1 00:00:08,250 --> 00:00:19,140 These two pictures were taken in South Sudan in 2002 and 2003 during the second civil war. 2 00:00:19,140 --> 00:00:30,120 In my work as a field delegate gate, I encountered very many challenging situations and it will certainly experience that shaped my life. 3 00:00:30,120 --> 00:00:39,000 Upon my arrival in Europe, I read this paragraph in a book and it said groups such as the South Sudanese 4 00:00:39,000 --> 00:00:45,780 suffer systematic discrimination that might well meet the definition of apartheid. 5 00:00:45,780 --> 00:00:48,630 This was the beginning of a long, 6 00:00:48,630 --> 00:00:58,980 long assault process and finally ended in an application for PLDT Research Fellowship at the University of Oslo with the title. 7 00:00:58,980 --> 00:01:05,490 The Crime Against Humanity of Apartheid under special consideration of the conflict in South Sudan. 8 00:01:05,490 --> 00:01:08,460 That was the project I was hired for. 9 00:01:08,460 --> 00:01:19,890 And when I started researching, which was for me, a new topic, of course, one encounters South Africa's apartheid regime. 10 00:01:19,890 --> 00:01:25,410 So this is what most people understood by the term of apartheid. 11 00:01:25,410 --> 00:01:33,840 And also it originates the term itself in the South African apartheid regime. 12 00:01:33,840 --> 00:01:44,710 Apartheid is also used in a modern legal way of describing discriminatory practises like fear, for example, sexual apartheid. 13 00:01:44,710 --> 00:01:54,500 The case system as India's apartheid or education apartheid. 14 00:01:54,500 --> 00:01:59,980 A bit more of a legal take to the to apartheid as a as a lead, as a legal motion. 15 00:01:59,980 --> 00:02:08,030 Is this UN Special Rapporteur report on North Korea that was published in 2014, 16 00:02:08,030 --> 00:02:17,210 where the rapporteur in a public speech mentions that North Korea was, in fact, an apartheid regime. 17 00:02:17,210 --> 00:02:23,360 However, in the published report, it was not mentioned. The word does not appear. 18 00:02:23,360 --> 00:02:29,030 And, of course, the more common, most common case is this one here. 19 00:02:29,030 --> 00:02:35,630 Richard Falck, the then special rapporteur of the occupied territories. 20 00:02:35,630 --> 00:02:44,090 In his report of 2014, performed illegal on an analysis of the situation in the occupied territories and 21 00:02:44,090 --> 00:02:52,770 concluded that's the crime against humanity of apartheid was committed there. 22 00:02:52,770 --> 00:03:03,810 This was also the conclusion of a recently published report in 2000 here in mid-January by a human rights group. 23 00:03:03,810 --> 00:03:15,930 So off the current situations in the world, probably apartheid is the one term that is used most frequently with regards to Israel. 24 00:03:15,930 --> 00:03:21,600 But then in my research, I was trying to figure out what apartheid really is in legal terms. 25 00:03:21,600 --> 00:03:33,720 And it was not very easy to find out because so far there has never been a prosecution for the crime, not in South Africa nor anywhere else. 26 00:03:33,720 --> 00:03:38,580 So how can I define a crime if it there's never, ever been a judgement rendered? 27 00:03:38,580 --> 00:03:45,120 It did also not figure in any of the previous statutes of the ad hoc criminal tribunals. 28 00:03:45,120 --> 00:03:49,110 The International Criminal Tribunal for the former Yugoslavia at the ICC. 29 00:03:49,110 --> 00:03:52,800 Why? Or the International Criminal Tribunal for Rwanda. 30 00:03:52,800 --> 00:04:00,870 The ICC are the term or the crime of apartheid was introduced into the Rome Statute 31 00:04:00,870 --> 00:04:09,990 only in a last minute compromise during the Rome conference in nineteen ninety eight. 32 00:04:09,990 --> 00:04:19,800 This is widely considered a diplomatic or political compromise in order to honour the victims of the apartheid regime. 33 00:04:19,800 --> 00:04:29,010 Remember, that's the first democratic elections in South Africa were held in nineteen ninety four at the Rome diplomatic conference, 34 00:04:29,010 --> 00:04:41,310 took place only four years later. So it was still relatively fresh and this was a very appropriate way of honouring the victims. 35 00:04:41,310 --> 00:04:48,960 The legal definition of the crime poses numerous challenges, and I will not bother you with all of them. 36 00:04:48,960 --> 00:04:56,010 The crime itself is defined as a committed in that institutionalised regime of 37 00:04:56,010 --> 00:05:04,200 systematic oppression and domination by one racial group over any other racial group. 38 00:05:04,200 --> 00:05:08,460 There are any number of challenges with the author terms. 39 00:05:08,460 --> 00:05:15,810 But when I started looking at the racial group, the elements of crimes were not able to help me because they do, 40 00:05:15,810 --> 00:05:23,650 in fact, not further discuss what racial groups are in the term of this crime. 41 00:05:23,650 --> 00:05:32,590 So I turned to scholarship, legal scholarship on the crime against humanity of apartheid is very, 42 00:05:32,590 --> 00:05:40,630 very scarce and it was even more so at the time when I started researching for this PFG project. 