Should the Genocide Convention be expanded?

Although the definition of genocide has more or less remained the same since creation of the Genocide Convention, argument has persisted over the groups that should be included within the scope of genocide and how genocide should be defined. This essay assesses the arguments for an expansion of the Genocide Convention.

The Genocide Convention should not be expanded to include other groups. The expansion of the Convention would not see it strengthened, but rather weakened by a watering down of the term.

While it is of course important to hold individuals to account for other horrific acts, such as the Cambodian atrocities, there is no need to expand the Convention in order to use such a law to cover these events. There are many other significant international mechanisms in place, such as humanitarian law and human rights law, in order to successful prosecute those responsible for these horrendous acts. The limitations of the Genocide Convention should not be a reason to ignore other atrocities.

I     Introduction

The protection of groups is at the heart of the Genocide Convention.[1] Since Raphael Lemkin invented the term genocide in the aftermath of the Holocaust, [2] the definition of Genocide has continued to refer to genocide as a crime directed against ‘groups’. The 1948 Genocide Convention further elaborated upon Lemkin’s definition of a ‘nation or…ethnic group’[3] to enumerate ‘national, ethnical, racial or religious’[4] groups as collectives that ought to be protected from the atrocities of mass destruction. While the inclusion of these four groups have remained more or less unchanged within the Convention, debate still remains regarding the addition of other groups in the definition of genocide in order to broaden its use to account for modern day atrocities.

This essay will analyse the various arguments regarding extension of the Genocide Convention to addition groups. First, a history and context of the Convention will be provided, including an analysis of Lemkin’s work and the drafting of the 1948 Convention. Second, the current definition and use of the Convention will be examined to explore how modern day Courts have interpreted the four groups in the Convention. The atrocities of Rwanda and Darfur will be examined to show how the four groups have been interpreted through jurisprudence. The example of Cambodia will show an atrocity in which the Genocide Convention may not apply. Finally, this essay will examine contemporary arguments that the Convention should be expanded to include other groups. It will be shown that while the Genocide Convention is indeed restricted by the four groups, there is enough scope within the interpretation to ensure that Lemkin’s ‘national minorities’ are protected, without the need for redefining the Convention. Furthermore, in cases where the Genocide Convention does not apply, there are a number of other relevant international mechanisms that can be used, such as Crimes against Humanity. The term genocide should be kept within its definition to protect only those that the drafters intended.

II      The History of the Genocide Definition

The Polish Jewish lawyer Raphael Lemkin invented the term ‘genocide’ in 1944 in the aftermath of the Holocaust.[5] He developed the term to adequately define the atrocities committed by Germany in order to establish international law against the future use of such techniques. Lemkin coined the term genocide from the ‘ancient Greek word genos (race, tribe) and the Latin cide (killing).’[6] In regards to the included groups that fall within this new term, Lemkin used the terms ‘nation’ or ‘ethnic group’ in order to categorise the groups that fell within this new term.[7] As will be shown, this narrow definition is reflected in the later Genocide Convention. Lemkin’s intentional limitation to the definition ensured that genocide continued to protect the national minorities that were the targets of such destruction. As Schabas points out:

Lemkin conceived of genocide as a crime committed against ‘national groups’…In his famous study, he associated the prohibition of genocide with the protection of minorities. Lemkin clearly did not intend the prohibition of genocide to cover all minorities, but rather those that had been contemplated by the minorities treaties of the inter-war years.[8]

However, Lemkin does seem to broaden his definition slightly in 1947 when he defines genocide as the ‘extermination of racial, national or religious groups’.[9] Nevertheless, it is clear that a ‘close reading of Lemkin’s writings shows that he viewed the prohibition of genocide as an extension of the protection of what were called ‘national minorities’ in the inter-war treaty regime.’[10]

Lemkin’s term continued to be used in the Nuremburg trials,[11] in which the prosecution attempted to use the term to describe to destruction of the Jewish population of Europe.[12] The description of genocide was employed by the International Military Tribunal which charged Hermann Göring and other major Nazi leaders with:

deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people, and national, racial or religious groups, particularly Jews, Poles, and Gypsies.[13]

However, the Courts rejected the usage and instead qualified the destruction as a crime against humanity.[14] As Lemkin himself affirmed:

the evidence produced at the Nuremburg trial gave full support to the concept of genocide. However, the International Military Tribunal gave a narrow interpretation of its Charter and decided that acts committed before the outbreak of the war were not punishable offences.[15]

As such, an international treaty was needed in order to codify the crime of genocide in international law and to consolidate its definition. At the first session of the General Assembly, 1946, Cuba, Panama and India presented a draft resolution to declare genocide as a crime that could be committed in peacetime as well as in time of war, and to recognise that genocide was subject to universal jurisdiction.[16] The UN General Assembly Resolution 96(I) was adopted on 11 December 1946 and affirmed ‘that genocide is a crime under international law which the civilized world condemns’.[17] The draft of Resolution 96(I) initially ‘spoke of national, racial, ethnical or religious groups, echoing almost exactly the terminology later enshrined in the 1948 Convention.’[18]   However, the final version of Resolution 96(I) changed these groups to ‘racial, religious, political and other groups.’[19] While it is unknown why such a change occurred, some argue that this broader definition shows that genocide should be understood in broader terms, as discussed later. As Schabas points out:

It has subsequently been argued that the presence of ‘political and other groups’ within the 1946 definition suggests the existence of a broader concept of genocide than that expressed in the Convention, one that reflects customary law.[20]

However, Schabas goes on to reject this concept, arguing that the inclusion of ‘political and other groups’[21] was due to the haste of the drafting. Nevertheless, the inclusion of the terms in the UN General Assembly Resolution 96(I) paved way for later arguments for the inclusion of political groups in the genocide definition.

