Defining "national group" in the Genocide Convention: a case study of Timor-Leste.

Publication: Stanford Law Review

Publication Date: 01-MAR-08

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INTRODUCTION



I. THE GENOCIDE CONVENTION AND PROTECTED GROUPS A. The Genocide Convention B. Problems with the Current National Group Definition C. Self-Determination and Genocide II. TIMOR-LESTE CASE STUDY A. A History of the Conflict in Timor-Leste B. Profile of Human Rights Violations III. GENOCIDE AND TIMOR-LESTE A. Demonstration of the Problem B. A New Approach CONCLUSION

INTRODUCTION

Drafted in the shadow of the Holocaust, the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)1 defined the international crime of genocide for the first time. Central to the Genocide Convention, and to the crime that it defined, is a unique focus on groups. Raphael Lemkin, the inventor of the term "genocide," understood the crime as an effort aimed at "the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves." (2) Article 2 of the Genocide Convention reflects Lemkin's desire to protect groups as social units by providing that only actions committed with the intent to destroy certain groups as such constitute genocide. Distinct from mass killing, which targets individuals, genocide targets the group to which those individuals belong.

Significantly, however, not all social units are protected by the Genocide Convention. Article 2 limits the crime to acts committed with the intent to destroy "national, ethnical, racial or religious" groups. (3) Other entities, such as those defined by political parties, economic class, or sexual preference, are unprotected. Born out of the political realities at the time of drafting, this closed list of protected groups presents one of the most serious and heavily debated limitations of the Genocide Convention. (4) Moreover, the limitation makes the way in which the four enumerated groups are defined a matter of fundamental importance. If genocide is the destruction of only certain groups, then the threshold question in any potential prosecution is whether the targeted group falls within any of the protected categories.

This Note focuses particularly on the category of "national group." The meaning of "national group" in the Genocide Convention has been left relatively unexplored, and it is often left out of discussions about whether a targeted group falls within Article 2. International tribunals have provided a brief definition of the term based on a similar term in public international law: "a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties." (5) However, there is reason to doubt whether this definition makes sense in light of the social phenomenon the Genocide Convention is meant to address. This Note will suggest that an alternative definition based on the concept of self-determination is more appropriate.

In addition, this Note uses a case study of the Indonesian invasion and occupation of Timor-Leste between 1975 and 1999 to demonstrate the importance of re-conceptualizing the term "national group." Indonesian forces invaded Timor-Leste on December 7, 1975, one week after the territory had declared independence. The invasion and subsequent occupation produced a staggering death toll as Indonesia attempted to integrate and "de-Timorize" the territory. Only after an internationally monitored referendum in 1999, which occurred in the midst of another spasm of mass violence, did Indonesia accept East Timorese independence and transfer authority to the U.N. Transitional Authority for Timor-Leste (UNTAET). (6) On January 30, 2006, the Commission for Reception, Truth and Reconciliation in Timor-Leste (CAVR) released its final report, providing a unique opportunity to analyze the mass violence and its implications for the law of genocide.

Under the current definition of "national group," Indonesian forces were able unilaterally to remove their victims from the protection of the Genocide Convention by preventing the East Timorese from forming a state. It was at least in part for this reason that no genocide indictments were issued by the Special Panels for Serious Crimes established to convict the most serious human rights abusers. (7) This Note will argue that the definition of "national group" should focus not on whether the group comprises a state, but instead on whether the group in question possesses the right of self-determination. Self-determination guarantees certain groups the right under international law to freely determine their political status and pursue their own development as groups. The Genocide Convention should protect those same groups from destruction. The East Timorese victims possessed and attempted to exercise the right of self-determination through state formation. The intent to destroy such a group constitutes the intent to destroy a national group required by the Genocide Convention.

