The Concept of Race in International Criminal Law

Carola Lingaas

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138335547
• eBook ISBN: 9780429812934
• Edition: 1
• Topic: History
• Subtopic: Holocaust History
• Index: History

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.

1
Constructing race for international criminal law

1.1 Introduction

If people define a situation as real, it is real in its consequences.¹

1 So-called Thomas Theorem. This axiom by W. I. Thomas and Dorothy Swaine Thomas has been proclaimed one of sociology’s most influential ideas: < www.encyclopedia.com/doc/1O88-ThomasTheorem.html >.

Whenever we describe someone or name something, we impose a classification. Classification is a fundamental operation of the human mind and therefore a product of our capacity for abstraction. The problem lies not in our ability to classify, but in treating classifications as though they were real.² The construction of a racial identity is essentially the outcome of a number of collective experiences involving the creation of binary pairs or opposites.³ Each epoch, each society, each nation creates and re-creates ‘others’. The identification and classification of these ‘others’ are subject to continuous interpretation and reinterpretation of how they differ from ‘us’. Their identity in this sense can therefore be wholly artificial, created solely with a view to highlighting perceived differences between ‘us’ and ‘them’ – and to justify discriminatory treatment.⁴ The crimes of genocide, apartheid, and persecution originate at this group-level discrimination of ‘others’.

2 Rogers Brubaker, Ethnicity Without Groups (Harvard UP 2004) 32, 72; John Searle, The Construction of Social Reality (Penguin 1996) 1–9, 75, 87–88, 227–228; Gregory Stanton, ‘Blue Scarves and Yellow Stars: Classification and Symbolization in the Cambodian Genocide’ (1989) < www.genocidewatch.org/images/AboutGen89BlueScarvesandYellowStars.pdf>. All websites last accessed 30 April 2019.

3 Robert Wald Sussman, The Myth of Race: The Troubling Persistence of an Unscientific Idea (Harvard UP 2014) 1–2, 304–305; Zimitri Erasmus, ‘Apartheid Race Categories’, 79 Transformation (2012) 2–3; Thomas Hylland Eriksen, Ethnicity and Nationalism (Pluto Press 3rd ed 2010) 5; Stephen Cornell, Douglas Hartmann, Ethnicity and Race: Making Identities in a Changing World (Pine Forge Press 1998) 23; Michael Banton, International Action Against Racial Discrimination (Clarendon Press 1996) 76–82; Ellis Cashmore, ‘Race’, in Ellis Cashmore (ed), Dictionary of Race and Ethnic Relations (Routledge 3rd ed 1994) 267.

4 David Livingstone Smith, Less Than Human: Why We Demean, Enslave, and Exterminate Others (St. Martin’s Press 2011) 167; Sussman (n 3) 1; Brubaker (n 2) 72; William Schabas, Genocide in International Law: The Crime of Crimes (CUP 2nd ed 2009) 142; Banton (n 3) 76–82; Mark Levene, ‘A Twentieth-Centure Phenomenon?’, in Carol Rittner, John Roth, James Smith (eds), Will Genocide Ever End? (Paragon 2002) 66.

In international criminal law, the provisions on the crimes of genocide, apartheid, and persecution all include references to the concept of race. In each instance, the law seeks to protect individuals recognised as belonging to a group or collectivity.⁵ The perpetrator⁶ targets an individual precisely because of his⁷ membership of such a group, including the racial group. Race is thus one of several categories that the law puts at the disposal of the courts. For the crime of genocide, the law offers the racial, ethnical, religious, and national group. For the crime of apartheid, the law only mentions the racial group, while the crime of persecution lists political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognised as impermissible under international law.⁸ The category ‘racial group’ is an analytical tool for extrapolating from individual victims the purported characteristic of the imagined archetypal ‘racial’ group member.⁹ However, the assignment of victims to such a category does not signify its objective existence. What it does show is that the perpetrators – and consequently the judges – assume that they do.¹⁰

5 Already in its first session in 1946, the General Assembly affirmed that ‘genocide is the denial of the right of existence of entire groups’ (UN Doc A/PV.55 (11 December 1946) 1134). The group notion is discussed in Chapters 3.5.2 (genocide), 4.6.2 (apartheid), 5.3.4.3 (persecution) and 5.4.3 (persecution).

6 Understood according to General Introduction to the Elements of Crimes of the Rome Statute, para 8: ‘the term “perpetrator” is neutral as to guilt or innocence’.

7 For reasons of readability and simplicity, this book uses the masculine form in referring to unspecific individuals. This shall, however, have no implications as to the gender of a victim or perpetrator.

