1. Such person or persons belonged to a particular national, ethnical, racial or religious group population.

1.1. Existence of a particular national, ethnical, racial or religious group.

1.1.1. Objective evidence of the existence of a protected group.

P.1. Evidence of the existence of a "national group".

P.1.1. Evidence of official classification under national constitutions or laws.

P.1.2. Evidence of members sharing a legal bond of common citizenship.

P.1.3. Evidence of members sharing reciprocity of rights and duties.

P.1.4. Evidence of distinctive identity in terms of nationality or national origin.

P.2. Evidence of the existence of an "ethnical group".

P.2.1. Evidence of official classification by identity cards.

P.2.2. Evidence of members sharing a common language.

P.2.3. Evidence of members sharing a common culture.

P.2.4. Evidence of sedentary or nomadic character of the group.

P.3. Evidence of the existence of a "racial group".

P.3.1. Evidence of members sharing hereditary physical traits.

P.3.2. Evidence of members identifying themselves with a geographical region.

P.4. Evidence of the existence of a "religious group".

P.4.1. Evidence of members sharing the same religion.

P.4.2. Evidence of members sharing the same denomination or mode of worship.

P.5. Evidence of the existence of a "stable and permanent group".

P.5.1. Evidence of membership determined by birth.

P.5.2. Evidence that membership is not challengeable by its members.

1.1.2. Subjective evidence of the existence of a protected group.

P.6. Evidence that a group is perceived as such by political or military leaders.

P.7. Evidence that a group is perceived as such by the general public.

P.8. Evidence that a group is perceived as such by the perpetrators.

P.8.1. Evidence of use of pejorative terms by the perpetrator.

P.9. Evidence that a group is perceived as such by the members themselves.

P.9.1. Evidence of use pejorative terms by members of that group to refer to other groups (including the perpetrator's group).

1.1.3. Subjective evidence of the existence of a protected group. Not sufficient: Evidence of the existence of other types of groups.

P.10. Not sufficient: Evidence that the victims are members of a negatively defined group.

P.11. Not sufficient: Evidence of the existence of a tribal group (unless it also constitutes a national, ethnical, racial or religious group).

P.12. Not sufficient: Evidence of the existence of a political or economic group.

1.2. Such person or persons belonged to that national, ethnical, racial or religious group.

P.13. Evidence that the victim was perceived by the perpetrator to be a member of that group.

P.14. Exculpatory: evidence that the victim was not a member of that group.

1. Such person or persons belonged to a particular national, ethnical, racial or religious group population.

Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, para. 182:

''182. Article 4 of the Statute, which mirrors the Genocide Convention, defines genocide as a number of specified acts committed with the intent to destroy, in whole or in part, “a national, ethnical, racial or religious group, as such”. The identification of one of these protected groups as the victim of the proscribed acts is thus one of the required components of establishing the crime of genocide.''

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 541:

''541. Article 4 of the Statute protects national, ethnical, racial or religious groups “as such” (“protected group”). The crime of genocide pertains to the destruction of a race, tribe, nation, or other group with a particular positive identity, not to the destruction of various people lacking a distinct identity. The group targeted for genocide thus cannot be defined in terms of a negative characteristic, such as “non-Serbs” for instance. The determination of the composition of the group is necessarily made on a case-by-case basis. When more than one group is targeted, the elements of the crime of genocide must be considered in relation to each group separately.''

1.1. Existence of a particular national, ethnical, racial or religious group.

1.1.1. Objective evidence of the existence of a protected group.

According to the Akayesu Trial Chamber:

"On reading through the travaux preparatoires of the Genocide Convention, it appears that the crime of genocide was allegedly perceived as targeting only 'stable' groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more 'mobile' groups which one joins through individual voluntary commitment, such as political and economic groups. Therefore, a common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner."[1]

"Paragraph 7 of the indictment alleges that the victims in each paragraph charging genocide were members of a national, ethnic, racial or religious group. The Chamber notes that the Tutsi population does not have its own language or a distinct culture from the rest of the Rwandan population. However, the Chamber finds that there are a number of objective indicators of the group as a group with a distinct identity. Every Rwandan citizen was required before 1994 to carry an identity card which included an entry for ethnic group (ubwoko in Kinyarwanda and ethnie in French), the ethnic group being Hutu, Tutsi or Twa. The Rwandan Constitution and laws in force in 1994 also identified Rwandans by reference to their ethnic group. Article 16 of the Constitution of the Rwandan Republic, of 10 June 1991, reads, "All citizens are equal before the law, without any discrimination, notably, on grounds of race, colour, origin, ethnicity, clan, sex, opinion, religion or social position". Article 57 of the Civil Code of 1988 provided that a person would be identified by "sex, ethnic group, name, residence and domicile." Article 118 of the Civil Code provided that birth certificates would include "the year, month, date and place of birth, the sex, the ethnic group, the first and last name of the infant." The Arusha Accords of 4 August 1993 in fact provided for the suppression of the mention of ethnicity on official documents (see Article 16 of the Protocol on diverse questions and final dispositions)."