Understanding the true nature of the victim group is essential to any attempt at criminal prosecution. It is impossible to imagine a conviction for the crime of genocide arising from acts that occurred outside of a broader genocidal context and an international tribunal's first step in establishing individual criminal liability is to establish that the perpetrator acted as part of a broader genocide. (8) Because the East Timorese victims have not been considered a national group, the majority of the international community has concluded that no genocide occurred in Timor-Leste. A better definition of national group would call this conclusion into question and open the door for future prosecution. (9)

I. THE GENOCIDE CONVENTION AND PROTECTED GROUPS

A. The Genocide Convention

Signatories approved the Genocide Convention on December 9, 1948, and the treaty entered into force on January 12, 1951. While Article 1 confirms that genocide is a crime under international law, the all-important task of defining what exactly genocide entails is left to Article 2. In its entirety, that section reads:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group. (10)

A difficult provision as a whole, no aspect of Article 2 has proven more vexing and controversial than its selective protection of certain groups.

The essence of the crime of genocide is the intent to destroy a group. Social relationships based on common bonds are central aspects of human existence, and genocide directly targets these relationships. As Ben Saul succinctly explains: "Whereas murder is a crime affecting the integrity of a community, genocide attacks the very existence of the community." (11)

Given the importance of group membership in human experience, it is reasonable to wonder why only certain groups are protected by the Genocide Convention. Some, such as economic, social, and linguistic groups, were consciously excluded, while others, such as those based on sexual preference, were not even considered. (12) The travaux preparatoires of the Genocide Convention show that the exclusion of political groups provoked more debate than any other aspect of the treaty. (13) Those opposed to the inclusion of political groups put forward a number of arguments. Some argued that political groups lack the "necessary homogeneity and stability," (14) as they are involved in the political process, in which groupings are ephemeral. (15) Others pointed to the etymology of the word genocide and the need not to intervene in the internal affairs of states. (16) While some states strongly opposed these arguments, considerations of realpolitik eventually caused political groups to be excluded. (17) In the end, delegates "traded" the protection of political groups for mention of an international tribunal in the Genocide Convention. (18)

A number of scholars have proposed new definitions of genocide in order to expand the scope of the term. Jonassohn and Chalk suggest that genocide is mass killing with the intent to destroy any group, as that group and its membership are defined by the perpetrator. (19) Fein focuses on the destruction of a collectivity, (20) while Charny goes even further in creating a definition that focuses on the mass killings of defenseless and helpless individuals. (21) While these broader definitions may have value on a moral or academic level, they have no legal force. Accordingly, other scholars and activists have attempted to stretch the Genocide Convention definition itself or have argued that its gaps are filled by customary international law. (22) Van Schaak, for example, argues that the jus cogens prohibition against genocide--the fundamental international norm, as distinct from the Convention's prohibition--includes protection of political groups. (23) It seems difficult to argue, however, that the Convention now covers groups that were purposefully left out by its drafters. It is just as difficult to establish that binding jus cogens custom has developed to the point where it covers those groups when the Genocide Convention definition has been copied almost verbatim in a number of recently drafted international instruments. (24) As a result, a legal analysis must work within the Genocide Convention's definition of the crime of genocide, in which only national, ethnical, racial, and religious groups are protected.

Problematically, the Genocide Convention does not provide definitions of the groups that it protects, and there is no universal understanding of what constitutes a national, ethnical, racial, or religious group. Concepts such as "race," for example, have no objective meaning and exist only from the point of view of those who intend to define them. (25) It has been left to ad hoc international criminal tribunals to establish definitions for these seemingly artificial terms so that they may be applied to real-world groups, and it is here that an examination of genocide jurisprudence begins.

The International Criminal Tribunal for Rwanda (ICTR) was the first tribunal to grapple with the problem of the Genocide Convention's protected groups. In its first genocide conviction, Prosecutor v. Akayesu, the tribunal had to squarely address whether and how the Tutsi victim group met the Genocide Convention's requirements. The court began by establishing generic definitions of both ethnic and racial groups. It defined an ethnic group as "a group whose members share a common language or culture." A racial group, it explained, is "based on the hereditary physical traits often identified with a geographical region." (26) The problem was in distinguishing the victim Tutsi group from Akayesu's Hutu group on the basis of these objective definitions. Both of Rwanda's main groups share customary practices, the Kinyarwanda language, the geographical region, and general physical characteristics. After examining the evidence, the court concluded that "the Tutsi population does not have its own language or a distinct culture from the rest of the Rwandan population." (27)