As part of the UN General Assembly Resolution 96 (I), the General Assembly requested Economic and Social Council to develop a ‘draft convention on the crime of genocide’.[22] The original ECOSOC draft of the Genocide Convention contained the terms ‘political and other groups’ in its definition,[23] with the Ad Hoc Committee deciding that it should be included.[24] However, the Sixth Committee of the General Assembly removed the terms in the final stages,[25] due to what Schabas argues was an attempt to appeal to the minority member states in order to facilitate rapid ratification.[26] Lemkin himself, as a consultant to the Secretariat, also directly opposed adding the term ‘political groups’ to the Convention.[27] Such a removal has had large ramifications for later atrocities.

During the drafting of the Convention, the references to ‘ideological, linguistic and economic groups’ were also dropped.[28] However, there was little debate around the final four groups included in the definition.[29] As such, the Convention was left with the now infamous ‘national, ethnical, racial or religious groups.’[30] The Genocide Convention was thus adopted by the United Nations General Assembly on the 9th of December 1948, as part of General Assembly Resolution 260.[31] It was passed by a vote of fifty-six to none.[32]

A question remains as to whether the drafters intended to represent the groups as an exhaustive list. As shown later, it may be argued that remaining groups represent an example of some of the groups that are protected, or more as a guideline. However, Schabas rejects this notion, arguing that ‘there is no doubt that the drafters intended to list the protected groups in an exhaustive fashion.’[33] Indeed, Boas et al. also argue that ‘the sounder legal view appears to be that the groups enumerated in the Convention are exhaustive.’[34]

The history of the definition of genocide shows that the definition of this relatively new term is not entirely agreed upon. Much like the early days of the term, debate still remains around inclusion of particular groups, especially ‘political groups’. Such a decision to exclude the term has had large implications upon the protection from, and prosecution of, acts of atrocities which may now fall outside of the definition of genocide. Much like its drafting history, the definition of genocide still contains a great deal of debate, especially around included groups in the Convention.

III     The Genocide Convention and Protected Groups

The Genocide Convention came into force on 12 January 1951. There are currently 142 States which are party to the Genocide Convention, showing its importance in international law, as well as its acceptance as customary international law.[35] Article 1 of the Genocide Convention establishes that genocide is a crime under international law, whether committed in peace time or war,[36] continuing Lemkin’s legacy of a ‘prohibition of genocide in war and peace.’[37]  Article 2 establishes the four protected groups and the six acts of genocide, namely:

a)      Killing members of the group;

b)     Causing serious bodily or mental harm to members of the group;

c)      Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d)      Imposing measures intended to prevent births within the group;

e)      Forcibly transferring children of the group to another group.[38]

Article 3 establishes a number of associated ‘punishable acts’:

a)      Genocide;

b)     Conspiracy to commit genocide;

c)      Direct and public incitement to commit genocide;

d)      Attempt to commit genocide;

e)      Complicity in genocide.[39]

As the Genocide Convention is recognised as the international definition of genocide, subsequent tribunals have restated the definition in their statutes. These tribunals, including the ‘ad hoc Tribunals, the International Criminal Court (ICC), the East Timor Special Panels for Serious Crimes (SPSC), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Supreme Iraqi Criminal Tribunal (SICT) essentially replicate the language of Article II.’[40]

Of particular importance to this essay is the four protected groups found within the Convention. As discussed above, while the history of the genocide definition included a number of groups to be protected, the final draft of the Convention contains just four, namely: ‘national, ethnical, racial or religious’ groups. Despite calls for these groups to be expanded, as discussed later, these four groups have remained more or less the same for since the creation of the Convention. In order to assess the effectiveness of the Convention and its protected groups, its important to assess how the international legal community has interpreted each of these groups.

A     The Four Protect Groups

At the heart of the genocide convention is the protection of certain ‘groups’. The Akayesu Trial Chamber, as discussed in detail below, provided definitions of each of these four groups found within the Convention.[41] It found 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.’[42] It went on to find that ‘an ethnic group is generally defined as a group whose members share a common language or culture.’[43]

As for racial group, it found that the ‘conventional definition of racial group is based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors.’[44] Finally, for a religious group, the Court found that a ‘religious group is one whose members share the same religion, denomination or mode of worship.’[45] However, the Court failed to cite any authorities for the three out of four of the definition. Other international courts have noted that there is no ‘internationally accepted definition of each of these categories, but have generally followed the approach outlined in Akayesu.’[46]

Many scholars have rejected this approach to define each group individually, and argue for a more overarching interpretation. As Schabas argues, ‘there is a danger that a search for autonomous meanings for each of the four terms will weaken the overarching sense of the enumeration as a whole.’[47] Furthermore, there is still significant debate around the interpretation of these four terms as defined in the Akayesu trial. Many argue that the interpretation has to be read within the common understanding of the time, namely 1948, and together with a historical understanding of the political context of the Convention.[48] Such an interpretation sees the four groups take on significantly different meanings. For example, modern understanding of the term ‘racial’ differs significantly to what was originally conceived during the drafting of the Convention. The Akayesu definition above differs significantly from the 1948 Oxford English Dictionary definition, which classifies a ‘racial group’ as a ‘group of persons, animals, or plants, connected by common descent or origin’.[49]

In addition, the Akayesu Court cited the Nottebohm[50] decision of the International Court of Justice as a definition of ‘national group’.[51] However, this case was concerned with ‘nationality’ in the legal sense, not if Nottebohm was a member of a ‘national group.’ One issue with the term national group is the confusion between ‘nationality’, a legal bond between State and citizen. As the Akayesu decision demonstrates, there is a misunderstanding of the term in modern usage.

The term ‘national group’ was at the heart of Lemkin’s definition of genocide. Lemkin understood the term ‘national group’ as defining ‘national minorities.’ The term ‘national’ had an ‘already well-accepted technical meaning, having been used to describe minorities in the legal regime established in the aftermath of the First World War.’[52] As such, the term was used more as a descriptor of minorities, which to Lemkin were the object of genocide. As such, a modern interpretation of historically understood terms has caused debate about the interpretation of these terms.

