CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 6 Genocide » Art. 6 Genocide - Common elements » 1. Such person or persons belonged to a particular national, ethnical, racial or religious group.

Element:

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

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

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 667:

"667. Article 4 of the Statute protects national, ethnical, racial or religious groups.²¹⁰⁹ In accordance with the case-law of the Tribunal, a national, ethnical, racial or religious group is identified ‘by using as a criterion the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics.’²¹¹⁰ The Trial Chamber finds that the correct determination of the relevant protected group has to be made on a case-by-case basis, consulting both objective and subjective criteria.²¹¹¹ The Prosecution alleges that the targeted group was the Bosnian Muslim people.²¹¹² The Trial Chamber finds that the Bosnian Muslim people is a protected group under Article 4 of the Statute.²¹¹³"

"2109. See Brđanin Trial Judgement, para. 682.

2110. Krstić Trial Judgment, para. 557, Nikolić Review of the indictment pursuant to Rule 61, Decision of Trial Chamber I, 20 October 1995, Case No. IT-94-2-R61, para. 27; Jelisić Judgement, para. 70.

2111. Brđanin Trial Judgement, para. 684, citing Semanza Trial Judgement, para. 317 and Kajelijeli Trial Judgement, para. 811.

2112. Indictment, para. 35.

2113. This was also the finding in the Krstić Trial Judgment, paras 559-560."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 682 – 684:

"682. The Genocide Convention and, correspondingly, Article 4 of the Statute, protects national, ethnical, racial or religious groups. These groups are not clearly defined in the Genocide Convention or elsewhere.¹⁶⁹² The Trial Chamber agrees with the Krstić Trial Chamber that:

683. In accordance with the jurisprudence of the Tribunal, the relevant protected group may be identified by means of the subjective criterion of the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics.¹⁶⁹⁴ In some instances, the victim may perceive himself or herself to belong to the aforesaid group.¹⁶⁹⁵

684. The correct determination of the relevant protected group has to be made on a case-by-case basis, consulting both objective and subjective criteria.¹⁶⁹⁶ This is so because subjective criteria alone may not be sufficient to determine the group targeted for destruction and protected by the Genocide Convention, for the reason that the acts identified in subparagraphs (a) to (e) of Article 4(2) must be in fact directed against "members of the group".¹⁶⁹⁷"

"1692. Krstić Trial Judgement , para. 555; Rutaganda Trial Judgement, para. 56; Bagilishema Trial Judgement, para. 65; Kajelijeli Trial Judgement, para. 811.

1693. Krstić Trial Judgement , para. 556.

1694. Nikolić Rule 61 Decision , para. 27; Krstić Trial Judgement, para. 557; Jelisić Trial Judgement , para. 70.

1695. See Rutaganda Trial Judgement, para. 56; See also Krstić Trial Judgement, para. 559.

1696. Semanza Trial Judgement , para. 317; Kajelijeli Trial Judgement, para. 811.

1697. See Schabas, Genocide in International Law, p. 110; See also Rutaganda Trial Judgement , para. 57, which reached the same conclusion on a different reasoning: "it appears from a reading of the travaux préparatoires of the Genocide Convention, that certain groups, such as political and economic groups, have been excluded from the protected groups"."

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para, 254:

"254. Membership of a group is a subjective rather than an objective concept. The victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction,²⁴²but the determination of a targeted group must be made on a case-by-case basis, consulting both objective and subjective criteria.^{Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 630:}

"630. It is required to show under Article 2 that the Accused, in committing genocide intended to destroy "a national, ethnical, racial or religious" group. Trial Chambers of this Tribunal have noted that the concept of a group enjoys no generally or internationally accepted definition, rather each group must be assessed in the light of a particular political, social, historical and cultural context. Accordingly, "[f]or purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept [where] the victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction." A determination of the categorized groups should be made on a case-by-case basis, by reference to both objective and subjective criteria."

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 811:

"811. It is required to show under Article 2 that the Accused, in committing genocide intended to destroy ‘a national, ethnical, racial or religious’ group. Trial Chambers of this Tribunal have noted that the said concept enjoys no generally or internationally accepted definition, rather each concept must be assessed in the light of a particular political, social, historical and cultural context.¹⁰⁴⁹ Accordingly, ‘[f]or purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept [where] the victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction.’¹⁰⁵⁰ A determination of the categorized groups should be made on a case-by-case basis, by reference to both objective and subjective criteria.¹⁰⁵¹"

"1049. Bagilishema, Judgment (TC), para. 65; Musema, Judgment (TC), para. 161.

1050. Rutaganda, Judgment (TC), para. 56; Musema, Judgment (TC), para. 161; Semanza, Judgment (TC), para. 317.

1051. Semanza, Judgment (TC), para. 317."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 317:

"317. The Statute of the Tribunal does not provide any insight into whether the group that is the target of an accused’s genocidal intent is to be determined by objective or subjective criteria or by some hybrid formulation. The various Trial Chambers of this Tribunal have found that the determination of whether a group comes within the sphere of protection created by Article 2 of the Statute ought to be assessed on a case-by-case basis by reference to the objective particulars of a given social or historical context, and by the subjective perceptions of the perpetrators.⁵³⁸ The Chamber finds that the determination of a protected group is to be made on a case-by-case basis, consulting both objective and subjective criteria.Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, paras. 555 – 556:

"555. National, ethnical, racial or religious group are not clearly defined in the Convention or elsewhere. In contrast, the preparatory work on the Convention and the work conducted by international bodies in relation to the protection of minorities show that the concepts of protected groups and national minorities partially overlap and are on occasion synonymous. European instruments on human rights use the term "national minorities",¹²²⁸ while universal instruments more commonly make reference to "ethnic, religious or linguistic minorities";¹²²⁹ the two expressions appear to embrace the same goals.¹²³⁰ In a study conducted for the Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1979, F. Capotorti commented that "the Sub-Commission on Prevention of Discrimination and Protection of Minorities decided, in 1950, to replace the word 'racial’ by the word 'ethnic’ in all references to minority groups described by their ethnic origin".¹²³¹ The International Convention on the Elimination of All Forms of Racial Discrimination¹²³² defines racial discrimination as "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin".¹²³³The preparatory work on the Genocide Convention also reflects that the term "ethnical" was added at a later stage in order to better define the type of groups protected by the Convention and ensure that the term "national" would not be understood as encompassing purely political groups.¹²³⁴

556. The preparatory work of the Convention shows that setting out such a list was designed more to describe a single phenomenon, roughly corresponding to what was recognised, before the second word war, as "national minorities", rather than to refer to several distinct prototypes of human groups. To attempt to differentiate each of the named groups on the basis of scientifically objective criteria would thus be inconsistent with the object and purpose of the Convention.

"1228. See in particular Article 14 of the European Convention on Human Rights: "The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as [...] association with a national minority [...]". See also the Framework Convention for the Protection of National Minorities, ETS 157, or principle VII of the Final Act of the Conference on Security and Co-operation in Europe (1975), point 105, para. 2.

1229. See in particular Article 27 of the International Covenant on Civil and Political Rights: "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language".

1230. See in particular the definition suggested by the European Commission for Democracy through Law, The Protection of Minorities, Strasbourg: Council of Europe Press, 1994, p. 12: a national minority is "a group which is smaller in number than the rest of a population of a State, whose members, who are nationals of that State, have ethnical, religious or linguistic features different from those of the rest of the population, and are guided by the will to safeguard their culture, traditions, religion or language".

1231. F. Capotorti, Study on the Rights of the Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1 (1979), paras. 197, referring to the debates held on a draft resolution on the definition of minorities (E/CN. 4/Sub. 2/103).

1232. UNTS, vol. 660, no. 9646.

1233. Article 1.

1234. UN Doc. A/C.6/SR.73 (Petren, Sweden); UN Doc. A/C.6/SR.74 (Petren, Sweden)"

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, para. 65:

"65. The Chamber notes that the concepts of national, ethnical, racial, and religious groups enjoy no generally or internationally accepted definition.⁶² Each of these concepts must be assessed in the light of a particular political, social, historical, and cultural context. Although membership of the targeted group must be an objective feature of the society in question, there is also a subjective dimension.⁶³ A group may not have precisely defined boundaries and there may be occasions when it is difficult to give a definitive answer as to whether or not a victim was a member of a protected group. Moreover, the perpetrators of genocide may characterize the targeted group in ways that do not fully correspond to conceptions of the group shared generally, or by other segments of society. In such a case, the Chamber is of the opinion that, on the evidence, if a victim was perceived by a perpetrator as belonging to a protected group, the victim could be considered by the Chamber as a member of the protected group, for the purposes of genocide."

"62. Although indicative definitions of these four terms have been provided, for example, in Akayesu paras 512-515.

63. In this regard, the Chamber agrees with the comment of the Commission of Experts on Rwanda that "to recognize that there exists discrimination on racial or ethnic grounds, it is not necessary to presume or posit the existence of race or ethnicity itself as a scientifically objective fact": Morris and Scharf, The International Criminal Tribunal for Rwanda, vol. 1 • p. 176."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 70:

"70. 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 categorisation. 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 stigmatisation 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 perpetrators⁹⁵. This position corresponds to that adopted by the Trial Chamber in its Review of the Indictment Pursuant to Article 61 filed in the Nikolić case⁹⁶."

"95. Here, the Trial Chamber follows in part the position taken by the International Criminal Tribunal for Rwanda which stated that "an 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 the perpetrators of the crimes (identification by others)" in the Kayishema case (Judgement, para. 98).

96. Review in the case The Prosecutor v. Nikolić (hereinafter "the Nikolić Review"), 20 October 1995, para. 27, as part of the appraisal of the crime against humanity "persecution": "the civilian population subjected to such discrimination was identified by the perpetrators of the discriminatory measures, principally by its religious characteristics" (emphasis added)."

