The Elephant in the Room: The Uneasy Task of Defining 'Racial' in International Criminal Law

Abstract

The Rome Statute of the International Criminal Court contains the term 'racial' in its provisions on the crime of genocide, persecution and apartheid. However, it fails to provide for a definition of this historically burdened term. International criminal law is guided by the principle of legality and legal norms should be as narrowly defined as possible. This article will therefore attempt to provide a contemporary legal definition of 'racial'. The article contains an overview of the historical development, the treatment of the issue of 'race' by anthropology and human rights, before turning to international criminal law. Cases dealt with by the ICTR and the ICTY on 'racial groups' with regard to the crime of genocide will be analysed and categorized. The article concludes with a suggestion to juxtapose racial groups with ethnical groups, based on the perception of the perpetrator or the self-perception of the victims (subjective approach).