60 years after the UN Convention - Dag Hammarskjöld Foundation

144 development dialogue december 2008 – revisiting the heart of darkness
Soviet Union and Poland (Kelly 2002: 283; Totten et al. 2002: 60). 17
Quite apart from the problem of political interference, Quayle argues
that the ‘Convention struggles to draw a distinction between inevitable/permanent
groups and voluntary/impermanent ones’ whereas the
drafters had to contend with the elusive distinction between ‘subjective
and objective identity’ (Quayle 2005: 367, 368).
Quigley, for his part, contends that ‘as regards genocide, groups in
the four categories are not as readily ascertainable as was apparently
assumed by the Sixth Committee in 1948’ (Quigley 2006: 155). Thus,
for example, the notion of nationality has a dual meaning. Whereas
the term ‘national’ defi nes a group ‘sharing a history and culture’,
‘“nationality” is also used to indicate affi liation with a state, akin to
the concept of citizenship’ (Quigley 2006: 151). Since individuals may
change their nationality or even hold dual nationality, the immutable
quality of this category is called into question. Similarly, insofar
as religion is a matter of individual conscience rather than a cultural
imperative, it too is subject to confl icting interpretation and may lack
a permanent and immutable character. Even the concept of race is
problematic in that it too may depend upon perception and vary over
time. Two notable instances of this ambiguity are the shifting criteria
of racial purity in the classifi catory conventions of 19th century
America and 20th century South Africa.
The category of ethnicity is perhaps most problematic of all. Quite
apart from the problem of subjective perception – of both the victims
as well as the perpetrators – ethnicity has been so diversely defi ned as
to be almost meaningless. A sampling from the more recent debate well
illustrates this point. Yusuf Aksar notes that the ICTR 18 interprets ethnicity
as a ‘socially imposed categorization based on economic class differences
between the Hutus and the Tutsis as a means of ethnic identifi
cation’ (Aksar 2003: 217) despite the fact that neither ‘social’ nor ‘economic’
criteria are accepted categories of the legal defi nition of victim
groups. Rwanda is a particularly important instance insofar as Hutus
17 The Soviet Union held that ‘from a scientifi c point of view, and etymologically,
“genocide” meant essentially persecution of a racial, national or religious group’.
For ‘the crime of genocide is organically bound up with Fascism-Nazism and other
similar race “theories”’ (Schabas 2000: 135). Further excisions in the fi nal draft of the
Convention include ‘social’, ‘economic’ and ‘cultural’ groups, and notwithstanding a
degree of overlap between the latter and the four accepted criteria. Thus according
to Totten, ‘cultural genocide and ethnocide are basically synonymous and refer to the
destruction of a group’s culture’ (Totten et al. 2002: 60).
18 The International Tribunal for the Prosecution of Persons Responsible for the Serious
Violations of International Humanitarian Law Committed in the Territory of Rwanda
and Rwandan Citizens between January 1 and December 31, 1994.