1 For similar arguments concerning the approach towards persecution charges see Fournet, C. and Pégorier, C., ‘“Only One Step Away from Genocide”: The Crime of Persecution in International Criminal Law’, (2010) 10 International Criminal Law Review 713CrossRefGoogle Scholar, at 713–14.

2 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 (1951), Art. 2; 1991 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc.S/S/RES/827 (1993), Art. 4; 1994 Statute of the International Criminal Tribunal for Rwanda, UN Doc.S/RES/955 (1994), Art. 2; (1998) Rome Statute of the International Criminal Court, UN Doc.A/CONF.183/9 (2002), Art. 6. For a comprehensive analysis of this crime, see W. A. Schabas, Genocide in International Law: The Crime of Crimes (2009).

3 Schabas, W. A., ‘Darfur and the “Odious Scourge”: The Commission of Inquiry's Findings on Genocide’, (2005) 18 LJIL 871CrossRefGoogle Scholar, at 874.

4 Another much-debated and discussed aspect is the special intent and its meaning. Given the limited space of this article, issues relating to the special intent will not be addressed in great detail.

5 This position was confirmed, inter alia, in the Kupreškić case. According to the Trial Chamber ‘[b]oth persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discrimination: to attack persons on account of their ethnic, racial, or religious characteristics’. Prosecutor v. Zoran Kupreškić, Mirjan Kupreškić, Vlatko Kupreškić, Drago Josipović, Dragan Papić, Vladimir Šantić, Judgement, Case No. IT-95-16-T, T.Ch., 14 January 2000, para. 636.

6 Although the present article focuses on the criminal-law approach, the International Court of Justice could also rely on this model when deliberating a dispute between states concerning the interpretation, application, or fulfilment of the Genocide Convention, as enshrined in Article 9 Genocide Convention.

7 For the sake of simple referencing, ‘race’ here is understood in a broad sense, including national, ethnic, and racial groups in the definition of genocide.

8 See, e.g., G. Mettraux, International Crimes and the Ad Hoc Tribunals (2005), at 226.

9 The most often quoted and accepted definition of direct racial discrimination can be found in the Racial Equality Directive (RED) adopted by the European Union. It defines this phenomenon as follows: ‘direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin’. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Article 2(2)(a). Except for the protected grounds, the same definition can be found in the Framework Equality Directive (FD) with regard to direct discrimination on the grounds of religion or belief. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, Article 2(a).

10 Genocide Convention, supra note 2, Art. 2. The same definition was adopted in the ICTY Statute, supra note 2, Art. 4; ICTR Statute, supra note 2, Art. 2; ICC Statute, supra note 2, Art. 6.

11 For a recent example, see Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, P.T.Ch. I, 4 March 2009, para. 142. See also Kupreškić case, supra note 5, para. 636.

12 ICTY Statute, supra note 2, Art. 5; ICTR Statute, supra note 2, Art. 3, ICC Statute, supra note 2, Art. 7(h). The prohibited grounds are not entirely the same under the three statutes.

13 This position was also adopted in the Kupreškić case, supra note 5 (and confirmed also by the ICJ in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 11 July 1996, [1996] ICJ Rep. 43). According to the ICTY ‘the mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide. In this context the Trial Chamber wishes to stress that persecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate: to attack persons on account of their ethnic, racial, or religious characteristics (as well as, in the case of persecution, on account of their political affiliation). While in the case of persecution the discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions including murder, in the case of genocide that intent must be accompanied by the intention to destroy, in whole or in part, the group to which the victims of the genocide belong.’ Kupreškić case, supra note 5, para. 636.

14 See, inter alia, S. Fredman, Discrimination Law (2002).

15 See, e.g., M. J. Busstra, The Implications of the Racial Equality Directive for Minority Protection within the European Union (2011), at 148–57; M. Ambrus, Enforcement Mechanisms of the Racial Equality Directive and Minority Protection (2011), at 23–5.

16 See, e.g., D. Schiek, L. Waddington, and M. Bell, Cases, Materials and Text on National, Supranational and International Non-Discrimination Law (2007), at 185–6; Ambrus, supra note 15, at 30–4. As an effect of the explicit prohibition of direct discrimination the number of overt discrimination cases continuously decreases, with the result that proving discrimination, more specifically the causal link, becomes more difficult.