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, paras. 56 – 57:

"56. The Chamber notes 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.

57. Nevertheless, the Chamber is of the view that a subjective definition alone is not enough to determine victim groups, as provided for in the Genocide Convention. It appears, from a reading of the travaux préparatoires of the Genocide Convention¹⁷, that certain groups, such as political and economic groups, have been excluded from the protected groups, because they are considered to be "mobile groups" which one joins through individual, political commitment. That would seem to suggest a contrario that the Convention was presumably intended to cover relatively stable and permanent groups."

"17. Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September - 10 December 1948, Official Records of the General Assembly."

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 494:

"494. The definition of protected groups. While they specify the classes of prohibited conduct, international rules on genocide use a broad and loose terminology when indicating the various groups against which one can engage in acts of genocide, including references to notions that may overlap (for instance, "national" and "ethnical"). This terminology is criticised for referring to notions such as ‘race’, which are now universally regarded as outmoded or even fallacious. Nevertheless, the principle of interpretation of international rules whereby one should give such rules their maximum effect (principle of effectiveness, also expressed by the Latin maxim ut res magis valeat quam pereat) suggests that the rules on genocide should be construed in such a manner as to give them their maximum legal effects. It follows that by "national groups", one should mean those sets of individuals which have a distinctive identity in terms of nationality or of national origin. On the other hand, "racial groups" comprise those sets of individuals sharing some hereditary physical traits or characteristics. "Ethnical groups" may be taken to refer to sets of individuals sharing a common language, as well as common traditions or cultural heritage. The expression "religious groups" may be taken to encompass sets of individuals having the same religion, as opposed to other groups adhering to a different religion."

Cecile Aptel, "The intent to commit genocide in the case law of the ICTR"13:3 Criminal Law Forum (2002) 273-279, 284:

"The jurisprudence of the ICTR thus illustrates two possible ways for identifying a protected group: an objective or a subjective approach. For the first one, the group should be considered as a social reality, in a stable and permanent way. People are considered as being almost irremediably and automatically members of the group by birth, as inheritance is the key to transmission of membership. For the subjective approach, a group exists insofar as the members perceive themselves as a part of that group (selfidentification), or as they are perceived as such by the perpetrator(s) of the crime (identification by others)."

B. Evidentiary comment:

The approach developed by the ad hoc tribunals to this element has been the consideration of a combination of objective and subjective factors. The former might include questions such as whether the group in question speaks a particular language (in the case of an "ethnical group") or practices a particular religion (in the case of a "religious group"), whereas the latter is concerned with the question of whether people (including perpetrators, members of the group, and others) perceive that a distinct national, ethnical, racial or religious group exists.

The group must be distinct as compared to the society that it is in or other groups. One approach has been to ask whether the group is distinct from those who are attacking it (eg see Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, para. 508 below at P.2.2). However it has also been suggested that genocide may occur where the perpetrators themselves are members of the protected group (this is sometimes referred to as "auto-genocide": see eg Revised and updated report on the question of the prevention and punishment of the crime of genocide ("The Whitaker Report"), UN Doc. E/CN.4/Sub.2/1985/6, 2 July 1985, para. 31, citing a UN Special Rapporteur referring to the mass killings in Kampuchea).

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

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. 5657:

''5657. As established above in relation to Count 1, the Chamber is satisfied that Bosnian Muslims were a protected group for the purpose of Article 4 of the Statute.¹⁹²⁰⁸''

¹⁹²⁰⁸ See para. 2574.

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

Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-A, Judgement (AC), 8 April 2015, para. 185:

''185. The Appeals Chamber is satisfied that the Trial Chamber made its own findings on the protected group requirement for the crime of genocide and only relied on the definition of the protected group in past genocide cases in further support of, and not as a substitute for, those findings.⁵²² Tolimir misunderstands the reliance placed by the Trial Chamber on prior trial and appeal judgements. Nothing in the Statute, the Rules, or the prior jurisprudence of the Tribunal prevented the Trial Chamber from referring to the reasoning in other cases involving similar facts and applying it by analogy in the case before it, in order to reinforce its identification of the protected group and what may constitute a substantial part of the protected group in this case. Furthermore, the Trial Chamber did not take judicial notice of the definitions of the protected group in those cases.⁵²³Instead, in making its findings on this element of the crime, the Trial Chamber explicitly referred to the definition of the protected group contained in the Indictment and reiterated in the Prosecution’s Final Trial Brief,⁵²⁴ which Tolimir had not contested at trial.⁵²⁵ It then made a series of findings about the underlying genocidal acts committed in this case and concluded that all of these acts had been perpetrated against members of the protected group, i.e., the Muslims of Eastern BiH,⁵²⁶ and referred to other cases involving similar facts as authorities in support of the proposition that the Bosnian Muslims could constitute “a national, ethnical, racial or religious group”, as that term is used in Article 4 of the Statute. That proposition, in the Trial Chamber’s view, was “settled by the Appeals Chamber”.⁵²⁷ The Appeals Chamber does not find that the Trial Chamber committed an error “by adopting the analytical legal framework used by the Appeals Chamber”.⁵²⁸ The Appeals Chamber is thus satisfied that the Trial Chamber provided a reasoned opinion in this regard and properly established this element of the crime of genocide.''

⁵²² See Trial Judgement, para. 750.

⁵²³ Rule 94(A) of the Rules allows a trial chamber to take judicial notice of “facts of common knowledge”. The Trial Chamber did not pronounce itself on whether it considered the identification of Bosnian Muslims as a protected group under Article 4 of the Statute as a fact of common knowledge, stating only that this issue is “settled by the Appeals Chamber”. See Trial Judgement, para. 750. The Appeals Chamber does not interpret that statement as taking judicial notice under Rule 94(A) of the Rules and, thus, does not find it necessary to determine whether the protected group definition could be properly the subject of judicial notice under that rule, as the Prosecution argues. See Response Brief, para. 50. Rule 94(B) of the Rules allows a trial chamber to take judicial notice of “adjudicated facts F…g from other proceedings of the Tribunal relating to matters at issue in the current proceedings”, but only “Fagt the request of a party or proprio motu F…g after hearing the parties” on this issue. The Trial Chamber never notified the parties of its intention to take judicial notice of the protected group definition in other cases and, thus, did not resort to Rule 94(B) of the Rules.

⁵²⁴ See Trial Judgement, para. 750 (adopting the Prosecution’s definition of “the targeted group that is the subject of the charges in the Indictment as the 'Muslim population of Eastern Bosnia’, as constituting 'part’ of the Bosnian Muslim people” (citing Indictment, paras 10, 24, and Prosecution Final Brief, para. 197)). See also Trial Judgement, para. 730.

⁵²⁵ See supra, para. 183.

⁵²⁶ See Trial Judgement, paras 751-752 (killing), 753-759 (causing serious bodily or mental harm to members of the group), 760-766 (deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part).

⁵²⁷ Trial Judgement, para. 750.

⁵²⁸ Popovi et al. Appeal Judgement, para. 421 (rejecting similar challenges brought by the defendants in that case against trial conclusions regarding the definition of the protected group).

Prosecutor v. Augustin Bizimungu, Case No. ICTR-00-56B-A , Judgement (AC), 30 June 2014, paras. 309-311 :

"309. The Prosecution argues in its Additional Submissions that Bizimungu was properly held responsible as a superior for the killings and rapes at the Musambira Commune office and dispensary.⁸⁷⁹ In particular, it submits that the actus reus of genocide was established by the killing and rapes of Tutsis at the Musambira Commune office and dispensary by soldiers in April and May 1994.⁸⁸⁰ The Prosecution asserts that the evidence established that Tutsis were killed and raped repeatedly at the Musambira Commune office and dispensary which, taken together with the evidence that Tutsis in Rwanda were being targeted at the time, establishes the mens rea for genocide.⁸⁸¹ It adds that Bizimungu bears superior responsibility for these killings because the perpetrators were his subordinates under his effective control, and because he knew of the attacks, but failed to take necessary and reasonable measures to prevent or punish them.882"

879 Prosecution’s Additional Submissions, para. 41.

880 Prosecution’s Additional Submissions, paras. 42-44.

881 Prosecution’s Additional Submissions, paras. 45-47.

882 Prosecution’s Additional Submissions, paras. 48-51.

"310. In his Additional Submissions, Bizimungu largely repeats challenges raised in his appeal which have been addressed elsewhere in this Judgement. Bizimungu submits that the evidence did not establish that he had a superior-subordinate relationship with the perpetrators of the crimes who were not properly identified, that he knew or had reason to know of the crimes, or that he failed to take necessary or reasonable measures to prevent the crimes or punish the perpetrators.⁸⁸³ Bizimungu argues that the actus reus of genocide was not established as the evidence concerned events which occurred before he took office.⁸⁸⁴ Bizimungu asserts that the Trial Chamber made no finding on the specific intent of the perpetrators of the crimes or his awareness of such intent and that the evidence does not support such a finding.^885"

883 Bizimungu’s Additional Submissions, paras. 106-116.

884 Bizimungu’s Additional Submissions, paras. 100-104.

885 Bizimungu’s Additional Submissions, para. 105, referring to Bizimungu’s Additional Submissions, paras. 58-65.

"311. The Trial Chamber did not make a legal finding with respect to the actus reus of genocide. However, the Trial Chamber found, on the basis of Witness DBB’s credible testimony, that soldiers were involved in the killing of refugees at Musambira dispensary.⁸⁸⁶ The Trial Chamber did not find that the refugees killed at Musambira dispensary were Tutsis, and Witness DBB did not expressly testify to this effect.⁸⁸⁷ Nonetheless, Witness DBB testified to extensive targeting of Tutsis in Musambira Commune following the killing of the President, including: a meeting which was held to plan the killing of Tutsis; the burning of Tutsi houses; the killing of Tutsis at roadblocks; the killing of Tutsis who had sought refuge at Musambira Commune office; the directing of refugees toward roadblocks where they would have been killed; and an attack on refugees who had sought refuge in Musambira church.⁸⁸⁸ In this context, the only reasonable inference available from Witness DBB’s testimony is that the refugees who were killed at the Musambira dispensary were killed as part of the targeting of Tutsis in Musambira Commune and that the victims were predominantly Tutsis. Accordingly, the actus reus of genocide was established."