Finally, scholars have argued that these four groups are not independent of each other and indeed overlap. It is possible for someone to fall into numerous categories, for example, people of Jewish decent are protected both as an ethnic group and a religious group.[53] As the ICTY recently noted:

National, ethnical, racial or religious groups 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….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 recognized, before the second world war, as ‘national minorities’, rather than to refer to several distinct prototypes of human groups.[54]

Not only do these groups overlap, but they also help to define each other. As Schabas argues, this was the intention of the drafters: ‘the drafters viewed the four groups in a dynamic and synergistic relationship, each contributing to the construction of the other.’[55] As such other courts, in contrast to the Akayesu finding, have emphasised the relationship and co-dependence of the terms. Thus a much better understanding of the four groups is that they point to the protection of Lemkin’s ‘national minorities’ in the broad sense.

B     Groups as Defined by the Perpetrators

There has also been significant debate about the role the perpetrators play in defining a group. As the Genocide Convention states, the perpetrator must have ‘intent to destroy, in whole or in part,’[56] a protected group. Thus a number of tribunals have considered the whether the group must exist as an objective matter or whether the group was perceived to exists by relevant parties.[57] While the Akayesu Court chose the later, later Courts have opted for a more nuanced view.[58] The Kayishema and Ruzindana trial found that intent must exist to

“destroy a national ethnic racial or religious group, as such. Thus, the acts must be directed towards a specific group on the discriminatory grounds. An ethnic group is one whose member share a common language and culture; or a group which distinguishes itself as such (self identification), a; group identified as such by others including perpetrators of the crimes (identification by others).[59]

As such, identification of a group may come from the perpetrators. On one level, this may be helpful in prosecuting and protecting against genocide, as it is often the perpetrators who define the groups. For example, the Nazis had detailed rules establishing, according to objective criteria, who was Jewish and who was not. ‘It made no difference if the individual, perhaps a non-observant Jew of mixed parentage, denied belonging to the group.’[60] In a similar vein, the Tutsis and Hutus were defined as such by government issues identity cards, irrespective of scientific observation as to their racial or ethnic differences. As Boas et al. affirm,

The differences between ‘Tutsi’ and ‘Hutu’, or ‘Bosnian Serb’ and ‘Bosnian Muslim’, are more socially and historically manufactured than the sort of permanent or immutable characteristic that is intended to define the protected groups…What matters ultimately…is the manner in which a group views itself and is treated by others.

Furthermore, in Rutaganda, the Trial Chamber noted that

‘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.’[61]

As Quigley notes, this is a new approach not found within the Genocide Convention: ‘This interpretive approach taken by the various trial chambers involves subjectivity – on the part of the perpetrators as well as on the part of the victims and the general community – to construe the meaning of the four types of groups listed in Article 2.’[62] However, ‘it seems doubtful that the trial chambers would find a purported group to exist without objective factors.’[63]

Thus, as Boas et al. point out,[64] the Chamber qualified this statement by observing that ‘a subjective definition alone is not enough to determine victim groups’[65], and ultimately held that ‘in assessing whether a particular group may be considered as protected from the crime of genocide, it [would] proceed on a case-by-case basis, taking into account both the relevant evidence proffered and the political, social and cultural context’.[66]

An overview of the jurisprudence shows that while a group may be perceived as belonging to the targeted group, there must also be objective evidence to define the members of the group as such.[67] Furthermore, such a test does not create new groups, and the victims still must have been perceived to be within one of the four groups.

Therefore while the Genocide Convention remains with the four groups, there is scope for such groups to be broadened in some contexts. This will be shown below through a number or relevant case studies.

IV     Groups Protected by the Genocide Convention

The following case studies of Rwanda and Darfur will examine how different courts have interpreted the Genocide Convention to include victims of these horrific atrocities as members of one of the four groups. Such examples will be used to show how the Genocide Convention works to protect such groups, as well as showing how different Courts have interpreted the Convention.

A     The Rwandan Genocide

During a 100 day violent massacre, between April and June 1994, approximately 800,000 Tutsi and between 10,000 and 30,000 Hutu, or 11 per cent of Rwanda’s total population, had been killed.[68] The genocide was a result of a culmination of longstanding ethnic tensions between Hutus and Tutsis – the two major people groups of Rwanda, and ongoing political issues in the country. The genocide was triggered by the death of the Rwandan President Juvenal Habyarimana, a Hutu, when his plane was shot down on 6 April 1994.[69] However, the ethnic tension had been caused long before, dating back to Belgian colonisation.

The origin of Hutu and Tutsi ethnicity is debated,[70] yet the Belgians, for administrative purposes, classified the Rwandans into groups in order to more effectively govern and control the country. ‘The Rwandan Tutsis are, it is widely believed, descendants of Nilotic herders, whereas the Rwandan Hutus are considered to be of ‘Bantu’ origin from South and Central Africa.’[71] The Tutsis were also historically pastoralists and cattle raisers, while the Hutus were cultivators. As most people married within the occupation group in which they had been raised, this practice created a shared gene pool within each group, which meant that over generations pastoralists Tutsis came to look more like other pastoralists—tall, thin and narrow-featured—and Hutus like other cultivators—shorter, stronger, and with broader features.[72] However, Rwandan Tutsis and Hutus speak the same language, practice the same religions, and have essentially the same culture.[73]

The Belgians considered the Tutsis to be superior to the Hutus, stemming from an incorrect assumption base that the Tutsi were wealthier and smarter.[74] As such, the Tutsi were given position of power in the government, while the Hutu were denied positions of power and excluded from higher education.[75] In order to facilitate this separation, the Belgians developed identity cards which identified people according to their ‘ethnicity’.

Some 15 percent of the population declared themselves Tutsi, approximately 84 percent said they were Hutu, and the remaining 1 percent said they were Twa. This information was entered into records at the local government office and indicated on identity cards which adult Rwandans were then obliged to carry.[76]

Such a separation and discrimination caused deep-set social issues between the groups. As Forges and Alison Liebhafsky point out, by ‘assuring a Tutsi monopoly of power, the Belgians set the stage for future conflict in Rwanda.’ ‘Resentment among the Hutus gradually built up, culminating in a series of riots in 1959. More than 20,000 Tutsis were killed, and many more fled to the neighbouring countries of Burundi, Tanzania and Uganda.’[77] The Belgians relinquished power over Rwanda in 1962, and the Hutus took control, switching the balance of power.

