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Genocide and Discrimination: Lessons to Be Learnt from Discrimination Law


A survey of the case law of the ICTY and ICTR reveals inconsistencies and conceptual discrepancies in the approach to genocide cases, in particular with respect to the cornerstones of such cases – the identification of the protected group and its members – resulting in different levels of protection against genocide. A review model might help to address these issues, which are, arguably, preconditions of the legitimacy of these courts and of the effective enforcement of the prohibition of genocide. Given the close relationship between genocide and discrimination, this review model might be built on the ‘building blocks’ of discrimination law. The purpose of this contribution is twofold: (1) by unfolding the relationship between direct discrimination and genocide to devise a model of review, and (2) to analyse the consequences of the consistent application of this model for the identification of the protected groups and their members.

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C. Fournet and C. Pégorier , ‘“Only One Step Away from Genocide”: The Crime of Persecution in International Criminal Law’, (2010) 10 International Criminal Law Review 713

R. Cryer , ‘The Definitions of International Crimes in the Al Bashir Arrest Warrant Decision’, (2009) 7 Journal of International Criminal Justice 283

R. Young , ‘How Do We Know Them When We See Them? The Subjective Evolution in the Identification of Victim Groups for the Purpose of Genocide’, (2010) 10 International Criminal Law Review 1

C. Kress , ‘The Crime of Genocide under International Law’, (2006) 6 International Criminal Law Review 461, at 473–6

B. van Schaack , ‘The Crime of Political Genocide: Repairing the Genocide Convention's Blind Spot, (1997) 106 Yale Law Journal 2259

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
  • URL: /core/journals/leiden-journal-of-international-law
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