886 Trial Judgement, paras. 1190, 1192.

887 See Trial Judgement, paras. 1109, 1190, 1192; Witness DBB, T. 26 January 2006 p. 35.

888 Witness DBB, T. 26 January 2006 pp. 23-32.

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

A. Legal source/authority and evidence:

Prosecutor v. Popović et al., Case No. IT-05-88-T, Judgement (TC), 10 June 2010, para. 840:

"840. The Trial Chamber notes that Bosnian Muslims were recognized as a "nation" by the Yugoslav Constitution of 1963,2979 and that other Chambers have considered that Bosnian Muslims are a protected group within the meaning of Article 4 of the Statute.2980 The Trial Chamber agrees with this analysis and accepts the conclusion."

2979 Krstić Trial Judgement, para. 559.

2980 Blagojević and Jokić Trial Judgement, para. 667; Krstić Trial Judgement, para. 560. See also Krstić Appeal Judgement, para. 15.

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 559:

"559. Originally viewed as a religious group, the Bosnian Muslims were recognised as a "nation" by the Yugoslav Constitution of 1963. […]"

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 374:

"374. The Chamber concurs with the Akayesu Judgement¹⁰³, 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. […] The Rwandan Constitution and laws in force in 1994 also identified Rwandans by reference to their ethnic group."

"103. Akayesu Judgement, para. 170."

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 512:

"512. Based on the Nottebohm decision⁹⁷ 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."

"97. International Court of Justice, 1995"

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 512:

"97. International Court of Justice, 1995"

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para.494:

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para.494:

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

A. Legal source/authority and evidence:

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 374:

"374. The Chamber concurs with the Akayesu Judgement¹⁰³, 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, before 1994, required to carry an identity card which included an entry for ethnic group, the ethnic group being either Hutu, Tutsi or Twa."

"103. Akayesu Judgement, para. 170."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 523 – 524:

"523. The Chamber further accepts that the Tutsis were an ethnic group. In support of this contention the Prosecution provided evidence that since 1931, Rwandans were required to carry identification cards which indicated the ethnicity of the bearer as Hutu, Tutsi or Twa.²⁶⁷ The government-issued identification cards specified the individual bearer's ethnicity.[…]

524. […]Identification cards identifying the victims as Tutsis were found on those exhumed from mass graves in Kibuye."

"267. Prosecutor’s Closing Brief, 9 October 1998, p. 28. See supra Part II, Historical Context."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 702:

"702. In light of the facts brought to its attention during the trial, the Chamber is of the opinion that, in Rwanda in 1994, the Tutsi constituted a group referred to as "ethnic" in official classifications. Thus, the identity cards at the time included a reference to "ubwoko" in Kinyarwanda or "ethnie" (ethnic group) in French which, depending on the case, referred to the designation Hutu or Tutsi, for example. The Chamber further noted that all the Rwandan witnesses who appeared before it invariably answered spontaneously and without hesitation the questions of the Prosecutor regarding their ethnic identity. Accordingly, the Chamber finds that, in any case, at the time of the alleged events, the Tutsi did indeed constitute a stable and permanent group and were identified as such by all."

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 98:

"98. […] An 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 crimes (identification by others)."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 122:

"122. In light of the foregoing, it is now appropriate for the Chamber to consider the issue of specific intent that is required for genocide (mens rea or dolus specialis). In other words, it should be established that the above-mentioned acts were targeted at a particular group as such. In this respect also, many consistent and reliable testimonies, especially those of Major-General Dallaire, Dr. Zachariah, victim V, prosecution witness PP, defence witness DAAX, and particularly that of the accused himself unanimously agree on the fact that it was the Tutsi as members of an ethnic group which they formed in the context of the period⁵⁶ in question, who were targeted during the massacres⁵⁷."

"56. The term ethnic group is, in general, used to refer to a group whose members speak the same language and/or have the same culture. Therefore, one can hardly talk of ethnic groups as regards Hutu and Tutsi, given that they share the same language and culture. However, in the context of the period in question, they were, in consonance with a distinction made by the colonizers, considered both by the authorities and themselves as belonging to two distinct ethnic groups; as such, their identity cards mentioned each holder’s ethnic group. In its findings in chapter 7 of the judgment, the Chamber will come back to this issue.

57. However, the Tutsi were not the sole victims of the massacres. Many Hutu were also killed, though not because they were Hutu, but simply because they were, for one reason or another, viewed as having sided with the Tutsi."

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

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 508:

"508. Do members of the tribes victims of attacks and killing make up objectively a protected group? The various tribes that have been the object of attacks and killings (chiefly the Fur, Massalit and Zaghawa tribes) do not appear to make up ethnic groups distinct from the ethnic group to which persons or militias that attack them belong. They speak the same language (Arabic) and embrace the same religion (Muslim).¹⁸⁸ In addition, also due to the high measure of intermarriage, they can hardly be distinguished in their outward physical appearance from the members of tribes that allegedly attacked them. Furthermore, inter-marriage and coexistence in both social and economic terms, have over the years tended to blur the distinction between the groups. Apparently, the sedentary and nomadic character of the groups constitutes one of the main distinctions between them. It is also notable that members of the African tribes speak their own dialect in addition to Arabic, while members of Arab tribes only speak Arabic."

"188. See section above, ‘Historical and social background …’"

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 98:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 513:

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

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 508:

"188. See section above, ‘Historical and social background …’"

[B. Evidentiary comment:]

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

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

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 98:

"98. […] A racial group is based on hereditary physical traits often identified with geography."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 514:

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

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 494:

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 98:

"98. […] A racial group is based on hereditary physical traits often identified with geography."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 514:

[B. Evidentiary comment:]

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

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

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 98:

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

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 515:

"515. The religious group is one whose members share the same religion, denomination or mode of worship."

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para.494:

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 98:

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

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 515:

"515. The religious group is one whose members share the same religion, denomination or mode of worship."

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, paras. 510 – 511:

"510. The Defence does not contest that the Tutsi were considered a distinct group in Rwanda in 1994, stating that any question as to whether they constituted a national, ethnic, racial, or religious group in the sense of the 1948 Convention against Genocide is academic.⁴⁷¹ According to its interpretation of Akayesu, the 1948 Convention protects not only the explicitly mentioned groups, but all stable and permanent groups.⁴⁷²

511. The Chamber concludes - having noted that the question is not in dispute between the Parties - that in Rwanda, in 1994, the Tutsi were a group protected by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide."

"471. Defence Closing Brief, paras. 100, 104.

472. Defence Closing Brief, para. 111 : The Defence further states "In the Akayesu Judgement, ICTR considered all Tutsis as an ethnic group and very reasonably and wisely observed that the Genocide Convention is applicable to all stable and permanent groups. We are greatly indebted to ICTR for this interpretation which is the most reasonable there could be"."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 69:

"69. Article 4 of the Statute protects victims belonging to a national, ethnical, racial or religious group and excludes members of political groups. The preparatory work of the Convention demonstrates that a wish was expressed to limit the field of application of the Convention to protecting "stable" groups objectively defined and to which individuals belong regardless of their own desires⁹⁴."

"94. Not retained at the draft stage when submitted to the United Nations General Assembly (E/447) because of their lack of permanence, political groups were included under protected groups in the ad hoc committee’s draft document by a narrow majority (4 votes to 3; UN Off. Doc. E/794 of 24 May 1948 pp. 13-14). The reference to political groups was however again rejected in the final draft of the Assembly General’s Sixth Committee (see in particular the commentaries of the Brazilian and Venezuelan representatives expressing their concern about the fact that only "permanent" groups were specified, A/C.6/SR 69, p. 5)."

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 57:

"57. […] It appears, from a reading of the travaux préparatoires of the Genocide Convention¹⁷, that certain groups, such as political and economic groups, have been excluded from the protected groups, because they are considered to be "mobile groups" which one joins through individual, political commitment. That would seem to suggest a contrario that the Convention was presumably intended to cover relatively stable and permanent groups."

"17. Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September - 10 December 1948, Official Records of the General Assembly."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, paras. 511, 516, 701:

"511. On reading through the travaux préparatoires of the Genocide Convention,⁹⁶ 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."

"96. Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September – 10 December 1948, Official Records of the General Assembly."

"516. Moreover, the Chamber 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 préparatoires, was patently to ensure the protection of any stable and permanent group."

"701. […]Article 2(2) of the Statute, like the Genocide Convention, provides that genocide may be committed against a national, ethnical, racial or religious group. In its findings on the law applicable to the crime of genocide supra, the Chamber considered whether the protected groups should be limited to only the four groups specifically mentioned or whether any group, similar to the four groups in terms of its stability and permanence, should also be included. The Chamber found that it was necessary, above all, to respect the intent of the drafters of the Genocide Convention which, according to the travaux préparatoires, was clearly to protect any stable and permanent group."

