Ethnicity

Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

2135.            Article 3(h) of the Statute, which confers jurisdiction on the Tribunal over the crime of persecution as a crime against humanity, reads as follows:

The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: […] (h) Persecutions on political, racial and religious grounds[.]

2136.            The Appeals Chamber notes that Article 3(h) of the Statute limits the jurisdiction of the Tribunal over persecution as a crime against humanity to three listed discriminatory grounds, namely political, racial, and religious grounds.[1] While persecution as a crime against humanity under customary international law might not be restricted to these three discriminatory grounds, the Appeals Chamber recalls that “it [was] open to the Security Council – subject to respect for peremptory norms of international law (jus cogens) – to adopt definitions of crimes in the Statute which deviate from customary international law.”[2] Whether or not the Security Council may have defined the crime of persecution as a crime against humanity more narrowly than necessary under customary international law, the Tribunal’s jurisdiction is limited to persecution on political, racial, and religious grounds.[3]

2137.            As ethnicity is not enumerated among the discriminatory grounds of persecution in Article 3(h) of the Statute, the question remains whether it is subsumed under one of the three listed discriminatory grounds, more specifically under the “racial” ground. The Appeals Chamber recalls that, while the Statute “is legally a very different instrument from an international treaty”,[4] it is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties of 1969, which reflects customary international law.[5] In this regard, the Appeals Chamber observes that the chapeau of Article 3 of the Statute distinguishes “ethnicity” from “race” in the listed discriminatory grounds for the attack against a civilian population.[6] The Appeals Chamber, Judge Agius dissenting, considers that, according to the ordinary meaning of the terms of the provision, such distinction reflects the autonomy between the two notions. In the view of the Appeals Chamber, Judge Agius dissenting, this conclusion is also supported by a contextual reading of Article 3 of the Statute which makes it clear that “ethnicity” cannot be encapsulated in “race”. Indeed, interpreting the discriminatory ground of “race” in Article 3(h) of the Statute as including “ethnicity” would render the distinction in the chapeau of Article 3 of the Statute redundant, illogical, and superfluous.[7] According to a textual and contextual interpretation of Article 3(h) of the Statute, the Appeals Chamber, Judge Agius dissenting, therefore finds that “ethnicity” cannot be interpreted as being included in the list of discriminatory grounds enumerated therein.

2138. Moreover, the Appeals Chamber notes that the definition of persecution as a crime against humanity is well settled in the jurisprudence of the Tribunal. As reiterated by the Appeals Chamber in the Nahimana et al. case, “the crime of persecution consists of an act or omission which discriminates in fact and which: denies or infringes upon fundamental right laid down in international customary or treaty law (the actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics (the mens rea).”[8] Thus, in the Nahimana et al. case, the Appeals Chamber specified the mens rea requirement for persecution as a crime against humanity and, contrary to the Trial Chamber’s holding, did not extend it to include “ethnicity” as an additional discriminatory ground. The Appeals Chamber notes that to support its conclusion that “discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape”, the Trial Chamber relied, inter alia, on paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement.[9] However, the Appeals Chamber observes that the Trial Chamber’s reliance on these paragraphs of the Nahimana et al. Appeal Judgement to define the mens rea of the crime of persecution is misplaced.[10] Contrary to the Trial Chamber’s finding, these paragraphs of the Nahimana et al. Appeal Judgement deal with the actus reus – and not the mens rea – of the crime of persecution, holding that hate speech targeting the population on the basis of ethnicity could constitute an act, which discriminates in fact.[11]

2139.            Accordingly, the Appeals Chamber finds that the Trial Chamber committed an error of law in considering that “discrimination on ethnic grounds could constitute persecution if the accompanying violation of rights was sufficiently serious, such as killings, torture and rape.”[12] […]

[1] Cf. Tadić Appeal Judgement, para. 284; Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadić Appeal Decision on Jurisdiction”), paras. 78, 140-141. The Appeals Chamber notes that this is similar to the Statute of the ICTY. See Article 5(h) of the Statute of the ICTY. On the contrary, the Appeals Chamber observes that the Rome Statute does not limit the jurisdiction of the ICC to an exhaustive list of discriminatory grounds on which persecution as a crime against humanity must be committed. Indeed, Article 7(1)(h) of the Rome Statute contains an illustrative (open-ended) list of prohibited grounds for persecution as a crime against humanity, which reads as follows: “For the purpose of this Statute, ‘crimes against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: […] (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”. The Appeals Chamber further notes that the Statute of the Special Court for Sierra Leone (“SCSL”), which was adopted after the Rome Statute, limits the jurisdiction of the SCSL over the crime of persecution as a crime against humanity to an exhaustive list of four discriminatory grounds, namely political, racial, ethnic, and religious grounds. See Article 2(h) of the Statute of the SCSL.