8 Art. 6 Rome Statute (genocide), Art. 7(1)(j) Rome Statute (apartheid), Art. 7(1)(h) Rome Statute (persecution).

9 Nigel Eltringham, Accounting for Horror: Post-Genocide Debates in Rwanda (Pluto Press 2004) 7.

10 Ibid 7–8. Furthermore: Stanton (n 2).

The concept of race has a physical connotation, originating in the now highly contested idea of classifying individuals according to one or more phenotypical traits. At the same time, race transcends biology and carries with it a metaphysical dimension, according to which a person’s racial group membership is defined by a perception of his otherness. Despite scientific advances in genetic research overturning common beliefs of the existence of racial categories of humans, the social relevance of racial categorisation, racial discrimination, and race-thinking remains high.¹¹ Race-thinking is a way of imagining the distinctiveness of human groups and assigning meaning to perceivable features of the human body.¹² As such, the contours of race are inextricably linked to a mental image. So even though humans cannot be exhaustively divided into discrete biological human races, individuals are nonetheless targeted for their imagined membership of an imagined racial group. For the crimes of genocide, apartheid, and persecution, the victims’ racial group membership is inherently linked to processes of discrimination, stigmatisation, inferiorisation, and what is generally known today as ‘othering’. The perpetrators of these crimes interpret race as signifying their own superiority in the face of the inferiority of their victims, an idealized conception, which, in the mind of the perpetrators justifies an assault on the inferior racial group. The latter group is considered intrinsically different and alien and triggers feelings of fear. The perpetrator perceives the inferior group as a threat to the dominant group’s position, resulting in prejudices as a defensive action.¹³

11 American Association of Physical Anthropologists, Statement on Race and Racism (March 2019), at: < www.physanth.org/about/position-statements/aapa-statement-race-and-racism-2019/ >; Sussman (n 3) 2, 8; Smith (n 4) 164, 167; Eric Carlton, War and Ideology (Routledge 1990) 168.

12 Paul Taylor, Race: A Philosophical Introduction (Polity Press 2nd ed 2013) 20–21, 60; Brubaker (n 2) 32; Carlton (n 11) 169.

13 I. William Zartman, Mark Anstey, ‘The Problem: Preventing Identity Conflicts and Genocide’, in I. William Zartman, Mark Anstey, Paul Meerts (eds), The Slippery Slope to Genocide: Reducing Identity Conflicts and Preventing Mass Murder (OUP 2012) 3; Alette Smeulers, Fred Grünfeld, International Crimes and other Gross Human Rights Violations: A Multi-and Interdisciplinary Textbook (Martinus Nijhoff 2011) 249; Helen Fein, ‘States of Genocide and other States’, in Carol Rittner, John Roth, James Smith (eds), Will Genocide Ever End? (Paragon 2002) 47; Lincoln Quillian, ‘Prejudice as a Response to Perceived Group Threat: Population Composition and Anti-Immigrant and Racial Prejudice in Europe’, 60 American Sociological Review (1995) 588, with reference to Blumer’s group-level theories. See Chapter 3.2 on othering.

Much of our (legal) worldview depends on an understanding of objectivity.¹⁴ In their search for an objective reality, courts seek to render predictable, verifiable judgments that are coherent with the principle of legality and its corollaries of specificity and foreseeability.¹⁵ The Commission of Experts on Rwanda, for example, stated that while there is a need ‘to recognise that there exists discrimination on racial or ethnic grounds, it is not necessary to presume or posit the existence of race or ethnicity itself as a scientifically objective fact’.¹⁶ There is no legal requirement to advance or claim an objective classification of the racial group for any of the crimes examined in the framework of this study. Rather than relying on the objectivity of criminal law, courts need to see through the eyes of the perpetrator. This study therefore suggests a subjective definition of the racial group, one mirrored in the perpetrator’s intent and perception of his victims’ otherness.

14 Searle (n 2) 7, 150.

15 Prosecutor v Hadžihasanović, Alagić and Kubura, Case No IT-01–47-AR72, Decision on Interlocutory Appeal Challenging Jurisidiction in Relation to Command Responsibility (16 July 2003) para 34.

16 Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), UN Doc S/1994/1405, para 159.

1.2 Interpreting race for international criminal law

Historically, situations of massive human rights violations have been dealt with by various means such as truth and reconciliation commissions or amnesties. Nowadays, there is an undisputable trend toward prosecuting international crimes.¹⁷ The creation of the International Criminal Court (ICC) as the first permanent treaty-based criminal court was of major significance, despite recent criticism concerning its seemingly biased prosecutorial selection of cases.¹⁸ The law of genocide, persecution, and apartheid in the Rome Statute of the ICC,¹⁹ the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention),²⁰ and the International Convention on the Suppression and Punishment...

Table of contents

• Cover
• Half Title
• Series Page
• Title
• Copyright
• Dedication
• Contents
• List of figures
• List of acronyms
• Acknowledgements
• 1 Constructing race for international criminal law
• 2 Historical aspects of race
• 3 The concept of race in the law of genocide
• 4 The concept of race in the law of apartheid
• 5 The concept of race in the law of persecution
• 6 Conclusion
• Table of legislation
• Table of cases
• Table of UN documents and other official publications
• Table of online sources
• Bibliography
• Index