"Moreover, customary rules existed in Rwanda governing the determination of ethnic group, which followed patrilineal lines of heredity. The identification of persons as belonging to the group of Hutu or Tutsi (or Twa) had thus become embedded in Rwandan culture. The Rwandan witnesses who testified before the Chamber identified themselves by ethnic group, and generally knew the ethnic group to which their friends and neighbours belonged. Moreover, the Tutsi were conceived of as an ethnic group by those who targeted them for killing."[2]

According to the Jelisić Trial Chamber:

"Although the objective determination of a religious group still remains possible, to attempt to define a national, ethnical, or racial group today using objective and scientifically irreproachable criteria would be a perilous exercise whose result would not necessarily correspond to the perception of the persons concerned by such categorization. Therefore, it is more appropriate to evaluate the status of a national, ethnical or racial group from the point of view of those persons who wish to single that group out from the rest of the community. The Trial Chamber consequently elects to evaluate membership in a national, ethnical or racial group using a subjective criterion. It is the stigmatization of a group as a distinct national, ethnical or racial unit by the community which allows it to be determined whether a targeted population constitutes a national, ethnical or racial group in the eyes of the alleged perpetrators."[3]

The Rutaganda Trial Chamber observed that:

"[...] the concepts of national, ethnical, racial and religious groups have been researched extensively and that, at present, there are no generally and internationally accepted precise definitions thereof. Each of these concepts must be assessed in the light of a particular political, social and cultural context. Moreover, the Chamber notes that for the purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept. The victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction. In some instances, the victim may perceive himself/herself as belonging to the said group."[4]

P.1. Evidence of the existence of a "national group".

In the Akayesu case, the Trial Chamber said:

"Based on the Nottebohm decision rendered by the International Court of Justice, the Chamber holds that a national group is defined as a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties."[5]

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, paras. 2573-2574:

''2573. For the purpose of Count 1, the Prosecution alleges that the protected groups are the national, ethnical and/or religious groups of Bosnian Muslims and Bosnian Croats.^8665''

⁸⁶⁶⁵ See Indictment, para. 38; Prosecution Final Brief, fn. 2147 (making reference to the “national group of Bosnian Muslims and of Croats”).

P.1.1. Evidence of official classification under national constitutions or laws.

According to the Akayesu Trial judgment:

"Paragraph 7 of the indictment alleges that the victims in each paragraph charging genocide were members of a national, ethnic, racial or religious group. The Chamber notes that the Tutsi population does not have its own language or a distinct culture from the rest of the Rwandan population. However, the Chamber finds that there are a number of objective indicators of the group as a group with a distinct identity. Every Rwandan citizen was required before 1994 to carry an identity card which included an entry for ethnic group (ubwoko in Kinyarwanda and ethnie in French), the ethnic group being Hutu, Tutsi or Twa. The Rwandan Constitution and laws in force in 1994 also identified Rwandans by reference to their ethnic group. Article 16 of the Constitution of the Rwandan Republic, of 10 June 1991, reads, "All citizens are equal before the law, without any discrimination, notably, on grounds of race, colour, origin, ethnicity, clan, sex, opinion, religion or social position". Article 57 of the Civil Code of 1988 provided that a person would be identified by "sex, ethnic group, name, residence and domicile." Article 118 of the Civil Code provided that birth certificates would include "the year, month, date and place of birth, the sex, the ethnic group, the first and last name of the infant."[6]

P.1.2. Evidence of members sharing a legal bond of common citizenship.

P.1.3. Evidence of members sharing reciprocity of rights and duties.

P.1.4. Evidence of distinctive identity in terms of nationality or national origin.

P.2. Evidence of the existence of an "ethnical group".

P.2.1. Evidence of official classification by identity cards.

P.2.2. Evidence of members sharing a common language.