17 See, inter alia, Busstra, supra note 15, at 138–48.

18 This contribution does not aim to discuss the crime of genocide in terms of mens rea and actus reus; rather it focuses on the conceptual elements of this crime. Note that sometimes the term ‘actus reus’ is used to refer merely to what is here called the specific acts (e.g., killing) without including the discriminatory aspect; that is, killing members of the protected group.

19 Although the ICJ wanted to emphasize the special nature of the special intent, the above position seems to be confirmed by its judgment in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case, supra note 13. More concretely, the Court explained that ‘[i]t is not enough that the members of the group are targeted because they belong to that group, that is because the perpetrator has a discriminatory intent. Something more is required. The acts listed in Article II must be done with intent to destroy the group as such in whole or in part.’ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, [2007] ICJ Rep. 43, at 121, para. 187 (emphasis added).

20 Although there were some inconsistencies in the case law (in particular of the ICTR) in the order in which to follow when examining genocide cases, it seems now generally accepted to first look at the actus reus and then examine the mens rea of the perpetrator. See, e.g., Prosecutor v. Laurent Semanza, Judgement and Sentence, Case No. ICTR-97-20-T, T.Ch., 15 May 2003, paras. 311–323; Prosecutor v. Clément Kayeshima and Obed Ruzindana, Judgement, Case No. ICTR-95-1-T, T.Ch. II, 21 May 1999, para. 520; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 19, para 43.

21 See also A. Cassese, International Criminal Law (2008), at 142; Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgement, Case No. ICTR-95-1-T, T.Ch. II, 21 May 1999, paras. 531–540; Prosecutor v. Alfred Musema, Judgement, and Sentence, Case No. ICTR-96-13-A, T.Ch. I, 27 January 2000, paras. 928–931; Prosecutor v. Theóneste Bagosora, Gratien Kabiligi, Aloys Ntabukuze, Anatole Nsengiyumva, Judgement and Sentence, Case No. ICTR-98-41-T, T.Ch. I, 18 December 2008, para. 2116.

22 See, e.g., Prosecutor v. Radislav Krstić, Judgement, Case No. IT-98-33-T, T.Ch., 2 August 2001, para. 547.

23 See, e.g., Prosecutor v. Jean-Paul Akayesu, Judgement, Case No. ICTR-96-4-T, T.Ch. I, 2 September 1998, para. 523; van Schaack, B., ‘International Law Weekend-West: Panel Presentation: Darfur and the Rhetoric of Genocide’, (2005) 26 Whittier Law Review 1101, at 1127–31Google Scholar.

24 R. Cryer et al., An Introduction to International Criminal Law and Procedure (2010), at 222–3.

25 Ibid.

26 Schabas, supra note 2, at 306.

27 Compare, for instance, the following judgements: Akayesu case, supra note 23, para. 521; Prosecutor v. Ignace Bagilishema, Judgement, Case No. ICTR-95-1A-T, T. Ch. I, 7 June 2001, para. 65; Prosecutor v. Laurent Semanza, Judgement and Sentence, Case No. ICTR-97-20-T, T.Ch., 15 May 2003, para. 317; Prosecutor v. Goran Jelisić, Judgement, Case No. IT-95-10-T, T.Ch., 14 December 1999, para. 70; Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, UN Doc.S/2005/60, 25 January 2005, para. 509; Prosecutor v. George Rutaganda, Judgement, Case No. ICTR-97-21-T, T.Ch. I, 6 December 1999, para. 56; Prosecutor v. Juvénal Kajelijeli, Judgement, Case No. ICTR-98-44A-T, T.Ch. II, 1 December 2003, para. 811. See also Cryer et al., supra note 24, at 211–13; Mettraux, supra note 8, at 223–4.

28 See, inter alia, Cryer et al., supra note 24, at 213; Schabas, supra note 2, at 124–9; Schabas, supra note 3, at 879–80; Mettraux, supra note 8, at 224.

29 See also Prosecutor v. Goran Jelisić, Judgement, Case No. IT-95-10-T, T.Ch., 14 December 1999, para. 66. For a more recent application of this approach, see Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, P.T.Ch. I, 4 March 2009, para. 137. On this aspect of the case, see also Cryer, R., ‘The Definitions of International Crimes in the Al Bashir Arrest Warrant Decision’, (2009) 7 Journal of International Criminal Justice 283CrossRefGoogle Scholar, at 292–3.