Those Tutsis who had fled in 1959 formed the Rwandan Patriotic Front (RPF), which aimed to overthrow the Hutu government and return to their homeland.[78] RPF invaded Rwanda from Uganda in 1990, causing an ongoing civil war.[79] While a peace accord was established there was still significant unrest, with the remaining Tutsis in Rwanda labelled as RPF supporters. After the assassination of the president Juvenal Habyarimana, tensions erupted between the groups with the Hutu leaders seeking retribution.

The genocide that took place over the next 100 days involved brutal systematically slaughtering of Tutsis and Hutu moderates by the Hutus. Led by the ideologies of ‘Hutu Power’, large numbers of the general Hutu public were also incited into committing the violence against the Tutsis. The public radio station RTML played a vital role in inciting the genocide a virtually coordinating the attacks.[80] The international community stood mostly idly by, despite many calls for intervention. The genocide ended on July 4 1994 when the Tutsi RPF took control of the capital Kigali.

In the aftermath of the genocide, the International Criminal Tribunal for Rwanda (ICTR) was established in order to prosecute those responsible for the genocide and other violations of international law. It was established by UN Security Council Resolution 977,[81] which set up the Courts in Arusha, Tanzania. The texts of the Genocide Conention are reflected verbatim in the Statute of the International Criminal Tribunal for Rwanda.[82] Rwanda also established local Gacaca Courts, which focused on a more local ‘truth and reconciliation’ model to deal with the large scale involvement of civilians.[83]

The following ICTR cases will examine how a number of trials have attempted to define the atrocities in Rwanda as a genocide, especially in regards to the four groups.

1      Akayesu

In its September 2, 1998 decision in Akayesu, spent significant consideration on the enumeration of protected groups in Article 2 of the Genocide Convention. The classification of Tutsis, as described above, was of significant debate. The issue was whether the Tutsi population could fit into one of the four protected groups. The word ‘ethnic’, as described by the Trail Chamber as a group whose members share a common language or culture,[84] came closest, yet it was also difficult because Tutsis could not be meaningfully distinguished, in terms of language and culture, from the majority Hutu population.[85]

As the Court established that as the Tutsis could not be established into either of the four groups, the Court found that the Convention could still extend to certain other groups. As the Court found:

On reading through the travaux préparatoires of the Genocide Convention, it appears that the crime of genocide was allegedly perceived as targeting only ‘stable’ groups, constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more ‘mobile’ groups which one joins through individual voluntary commitment, such as political and economic groups. Therefore, a common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.[86]

Thus the Court established the concept of ‘stable groups’ to describe a permanent membership to a group that may be outside of the four enumerated groups in the Convention. The Court went on to establish that:

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.[87]

Thus the Court found that while the Tutsis did not fit into either of the four groups in the Convention, because of their membership to a stable group, they are to be protected under the Convention.

As such, the Court established a new criteria of membership of a ‘stable and permanent’ group not found within the Convention. The Court based its findings on what they argued was the drafting of the Convention. However, there is significant debate as to whether such a decision was sound. As Schabas argues, if the drafters of the convention intended for the convention to apply to all stable and permanent groups, why did they just note state so in the Convention?[88] As shown above, the drafters went through a great deal of discussion regarding the included four groups.

Second, there is a large error of logic in the Courts finding of the reasons for the inclusion of ‘stable and permanent groups’. If the Convention is designed to protect only stable groups, why are two of the four enumerated groups not actually permanent? The inclusion of religious and national groups in the Convention clearly contradicts the Courts assumption. The Universal Declaration of Human Rights,[89] adopted the day after the Genocide Convention, proclaims that everyone has the right ‘change his nationality’[90] and the ‘freedom to change his religion’.[91] Thus is seems contradictory to proclaim that the Genocide Convention protects only ‘stable and permanent groups’ when nationality and religion are indeed not stable or permanent.

Schabas argues that the reason the Court felt forced to reach for this new term is because of their error in interpreting the term ‘racial groups.’ As discussed above, the Court found that the term ‘racial groups’ referred to ‘hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors.’[92] However, Schabas alleges that this was an incorrect interpretation, with the correct interpretation taking account of the terms usage of its day:

General discomfort with the term ‘racial group’ may explain why the International Criminal Tribunal for Rwanda…was reluctant to classify the Tutsi as a racial group. The general conception of Tutsi within Rwanda is based on hereditary physical traits, even though these may be difficult to distinguish in many cases… This definition, adopted by the Tribunal in 1998, is considerably more restrictive than the recognized meaning of the term ‘racial’ in 1948… it is unquestionable that the meaning of “racial groups” was much broader at the time of the drafting of the Convention, when it was to a large extent synonymous with national, ethnic, and religious groups.[93]

Had the Court correctly interpreted the term ‘racial’, according to Schabas, perhaps they would not have needed to stretch for this new term. However, the Court’s invention of the term ‘stable and permanent’ group has remained within the jurisprudence of the Convention, albeit mostly ignored by other Trial Chambers.[94]

2      Kayeshema

Another Court which had difficulty in to defining the Tutsis as an ethnic group was the Kayeshema Trial Chambers. However, unlike Akayesu, the Court did not refer to the term ‘stable and permanent’ in defining groups under the Convention. Instead, the Court opted for a subjective approach, where the victims, the perpetrators or others, define the group. As discussed briefly above, this view considers how the victim was perceived, rather than an objective test. While the Court first considered if the Tutsis were a distinct ethnic group, much like the Akayesu case, they found that the shared language and culture of the Hutus made it difficult to define them as such. However:

Looking beyond the shared language and culture of the Hutu and the Tutsi, however, the chamber found that the Tutsi satisfied the second, more subjective definition of an ethnic group, primarily because the Rwandan government viewed them as having a distinct ethnicity.[95]

From this test, the Court concluded that the Tutsis were an ethnic group based on the existence of government issued identity cards describing them as such.[96]

The subjective test must still be based on one of the four groups in the Convention, and thus the Kayeshama decision does not seek to create any new groups for the convention. Thus, especially in practice, the test is ‘largely academic, as the ICTR chambers have universally concluded that the Tutsi victims were part of a distinct ethnic group.’[97]

As such, the Rwandan genocide does meet the criteria of the Genocide Convention, albeit with some hesitation from the Akayesu Trial Chambers. The Rwandan Tutsis either fit within the definition of an ethnic group, as based on both a subjective and objective test, or they fit within the wider interpretation of a ‘stable and permanent group’ as outlined in Akayesu.