In an attempt to get around this problem, the court took a new approach to the Genocide Convention's protected groups. It held that the Tutsi group did not fall within any of the enumerated groups in the Genocide Convention, but nonetheless was entitled to protection. In a departure from a purely textual understanding of the treaty, the ICTR trial chamber ruled that the groups protected by the Genocide Convention are not limited to the four expressly listed, stating, "[I]t is particularly important to respect the intention of the drafters of the Genocide Convention, which according to the travaux preparatoires, was patently to ensure the protection of any stable and permanent group." (28) Under this delineation, any permanent and stable group would fall under the Genocide Convention. The court looked to such objective features as customary rules dictating patrilineal lines of heredity and the use of mandatory identity cards that identified the Tutsi as a separate ethnic group, and determined that they were a sufficiently stable and permanent group to warrant protection. (29)

Were this approach to have become definitive, it would have represented an extremely significant development in the interpretation of the Genocide Convention. It would have meant that the only requirement for a group to be protected under the Genocide Convention is that it be stable and permanent, and that the groups enumerated in Article 2 are merely examples of groups that fulfill this requirement. This interpretation would have expanded the Genocide Convention significantly by enabling it to cover previously unprotected populations. (30)

The effect of Akayesu has been significantly more limited, however. While accepting that the drafters wanted to protect stable groups, subsequent chambers of both the ICTR and the International Criminal Tribunal for the Former Yugoslavia (ICTY) have been reluctant to expand the Genocide Convention to cover a residual category of non-enumerated groups. This is partly a result of the fact that the concept of permanent and stable groups is problematic. Religion, for example, is an enumerated group that involves an element of choice and is therefore mutable, while some excluded groups, such as those based on gender, sexual preference, or disability, are often not based on choice and are on some level immutable. (31) In fact, there was some evidence of social mobility between the Hum and the Tutsi. (32) Moreover, it is questionable whether a residual category is consistent with the intent of the drafters, who decided upon a closed list. Accordingly, no case since Akayesu has been willing to acknowledge a distinct protected category of stable and permanent groups.

Later cases have nevertheless continued to accept that the drafters intended to protect stable, permanent groups, even if the groups were limited to those that were enumerated. In Prosecutor v. Rutaganda, the ICTR stated:

[C]ertain groups, such as political and economic groups, have been excluded from the protected groups, because they are considered to be "mobile groups" which one joins through individual, political commitment. That would seem to suggest a contrario that the Genocide Convention was presumably intended to cover relatively stable and permanent groups. (33)

In its first examination of genocide, the ICTY also accepted that Article 2 intended to "limit the field of application of the Convention to protecting 'stable' groups objectively defined and to which individuals belong regardless of their own desires." (34)

In order to conform to the intent of the drafters without creating a residual category of non-enumerated groups, both the ICTR and ICTY have added an element of subjectivity to the definition of racial and ethnic groups. Acknowledging that collective identities are not derived solely from objective facts but rather are socially constructed, both tribunals have used subjective identification in order to fit victim groups into the Genocide Convention's protected classes. (35)

In Prosecutor v. Kayishema, for example, the ICTR once again considered whether the Tutsi constituted a protected group, and this time expanded the meaning of ethnic group to allow it to reflect subjective identity. (36) It repeated that an ethnic group is one whose members share a common language or culture, but it added to this definition any group "which distinguishes itself as such (self identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others)." (37) Again, the court noted that shared language, tradition, and legends made the Hutu and Tutsi groups almost indistinguishable objectively. (38) However, both the Hutu and the Tutsi identified one another as distinct ethnic groups. The issuance of ethnic identity cards, the recognition of both groups in the Constitution, the testimony of survivors, and the Rwandan custom that "ethnicity" is inherited through the father, all indicated that the Hutu and Tutsi were considered separate ethnic groups by their members. (39) The...

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