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 498:

"498. The question of genocidal acts against groups that do not perfectly match the definitions of the four above mentioned groups. The genocide perpetrated in 1994 in Rwanda vividly showed the limitations of current international rules on genocide and obliged the Judges of the ICTR to place an innovative interpretation on those rules. The fact is that the Tutsi and the Hutu do not constitute at first glance distinct ethnic, racial religious or national groups. They have the same language, culture and religion, as well as basically the same physical traits. In Akayesu the ICTR Trial Chamber emphasized that the two groups were nevertheless distinct because (i) they had been made distinct by the Belgian colonizers when they established a system of identity cards differentiating between the two groups (§ 702), and (ii) the distinction was confirmed by the self-perception of the members of each group. As the Trials Chamber pointed out, "all the Rwandan witnesses who appeared before it invariably answered spontaneously and without hesitation the questions of the Prosecutor regarding their ethnic identity" (ibidem). The Trial Chamber also insisted on the fact that what was required by the international rules on genocide was that the targeted group be "a stable and permanent group", "constituted in a permanent fashion and membership of which is determined by birth", and be identifiable as such (§§ 511 and 702). The objective criterion of a "stable and permanent group", which, if considered per se, could be held to be rather questionable, was supplemented in the ICTR case law (and subsequently in that of the ICTY) by the subjective standard of perception and self-perception as a member of a group.¹⁸² According to this case law, in case of doubt one should also establish whether (i) a set of persons are perceived and in fact treated as belonging to one of the protected groups, and in addition (ii) they consider themselves as belonging to one of such groups.¹⁸³

"182. See Kayishema and Ruzindana, § 98, Musema , at § 161, Rutaganda, § 56, as well as, before the ICTY, Jelisić (Trial Chamber), at §§70-71 and Krstić (Trial Chamber), at §§ 556-7 and 559-60).

[1]83. In Kayishema and Ruzindana the subjective test was only held to be applicable to the notion of ethnic group ("An 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 crimes (identification by others)"; at § 98). The subjective test was instead considered applicable to any group protected by the Convention (and customary law) by the ICTY Trial Chamber in Jelisić (at §§ 70-71: "A group may be stigmatised [...] by way of positive or negative criteria. A "positive approach" would consist of the perpetrators of the crime distinguishing a group by the characteristics which they deem to be particular to a national, ethnical, racial or religious group. A "negative approach" would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group."), as well as by an ICTR Trial Chamber in Musema (at § 161), and Rutaganda (at § 56)."

B. Evidentiary comment:

The wording of the Genocide Convention, and the subsequent instruments taking their definition of genocide therefrom, require that the victims belong to one of the specified groups: national, ehtnical, racial or religious. No residual category is protected under the definition. However, in Akayesu, the Trial Chamber of the ICTR considered that the purpose of the Genocide Convention in specifying the four named groups was to protect all "stable and permanent groups" (Akeyasu Trial Judgment, paras. 515 and 699). Although it considered the Rwandan Tutsis to constitute an ethnic group, the language it used in stating its conclusions suggests that it considered that the ultimate test of whether a group is protected by the convention is whether the group is a stable and permanent one (for example, the Trial Chamber stated at para. 699: "Accordingly, the Chamber finds that, in any case, at the time of the alleged events, the Tutsi did indeed constitute a stable and permanent group and were identified as such by all.")

The approach of the Trial Chamber in Akayesu appears to have been endorsed in some later ICTR decisions (see eg Muhimana Trial Judgment, paras. 510 – 511).

This approach may be difficult to reconcile with the fact that the definition of genocide does not purport to cover any residual category of groups. Treating the test of "stable and permanent" as an indicator of whether a group is one of those listed (national, ehtnical, racial or religious) is also problematic as there are clearly some "stable and permanent" groups which indeed are generally agreed not to be protected under the definition of genocide (for example groups based on the sex or gender of members: for example all women in a particular state).

A better approach might be to treat a level of stability and permanence as one (among others) of the attributes of the named groups, which may lead to establish, together with other evidence, the existence of such a group. The International Commission of Inquiry on Darfur has apparently followed this line of reasoning for the purpose of determining whether the tribes in Darfur had been the victims of acts of genocide under customary international law. The Commission did not place emphasis on which of the four types of protected groups the tribes might fall into but rather considered factors that might be relevant to any group including factors that might go generally to the stabiliity and permanence of the group (see para. 508 above). These factors were weighted against subjective factors (perception by others and self-perception of the group; see below).

P.5.1. Evidence of membership determined by birth.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 511:

"511. [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."

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 69:

"69. […] The preparatory work of the Convention demonstrates that a wish was expressed to limit the field of application of the Convention to protecting "stable" groups objectively defined and to which individuals belong regardless of their own desires⁹⁴."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 511:

[B. Evidentiary comment:]

P.5.3. Evidence of membership retained in a continuous manner.

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 511:

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 667:

"667. Article 4 of the Statute protects national, ethnical, racial or religious groups.²¹⁰⁹ In accordance with the case-law of the Tribunal, a national, ethnical, racial or religious group is identified ‘by using as a criterion the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, raial or religious characteristics.’²¹¹⁰ The Trial Chamber finds that the correct determination of the relevant protected group has to be made on a case-by-case basis, consulting both objective and subjective criteria.²¹¹¹ The Prosecution alleges that the targeted group was the Bosnian Muslim people.²¹¹² The Trial Chamber finds that the Bosnian Muslim people is a protected group under Article 4 of the Statute.²¹¹³"

"2109. See Brđanin Trial Judgement, para. 682.

2111. Brđanin Trial Judgement, para. 684, citing Semanza Trial Judgement, para. 317 and Kajelijeli Trial Judgement, para. 811.

2112. Indictment, para. 35.

2113. This was also the finding in the Krstić Trial Judgment, paras 559-560."

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras 683 – 684:

"683. In accordance with the jurisprudence of the Tribunal, the relevant protected group may be identified by means of the subjective criterion of the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics.¹⁶⁹⁴ In some instances, the victim may perceive himself or herself to belong to the aforesaid group.¹⁶⁹⁵

"1694. Nikolić Rule 61 Decision , para. 27; Krstić Trial Judgement, para. 557; Jelisić Trial Judgement , para. 70.

1695. See Rutaganda Trial Judgement, para. 56; See also Krstić Trial Judgement, para. 559.

1696. Semanza Trial Judgement , para. 317; Kajelijeli Trial Judgement, para. 811.

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 422:

"422. The Chamber took judicial notice of the fact that: "Between 6 April and 17 July 1994, citizens native to Rwanda were severally identified according to the following ethnic classifications: Tutsi, Hutu and Twa".⁶⁹¹ Accordingly, it has been established for the purposes of this case that the Tutsi in Rwanda were an "ethnical" group."

"691. Prosecutor v. Semanza, Case No. ICTR-97-20-I, Decision on Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, TC, 3 November 2000, Annex A, para. 1. See Annex II, Part A, para. 1."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 557:

557. A group’s cultural, religious, ethnical or national characteristics must be identified within the socio-historic context which it inhabits. As in the Nikolić¹²³⁵ and Jelisić¹²³⁶ cases, the Chamber identifies the relevant group by using as a criterion the stigmatisation of the group, notably by the perpetrators of the crime, on the basis of its perceived national, ethnical, racial or religious characteristics."

1235. The Prosecutor v. Nikolić, Review of the indictment pursuant to Rule 61, Decision of Trial Chamber I, 20 October 1995, case no. IT-94-2-R61 (hereinafter "the Nikolić Decision"), para. 27.

1236. Jelisić Judgement, para. 70."

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, paras. 161-163:

"161. The Chamber notes that, as stated in the Rutaganda Judgment, the concepts of national, ethnical, racial and religious groups have been researched extensively and, 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 person or persons is perceived by the perpetrator of genocide as belonging to a group slated for destruction. In some instances, the person or persons may perceive himself/herself as a member of said group.

162. Nevertheless, the Chamber is of the view that a subjective definition alone is not enough sufficient to determine person or persons groups, as provided for in the Genocide Convention. It appears, from a reading of the travaux préparatoires of the Genocide Convention (Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September - 10 December 1948, Official Records of the General Assembly), that certain groups, such as political and economic groups, have been excluded from the protected groups, because they are considered to be "non stable" or "mobile" groups which one joins through individual, voluntary commitment. That would seem to suggest a contrario that the Convention was presumably intended to cover relatively stable and permanent groups.

163. Therefore, the Chamber holds that in assessing whether a particular group may be considered protected from the crime of genocide, it will proceed on a case-by-case basis, taking into account both the relevant evidence proffered and the specific political, social and cultural context in which the acts allegedly took place."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 98:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, paras. 498 – 501:

499. In short, the approach taken to determine whether a group is a (fully) protected one has evolved from an objective to a subjective standard to take into account that "collective identities, and in particular ethnicity, are by their very nature social constructs, "imagined" identities entirely dependent on variable and contingent perceptions, and not social facts, which are verifiable in the same manner as natural phenomena or physical facts".¹⁸⁴

500. It would seem that the subjective test may usefully supplement and develop, or at least elaborate upon the standard laid down in the 1948 Convention and the corresponding customary rules on genocide. Indeed, the criteria initially used by courts to interpret and apply those treaty provisions and customary rules have proved either too loose or too rigid; in short, they were unable to take account of situations where manifestly there existed a stark opposition and conflict between two distinct sets of persons, one of which carried out the actus reus typical of genocide with the intent to destroy the other in whole or in part. Moreover, it would be erroneous to underestimate one crucial factor: the process of formation of a perception and self-perception of another group as distinct (on ethnic, or national, or religious or racial ground). While on historical and social grounds this may begin as a subjective view, as a way of regarding the others as making up a different and opposed group, it gradually hardens and crystallizes into a real and factual opposition. It thus leads to an objective contrast. The conflict, thus, from subjective becomes objective. It ultimately brings about the formation of two conflicting groups, one of them intent on destroying the other.

501. What matters from a legal point of view is the fact that the interpretative expansion of one of the elements of the notion of genocide (the concept of protected group) by the two International Criminal Tribunals is in line with the object and scope of the rules on genocide (to protect from deliberate annihilation essentially stable and permanent human groups, which can be differentiated on one of the grounds contemplated by the Convention and the corresponding customary rules). In addition, this expansive interpretation does not substantially depart from the text of the Genocide Convention and the corresponding customary rules, because it too hinges on four categories of groups which, however, are no longer identified only by their objective connotations but also on the basis of the subjective perceptions of members of groups. Finally, and perhaps more importantly, this broad interpretation has not been challenged by States. It may therefore be safely held that that interpretation and expansion has become part and parcel of international customary law."