B     Darfur

The case of Darfur is a rather mixed debate. While many argue that the groups in Darfur do indeed come under the Genocide Convention, others have found that there was no genocide in Darfur. The Darfur region, in Sudan, involved a massive campaign of ethnic violence that has claimed the lives of more than 70,000 civilians and uprooted an estimated 1.8million more since February 2003.[98] The war in Darfur was sparked by ‘violent conflicts that have their origins in the competition between African farmers and Arab herders for control over arable land that has been receding as the result of drought and desertification.’[99] As Straus notes:

Much of the public debate in the United States and elsewhere, however, has focused not on how to stop the crisis, but on whether or not it should be called a ‘genocide’ under the terms of the Genocide Convention.[100]

While the United States has labelled the conflict a genocide,[101] there is still considerate debate as to whether such an act took place. One key point in the debate rested on whether the victims were members of a protected group. On 18 September 2004, the UN Security Council called upon the Secretary General to set up an International Commission of Inquiry (ICI),[102] ‘whose mandate was to investigate violations of international humanitarian law and human rights law, to determine whether genocide has taken place.’[103]

On 23 January 2005, The ICI found that the various 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).’[104] However, the Court went on to adopt the subjective approach taken in Kayeshema to argue that the two groups ‘perceived each other and themselves as constituting distinct groups’.[105] As such, it found that ‘it may be considered that the tribes who were victims of attacks and killings subjectively make up a protected group.’[106]

However, despite this finding that the victims constitute a ‘protected group’, there have been many other arguments that the attacks did not constitute genocide. The various reasons given include the lack of ‘genocidal intent’ or lack of ‘government policy’,[107] which are outside the scope of this essay.

V     Groups Outside the Genocide Convention

While the Genocide Convention protects the four enumerated groups – and possibly stable and permanent groups – there are a number of events in which the acts committed against a people group may fall outside the Convention. The following case of Cambodian will highlight this supposed blind spot in the Genocide Convention in regards to ‘political groups’.

A     Cambodia

Many have argued that Genocide took place in Cambodia between April 17, 1975 and January 7, 1979.[108] In that time, approximately two million people – almost one fifth of the population – were exiled or killed by execution, starvation or forced labour.[109] However, the atrocities that took place in Cambodia were said to have been directed mostly against a ‘political group’, not one of the four groups within the Genocide Convention. As discussed above, the drafters, and Lemkin himself, directly removed the concept of political genocide from international law.

The Cambodian events started at the end of the Cambodian Civil War, which allowed the repressive regime, the Khmer Rouge to take power almost without challenge.[110] Upon taking power, the Khmer Rouge initiated a campaign to create a ‘New Cambodia’:

The draconian measures instituted by the Khmer Rouge regime in the quest for the ‘New Cambodia’ included the liquidation of the Lon Nol army and members of the former regime; the extermination of the elite and educated; a complete evacuation of the urban centres; the incineration of books, libraries, banks, places of worship, and university facilities; the criminalization of the usage of foreign languages; the abolition of money, private property, markets, wages, and salaries; the dissolution of families and the separation of children from their parents; the execution of ethnic minorities; the prohibition of religious practice and education; and the systematic hunt for real and imagined political opponents.[111]

It is generally undebated that genocide was committed against the small number of various ethnic minorities, such as Chinese or Vietnamese, in an attempt to ‘purify’ Cambodia.[112] However, what is still debated is whether the Pol Pot regime’s attack on the political opponents (of the same ethnicity) should be considered genocide. As many of the attacks were aimed at the opposition party and suspected supporters, these do not fit the Convention definition of genocide. However there are a number of arguments that the Convention, or customary international law should include political groups.

The United States declared the attacks in Cambodia as genocide in 1994, stating: ‘the persecution of the Cambodian people under the Khmer Rouge rule, [when] the bulk of the Khmer people were subject to life in an Asian Auschwitz, constituted one of the clearest examples of genocide in recent history’.[113]

Likewise, some have argued that what occurred against the political opponents in Cambodia constituted ‘auto-genocide’ – the mass killing of members of the group in which the perpetrators belong.[114] This concept was put forward by the UN rapporteur, Abdelwahab Bouhdiba, in which he argued that Khmer on Khmer attacks constituted genocide.[115] However, the question of intent still remains, as it is not clear that the Pol Pot regime killed the opposition because they were Khmer, but more likely for political reasons.

As such, it needs to be questioned if the atrocities that took place in Cambodia constituted genocide, or rather fit more correctly with other international laws, such as the crime against humanity. It is unlikely that such a reading, in line with previous jurisprudence, would be able to find that genocide, according to the Convention, has taken place against Khmer people. As outlined above, genocide must be committed against one of the protected groups, or a combination of such. The other interpretations offered by the ICTR, such as a subjective test or a ‘stable and permanent group’ also do not capture the atrocities of Cambodia. This is one of the vital decisions that will need to be considered by the Extraordinary Chambers of the Courts of Cambodia in their trials of former Khmer Rouge leaders.[116]

VI     Arguments to Expand the Genocide Convention

Examples such as the Cambodian atrocities and to a less extent the Darfur atrocities have led many people to argue for a change to the Genocide Convention in order to broaden the its scope. Such arguments range from a complete overhaul of the Convention, to a wider use of interpretation and the use of customary international law. The following will consider some of these arguments and explore possibilities for reform.