[2] Tadić Appeal Judgement, para. 296. See also Tadić Appeal Decision on Jurisdiction, paras. 78, 140, 141. Cf. also Tadić Appeal Judgement, paras. 249, 251.

[3] Cf. Tadić Trial Judgement, para. 711 (“There are no definitive grounds in customary international law on which persecution must be based and a variety of different grounds have been listed in international instruments. The grounds in the Statute are based on the Nürnberg Charter which included race, religion and politics as the three grounds, as did Control Council Law No. 10, both of which were drafted to address the European situation. In contrast the Tokyo Charter excluded religion as a basis for persecution, given its inapplicability to the Pacific theatre of operation while, alternatively, the Convention on the Prevention and Punishment of the Crime of Genocide contains the additional ground of ethnicity as do the 1991 and 1996 versions of the I.L.C. Draft Code, whereas the original 1954 Draft Code included culture as a basis for persecution. The possible discriminatory bases which the International Tribunal is empowered to consider are limited by the Statute to persecutions undertaken on the basis of race, religion and politics.”) (internal references omitted).

[4] Tadić Appeal Judgement, para. 282.

[5] Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Vol. 1155, p. 331 (“Vienna Convention”). See also Tadić Appeal Judgement, para. 282, referring to International Court of Justice, Competence of the General Assembly for the admission of a State to the United Nations, Advisory Opinion: I.C.J. Reports 1950, p. 4; Aleksovski Appeal Judgement, para. 98, referring to Article 31(1) of the Vienna Convention (“Ultimately, that question must be answered by an examination of the Tribunal’s Statute and Rules, and a construction of them which gives due weight to the principles of interpretation (good faith, textuality, contextuality, and teleology) set out in the 1969 Vienna Convention on the Law of Treaties.”); Čelebići Appeal Judgement, para. 67 and references cited therein (reiterating that Article 31 of the Vienna Convention reflects customary international law); Jelisić Appeal Judgement, para. 35 (“Following the settled jurisprudence of the Tribunal, those words [(of Rules 98bis(B) of the ICTY Rules of Procedure and Evidence)] are to be ‘interpreted in good faith in accordance with the ordinary meaning to be given to [them] in their context and in the light of [their] object and purpose’, within the meaning of Article 31(1) of the Vienna Convention on the Law of Treaties 1969.” (alteration in the original)).

[6] See supra, para. 2135.

[7] The Appeals Chamber recalls that “it is an elementary rule of interpretation that one should not construe a provision or a part of [it] as if it were superfluous and hence pointless: the presumption is warranted that law-makers enact or agree upon rules that are well thought out and meaningful in all their elements.” See Tadić Appeal Judgement, para. 284. The Appeals Chamber further observes that the distinction between “race” and “ethnicity” is also clearly established in the definition of genocide given in Article 2 of the Statute (“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group […].”).

[8] Nahimana et al. Appeal Judgement, para. 985. See also, e.g., Kvočka et al. Appeal Judgement, para. 320; Kordić and Čerkez Appeal Judgement, para. 101; Blaškić Appeal Judgement, para. 131; Krnojelac Appeal Judgement, para. 185.

[9] Trial Judgement, para. 6097, referring to Bagosora et al. Trial Judgement, para. 2209, Nahimana et al. Appeal Judgement, paras. 986-988, 1002. The Appeals Chamber notes that paragraph 2209 of the Bagosora et al. Trial Judgement also refers to paragraphs 986 through 988, and 1002 of the Nahimana et al. Appeal Judgement.

[10] See Trial Judgement, para. 6097.

[11] See Nahimana et al. Appeal Judgement, para. 986. The Appeals Chamber further notes that, in the Nahimana et al. case, the convictions for persecution as a crime against humanity were based on the Trial Judgement’s finding that “the discriminatory intent of the Accused falls within the scope of crime against humanity of persecution on political grounds of an ethnic character”, noting that “RTLM, Kangura and CDR […] essentially merged political and ethnic identity, defining their political target on the basis of ethnicity and political positions relating to ethnicity.” See Nahimana et al. Trial Judgement, para. 1071. This finding was not challenged on appeal.

[12] Trial Judgement, para. 6097.

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ICTR Statute Article 3(h) ICTY Statute Article 5(h) Other instruments Article 31(1) of the Vienna Convention on the Law of Treaties of 1969