30 Akayesu case, supra note 23, para. 521 (emphasis added).

31 Ibid., paras. 720–721 (emphasis added).

32 See also Roberts, K., ‘The Law of Persecution before the International Criminal Tribunal for the Former Yugoslavia’, (2002) 15 LJIL 623CrossRefGoogle Scholar, at 626.

33 This approach has been confirmed most recently by the ICTY. See Prosecutor v. Ante Gotovina, Ivan Cěrmak, Mladen Markač, Judgement, Case No. IT-06-90-T, T.Ch. I, 15 April 2011, para. 1852.

34 Prosecutor v. Milorad Krnojelac, Judgement, Case No. IT-97-25-T, T.Ch., 15 March 2002, para. 431 (emphasis added). Further confirmed in subsequent cases also by the Appeals Chamber. See, inter alia, Prosecutor v. Vlastimir Đor đević, Judgement, Case No. IT-05-87/1-T, T.Ch. II, 23 February 2011, paras. 1755 and 1757–1758; Gotovina case, supra note 33, paras. 1802 and 1843; Prosecutor v. Dario Kordić and Mario Čerkez, Judgement, Case No. IT-95-14/2-A, A.Ch., 17 December 2004, para. 101.

35 Nersessian, D. L., ‘Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes against Humanity’, (2007) 43 SJIL 221Google Scholar, at 242.

36 Ibid. For a different position see Fournet and Pégorier, supra note 1.

37 Some scholars when referring to the subjective approach also include self-identification by the victim group in addition to the identification by the perpetrator. This position can also be identified in the case law. In this contribution, the subjective approach is understood in the above-suggested narrower meaning. See, inter alia, Young, R., ‘How Do We Know Them When We See Them? The Subjective Evolution in the Identification of Victim Groups for the Purpose of Genocide’, (2010) 10 International Criminal Law Review 1CrossRefGoogle Scholar, at 2 and 10.

38 Prosecutor v. Sylvestre Gacumbsti, Judgement, Case No. ICTR-2001-64-T, T.Ch. III, 17 June 2004, paras. 254–255 (emphasis added).

39 For a recent adoption of this view in the case law, see Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Separate and Partly Dissenting Opinion of Judge Anita Ušacka, ICC-02/05–01/09, P.T.Ch. I, 4 March 2009, para. 23.

40 This position of the ICTY is much debated in the literature.

41 Prosecutor v. Miroslav Kvočka, Dragoljub Prcać, Milojica Kos, Mlado Radić, Zoran Žigić, Judgement, Case No. IT-98-30/1-T, T.Ch., 2 November 2001, para. 195 (emphasis added).

42 See also Roberts, supra note 32, at 626.

43 The most recent example for the subjective approach in relation to persecution is the Gaddafi case, where the Pre-Trial Chamber established the following: ‘the Chamber is further satisfied that there are reasonable grounds to believe that, in furtherance of the above-mentioned State policy . . . the Lybian Security Forces carried out throughout Libya . . . an attack against the civilian population taking part in demonstrations against Muammar Gaddafi's regime or perceived to be dissidents.’ Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on the Prosecutor's Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11, P.T.Ch. I, 27 June 2011, para. 32 (emphasis added).

44 See, inter alia, Cassese, supra note 21, at 138; Cryer et al., supra note 24, at 211–13; Young, supra note 37, at 2–3.

45 Kress, C., ‘The Crime of Genocide under International Law’, (2006) 6 International Criminal Law Review 461, at 473–6CrossRefGoogle Scholar.

46 Young argues that ‘the trend towards subjectivity is not so much a change of criteria but a changed understanding of the fundamental nature of existing criteria.’ Young, supra note 37, at 3 and 10.

47 Schabas, W. A., ‘The Law and Genocide’, in Bloxham, D. and Moses, A. D. (eds.), The Oxford Handbook of Genocide Studies (2010), 134Google Scholar; Schabas, supra note 2, at 128.

48 See, inter alia, Roberts, supra note 32, at 624–8; Nersessian, supra note 35.

49 See, e.g., Cryer et al., supra note 24, at 213.

50 See, e.g., Ambrus, supra note 15, at 105–28.

51 Young, supra note 37, at 15–16.

52 See, inter alia, ibid., at 5–8; Kress, supra note 45, at 474.

53 Prosecutor v. Laurent Semanza, Judgement and Sentence, Case No. ICTR-97-20-T, T.Ch., 15 May 2003, para. 317 (emphasis added).