[1]83. In Kayishema and Ruzindana the subjective test was only held to be applicable to the notion of ethnic group ("An 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 crimes (identification by others)"; at § 98). The subjective test was instead considered applicable to any group protected by the Convention (and customary law) by the ICTY Trial Chamber in Jelisić (at §§ 70-71: "A group may be stigmatised [...] by way of positive or negative criteria. A "positive approach" would consist of the perpetrators of the crime distinguishing a group by the characteristics which they deem to be particular to a national, ethnical, racial or religious group. A "negative approach" would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group."), as well as by an ICTR Trial Chamber in Musema (at § 161), and Rutaganda (at § 56).

[1]84. G. Verdirame, "The Genocide Definition in the jurisprudence of the ad hoc tribunals", 49 International and Comparative Law Quarterly (2000), at 592."

Cecile Aptel, "The intent to commit genocide in the case law of the ICTR"13:3 Criminal Law Forum (2002) 273-279, p. 284:

"The jurisprudence of the ICTR thus illustrates two possible ways for identifying a protected group: an objective or a subjective approach. For the first one, the group should be considered as a social reality, in a stable and permanent way. People are considered as being almost irremediably and automatically members of the group by birth, as inheritance is the key to transmission of membership. For the subjective approach, a group exists insofar as the members perceive themselves as a part of that group (self-identification), or as they are perceived as such by the perpetrator(s) of thecrime (identification by others)."

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

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 734:

"734. The Prosecution’s submission that the protected groups "in whole" in this case are the Bosnian Muslims and Bosnian Croats of the ARK is not borne out by the evidence tendered at trial, particularly in light of the Trial Chamber’s prior determination of the definition of "protected groups" under the Genocide Convention.¹⁷⁸⁴ Contrary to the Prosecution submission,¹⁷⁸⁵ the evidence clearly shows that the Bosnian Serb political leadership, including the ARK leadership, viewed the totality of the Bosnian Muslims and Bosnian Croats as specific national, ethnical, racial or religious groups.¹⁷⁸⁶ Conversely, no national, ethnical, racial or religious characteristic makes it possible to differentiate the Bosnian Muslims and Bosnian Croats residing in the ARK, at the time relevant to the Indictment, from the other Bosnian Muslims and Bosnian Croats. The only distinctive criterion would be their geographical location, not a criterion contemplated by the Genocide Convention.¹⁷⁸⁷ In addition, the Prosecution has not submitted any evidence that the Bosnian Muslims and Bosnian Croats residing in the ARK at the time relevant to the Indictment considered themselves a distinct national, ethnical, racial or religious group among the Bosnian Muslims and Bosnian Croats.

"1784. See E. 1. supra , "The protected groups" and Krstić Trial Judgement, para. 556. See Robert Donia, T. 831-832 ; see also ex. P53, "Expert Report of Robert Donia ", pp. 3-4: "The term 'Bosnian' refers to an inhabitant of BiH. Within that broad designation, most Bosnians also identify themselves as belonging to one of three nationalities: Serb, Croat, or Bosnian Muslim […] Inhabitants of BiH who are Serb or Croat by nationality are frequently called Bosnian Serbs and Bosnian Croats. One often finds them described simly as 'Serb' or 'Croat', without the adjectival 'Bosnian', when it is obvious that the referent is an inhabitant of BiH". The Trial Chamber is satisfied in light of this definition that Bosnian Croats qualify as a protected group even if there was "a clear difference between the Bosnian Croats or the Bosnian Serbs compared with the Bosnian Muslims or the Bosniaks, as they call themselves. They didn’t have a motherland. They didn’t have any prospect to be supported by other communities outside Bosnia-Herzegovina and its own nationality as Bosnian Muslims": see T. 10604-20605 (closed session).

1785. "It is submitted that this definition [that the protected groups "in whole" in this case are the Bosnian Muslims and Bosnian Croats of the ARK] best comports with the subjective perceptions of the Accused and others who implemented the genocidal plan in the ARK": Confidential Prosecution’s Response to Trial Chamber’s Questions Regarding Genocide and the Krstić Appeal Judgement, 29 April 2004, para. 8.

1786. Ex. P50, "Minutes of the 16th session of the SerBiH Assembly held on 12 May 1992", p.33: comment by Dusan Kozi c that "the enemy – Ustasas and Mujahedin – must be defeated by whatever means are necessary"; pp 41, 47: Ratko Mladic stated: "…the head of the dragon of fundamentalism lies beneath our hammer. The enemy has attacked with all its might from all directions . And it is a common enemy, regardless whether it is the Muslim hordes or Croatian hordes…"; ex. P1532, videotape, during the celebration of the third anniversary of the take-over of Mount Kozara, Vojo Kupresanin stated: "We, in the assembly of the former Bosnia and Herzegovina, knew that nothing could be achieved with the Muslims and Croats, the anti-Serbian coalition, and we were happy to part ways with them". The Accused used the term "Balija" to refer to Muslims and "Ustasa" to refer to Croats: Amir Dzonlic, T. 2303-2305.

1787. See Krstić Trial Judgement , para. 559.

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 559:

"559. The evidence tendered at trial also shows very clearly that the highest Bosnian Serb political authorities and the Bosnian Serb forces operating in Srebrenica in July 1995 viewed the Bosnian Muslims as a specific national group."

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

A. Legal source/authority and evidence:

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 422:

"422. The Chamber took judicial notice of the fact that: "Between 6 April 1994 and 17 July 1994, citizens native to Rwanda were severally identified according to the following ethnic classifications: Tutsi, Hutu and Twa".⁶⁹¹ Accordingly, it has been established for the purposes of this case that the Tutsi in Rwanda were an "ethnical" group."

Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10 and ICTR-96-17-T, Judgement (TC), 21 February 2003, paras. 75, 780:

"75. In relation to paragraph 4.2 of both Indictments the Chamber has already found no relevant disagreement between the parties that, in 1994 in Rwanda, Tutsi were perceived as members of an ethnic group.⁷⁹"

79. Decision of 22 November 2001 on the Prosecution’s motion for judicial notice of adjudicated facts, paras. 11-13, 50.

"780. It is not disputed that in Rwanda in 1994, the Tutsi were perceived as members of an ethnic group (see II.3.2, para. 75)."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 70:

"70. […] 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 stigmatisation 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 perpetrators⁹⁵. This position corresponds to that adopted by the Trial Chamber in its Review of the Indictment Pursuant to Article 61 filed in the Nikolić case⁹⁶."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 98:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 702:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 510:

"510. As noted above, in recent years the perception of differences has heightened and has extended to distinctions that were earlier not the predominant basis for identity. The rift between tribes, and the political polarization around the rebel opposition to the central authorities, has extended itself to issues of identity. Those tribes in Darfur who support rebels have increasingly come to be identified as "African" and those supporting the government as the "Arabs". A good example to illustrate this is that of the Gimmer, a pro-government African tribe and how it is seen by the African tribes opposed to the government as having been "Arabized". Clearly, not all "African" tribes support the rebels and not all "Arab" tribes support the Government. Some "Arab" tribes appear to be either neutral or even support the rebels. Other measures contributing to a polarization of the two groups include the 1987-1989 conflict over access to grazing lands and water sources between nomads of Arab origin and the sedentary Fur. The Arab-African divide has also been fanned by the growing insistence on such divide in some circles and in the media. All this has contributed to the consolidation of the contrast and gradually created a marked polarisation in the perception and self-perception of the groups concerned. At least those most affected by the conditions explained above, including those directly affected by the conflict, have come to perceive themselves as either "African" or "Arab"."

Human Rights and Equal Opportunities Commission (Australia), Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, House of Representatives Official Hansard, 38^th Parliament, 26 May 1997, p. 4002; online: www.humanrights.gov.au/social_justice/bth_report/report/index.html, Chapter 13:

"It is clear that `mixed race' or `half-caste' children were recognised as `children of the group', that is as Indigenous children and not in any sense as children of no group or as children shared by different groups.

Since colonisation of this continent it is quite reasonable to assume that a child born out of mixed parentage has never been categorised, if one could say that, as `part-white' or `part-European'. Thus once it is known that a child has an Aboriginal parent, he or she is seen by the wider community as an Aborigine and will be subjected to racist and other negative attitudes experienced by Aborigines (ACCA report submitted by the separate representative and quoted by the Family Court in B and R 1995 page 597).

Especially during the nineteenth and early twentieth centuries relationships between European men and Aboriginal women were often abusive and exploitative. Many children were the products of rape. The European biological fathers denied their responsibility and the authorities regarded the children with embarrassment and shame. As the `mixed race' population grew many more children did not have a European parent at all, but merely one or more European ancestors. Aboriginal society regards any child of Aboriginal descent as Aboriginal.

Aboriginal children were not removed because their `white blood' made them `white children' and part of the `white community'. They were removed because their Aboriginality was `a problem' (Chisholm 1985 page 80). They were removed because, if they stayed with `their group', they would acquire their `habits', their culture and traditions."

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

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 734 – 736:

735. As stated earlier, where more than one group is targeted, the elements of the crime of genocide must be considered in relation to each group separately. The Trial Chamber has found that the majority of victims of acts potentially falling under Article 4(2) (a) to (c) of the Statute belong to the Bosnian Muslim group.¹⁷⁸⁸ Still, although the number of Bosnian Croats inhabiting the territory covered by the Indictment was much inferior to the number of Bosnian Muslims,¹⁷⁸⁹ the Trial Chamber finds that the evidence of crimes committed against Bosnian Croats is sufficient to allow it to conclude that the Bosnian Croat group was separately targeted, as such.¹⁷⁹⁰

736. The Trial Chamber concludes that the protected groups, within the meaning of Article 4 of the Statute, must be defined, in the present case, as the Bosnian Muslims and Bosnian Croats, as such. The Bosnian Muslims and Bosnian Croats of the ARK would therefore constitute parts of the protected groups. The question of whether the intent to destroy these parts of the protected groups falls under the definition of genocide is discussed below."