A     The Use of Jus Cogens

The use of jus cogens to widen the Genocide convention has been proposed by a number of international scholars and advocates. This approach argues that the customary international prohibition of genocide is wider than the Convention approach. As Schaack argues:

While the Genocide Convention establishes a particular regime to prohibit genocide, it does not represent the entirety of international law on the subject. Rather, the jus cogens prohibition of genocide, which predates the drafting of the Genocide Convention, provides broader protection than the Convention itself. Political compromises, such as those that occurred during the drafting of the Genocide Convention, cannot limit jus cogens norms.[117]

Furthermore, this approach argues that the jus cogens norms are in fact more superior to treaty law, in accordance with the Vienna Convention,[118] and thus are binding and non-derogable.[119] Instruments such as Resolution 96(I),[120] point to the wider acceptance of political genocide in jus cogens: ‘The full scope of the jus cogens prohibition finds expression in the original and unanimous General Assembly resolution condemning the crime of genocide.’[121] Proponents of this argument also point to national legislations that contain the inclusion of political groups in the definition of genocide.[122] Finally, they also point to the ‘popular understanding’ of the term genocide.[123]

Such an argument may be correct, however, customary international law is a very grey area. While this argument may be sound, it has yet been tested in an international court. Such a debate is needed in order to clarify the position of jus cogens in regard to genocide. Possibly due to the prevalence of the Convention, prosecution under customary international law has largely been ignored.

B     Change of Genocide Definition

The other arguments for a wider Genocide Convention call for new definitions amended onto the Convention in order to expand the prohibition. The most extreme arguments argue for the Convention to apply to ‘any and all groups’.[124]   Drost argues that

a convention on genocide cannot contribute to the protection of certain described minorities when it is limited to particular defined groups…It serves no purpose to restrict international legal protection to some groups; firstly, because the protected members always belong at the sae time to other unprotected groups.[125]

Calls for a widening of the Convention do not adequately address which groups the convention should be widened to. While the debate regarding jus cogens for political groups may be valid, what other groups should be included and why? How long can one extend the meaning of genocide until the word simply applies to all murders of two or more? While all murders, war crimes and atrocities are to be prohibited and legislated against, it is important to keep the definition of genocide to the groups it was originally intended to protect. If the Convention is widened to included political groups, what about disabled people, lawyers, politicians or any other kind of group?

Others have argued that the purpose of the Convention is to stir up humanitarian intervention.[126] Such arguments point to the failure of the international community to intervene in Rwanda and Darfur, because of the lack of an early consensus of genocide. As Straus argues: ‘So far, the convention has proven weak. Having been invoked, it did not – contrary to expectations – electrify international efforts to Intervene in Sudan.’[127] Indeed, the Genocide Convention was envisioned as a tool for humanitarian intervention. As Lemkin asserted: ‘By declaring genocide a crime under international law and by making it a problem of international concern, the right of intervention on behalf of minorities slated for destruction has been established.’[128]

However, as international criminal law now has a number of other substantive legal mechanisms, there is less need for every conflict to be labelled as genocide in order to call for international intervention. Furthermore, on a moral level, there should be no less hesitation to intervene simply because the victims being attacked do not constitute a protected group under the convention. Even if a political, gender, age, disability or occupational group is being persecuted, the international community should not simply stand by because it does not meet the Genocide Convention. The Genocide Convention is no longer the only legal obligation for an international community to intervene, and thus shouldn’t be extended for the sake of political pressure.

VII     Conclusion

The Genocide Convention should not be expanded to include other groups. The expansion of the Convention would not see it strengthened, but rather weakened by a watering down of the term. ‘Diluting the definition, either by formal amendment of its terms or by extravagant interpretation of the existing text, risks trivializing the horror of the real crime when it is committed.’[129] The Convention accurately protects those it was intended to – national minorities. Such minorities are not any more special, nor more worthy of protection, but rather define what has on a number of occasions been specifically targeted though mass atrocities. Genocide was invented to describe to horrors of the holocaust and subsequent atrocities like it.

While there is a concern that groups that ought to be protected – for example Tutsis in Rwanda or tribal groups in Darfur – may fall outside of the Convention, the jurisprudence of the Courts show that the interpretation of the Convention is just wide enough to capture them, while not too wide to water down the entire Convention. The cases above show that it is important that the interpretation of the four groups does not focus too closely on interpreting the exact meaning of each term, but rather assess the four groups as a whole. The cases from ICTR show that the Convention can be broad enough protect the exact groups Lemkin had it mind.

While it is of course important to hold individuals to account for other horrific acts, such as the Cambodian atrocities, there is no need to expand the Convention in order to use such a law to cover these events. There are many other significant international mechanisms in place, such as humanitarian law and human rights law, in order to successful prosecute those responsible for these horrendous acts. The limitations of the Genocide Convention should not be a reason to ignore other atrocities.

The Genocide Convention should remain in tact in order to adequately define and protect against such horrific events that the international community deemed important enough to define as genocide. As Schabas argues:

The definition is a narrow one, it is true, but recent history has disproven the claim that it was too restrictive to be of any practical application. For society to define a crime so heinous that it will occur only rarely is testimony to the value of such a precise formulation.[130]

VIII     Bibliography

A     Articles/Books/Other

Boas, Gideon, James L Bischoff and Natalie L Reid, Elements of Crimes Under International Law (Cambridge University Press, 2008) vol 2

‘Developments in the Law: International Criminal Law’ (2001) 114 Harvard Law Review 1943

Drost, Pieter Nicolaas, The Crime of State (Sythoff, 1959)

Forges, Des and Alison Liebhafsky, Genocide in Rwanda: The Planning and Execution of Mass Murder (Human Rights Watch, 1999) <http://www.refworld.org/docid/45d425512.html&gt;

Henham, Ralph and Paul Behrens, The Criminal Law of Genocide: International, Comparative and Contextual Aspects (Ashgate Publishing Ltd, 2008)

Lemkin, Raphael, Axis Rule in Occupied Europe (Carnegie Endowment for International Peace, 1944)

Lemkin, Raphael, ‘Genocide as a Crime Under International Law’ (1947) 41 The American Journal of International Law 145