54 Mettraux, supra note 8, at 226.

55 See, e.g., ibid., at 224.

56 Prosecutor v. Mikaeli Muhimana, Judgement and Sentence, Case No. ICTR- 95-1B-T, T.Ch. III, 28 April 2005.

57 Ibid., paras. 513 and 517.

58 See, inter alia, Roberts, supra note 32, at 625.

59 See, inter alia, ibid., at 627–8.

60 Prosecutor v. Milorad Krnojelac, Judgement, Case No. IT-97-25-T, T.Ch., 15 March 2002, para. 432.

61 See also Mettraux, supra note 8, at 226; Roberts, supra note 32, at 627.

62 Prosecutor v. Mladen Naletilić and Vinko Martinović, Judgement, Case No. IT-98-34-T, T.Ch., 31 March 2003, para. 636. For a more recent confirmation of this position, see Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze (Appellants) v. Prosecutor, Judgement, Case No. ICTR-99-52-A, A.Ch., 28 November 2007, para. 986, and Partly Dissenting Opinion of Judge Shahabuddeen, para. 14.

63 Schabas, supra note 2, at 395–6.

64 Nersessian, supra note 35, at 242.

65 Schabas, supra note 2, at 396.

66 Cryer et al., supra note 24, at 414.

67 See also Mettraux, supra note 8, at 225.

68 Nahimana case, supra note 62.

69 See also Prosecutor v. Siméon Nchamihigo, Judgement, Case No. ICTR-01-63-T, T.Ch. III, 12 November 2008, para. 335; Prosecutor v. Theóneste Bagosora, Gratien Kabiligi, Aloys Ntabakuze, Anatole Nsengiyumva, Judgement and Sentence, Case No. ICTR-98-41-T, T.Ch. I, 18 December 2008, paras. 2125 and 2141.

70 Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze (Appellants) v. Prosecutor (Respondent), Judgement, Case No. ICTR-99-52-A, A.Ch., 28 November 2007, para. 494 (emphasis added).

71 Ibid., para. 496 (emphasis added).

72 Ibid., para. 496.

73 See, e.g., L. Waddington, ‘Protection for Family and Friends: Addressing Discrimination by Association’, 2007 European Anti-Discrimination Law Review 13.

74 Opinion of Advocate General Maduro in ECJ, 31 January 2008, case C-303/06, para. 12.

75 For a different position, see, e.g., W. A. Schabas, The UN International Criminal Tribunals: The former Yugoslavia, Rwanda and Sierra Leone (2006), 219–20; Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN Doc. A/50/22, 12–13.

76 Although, following a different line of reasoning, Mettraux also found that ‘[t]he killing or mistreatment of a person who, though not himself or herself a member of the targeted group, but whose killing or mistreatment could further the attack against the protected group, could in principle be regarded as genocidal in character. Thus, the killing of a moderate Hutu who was opposed to the policy of the (Hutu) leaders, or married to a Tutsi, could be seen as genocidal to the extent that the removal of such an individual might arguably facilitate and contribute to the destruction of the Tutsi group by Hutu extremists.’ Mettraux, supra note 8, at 225.

77 The ICC Pre-Trial Chamber also seemed to follow this position, when they explained in the Gaddafi case that ‘[a]bductions and subsequent torture of family members of alleged dissidents who could not be found [had] also been reported.’ In other words, torturing those who are associated with those belonging to the opponent political group seems to be seen as persecution. Muammar Mohammed Abu Minyar Gaddafi case, supra note 43, para. 47.

78 Prosecutor v. Mladen Naletilić and Vinko Martinović, Judgement, Case No. IT-98-34-T, T.Ch., 31 March 2003, para. 636.

79 Some scholars criticize the restrictive interpretation of these four groups. A significant group argues that the definition should be stretched in order to include political groups. Another group would rather adopt a new definition with a more expansive list of protected grounds. See, inter alia, Schabas, supra note 2, at 131–3, 150–1, 164–5; Schabas, W. A., ‘Genocide Law in a Time of Transition: Recent Developments in the Law of Genocide’, (2008) 61 Rutgers Law Review 161Google Scholar, at 163.

80 The most relevant issues that were mentioned with respect to the identification of the protected group will be pinpointed below.

