Identification of genocide victim groups

(I am very grateful to IntLawGrrls for the opportunity to contribute this guest post, which is based on my article “How Do We Know Them When We See Them? The Subjective Evolution in the Identification of Victim Groups for the Purpose of Genocide,” 10 International Criminal Law Review 1 (2010))

Any reference to “victim groups” pursuant to the 1948 Convention on the Prevention and Punishment the Crime of Genocide likely causes an instinctive turn toward the perennially popular question of which types of groups should be included within the definition of genocide. An equally fundamental, but often overlooked, question is how such victim groups are identified. Is identification based on objective indicators of the group’s existence, or is it based on subjective perceptions of both the group itself and those around it?
The 2005 Report of the International Commission of Inquiry on Darfur
to the United Nations Secretary-General, by a U.N. panel led by Antonio Cassese, former President of the International Criminal Tribunal for the former Yugoslavia, reflects what has become a conventional legal wisdom: that identification of victim groups for the purpose of genocide has evolved to such extent that it may now be based on entirely subjective evidence. At the heart of this position one usually finds the jurisprudence of the ICTY and its counterpart, the International Criminal Tribunal for Rwanda, with the latter often identified as the “birth place” of the subjective identification of victims groups.
Close examination of this jurisprudence reveals, however, significant discord between the principles espoused and the actual forms of evidence used to identify victims in a given case. Despite strong statements that a victim group may be identified based on either self-perception or the perception of perpetrators, almost no case before the ad hoc tribunals has identified a victim group using subjective evidence alone. Before the ICTR, all cases have relied on a combination of objective factors, such as evidence of the Rwandan legal and administrative system, with subjective factors, such as the self-identification of persons appearing before the tribunal.
Where, then, is the subjective evolution referred to in the Darfur Report?
It lies in the fact that the evidence that the ad hoc tribunals have labelled as objective -- for example, a legal system dividing persons into the categories of Hutu and Tutsi -- has an underlying subjective essence. The Darfur Report describes this process as follows:

[T]he process of formation of a perception and self-perception of another group as distinct (on ethnic, national, religious or racial grounds) … 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 … from subjective becomes objective.

This notion is key to understanding the purported subjective evolution referred to in the Darfur Report. The evolution is not in the method of identification itself, but in the manner in which one understands the process of identification. Those factors -- which lawyers and the ad hoc tribunals have been quick to regard as objective (such as legal and administrative mechanisms) -- may be more properly understood as part of ongoing subjective processes of group identification. Indeed, they have long been so regarded in the field of sociology.
The first foray of the International Criminal Court into the crime of genocide in the case against Sudan's incumbent President, Prosecutor v. Omar Hassan Ahmad Al Bashir, neatly demonstrates the relevance of these issues. Although the issue arises only obliquely, that case demonstrates that the victim group itself may be different depending on how it is identified:
► The majority of the Pre-Trial Chamber I, in its March 4, 2009, decision on the Prosecutor’s application for a warrant of arrest, sought to rely on objective factors related to language, custom, and land to identify the victim group. In so doing, it identified three separate victim groups – the Fur, Masalit, and Zaghawa.
► But in her dissenting opinion, Judge Anita Ušacka focused instead on the existence of a group which, in the societal context of the counter-insurgency campaign in Darfur, is regarded simply as a group of “African tribes”. By focusing more on subjective perceptions, Judge Ušacka identified a different victim group than did her judicial colleagues. (As IntLawGrrl Beth Van Schaack posted, this past February the ICC Appeals Chamber endorsed Judge Ušacka's approach, and thus reversed the 2009 ruling of the pretrial panel. A 2d warrant to arrest Bashir on genocide was issued last Monday.)
The identification of the victim group of genocide, in short, depends on where and how one is looking in the first place.
The underlying theme is that both subjective and objective evidence of group identification is permissible, and that there is no need to “disguise” as objective those factors ultimately having subjective foundations.

(credit for photo of camp for displaced Darfuris (c) UNICEF/NYHQ2006-0559/Shehzad Noorani)

Breaking News: Al Bashir Can Be Prosecuted for Genocide

As we've blogged in the past (see, e.g., here, here, & here) the question of genocide in Darfur remained an open one. The Appeals Chamber of the ICC recently ruled that the Pre-Trial Chamber had erred in a prior ruling when it failed to confirm the genocide counts proposed by the Prosecution against Sudanese President Omar Al-Bashir (right).

The new ruling is premised on the burden of proof at the arrest warrant stage. The Appeals Chamber concluded that the Pre-Trial Chamber (PTC) had essentially demanded proof beyond a reasonable doubt of Al Bashir's genocidal intent when it required proof that

the only reasonable conclusion to be drawn [from the evidence presented] is the existence of reasonable grounds to believe in the existence of the [Government of Sudan's] dolus specialis/specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups.

In so holding, the Appeals Chamber agreed with the lone dissent on the PTC, Judge Anita Ušacka of Latvia (left), who argued that the Prosecution had met its burden at the arrest warrant stage.

In its ruling, the Appeals Chamber emphasized that

the evidentiary threshold of "reasonable grounds to believe" for the issuance of a warrant of arrest must be distinguished from the threshold required for the confirmation of charges ("substantial grounds to believe", article 61 (7) of the Statute) and the threshold for a conviction ("beyond reasonable doubt", article 66 (3) of the Statute).

The Pre-Trial Chamber has been directed to re-consider the scope of the arrest warrant pursuant to the appropriate standard of proof on remand. Stay tuned!

