Prosecuting International Crimes in Africa - PULP - University of ...

66 Chapter 3
pioneering effort in an area without or with very limited existing
precedents. According to the ICTR, an ethnic group is a group ‘whose
membership shares a common language or culture’. 11 A racial group is
based on hereditary physical traits often identified with a geographical
region, irrespective of linguistic, cultural, national or religious factors. 12 A
national group is ‘a collection of people who are perceived to share a legal
bond based on a common citizenship, coupled with reciprocity of rights
and duties’. 13 With respect to a religious group, the ICTR took the position
that it is ‘one whose members share the same religion, denomination or
mode of worship’. 14
The ICTR’s positions have generated controvercy. For instance, it has
been argued that all the four groups are interrelated and that the drafters of
the provisions of the Genocide Convention, which the ICTR Statute
mirrors, did not seek to assign individual meanings to each of the four
groups. 15 Nevertheless, the ICTR’s jurisprudence constitutes an important
effort underscoring the idea that group victims of genocide are not abstract,
but must have a real existence. Although not offering definitions of the
elements of each of the four groups, the International Criminal Court,
invoking inter alia the Akayesu precedent, has recently stressed that: 16
[The] targeted group must have particular positive characteristics (national,
ethnic, racial or religious), and not a lack thereof. In this regard it is important
to highlight that, the drafters of the 1948 Genocide Convention gave close
attention to the positive identification of groups with specific distinguishing
well established, some said immutable, characteristics. It is therefore, a matter
of who the targeted people are, and not who they are not. As a result, the
majority considers that negative definitions of the targeted group do not
suffice for the purpose of article 6 of the Statute.
Furthermore, in an apparent endorsement of the Akayesu and other ICTR
precedents on the importance of identifying positive criteria defining each
of the groups, the ICC observed that while the three target groups (the Far,
Masalit and Zaghawa) shared Sudanese nationality and Islamic religion,
each of them possessed its language, tribal customs and its own traditional
links to its lands, and each thus constituted a distinct ethnic group. 17 From
the ICTR’s jurisprudence, which appears to inspire the ICC, it is clear that
the proscription of the crime of genocide protects groups with real
11 Prosecutor v Akayesu para 513; Prosecutor v Kayishema and Ruzindana (Case ICTR-95-1-T)
Judgment and Sentence, 21 May 1999 para 98.
12 Prosecutor v Akayesu para 514; Prosecutor v Kayishema and Ruzindana (as above).
13 Prosecutor v Akayesu para 512; Prosecutor v Kayishema and Ruzindana.
14
Prosecutor v Akayesu para 515.
15 Schabas (n 8 above) 113; Mugwanya (n 8 above) 73-85.
16 Prosecutor v Al Bashir (Case ICC-02/05-01/09) Decision on the Prosecution’s
Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 3 April
2009 para 135. For a critique of the ICC’s statement that ‘negative’ definitions cannot
suffice for purposes of delineating protected groups, see generally Mugwanya (n 8
above) 72-77 & 92-101.
17 Prosecutor v Al Bashir para 137.