1787. See Krstić Trial Judgement , para. 559.

1788. See E.2. infra , "The underlying acts".

1789. Ex. P60, "Croatia National Statistics Depot, Population of Bosnia and Herzegovina, Permanent Population by Ethnicities in Municipalities; Censuses of 1971, 1981 and 1991" dated April 1995 , which contains the 1991 census for BiH. According to the 1991 census, the total population of the 13 municipalities addressed in the Indictment was 724,137 inhabitants . Approximately 8.74% were Croats, whilst 32.19% were Muslims.

1790. This can be seen particularly in those municipalities where they were more numerous, such as Kotor Varos and Teslic : ex. P60, "Croatia National Statistics Depot, Population of Bosnia and Herzegovina , Permanent Population by Ethnicities in Municipalities; Censuses of 1971, 1981 and 1991" dated April 1995, which contains the 1991 census for BiH. See E .2. infra, "The underlying acts". See also T. 20624-20625 (closed session)."

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 559:

"559. […] The evidence tendered at trial also shows very clearly that the highest Bosnian Serb political authorities and the Bosnian Serb forces operating in Srebrenica in July 1995 viewed the Bosnian Muslims as a specific national group. […]"

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, para. 65:

"65. […] Moreover, the perpetrators of genocide may characterize the targeted group in ways that do not fully correspond to conceptions of the group shared generally, or by other segments of society. In such a case, the Chamber is of the opinion that, on the evidence, if a victim was perceived by a perpetrator as belonging to a protected group, the victim could be considered by the Chamber as a member of the protected group, for the purposes of genocide."

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, paras. 70 – 71:

71. A group may be stigmatised in this manner by way of positive or negative criteria. A "positive approach" would consist of the perpetrators of the crime distinguishing a group by the characteristics which they deem to be particular to a national, ethnical, racial or religious group. A "negative approach" would consist of identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics. Thereby, all individuals thus rejected would, by exclusion, make up a distinct group. The Trial Chamber concurs here with the opinion already expressed by the Commission of Experts⁹⁷ and deems that it is consonant with the object and the purpose of the Convention to consider that its provisions also protect groups defined by exclusion where they have been stigmatised by the perpetrators of the act in this way

97. Final Report of the Commission of Experts, op. cit., para. 96, p. 25: "If there are several or more than one victim groups, and each group as such is protected, it may be within the spirit and purpose of the Convention to consider all the victim groups as a larger entity. The case being, for example, that there is evidence that group A wants to destroy in whole or in part groups B, C and D, or rather everyone who does not belong to the national, ethnic, racial or religious group A. In a sense, group A has defined a pluralistic non-A group using national, ethnic, racial and religious criteria for the definition. It seems relevant to analyse the fate of the non-A group along similar lines as if the non-A group had been homogenous"."

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 56:

"56. […] [M]embership 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."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 98:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, paras. 510:

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

A. Legal source/authority and evidence:

Prosecutor v. Ildephonse Nizeyimana, Case No. ICTR-2000-55, Judgement (TC), 19 June 2012, para. 1495:

1495. Notably, on the preceding day, ESO soldiers extracted the Ruhutinyanya family from this very roadblock, which was manned by armed Interahamwe, who refused to let the family pass. The civilians, armed with firearms and traditional weapons, acted in a threatening manner towards the Tutsi family and those escorting them. Furthermore, the record reflects that the family was referred to by ESO soldiers as Inyenzi or Inkotanyi. Having considered that Second Lieutenant Bizimana led the removal of the Ruhutinyanya family from the ESO Camp and the fact that they were ultimately killed, the Chamber has no doubt that both the ESO soldiers as well as Interahamwe at the roadblock possessed genocidal intent when the family was killed.

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, paras. 511:

511. There are other elements that tend to show a self-perception of two distinct groups. In many cases militias attacking "African" villages tend to use derogatory epithets, such as "slaves", "blacks", Nuba", or "Zurga" that might imply a perception of the victims as members of a distinct group. However, in numerous other instances they use derogatory language that is not linked to ethnicity or race.¹⁸⁹ […]"

"189. Epithets that eyewitnesses or victims reported to the Commission include the following: "This is your end. The Government armed me." "You are Massalit, why do you come here, why do you take our grass? You will not take anything today." "You will not stay in this country." Destroy the Torabora." "You are Zaghawa tribes, you are slaves." "Where are your fathers, we would like to shoot and kill them". "Take your cattle, go away and leave the village." In an attack of 1 November 2003 on the village of Bir-Saliba (in the region of Sirba, Kulbus), a witness heard the attackers yell "Allah Akbar, we are going to evict you Nyanya" and explained that "Nyanya" in their dialect is the name of the poison used to kill insects (however, probably this derogatory term was also used as a reference to the rebel organization in the South that existed before the establishment of the SPLA, and was called NYANYA).

During rape: "You are the mother of the people who are killing our people." "Do not cut the grass because the camels use it." "You sons of Torabora we are going to kill you." ""You do not have the right to be educated and must be Torabora" (to an 18 year old student of a boarding school); "You are not allowed to take this money to fathers that are real Torabora" (to a girl from whom the soldier that raped her also took all her money); "You are very cheap people, you have to be killed"."

[B. Evidentiary comment:]

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

A. Legal source/authority and evidence:

Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, paras. 734 – 736:

"1784. See E. 1. supra , "The protected groups" and Krstić Trial Judgement, para. 556. See Robert Donia, T. 831-832 ; see also ex. P53, "Expert Report of Robert Donia", pp. 3-4: "The term 'Bosnian' refers to an inhabitant of BiH. Within that broad designation, most Bosnians also identify themselves as belonging to one of three nationalities: Serb, Croat, or Bosnian Muslim […] Inhabitants of BiH who are Serb or Croat by nationality are frequently called Bosnian Serbs and Bosnian Croats. One often finds them described simly as 'Serb' or 'Croat', without the adjectival 'Bosnian', when it is obvious that the referent is an inhabitant of BiH". The Trial Chamber is satisfied in light of this definition that Bosnian Croats qualify as a protected group even if there was "a clear difference between the Bosnian Croats or the Bosnian Serbs compared with the Bosnian Muslims or the Bosniaks, as they call themselves. They didn’t have a motherland. They didn’t have any prospect to be supported by other communities outside Bosnia-Herzegovina and its own nationality as Bosnian Muslims": see T. 10604-20605 (closed session).

1787. See Krstić Trial Judgement , para. 559.

1788. See E.2. infra , "The underlying acts".

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 559:

"559. […] it is doubtful that the Bosnian Muslims residing in the enclave at the time of the offensive considered themselves a distinct national, ethnical, racial or religious group among the Bosnian Muslims. […] Evidence shows that they rather viewed themselves as members of the Bosnian Muslim group."

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 56:

"56. […] [M]embership of a group is, in essence, a subjective rather than an objective concept. […] In some instances, the victim may perceive himself/herself as belonging to the said group."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 98:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 510:

It is clear that `mixed race' or `half-caste' children were recognised as `children of the group', that is as Indigenous children and not in any sense as children of no group or as children shared by different groups.

Since colonisation of this continent it is quite reasonable to assume that a child born out of mixed parentage have never been categorised, if one could say that, as `part-white' or `part-European'. Thus once it is known that a child has an Aboriginal parent, he or she is seen by the wider community as an Aborigine and will be subjected to racist and other negative attitudes experienced by Aborigines (ACCA report submitted by the separate representative and quoted by the Family Court in B and R 1995 page 597).

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

A. Legal source/authority and evidence:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, para. 511:

"511. […] As for the victims, they often refer to their attackers as Janjaweed, a derogatory term that normally designates "a man (a devil) with a gun on a horse." However, in this case the term Janjaweed clearly refers to "militias of Arab tribes on horseback or on camelback." In other words, the victims perceive the attackers as persons belonging to another and hostile group."

[B. Evidentiary comment:]

1.1.3. 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.

A. Legal source/authority and evidence:

Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Judgment (AC), 22 March 2006, paras. 19, 25-28:

"19. The Trial Chamber held that "where more than one group is targeted [by discriminatory attacks allegedly amounting to genocide], it is not appropriate to define the group in general terms as, for example, ‘non-Serbs’."⁴⁷ Rather, it held that the elements of genocide must be considered separately in relation to each specific group – in this case Bosnian Muslims and Bosnian Croats.⁴⁸ In so holding, the Trial Chamber departed without explanation from the "negative approach" taken by the Trial Judgement in Jelisić, an approach which consists of "identifying individuals as not being part of the group to which the perpetrators of the crime consider that they themselves belong and which to them displays specific national, ethnical, racial or religious characteristics.⁴⁹ Thereby, all individuals thus rejected would, by exclusion, make up a distinct group."⁵⁰ The Jelisić Trial Chamber had found that approach "consistent with the object and purpose of the [Genocide] Convention" as well as with the Commission of Experts Report. Following the Trial Chamber’s decision in the present case, the Brđanin Trial Chamber also rejected the Jelisić approach without explanation.⁵¹ The question whether the group targeted for genocide can be defined negatively is one of first impression for the Appeals Chamber.

25. [T]he 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."⁶⁷ Other Trial Judgements from the ICTR have also concluded that target groups cannot be only subjectively defined.⁶⁸

26. […] 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.

27. The Prosecution cites only one source actually suggesting that the "negative approach" might be permissible: the Commission of Experts Report. The relevant statement is as follows:

Reliance on the statement of the Commission of Experts in support of a purely negative approach is not persuasive. The Appeals Chamber considers that the Commission, when stating that "each group as such is protected" is, in effect, acknowledging that proof would be necessary that each individual group which makes up the aggregate group is itself a positively defined target group within the terms of the Convention. Only then may more than one protected group be aggregated into a larger 'negative' group for the purposes of protection under Article 4 of the Statute. In such circumstances, it would be inaccurate to suggest that the larger group is in fact defined only by a negative approach.

