The Concept of Race in International Criminal Law (International and Comparative Criminal Justice)

Présentation de l'éditeur : "Members of racial groups are protected under international law against genocide, persecution, and apartheid. But what is race - and why was this contentious term not discussed when drafting the Statute of the International Criminal Court? Although the law uses this term, is it legitimate to talk about race today, let alone convict anyone for committing a crime against a racial group? This book is the first comprehensive study of the concept of race in international criminal law. It explores the theoretical underpinnings for the crimes of genocide, apartheid, and persecution, and analyses all the relevant legal instruments, case law, and scholarship. It exposes how the international criminal tribunals have largely circumvented the topic of race, and how incoherent jurisprudence has resulted in inconsistent protection. The book provides important new interpretations of a problematic concept by subjecting it to a multifaceted and interdisciplinary analysis. The study argues that race in international criminal law should be constructed according to the perpetrator's perception of the victims' ostensible racial otherness. The perpetrator's imagination as manifested through his behaviour defines the victims' racial group membership. It will be of interest to students and practitioners of international criminal law, as well as those studying genocide, apartheid, and race in domestic and international law." Members of racial groups are protected under international law against genocide, persecution, and apartheid. But what is race – and why was this contentious term not discussed when drafting the Statute of the International Criminal Court? Although the law uses this term, is it legitimate to talk about race today, let alone convict anyone for committing a crime against a racial group? This book is the first comprehensive study of the concept of race in international criminal law. It explores the theoretical underpinnings for the crimes of genocide, apartheid, and persecution, and analyses all the relevant legal instruments, case law, and scholarship. It exposes how the international criminal tribunals have largely circumvented the topic of race, and how incoherent jurisprudence has resulted in inconsistent protection. The book provides important new interpretations of a problematic concept by subjecting it to a multifaceted and interdisciplinary analysis. The study argues that race in international criminal law should be constructed according to the perpetrator’s perception of the victims’ ostensible racial otherness. The perpetrator’s imagination as manifested through his behaviour defines the victims’ racial group membership. It will be of interest to students and practitioners of international criminal law, as well as those studying genocide, apartheid, and race in domestic and international law. Cover 1 Half Title 2 Series Page 3 Title 4 Copyright 5 Dedication 6 Contents 8 List of figures 12 List of acronyms 13 Acknowledgements 16 1 Constructing race for international criminal law 18 1.1 Introduction 18 1.2 Interpreting race for international criminal law 21 1.3 Structure 23 2 Historical aspects of race 25 2.1 Introduction 25 2.2 The discovery of race 25 2.3 Social Darwinism and eugenics 28 2.4 Nazi race theories 31 2.5 The creation and application of race laws 37 2.5.1 The Nuremberg Laws 37 2.5.2 Rasse- und Siedlungshauptamt (RuSHA) 40 2.5.3 The leggi razziali in Italy 42 2.6 The UNESCO statements on race 44 2.7 Contemporary understandings of race and ethnicity 48 2.8 Race and genes 52 2.9 Interim conclusion 54 3 The concept of race in the law of genocide 55 3.1 Introduction 55 3.2 Perception of ‘Otherness’ 57 3.3 The stages of genocide 62 3.3.1 Introduction 62 3.3.2 Classification 63 3.3.3 Symbolisation 64 3.3.4 Discrimination 65 3.3.5 Dehumanisation 66 3.4 The origins of the crime of genocide 69 3.4.1 Lemkin and the creation of the term ‘genocide’ 69 3.4.2 The Nuremberg Trials 70 3.4.3 The meaning of race at the time of drafting the Genocide Convention 74 3.4.4 The codification of the crime of genocide 76 3.5 The legal elements of the crime of genocide 82 3.5.1 The definition of the crime of genocide: introductory remarks 82 3.5.2 The group as object of protection 84 3.5.2.1 Group membership and group identity 84 3.5.2.2 The four corner posts 86 3.5.3 The intent to destroy 90 3.5.3.1 ‘As Such’ 92 3.5.3.2 Proof of the genocidal intent 93 3.6 Akayesu and the interpretative revolution 101 3.6.1 Introduction 101 3.6.2 Rwanda and the creation of the ICTR 101 3.6.3 Stability and permanence 104 3.6.4 The racial group 107 3.6.5 Tutsi: a race or ethnicity? 