According to the Akayesu Trial Chamber:

"An ethnic group is generally defined as a group whose members share a common language or culture."[7]

According to the Kayishema and Ruzidana Trial Chamber:

"[a]n ethnic group is one whose members share a common language and culture; or a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crime (identification by others)."[8]

P.2.3. Evidence of members sharing a common culture.

According to the Akayesu Trial Chamber:

"An ethnic group is generally defined as a group whose members share a common language or culture."[9]

According to the Kayishema and Ruzidana Trial Chamber:

"[a]n ethnic group is one whose members share a common language and culture; or a group which distinguishes itself, as such (self identification); or, a group identified as such by others, including perpetrators of the crime (identification by others)."[10]

P.2.4. Evidence of sedentary or nomadic character of the group.

P.3. Evidence of the existence of a "racial group".

P.3.1. Evidence of members sharing hereditary physical traits.

According to the Akayesu Trial Chamber:

"The conventional definition of racial group is based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors."[11]

P.3.2. Evidence of members identifying themselves with a geographical region.

P.4. Evidence of the existence of a "religious group".

According to the Akayesu Trial Chamber:

"The religious group is one whose members share the same religion, denomination or mode of worship "[12]

P.4.1.  Evidence of members sharing the same religion.

P.4.2.  Evidence of members sharing the same denomination or mode of worship.

According to the Kayishema and Ruzidana Trial Chamber:

"A religious group includes denomination or mode of worship or a group sharing common beliefs."[13]

P.5.  Evidence of the existence of a "stable and permanent group".

The Akayesu Trial Judgment:

"[...] considered whether the groups protected by the Genocide Convention, echoed in Article 2 of the Statute, should be limited to only the four groups expressly mentioned and whether they should not also include any group which is stable and permanent like the said four groups. In other words, the question that arises is whether it would be impossible to punish the physical destruction of a group as such under the Genocide Convention, if the said group, although stable and membership is by birth, does not meet the definition of any one of the four groups expressly protected by the Genocide Convention. In the opinion of the Chamber, it is particularly important to respect the intention of the drafters of the Genocide Convention, which according to the travaux preparatoires, was patently to ensure the protection of any stable and permanent group."[14]

P.5.1. Evidence of membership determined by birth.

P.5.2. Evidence that membership is not challengeable by its members.

1.1.2. Subjective evidence of the existence of a protected group.

P.6.  Evidence that a group is perceived as such by political or military leaders.

P.7.  Evidence that a group is perceived as such by the general public.

P.8.  Evidence that a group is perceived as such by the perpetrators.

P.8.1. Evidence of use of pejorative terms by the perpetrator.

P.9.  Evidence that a group is perceived as such by the members themselves.

P.9.1. Evidence of use pejorative terms by members of that group to refer to other groups (including the perpetrator's group).

1.1.3. Subjective evidence of the existence of a protected group. Not sufficient: Evidence of the existence of other types of groups.

P.10.  Not sufficient: Evidence that the victims are members of a negatively defined group.

P.11.  Not sufficient: Evidence of the existence of a tribal group (unless it also constitutes a national, ethnical, racial or religious group).

P.12.  Not sufficient: Evidence of the existence of a political or economic group.

1.2.  Such person or persons belonged to that national, ethnical, racial or religious group.

The Nizeyimana Trial Chamber found:

"[...] that Second Lieutenant Bizimana led a group of ESO soldiers in the killing of Rosalie Gicanda and others taken from her household on or around 20 April 1994. Gicanda, the former Queen of Rwanda, was a Tutsi, although the ethnic identities of the other victims are unproven. Moreover, Bizimana reported this killing to Nizeyimana and the Chamber has concluded that Nizeyimana authorised it.

"Given the nature of the attack, the Chamber has no doubt that Gicanda was targeted and intentionally killed because she was a Tutsi. Notably, only days earlier, Bizimana had participated in an operation that led to the murder of members of the Ruhutinyanya family, who were also killed on the basis of their Tutsi ethnicity. Likewise, the murder of Gicanda and others in her household followed President Sindikubwabo's 19 April 1994 speech, which marked a significant increase in violence and the targeting of Tutsi civilians within Butare town. The Chamber has no doubt that the murder of Gicanda, referred to as an "old lady " and who was a symbol of the former monarchy, was killed in order to set a striking example that Tutsis, as well as Hutus perceived as sympathetic to the plight of the Tutsis, were the enemy."[15]

P.13. Evidence that the victim was perceived by the perpetrator to be a member of that group.

P.14. Exculpatory: evidence that the victim was not a member of that group.