28. The Appeals Chamber accordingly finds that the Trial Chamber did not err in concluding that the elements of genocide must be separately considered in relation to Bosnian Muslims and Bosnian Croats."

"47. Trial Judgement, para. 512.

48. Trial Judgement, para. 512.

49. Jelisic Trial Judgement, para. 71.

50. Trial Judgement, para. 512, citing Jelisić Trial Judgement, para. 71.

51. Brđanin Trial Judgement, paras 685-686.

67. Rutaganda Trial Judgement, paras 56-57.

68. 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".

69. Commission of Experts Report, para. 96."

B. Evidentiary comment:

Although the ICTY Trial Chamber took the view in Jelisić (Trial Judgment, para. 71) that a protected group may be negatively defined, that view was subsequently rejected in the Trial Judgments in Krstić and Brđanin and Stakić. The matter appears settled following the holding of the ICTY Appeals Chamber in Stakić., which found that a ‘negatively defined’ target group is not protected within the meaning of the Genocide Convention.

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

A. Legal source/authority and evidence:

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc. S/2005/60, 25 January 2005, paras. 495-497:

"495. Are tribal groups protected by international rules proscribing genocide? In 1996 the United Nations International Law Commission in its report on the "Draft Code of Crimes Against Peace and Security of Mankind" stated that "The Commission was of the view that the present article [17 of the Draft Code] covered the prohibited acts when committed with the necessary intent against members of a tribal group" (p. 33, at § 9; emphasis added). According to anthropologists a "tribe" constitutes a territorial division of certain large populations, based on kinship or the belief that they descend from one ancestor: these aggregates have a chief and call themselves by one name and speak one language.¹⁷⁹

496. The aforementioned view about "tribal groups", which has remained isolated,¹⁸⁰ may be accepted on condition that the "tribal group" should also constitute a distinct "racial, national, ethnical or religious" group. In other words, tribes as such do not constitute a protected group.¹⁸¹

497. It is apparent that the international rules on genocide are intended to protect from obliteration groups targeted not on account of their constituting a territorial unit linked by some community bonds (such as kinship, language and lineage), but only those groups --whatever their magnitude-- which show the particular hallmark of sharing a religion, or racial or ethnic features, and are targeted precisely on account of their distinctiveness. In sum, tribes may fall under the notion of genocide set out in international law only if, as stated above, they also exhibit the characteristics of one of the four categories of group protected by international law."

"179. See for instance L. Mair, Primitive Government (London, Penguin Books, 1970), pp. 7-16. Under an authoritative definition, "In its primary sense, the tribe is a community organized in terms of kinship, and its subdivisions are the intimate kindred groupings of moieties, gentes, and totem groups. Its territorial basis is rarely defined with any precision, and its institutions are typically the undifferentiated and intermittent structures of an omnifunctional social system. The leadership of the tribe is provided by the group of adult males, the lineage elders acting as tribal chiefs, the village headmen, or the shamans, or tribal magicians. These groups and individuals are the guardians of the tribal customs and of an oral tradition of law." (The New Encyclopedia Britannica (2003), XXV, at 1008).

180. W. Schabas (Genocide in International Law, Cambridge, Cambridge University Press, 2000), after citing the statement of the International Law Commission, argues that "It is not difficult to understand why tribal groups fit within the four corners of the domain, whereas political and gender groups do not" (at p. 112). This proposition is not however supported by any legal argument.

181. That, for the purpose of the legal notion of genocide, a tribe or a group of tribes may the regarded as the target of genocide only if it also constitutes a racial, ethnic or religious group, is borne out by the ruling of the Australian Federal Court in 1999 in Nulyarimma v. Thompson and Buzzacott v. Hill, with regard to Aboriginal groups or tribes. Some Aboriginal persons had claimed that conduct engaged in by certain Ministers of the Commonwealth or Commonwealth parliamentarians were contributing to the destruction of the Aboriginal people as en ethnic or racial group. The Court dismissed the claim. The majority of Judges held that the legal ground for dismissal was that the legal notion of genocide could not be acted upon in the Australian legal system for lack of the necessary domestic legislation. Judge Merkel opined instead that genocide could be acted upon within the domestic legal system of Australia, although in his view in casu the claim was nevertheless groundless on its merits, because "cultural genocide" is not covered either by customary international law or the 1948 Convention. What is interesting for our purposes is, however, that none of the three judges held that the Aboriginals could not be legitimately held to be a target-group under the proper notion of genocide. In other words, the three Judges implicitly supported the view that Australian aboriginal tribes or units do constitute a racially and ethnically distinct group, on account of their ethnicity, religion, culture, language, and colour."

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

A. Legal source/authority and evidence:

Prosecutor v. Radislav Krstić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, para. 555:

"555. […] The preparatory work on the Genocide Convention also reflects that the term "ethnical" was added at a later stage in order to better define the type of groups protected by the Convention and ensure that the term "national" would not be understood as encompassing purely political groups.¹²³⁴"

1234. UN Doc. A/C.6/SR.73 (Petren, Sweden); UN Doc. A/C.6/SR.74 (Petren, Sweden).

Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 69:

Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), 6 December 1999, para. 57:

"57. Nevertheless, the Chamber is of the view that a subjective definition alone is not enough to determine victim groups, as provided for in the Genocide Convention. It appears, from a reading of the travaux préparatoires of the Genocide Convention¹⁷, that certain groups, such as political and economic groups, have been excluded from the protected groups, because they are considered to be "mobile groups" which one joins through individual, political commitment. That would seem to suggest a contrario that the Convention was presumably intended to cover relatively stable and permanent groups."

"17. Summary Records of the meetings of the Sixth Committee of the General Assembly, 21 September - 10 December 1948, Official Records of the General Assembly."

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

A. Legal source/authority and evidence:

Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Judgement (TC), 28 April 2005, para. 500:

"500. The Prosecution also has the burden of proving either that the victim belongs to the targeted ethnic, racial, national, or religious group or that the perpetrator of the crime believed that the victim belonged to the group.⁴⁶⁰"

"460.Gacumbitsi Judgement (TC), para. 255-256; Semanza Judgement, (TC), para. 319; Rutaganda Judgement (TC), para. 60; Kayishema and Ruzindana Judgement (TC), para. 99; Akayesu Judgement (TC), para. 499."

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, para. 255:

"255. […] Evidence must also be tendered to show either that the victim belonged to the targeted ethnical, racial, national or religious group²⁴⁶ or that the perpetrator of the crime believed that the victim belonged to the said group."

"246. Semanza Judgment, (TC), para. 319; ibid. para. 55; ibid. paras. 154 and 155; Rutaganda Judgment (TC), para. 60; Kayishema and Ruzindana Judgment (TC), para. 99; Akayesu Judgment (TC), para. 499."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 319:

"319. In order to be held criminally liable for genocide by killing members of a group, in addition to showing that an accused possessed an intent to destroy the group as such, in whole or in part, the Prosecutor must show the following elements: (1) the perpetrator intentionally killed one or more members of the group, without the necessity of premeditation;⁵³⁹ and (2) such victim or victims belonged to the targeted ethnical, racial, national, or religious group.⁵⁴⁰"

"539. Bagilishema, Judgement, TC, paras. 55, 57-58; Musema, Judgement, TC, para. 155; Rutaganda, Judgement, TC, paras. 49, 50; Kayishema and Ruzindana, Judgement, TC, para. 103; Akayesu, Judgement, TC, para. 501. See also Kayishema and Ruzindana, Judgement, AC, para. 151.

540. Bagilishema, Judgement, TC, para. 55; Musema, Judgement, TC, paras. 154-155; Rutaganda, Judgement, TC, para. 60; Kayishema and Ruzindana, Judgement, TC, para. 99; Akayesu, Judgement, TC, para. 499."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 521:

"521. In concrete terms, for any of the acts charged under Article 2 (2) of the Statute to be a constitutive element of genocide, the act must have been committed against one or several individuals, because such individual or individuals were members of a specific group, and specifically because they belonged to this group. Thus, the victim is chosen not because of his individual identity, but rather on account of his membership of a national, ethnical, racial or religious group. The victim of the act is therefore a member of a group, chosen as such, which, hence, means that the victim of the crime of genocide is the group itself and not only the individual¹⁰⁰."

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

A. Legal source/authority and evidence:

Prosecutor v. Zdravko Tolimir, Judgement (TC), 12 December 2012, para 773:

"773. [I]n addition to the killing of at least 5,749 members of the protected group, the Chamber considers the following, in particular, to be evidence on which it has inferred the intent to destroy the group in relation to the underlying acts of Article 4(2)(b) and 4(2)(c); the pattern of verbal abuse on account of affiliation with the Islamic faith inflicted by Bosnian Serb Forces on the Bosnian Muslims gathered in Potocari and the Bosnian Muslim men during their detention in Bratunac and Zvornik and up until they were killed; the persistent capture of the Bosnian Muslim men from the column; the almost simultaneous implementation of the operations to kill the men from Srebrenica and the forcible transfer of the Bosnian Muslim women, children and elderly out of Potocari, Judge Nyambe dissenting; the forcible transfer of the Bosnian Muslim population from Zepa and the murder of three of its most prominent leaders Judge Nyambe dissenting; and the deliberate destruction of the mosques of Srebrenica and Zepa and the homes of Bosnian Muslims Judge Nyambe dissenting, following the fall of the respective enclaves. The Chamber, Judge Nyambe dissenting in part, has no doubt that the Bosnian Serb Forces who committed the underlying acts set out in Article 4(2)(a)-(c) intended the physical destruction of the Bosnian Muslim population of Eastern BiH."

