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.
Author(s): Carola Lingaas
Series: International and Comparative Criminal Justice
Edition: 1
Publisher: Routledge
Year: 2019
Language: English
Pages: 308
Tags: Behavioral Sciences, Humanities, Law, Social Sciences
Cover
Half Title
Series Page
Title
Copyright
Dedication
Contents
List of figures
List of acronyms
Acknowledgements
1 Constructing race for international criminal law
1.1 Introduction
1.2 Interpreting race for international criminal law
1.3 Structure
2 Historical aspects of race
2.1 Introduction
2.2 The discovery of race
2.3 Social Darwinism and eugenics
2.4 Nazi race theories
2.5 The creation and application of race laws
2.5.1 The Nuremberg Laws
2.5.2 Rasse- und Siedlungshauptamt (RuSHA)
2.5.3 The leggi razziali in Italy
2.6 The UNESCO statements on race
2.7 Contemporary understandings of race and ethnicity
2.8 Race and genes
2.9 Interim conclusion
3 The concept of race in the law of genocide
3.1 Introduction
3.2 Perception of ‘Otherness’
3.3 The stages of genocide
3.3.1 Introduction
3.3.2 Classification
3.3.3 Symbolisation
3.3.4 Discrimination
3.3.5 Dehumanisation
3.4 The origins of the crime of genocide
3.4.1 Lemkin and the creation of the term ‘genocide’
3.4.2 The Nuremberg Trials
3.4.3 The meaning of race at the time of drafting the Genocide Convention
3.4.4 The codification of the crime of genocide
3.5 The legal elements of the crime of genocide
3.5.1 The definition of the crime of genocide: introductory remarks
3.5.2 The group as object of protection
3.5.2.1 Group membership and group identity
3.5.2.2 The four corner posts
3.5.3 The intent to destroy
3.5.3.1 ‘As Such’
3.5.3.2 Proof of the genocidal intent
3.6 Akayesu and the interpretative revolution
3.6.1 Introduction
3.6.2 Rwanda and the creation of the ICTR
3.6.3 Stability and permanence
3.6.4 The racial group
3.6.5 Tutsi: a race or ethnicity?
3.7 Interpreting race for the crime of genocide
3.7.1 The ‘Object and Purpose’ of the genocide convention
3.7.2 Evolutive interpretation of race and the principle of effectiveness
3.8 The objective and subjective approach in defining the protected groups
3.8.1 Introduction
3.8.2 Outlining the different approaches
3.8.3 Conceptual challenges of the objective and the subjective approach
3.9 Post-Akayesu: the ad hoc tribunals’ jurisprudence
3.9.1 Introduction
3.9.2 Case law by the ad hoc tribunals
3.9.3 Positive and negative definition of a protected group
3.9.4 Mistake of fact
3.10 Darfur Commission: imagined group identities
3.11 The jurisprudence of the ICC
3.11.1 The inclusion of the crime of genocide into the Rome Statute
3.11.2 The situation in Darfur
3.12 Jurisprudence of the extraordinary chambers in the courts of Cambodia
3.13 Overview of all adjudicated cases
3.13.1 Summing up the different approaches
3.13.2 Graphical illustration of group membership approaches
3.14 Interim conclusion
4 The concept of race in the law of apartheid
4.1 Introduction
4.2 The emergence of apartheid policy in South Africa
4.3 Apartheid legislation in South Africa
4.4 The reaction of the international community to apartheid: UN resolutions dealing with apartheid (1946–1994)
4.4.1 Introduction
4.4.2 Actions and reactions 1946–1969
4.4.3 Actions and reactions 1970–1979
4.4.4 Actions and reactions 1980–1994
4.5 The crime of apartheid in the apartheid convention
4.5.1 Introduction
4.5.2 The racial group in the actus reus
4.5.3 Reverting to human rights law for the interpretation of international criminal law
4.5.4 Interpreting racial discrimination and apartheid by means of the International Convention on the Elimination of Racial Discrimination
4.5.5 Contemporary cases of apartheid?
4.6 The crime against humanity of apartheid in the Rome Statute
4.6.1 The disputed inclusion of apartheid into the Rome Statute
4.6.2 The legal elements of the crime
4.6.2.1 The meaning of ‘Racial Group’
4.6.2.2 The mens rea of the crime of apartheid
4.7 The war crime of apartheid
4.8 Apartheid: a crime in customary international law?
4.8.1 Introduction
4.8.2 Opinio juris
4.8.3 State practice
4.9 Interim conclusion
5 The concept of race in the law of persecution
5.1 Introduction
5.2 A brief history of the crime of persecution
5.2.1 The crime of persecution in post-WWII trials
5.2.2 The ILC Draft Codes of Crimes
5.3 Jurisprudence of the ad hoc international criminal tribunals
5.3.1 Introduction
5.3.2 Positioning persecution
5.3.2.1 Persecution and genocide
5.3.2.2 Persecution and apartheid
5.3.3 The mens rea of persecution
5.3.4 Defining the victim group of persecution
5.3.4.1 Introduction
5.3.4.2 Acts of persecution on racial grounds
5.3.4.3 Racial group vs racial ground
5.3.4.4 The perpetrator’s perception of the victim group
5.3.4.5 Positive and negative group definition
5.3.4.6 Mistake of fact
5.4 The crime against humanity of persecution in the Rome Statute
5.4.1 Introduction
5.4.2 Art. 21(3) Rome Statute: human rights references for procedural rights only?
5.4.3 Identifiable group or collectivity
5.4.4 Racial grounds
5.4.5 Jurisprudence of the ICC
5.5 Jurisprudence of the ECCC
5.6 Interim conclusion
6 Conclusion
Table of legislation
Table of cases
Table of UN documents and other official publications
Table of online sources
Bibliography
Index