109 3.7 Interpreting race for the crime of genocide 113 3.7.1 The ‘Object and Purpose’ of the genocide convention 113 3.7.2 Evolutive interpretation of race and the principle of effectiveness 115 3.8 The objective and subjective approach in defining the protected groups 120 3.8.1 Introduction 120 3.8.2 Outlining the different approaches 121 3.8.3 Conceptual challenges of the objective and the subjective approach 122 3.9 Post-Akayesu: the ad hoc tribunals’ jurisprudence 123 3.9.1 Introduction 123 3.9.2 Case law by the ad hoc tribunals 124 3.9.3 Positive and negative definition of a protected group 134 3.9.4 Mistake of fact 138 3.10 Darfur Commission: imagined group identities 140 3.11 The jurisprudence of the ICC 144 3.11.1 The inclusion of the crime of genocide into the Rome Statute 144 3.11.2 The situation in Darfur 145 3.12 Jurisprudence of the extraordinary chambers in the courts of Cambodia 147 3.13 Overview of all adjudicated cases 153 3.13.1 Summing up the different approaches 153 3.13.2 Graphical illustration of group membership approaches 154 3.14 Interim conclusion 156 4 The concept of race in the law of apartheid 159 4.1 Introduction 159 4.2 The emergence of apartheid policy in South Africa 160 4.3 Apartheid legislation in South Africa 162 4.4 The reaction of the international community to apartheid: UN resolutions dealing with apartheid (1946–1994) 163 4.4.1 Introduction 163 4.4.2 Actions and reactions 1946–1969 163 4.4.3 Actions and reactions 1970–1979 166 4.4.4 Actions and reactions 1980–1994 167 4.5 The crime of apartheid in the apartheid convention 170 4.5.1 Introduction 170 4.5.2 The racial group in the actus reus 172 4.5.3 Reverting to human rights law for the interpretation of international criminal law 177 4.5.4 Interpreting racial discrimination and apartheid by means of the International Convention on the Elimination of Racial Discrimination 179 4.5.5 Contemporary cases of apartheid? 182 4.6 The crime against humanity of apartheid in the Rome Statute 184 4.6.1 The disputed inclusion of apartheid into the Rome Statute 184 4.6.2 The legal elements of the crime 190 4.6.2.1 The meaning of ‘Racial Group’ 190 4.6.2.2 The mens rea of the crime of apartheid 192 4.7 The war crime of apartheid 193 4.8 Apartheid: a crime in customary international law? 195 4.8.1 Introduction 195 4.8.2 Opinio juris 197 4.8.3 State practice 199 4.9 Interim conclusion 202 5 The concept of race in the law of persecution 204 5.1 Introduction 204 5.2 A brief history of the crime of persecution 206 5.2.1 The crime of persecution in post-WWII trials 206 5.2.2 The ILC Draft Codes of Crimes 209 5.3 Jurisprudence of the ad hoc international criminal tribunals 210 5.3.1 Introduction 210 5.3.2 Positioning persecution 213 5.3.2.1 Persecution and genocide 213 5.3.2.2 Persecution and apartheid 217 5.3.3 The mens rea of persecution 218 5.3.4 Defining the victim group of persecution 219 5.3.4.1 Introduction 219 5.3.4.2 Acts of persecution on racial grounds 219 5.3.4.3 Racial group vs racial ground 223 5.3.4.4 The perpetrator’s perception of the victim group 225 5.3.4.5 Positive and negative group definition 228 5.3.4.6 Mistake of fact 229 5.4 The crime against humanity of persecution in the Rome Statute 231 5.4.1 Introduction 231 5.4.2 Art. 21(3) Rome Statute: human rights references for procedural rights only? 232 5.4.3 Identifiable group or collectivity 234 5.4.4 Racial grounds 237 5.4.5 Jurisprudence of the ICC 238 5.5 Jurisprudence of the ECCC 242 5.6 Interim conclusion 246 6 Conclusion 248 Table of legislation 255 Table of cases 257 Table of UN documents and other official publications 269 Table of online sources 277 Bibliography 279 Index 304 Présentation de l'éditeur : "Members of racial groups are protected under international law against genocide, persecution, and apartheid. But what is race - and why was this contentious term not discussed when drafting the Statute of the International Criminal Court? Although the law uses this term, is it legitimate to talk about race today, let alone convict anyone for committing a crime against a racial group? This book is the first comprehensive study of the concept of race in international criminal law. It explores the theoretical underpinnings for the crimes of genocide, apartheid, and persecution, and analyses all the relevant legal instruments, case law, and scholarship. It exposes how the international criminal tribunals have largely circumvented the topic of race, and how incoherent jurisprudence has resulted in inconsistent protection. The book provides important new interpretations of a problematic concept by subjecting it to a multifaceted and interdisciplinary analysis. The study argues that race in international criminal law should be constructed according to the perpetrator's perception of the victims' ostensible racial otherness. The perpetrator's imagination as manifested through his behaviour defines the victims' racial group membership. It will be of interest to students and practitioners of international criminal law, as well as those studying genocide, apartheid, and race in domestic and international law."