”[3] Other Trial Judgements from the ICTR have also concluded that target groups cannot be only subjectively defined.[4]

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.