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-I, Judgement (TC), 15 July 2004, paras. 466 – 469. See, however, Appeals Chamber’s findings, Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-A Judgement (AC), 16 January 2007, paras. 117-118 (Below):

"466. In order to be guilty of instigating, or aiding and abetting, genocide, the acts constituting the encouragement must directly and substantially contribute to the perpetration of genocide by another person. There is limited evidence of the acts committed by those at the roadblocks subsequent to the visits of the Accused. The Chamber has found, however, that a person known as Nors, alias Nturusu, was killed immediately after the departure of the Accused from the Gaseke roadblock. To be guilty of genocide for the killing of Nors, those at the roadblock must have intended to destroy, in whole or in part, the Tutsi ethnic group by targeting a person on the basis of membership in that ethnicity. ⁶⁰²

467. Nors’ ethnic identity is characterized in various ways by different witnesses. A close relative explained that Nors’ father was German, and that his mother was Rwandese, without further defining her ethnicity as Hutu or Tutsi.⁶⁰³ In Rwandan culture, the ethnic identity of the child is normally determined on the basis of the ethnic identity of the father, but evidence in the present case indicates that children of Tutsi mothers were also threatened.⁶⁰⁴ Here, however, the situation is different, as the father is of an ethnicity entirely foreign to Rwanda. One witness testified that the attackers wanted to kill Nors because he was white, or Belgian. Other witnesses, including Witness CGC, described Nors as a "half-caste", and that he had the physical traits of a Tutsi, suggesting that he was perceived to be part- Tutsi.⁶⁰⁵

468. In assessing whether Nors was a member of a protected group, in this case of the Tutsi ethnicity, the subjective intentions of the perpetrators are of primary importance. As stated in Bagilishema: A group may not have precisely defined boundaries and there may be occasions when it is difficult to give a definitive answer as to whether or not a victim was a member of a protected group. Moreover, the perpetrators of genocide may characterize the targeted group in ways that do not fully correspond to conceptions of the group shared generally, or by other segments of society. In such a case, the Chamber is of the opinion that, on the evidence, if a victim was perceived by a perpetrator as belonging to a protected group, the victim should be considered by the Chamber as a member of the protected group, for the purposes of genocide.⁶⁰⁶

469. The Chamber is of the view that Nors was perceived to be, at least in part, of Tutsi ethnicity. Testimony in the present case indicates that physical traits were an important, if not decisive, indicator of ethnic identity in Rwanda in 1994.⁶⁰⁷ As Nors had the physical appearance of a Tutsi, he would have been understood to be Tutsi. Having a single European parent is not mutually exclusive with being perceived as part-Tutsi; indeed, several witnesses referred to him as a "half-caste", which would seem to imply that he was understood to be part-European, and part-Rwandan. It is highly improbable that he would have been targeted if his Rwandan ethnicity was perceived to be Hutu or Twa. Further, Nors was killed very soon after the Accused had instructed that Tutsi be killed, providing circumstantial support for the inference that he was, in fact, killed for that reason. Finally, the presence of additional motives for the killing of Nors (as, for example, that he may have been part-Belgian) does not displace the killers’ genocidal intent.⁶⁰⁸ In light of these factors, the Chamber infers that Nors was targeted because he was understood to be, at least in part, Tutsi."

"602. During closing arguments, the Prosecution appears to take the position that no act of genocidal killing need take place for the Accused to be guilty of aiding and abetting genocide, and denied that the killing of Nors was relevant to its case: "We would never argue that Nors was part of our case, Your Honour, but the act of instigation was not limited to Nors. Nors just happened to be passed by the roadblock. Therefore, if you believe Witness CGC, the Accused has to be found guilty of genocide just on the basis of that event and nothing else." T. 1 March 2004. However, paragraph 11 of the Indictment clearly pleads that a person was killed at the Gaseke roadblock immediately after the Accused’s departure, and the circumstances are the same as those surrounding the killing of Nors. Accordingly, the Chamber is of the view that the killing of Nors is, and always was, a part of the Prosecution case which must be considered.

603. T. 5 November 2003 p. 12.

604. As, for example, Witness CGF’s daughter. T. 9 September 2003 p. 24 ("Actually, she was being pursued because of her mother’s ethnicity").

605. T. 29 September 2003, pp. 48, 49 (Witness CGC); T. 28 October 2003 p. 81 (Witness DB).

606. Bagilishema, Judgement (TC), para. 65; Musema, Judgement (TC), para. 161 ("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").

607. As indicated by Witnesses CGL and CGH, as well as CGC.

608. Niyitegeka, Judgement (AC), para. 53 ("In other words, the term ‘as such’ clarifies the specific intent requirement. It does not prohibit a conviction for genocide in a case in which the perpetrator was also driven by other motivations that are legally irrelevant in this context. Thus the Trial Chamber was correct in interpreting ‘as such’ to mean that the proscribed acts were committed against the victims because of their membership in the protected group, but not solely because of such membership")."

Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-A Judgement (AC), 16 January 2007, paras. 117-118:

"117. Also, the Trial Chamber did not make a finding on any criminal act of the Appellant during mid-April 1994 (see paragraph 25 of the Indictment) that could have substantially contributed to the murder of Mr. Nors in late May 1994 (see paragraph 11 of the Indictment). Thus, the Prosecution failed to establish a link between the murder of Mr. Nors at the Gaseke roadblock and a substantial contribution of the Appellant. Without that crime being committed, the Appellant cannot be held liable for instigating and aiding and abetting genocide for the murder of Mr. Nors pursuant to Article 6 of the Statute.259 Instigating means prompting another person to commit an offence, thus requiring a subsequent criminal action. 260 Similarly, a conviction for aiding and abetting presupposes that the support of the aider and abetter has a substantial effect upon the perpetrated crime.261 No reasonable trier of fact could have concluded beyond reasonable doubt that the killing of Mr. Nors was a result attributable to the Appellant’s acts. In this context, the Appeals Chamber recalls that the Prosecution had withdrawn the charge of direct and public incitement to commit genocide.262 Hence, the Trial Chamber erroneously convicted the Appellant for instigating and aiding and abetting the murder of Mr. Nors as a crime against humanity.

118. In this context, the Appeals Chamber notes that the pleadings of the parties have to be clear and unambiguous. On the basis of ambiguous submissions made by the Prosecution during closing arguments, the Appeals Chamber might have come to the conclusion that the Prosecution had abandoned its case in relation to the killing of Mr. Nors."

257 Rutaganda Appeal Judgement, para. 34; Akayesu Appeal Judgement, paras 286-92; Niyitegeka Trial Judgement, para. 43; Ntakirutimana Trial Judgement, para. 33; Bagilishema Trial Judgement, para. 25; Musema Trial Judgement, para. 51. See also Naletilić and Martinović Appeal Judgement, para. 516; Kordić and Čerkez Appeal Judgement,

para. 281. This principle was recognized by the Trial Chamber in this case: see Trial Judgement, para. 23. In this context, the Appeals Chamber notes that the Trial Chamber held in para. 216 of the Trial Judgement that "Rwandans do not always express clearly the difference between what they have seen with their own eyes and what they have heard".

The Appeals Chamber does not accept this characterization as being specific to Rwandans. Rather, it interprets the Trial Chamber’s finding as a general reference to inaccuracies which often occur in the testimony of witnesses, regardless of their nationality.

258 T. 29 September 2003, p. 33.

259 The modes of liability as regulated under Article 6(1) of the Statute are also applicable to the crime of genocide pursuant to Article 2 of the Statute, Ntakirutimana Appeal Judgement, para. 500. See also Krstić Appeal Judgement, para. 138.

260 Kordić and Čerkez Appeal Judgement, para. 27.

261 Blaškić Appeal Judgement, para. 48.

Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgment (TC), 7 June 2001, para. 65:

"65. […] A group may not have precisely defined boundaries and there may be occasions when it is difficult to give a definitive answer as to whether or not a victim was a member of a protected group. Moreover, the perpetrators of genocide may characterize the targeted group in ways that do not fully correspond to conceptions of the group shared generally, or by other segments of society. In such a case, the Chamber is of the opinion that, on the evidence, if a victim was perceived by a perpetrator as belonging to a protected group, the victim could be considered by the Chamber as a member of the protected group, for the purposes of genocide."

B. Evidentiary comment:

Ultimately, the legal requirement of the crime is that the victim be a member of the group, not that the perpetrator believes the victim to be a member of the group but the latter is a means of proof by which the former may be established. This distinction may result not easy to draw in practice. Mettraux discusses whether the element would be satisfied in a case where the perpetrator attacks a victim in the mistaken belief that he or she is a member of the protected group. In his view, this scenario should not be considered to be covered by the definition of the crime (see Guéna?l Mettraux, International Crimes and the Ad Hoc Tribunals (2005) pp. 225 – 226, 232, 237). This may well be correct in principle, but the question remains as to how it is to be determined in concrete cases whether the victim is or is not a member of the group. Given that it now appears well established that the perpetrators’ perception of group membership is a relevant factor, the solution may be more difficult to find in practice than Mettraux suggests. It may well be that a crime does not qualify as genocide where all factors other than the perpetrator’s subjective view indicate that the victim is not a member of the group. However, where the victim’s membership of the group is uncertain or arguable, the decisions in Bagilishema and Ndindabahizi suggest that the perpetrator’s perception of the victim as a member of the group can be decisive.

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

A. Legal source/authority and evidence:

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September 1998, para. 712:

"712. In the opinion of the Chamber, the acts attributed to the accused in connection with victims U and V constitute serious bodily and mental harm inflicted on the two victims. However, while Akayesu does incur individual criminal responsibility by virtue of the acts committed against victim U, a Tutsi, for having committed or otherwise aided and abetted in the infliction of serious bodily and mental harm on a member of the Tutsi group, such acts as committed against victim V were perpetrated against a Hutu and cannot, therefore, constitute a crime of genocide against the Tutsi group."

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