Magnarella, PJ, ‘The Background and Causes of the Genocide in Rwanda’ (2005) 3 Journal of International Criminal Justice 801

Nersessian, David L, ‘Razor’s Edge: Defining and Protecting Human Groups Under the Genocide Convention, The’ (2003) 36 Cornell Int’l LJ 293

Quigley, John B, The Genocide Convention: An International Law Analysis (Ashgate, 2006)

Rodman, Kenneth A, ‘Darfur and the Limits of Legal Deterrence’ (2008) 30 Human Rights Quarterly 529

‘Rwanda: How the Genocide Happened’ BBC, 17 May 2011 <http://www.bbc.co.uk/news/world-africa-13431486&gt;

Schaack, Beth van, ‘The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot’ (1997) 106 The Yale Law Journal 2259

Schabas, William A, ‘Groups Protected by the Genocide Convention: Conflicting Interpretations from the International Criminal Tribunals for Rwanda’ (1999) 6 ILSA Journal of International & Comparative Law 375

Schabas, William A, ‘Hate Speech in Rwanda: The Road to Genocide’ (2000) 46 McGill Law Journal 141+

Schabas, William A, Genocide in International Law: The Crime of Crimes (Cambridge University Press, 2nd ed, 2009)

Straus, Scott, ‘Darfur and the Genocide Debate’ (2005) 84 Foreign Affairs 123

Verpoorten, Marijke, ‘The Intensity of the Rwandan Genocide: Measures from the Gacaca Records’ (2012) 18 Peace Economics, Peace Science and Public Policy

Schabas, William A, ‘Convention for the Prevention and Punishment of the Crime of Genocide’

B     Cases

France et al. v. Goering et al., (1946) 22 I.M.T.203, 13 I.L.R. 203, 41 A.J.I.L. 172, 45-6 (I.M.T.).

International Military Tribunal Indictment No. 1, in Trial of Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946 (1947), vol. II, 45-6 (emphasis added)

Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ), 6 April 1955.

Prosecutor v Krstic, Case No. IT-98-33 (ICTY Trial Chamber Aug. 2, 2001).

Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998.

Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgement and Sentence, 6 December 1999.

The Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Judgement), ICTR-95-1-T, International Criminal Tribunal for Rwanda (ICTR), 21 May 1999.

C     International Instruments

Commission on Human Rights, 35th sess., 1510th meeting, Question of the violation of human rights and fundamental freedoms in any part of the world, p. 7, UN Doc. E/CN.4/SR.1510 (1979)

Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, entered into force 12 January 1951, 78 UNTS 277.

General Assembly Resolution 260A(III), UN Doc. A/RES/260 (1948).

General Assembly Resolution 96(I), UN Doc. A/RES/96(I) (1946).

Report of the International Commission of Inquiry on Darfur on Violations of International Humanitarian Law and Human Rights Law in Darfur, UN Doc. S/2005/60.

Security Council Resolution 1564, UN Doc S/RES/1564, 18 September 2004.

Security Council Resolution 955, UN Doc S/RES/955, 8 November 1994.

Security Council Resolution 977, UN Doc S/RES/977, 22 February 1995.

UN General Assembly, Universal Declaration of Human Rights (‘Universal Declaration’), 10 December 1948, GA resolution 217A(III), UN Doc A/810.

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).


[1] Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, entered into force 12 January 1951, 78 UNTS 277 (‘Genocide Convention’).

[2] Raphael Lemkin, Axis Rule in Occupied Europe (Carnegie Endowment for International Peace, 1944).

[3] Ibid 79.

[4] Genocide Convention, art 2.

[5] Lemkin, Axis Rule in Occupied Europe, above n 2.

[6] Ibid 79.

[7] Ibid.

[8] William A Schabas, ‘Groups Protected by the Genocide Convention: Conflicting Interpretations from the International Criminal Tribunals for Rwanda’ (1999) 6 ILSA Journal of International & Comparative Law 375, 386.

[9] Raphael Lemkin, ‘Genocide as a Crime Under International Law’ (1947) 41 The American Journal of International Law 145, 147.

[10] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 376.

[11] France et al. v. Goering et al., (1946) 22 I.M.T.203, 13 I.L.R. 203, 41 A.J.I.L. 172, 45-6 (I.M.T.).

[12] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 377.

[13] International Military Tribunal Indictment No. 1, in Trial of Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946 (1947), vol. II, 45-6 (emphasis added), see Gideon Boas, James L Bischoff and Natalie L Reid, Elements of Crimes Under International Law (Cambridge University Press, 2008) vol 2, 145.

[14] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 377.

[15] Lemkin, ‘Genocide as a Crime Under International Law’, above n 9, 147–8.

[16] William A Schabas, ‘Convention for the Prevention and Punishment of the Crime of Genocide’ 1.

[17] General Assembly Resolution 96(I), UN Doc. A/RES/96(I) (1946).

[18] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 377.

[19] General Assembly Resolution 96(I), UN Doc. A/RES/96(I) (1946).

[20] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 377.

[21] General Assembly Resolution 96(I), UN Doc. A/RES/96(I) (1946).

[22] Ibid.

[23] Boas, Bischoff and Reid, above n 13, 148.

[24] William A Schabas, Genocide in International Law: The Crime of Crimes (Cambridge University Press, 2nd ed, 2009) 74.

[25] Ibid 82.

[26] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 382.

[27] Ibid 377.

[28] Schabas, Genocide in International Law, above n 24, 117.

[29] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 377.

[30] Genocide Convention, art 2.

[31] General Assembly Resolution 260A(III), UN Doc. A/RES/260 (1948).

[32] Schabas, Genocide in International Law, above n 24, 90.

[33] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 377.

[34] Boas, Bischoff and Reid, above n 13, 148.

[35] Ibid 151.

[36] Genocide Convention, art 1.

[37] Lemkin, Axis Rule in Occupied Europe, above n 2, 90.

[38] Genocide Convention, art 2.

[39] Ibid, art 3.

[40] Boas, Bischoff and Reid, above n 13, 140.