81 See, inter alia, Prosecutor v. Goran Jelisić, Judgement, Case No. IT-95-10-T, T.Ch., 14 December 1999, para. 71; Prosecutor v. Milomir Stakić, Judgement, Case No. IT-97-24-T, T.Ch., 31 July 2003, para. 512; Cryer et al., supra note 24, at 213; Mettraux, supra note 8, at 225.

82 See, inter alia, Cryer et al., supra note 24, at 213; Application of the Convention on the Prevention and Punishment of the Crime of Genocide case, supra note 13, paras. 193–196; Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05–01/09, P.T.Ch. I, 4 March 2009, para. 135.

83 Arguably, this approach was also adopted in the Final Report of the Commission of Experts for the Former Yugoslavia, United Nations Security Council, S/1994/674, 27 May 1994, para. 96.

84 Similarly to the identification of the members of the protected group, there is an ongoing debate in the legal literature about the approach to be applied toward the identification of the protected group: should it be an objective or a subjective approach? A purely subjective approach is considered undesirable by some because ‘otherwise the Convention could be used to protect entirely fictitious national, ethnic, racial or religious groups’ (Cryer et al., supra note 24, at 213) or because ‘law cannot permit the crime to be defined by the offender alone’ (Schabas, W. A., ‘Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia’, (2001) 25 FILJ 23, at 39Google Scholar). For relevant case law see, e.g., Prosecutor v. Laurent Semanza, Judgement and Sentence, Case No. ICTR-97-20-T, T.Ch., 15 May 2003, para. 317; Prosecutor v. Jean-Paul Akayesu, Judgement, Case No. ICTR-96-4-T, T.Ch. I, 2 September 1998, para. 511. Others are, however, more inclined to accept the subjective approach. See, e.g., Schabas, supra note 3, at 879–80; Mettraux, supra note 8, at 224; Park, R. Y., ‘Proving Genocidal Intent: International Precedent and ECCC Case 002’, (2010) 63 Rutgers Law Review 129Google Scholar, at 136–8. In the legal practice see furthermore Prosecutor v. Goran Jelisić, Judgement, Case No. IT-95-10-T, T.Ch., 14 December 1999, para. 70; Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, UN Doc.S/2005/60, 25 January 2005, para. 509; Prosecutor v. George Rutaganda, Judgement, Case No. ICTR-97-21-T, T.Ch. I, 6 December 1999, para. 56; Prosecutor v. Juvénal Kajelijeli, Judgement, Case No. ICTR-98-44A-T, T.Ch. II, 1 December 2003, para. 811.

85 Young argues that ‘[a] subjectively defined group does not necessarily denote an imaginary group but simply accepts that the facts upon which a group's existence is based are a result of complex interactions with the subjective views of the society in question’. Young, supra note 37, at 22.

86 Busstra, supra note 15, at 31. See also Schabas, supra note 3, at 879; Prosecutor v. Goran Jelisić, Judgement, Case No. IT-95-10-T, T.Ch., 14 December 1999, para. 70; Mettraux, supra note 8, at 224.

87 This argument implies that the Akayesu method to include all ‘stable and permanent groups’ can also be rebutted. Prosecutor v. Jean-Paul Akayesu, Judgement, Case No. ICTR-96-4-T, T.Ch. I, 2 September 1998, paras. 428–429. See also Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, UN Doc.S/2005/60, 25 January 2005, para. 501; Schabas, supra note 3, at 878–9.

88 See also Kress, supra note 45, at 476.

89 Schabas, supra note 2, at 129. This view is generally shared among scholars and found justified based on the preparatory work of the Genocide Convention. See, inter alia, Schabas, supra note 84, at 38–9. For the relevant case law see, e.g., Prosecutor v. Radislav Krstić, Judgment, Case No. IT-98-33-T, T.Ch., 2 August 2001, paras. 555–556; Prosecutor v. George Rutaganda, Judgement, Case No. ICTR-97-21-T, T.Ch. I, 6 December 1999, para. 56.

90 See, inter alia, van Schaack, B., ‘The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot, (1997) 106 Yale Law Journal 2259CrossRefGoogle Scholar; Bruun, L. L., ‘Beyond the 1948 Convention: Emerging Principles of Genocide in Customary International Law’, (1993) 17 Maryland Journal of International Law and Trade 193Google Scholar, at 210–18.

91 Kress, supra note 45, at 500; Schabas, supra note 3, at 879.