Vagaries of witness protection before the ICC

Germain Katanga and Mathieu Ngudjolo Chui (right), both hailing from the Democratic Republic of Congo, are two of the accused awaiting trial before the International Criminal Court. The two are implicated in attacks against civilians in the Ituri region of the DRC while they were members of ethnically based militia. (Katanga began as a military leader of a predominantly Ngiti combatant group, the Force de Résistance Patriotique en Ituri. He was eventually appointed Brigadier-Général of the Forces Armées de la République Démocratique du Congo (FARDC) by the President of the Democratic Republic of Congo, Joseph Kabila. Chui also eventually became a member of the FARDC when the militia group to which he belonged was integrated into the armed forces. See here for a series of concise posts on the history of the world war being waged in the Congo.) (photo credits)

The Prosecution originally sought to charge the two with murder/willful killing, inhumane acts/inhumane treatment, sexual slavery, and rape (as crimes against humanity and war crimes), in addition to the war crimes of using child soldiers in combat, committing outrages upon personal dignity, intentionally directing an attack against a civilian population, pillage, and destruction of civilian property. The pre-Trial Chamber recently confirmed all but a few charges (those for inhumane acts and outrages upon dignity).

The gender crime charges stem from allegations that civilian women were raped and forcibly taken to military camps, where they were given as “wives” to their captors, or were imprisoned in holes in the ground where they would be raped by other prisoners or combatants. The defendants were indicted as principals (co-perpetrators) to the crimes committed by their subordinates pursuant to a common plan to commit such crimes. The theory of responsibility is one of co-perpetration, where the defendants exercised “joint control” over the crime as a result of being in a position to make an “essential contribution” to it. Notably, neither defendant was charged under Article 28 of the ICC Statute, which sets forth the superior responsibility doctrine; this failure to charge further contributes to the desuetude of the doctrine in international criminal law.

Judge Anita Ušacka (Latvia) (left) partially dissented from the confirmation decision. In particular, she argued that the Prosecutor’s evidence was not sufficiently strong to establish “substantial grounds to believe” that the suspects are criminally responsible for the crimes of sexual violence (the standard necessary to confirm the indictment pursuant to Article 61 of the ICC Statute). In her estimation, the evidence did not suggest either
► that the suspects intended for rape and sexual slavery to be committed during the attack in question, or
► that the suspects would know that these acts would be committed “in the ordinary course of events.”
She reasoned that general evidence that crimes of rape and sexual slavery were committed throughout Ituri is insufficient to infer the suspects’ intent and knowledge that the particular crimes charged would occur or had occurred. Rather, she suggested, there was some evidence that the defendants actually took steps to punish individuals who had abducted women of their own ethnicity.

In her analysis, Judge Ušacka seems to have fallen sway to the misperception that acts of sexual violence committed during armed conflicts or repression are simply opportunistic or private crimes reflecting personal motives and desires that are unconnected to, or simply capitalizing upon, the prevailing state of war. Rather, as Security Council Resolution 1820 confirms, such crimes are integral to any armed conflict, genocide, or campaign of ethnic cleansing rather than as an isolated or peripheral phenomenon. Indeed, gender violence is regularly employed to exacerbate other forms of violence and repression. Where women are being kept in detention with male guards in situations of ethnic conflict, we now know that it is inevitable that they will be sexually assaulted.

Although they squeaked by the confirmation stage, the sexual violence charges barely made it into the Prosecutor’s Charging Document at all. In connection with the confirmation of the indictment against the two defendants, the Prosecutor had originally requested protective measures from the Registry for two witnesses whose testimony was central to the sexual violence counts. The request was, however, rejected by the Registrar. Nonetheless, the Prosecutor, without authorization, arranged for the preventative and temporary relocation of two witnesses for their safety, citing his obligations to ensure the security of witnesses under Article 68(1) of the Statute. That Article sets forth the duty of the Court to take appropriate protective measures for the safety, well-being, dignity, and privacy of victims and witnesses and obliges the Prosecutor in particular

to take such measures particularly during the investigation and prosecution of such crimes.

The presiding judge, Sylvia Steiner (Brazil) (left), ruled that the Prosecutor had exceeded, and indeed misused, his mandate in unilaterally relocating witnesses in opposition to the competent ICC organ—the Registry. At the same time, she conceded that there may be “exceptional circumstances” involving “a serious threat of imminent harm” related to a witness’s cooperation with the Court (para. 35) in which some preventative relocation might be allowed. Given that these witnesses were in effect “unprotected” and thus at risk, she ruled that even redacted or summary versions of the witnesses’ testimony could not be admitted into evidence. Judge Steiner also strongly criticized the Registrar for refusing protective measures with respect to a particular witness by, in effect, raising the bar for protection to require proof of a concrete threat, and ordered the witness’s inclusion within the protection program.


The impasse was eventually resolved when the witnesses were relocated by the Registrar, which opened the way for the reintroduction of the sexual violence charges. The case thus proceeds with these charges intact.

On this day

On March 11, ...
... 2003 (5 years ago today), at The Hague, Netherlands, 7 women and 11 men, representing 18 countries, were sworn in as the 1st judges of the International Criminal Court, a newly established permanent tribunal charged with adjudicating the world's most heinous crimes. (photo credit) A 2d round of elections was held in 2006. Women serving as ICC judges today are: Akua Kuenyehia of Ghana, 1st Vice-President; Elizabeth Odio Benito of Costa Rica; Navanethem Pillay of South Africa; Fatoumata Dembele Diarra of Mali; Anita Ušacka of Latvia; Sylvia Steiner of Brazil; and Ekaterina Trendafilova of Bulgaria. As posted above, the from-the-inception inclusion of women sets the ICC apart from other tribunals, among them the WTO Appellate Body.
... 1708 (300 years ago today), a bill intended to reorganize the Scottish Militia failed as Queen Anne withheld Royal Assent. The act marked the last time that British monarch has vetoed a law passed by Parliament.