[41] Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, 2 September 1998 (‘Akayesu Trial Judgement’), para 512-5.

[42] Ibid, para 512.

[43] Ibid, para 513.

[44] Ibid, para 514.

[45] Ibid, para 515.

[46] Boas, Bischoff and Reid, above n 13, 171.

[47] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 386.

[48] Ibid 381.

[49] Ibid.

[50] Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ), 6 April 1955,

[51] Akayesu Trial Judgement, para 512.

[52] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 386.

[53] David L Nersessian, ‘Razor’s Edge: Defining and Protecting Human Groups Under the Genocide Convention, The’ (2003) 36 Cornell Int’l LJ 293, 303.

[54] Prosecutor v Krstic, Case No. IT-98-33 (ICTY Trial Chamber Aug. 2, 2001) 9l557, para 555, emphasis added.

[55] Schabas, Genocide in International Law, above n 24, 130.

[56] Genocide Convention, art 2.

[57] John B Quigley, The Genocide Convention: An International Law Analysis (Ashgate, 2006) 153.

[58] Boas, Bischoff and Reid, above n 13, 174.

[59] The Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Judgement), ICTR-95-1-T, International Criminal Tribunal for Rwanda (ICTR), 21 May 1999, para 98.

[60] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 383.

[61] Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgement and Sentence, 6 December 1999 (‘Rutaganda Trial Judgement’), para 56.

[62] Quigley, above n 57, 155.

[63] Ibid.

[64] Boas, Bischoff and Reid, above n 13, 175.

[65] Rutaganda Trial Judgement, para 57.

[66] Ibid, paras 58, 373.

[67] Boas, Bischoff and Reid, above n 13, 175.

[68] PJ Magnarella, ‘The Background and Causes of the Genocide in Rwanda’ (2005) 3 Journal of International Criminal Justice 801, 816.

[69] ‘Rwanda: How the Genocide Happened’ BBC, 17 May 2011 <http://www.bbc.co.uk/news/world-africa-13431486&gt;.

[70] Magnarella, above n 68, 803.

[71] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 378.

[72] Des Forges and Alison Liebhafsky, Genocide in Rwanda: The Planning and Execution of Mass Murder (Human Rights Watch, 1999) <http://www.refworld.org/docid/45d425512.html&gt;.

[73] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 379.

[74] Forges and Liebhafsky, above n 72.

[75] Ibid.

[76] Ibid.

[77] ‘Rwanda: How the Genocide Happened’, above n 69.

[78] Ibid.

[79] William A Schabas, ‘Hate Speech in Rwanda: The Road to Genocide’ (2000) 46 McGill Law Journal 141+, 143.

[80] Ibid 146.

[81] Security Council Resolution 977, UN Doc S/RES/977, 22 February 1995

[82] Security Council Resolution 955, UN Doc S/RES/955, 8 November 1994

[83] Marijke Verpoorten, ‘The Intensity of the Rwandan Genocide: Measures from the Gacaca Records’ (2012) 18 Peace Economics, Peace Science and Public Policy 1.

[84] Akayesu Trial Judgement, para 513.

[85] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 378.

[86] Akayesu Trial Judgement, para 511.

[87] Ibid, para 516.

[88] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 380.

[89] UN General Assembly, Universal Declaration of Human Rights (‘Universal Declaration’), 10 December 1948, GA resolution 217A(III), UN Doc A/810.

[90] Ibid, art 15.

[91] Ibid, art 18.

[92] Akayesu Trial Judgement, para 514.

[93] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 380–1.

[94] Schabas, Genocide in International Law, above n 24, 153.

[95] ‘Developments in the Law: International Criminal Law’ (2001) 114 Harvard Law Review 1943, 2016.

[96] The Prosecutor v. Clément Kayishema and Obed Ruzindana, para 652.

[97] Boas, Bischoff and Reid, above n 13, 176.

[98] Scott Straus, ‘Darfur and the Genocide Debate’ (2005) 84 Foreign Affairs 123, 123.

[99] Kenneth A Rodman, ‘Darfur and the Limits of Legal Deterrence’ (2008) 30 Human Rights Quarterly 529, 540.

[100] Straus, above n 98, 123.

[101] Ibid.

[102] Security Council Resolution 1564, UN Doc S/RES/1564, 18 September 2004.

[103] Rodman, above n 99, 544.

[104] Report of the International Commission of Inquiry on Darfur on Violations of International Humanitarian Law and Human Rights Law in Darfur, UN Doc. S/2005/60, para 508.

[105] Ibid, para 509.

[106] Ibid, para 512.

[107] Ralph Henham and Paul Behrens, The Criminal Law of Genocide: International, Comparative and Contextual Aspects (Ashgate Publishing Ltd, 2008) 42.

[108] Beth van Schaack, ‘The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot’ (1997) 106 The Yale Law Journal 2259.

[109] Ibid 2261.

[110] Ibid 2269.

[111] Ibid.

[112] Ibid 2270.

[113] See Schabas, Genocide in International Law, above n 24, 138–9.

[114] Ibid 138.

[115] Commission on Human Rights, 35th sess., 1510th meeting, Question of the violation of human rights and fundamental freedoms in any part of the world, p. 7, UN Doc. E/CN.4/SR.1510 (1979)

[116] Schabas, Genocide in International Law, above n 24, 139.

[117] Schaack, above n 108, 2272.

[118] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), 344.

[119] Ibid 2273.

[120] General Assembly Resolution 96(I), UN Doc. A/RES/96(I) (1946).

[121] Schaack, above n 108, 2280.

[122] Ibid 2282.

[123] Ibid 2284.

[124] Schabas, Genocide in International Law, above n 24, 118.

[125] Pieter Nicolaas Drost, The Crime of State (Sythoff, 1959) 122–3.

[126] Straus, above n 98, 132.

[127] Ibid 124.

[128] Lemkin, ‘Genocide as a Crime Under International Law’, above n 9, 150.

[129] Schabas, ‘Groups Protected by the Genocide Convention’, above n 8, 387.

[130] Ibid 386–7.

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