43 00:05:40,630 --> 00:05:49,960 Some scholars suggested turning to the genocide convention because that also contains the term racial group. 44 00:05:49,960 --> 00:05:56,080 Yet others said turned to human rights law because their racial discrimination, which is not quite the same. 45 00:05:56,080 --> 00:06:04,780 But racial discrimination, is more broadly defined as any discrimination based upon race, colour, descent, national or ethnic origin. 46 00:06:04,780 --> 00:06:09,160 So it's a much broader concept of race. 47 00:06:09,160 --> 00:06:19,050 Yet also, scholars said, well, race, that's just the old fashioned way of calling something that or what is nowadays called ethnicity. 48 00:06:19,050 --> 00:06:24,000 Yes, Ulcer's said. Take an anthropological perspective. 49 00:06:24,000 --> 00:06:37,450 And yet others look at biology. So I was left with a number of very confusing suggestions on how to interpret this term. 50 00:06:37,450 --> 00:06:43,250 In looking down into the genocide, into the law of genocide. 51 00:06:43,250 --> 00:06:47,660 That's when I started digging deeper and deeper and deeper into the term of racial. 52 00:06:47,660 --> 00:06:55,340 And the term of race is contained in three provisions in the Rome Statute and the Deep Red Dog. 53 00:06:55,340 --> 00:07:00,050 The more I realised I'm not really researching what I was employed to do, 54 00:07:00,050 --> 00:07:06,410 but I was actually researching the concept of race in international criminal law. 55 00:07:06,410 --> 00:07:17,150 So I changed the focus of my thesis have to unfortunately submit a new project proposal because I suddenly had narrowed the focus dramatically. 56 00:07:17,150 --> 00:07:24,380 And my thesis was then published in a revised and shortened version in 2000. 57 00:07:24,380 --> 00:07:30,560 Nineteen. But then again, what this race. 58 00:07:30,560 --> 00:07:43,150 I'll provide you with a short historical backdrop. The white race is superior to the Oscars and is found in Europe and America. 59 00:07:43,150 --> 00:07:47,470 This picture comes from a children's book, 60 00:07:47,470 --> 00:08:02,910 and the concept of race is undoubtedly connected to colonialism because it was white people discovering uncharted territories with new author people, 61 00:08:02,910 --> 00:08:15,850 other people that they had to classify as of a lesser value in order then to justify the subjugation and their exploitation. 62 00:08:15,850 --> 00:08:26,500 This was the time when the creation of the so-called five five groups of five races of mankind happened. 63 00:08:26,500 --> 00:08:32,740 As you can see in this picture here, the European man elegantly dressed, 64 00:08:32,740 --> 00:08:44,200 sophisticated places himself in the middle of the picture and around him, the answer for indigenous races of mankind. 65 00:08:44,200 --> 00:08:54,350 And that Eurocentric picture remains very strong in the racialized on the standing of people. 66 00:08:54,350 --> 00:09:01,220 It also influenced science in a very a very large extent. 67 00:09:01,220 --> 00:09:10,610 We are entering the time of social Darwinism here, a picture from Norway, the man standing, 68 00:09:10,610 --> 00:09:19,340 measuring with a special tool, the head size of a woman is a Norwegian anthropologist called Alfred Mune. 69 00:09:19,340 --> 00:09:25,250 The people's standing and sitting around the table are the saw me indigenous people. 70 00:09:25,250 --> 00:09:33,890 He performed head measurements of the saw me here also with an also tool say man talking with Asami. 71 00:09:33,890 --> 00:09:45,630 The idea is that Darvin created in order to classify the animal kingdom or biology, were then transformed to people. 72 00:09:45,630 --> 00:09:50,280 And the mission. That's the Norwegian, the anthropologist here. 73 00:09:50,280 --> 00:09:56,800 He created these placards with Ed with comparisons of. 74 00:09:56,800 --> 00:10:03,010 Measurements between this lap, which was the name at the time for the saw me and the Norwegians. 75 00:10:03,010 --> 00:10:06,610 So he compares here, for example, the size of the head. 76 00:10:06,610 --> 00:10:11,380 The eye colours. Body size and hair colour. 77 00:10:11,380 --> 00:10:17,710 And the problem is not that the measurements were performed. The problem is the comparison. 78 00:10:17,710 --> 00:10:23,500 And by comparing, they created hierarchy's in this particular case. 79 00:10:23,500 --> 00:10:28,480 Of course, in the eyes of this mirror and the majority Norwegian population, 80 00:10:28,480 --> 00:10:38,700 the Norwegians were the superior people that saw me were considered inferior based upon anthropological measurements. 81 00:10:38,700 --> 00:10:49,190 We are entering the age of race hygene. This is a publication of nineteen twenty one. 82 00:10:49,190 --> 00:10:53,540 Better babies, race, infant welfare and race. 83 00:10:53,540 --> 00:11:00,920 Progress published in nineteen twenty one, and as shocking as this might seem for us today. 84 00:11:00,920 --> 00:11:11,830 This was come please. The ordinary and recognised scholarship at the time very widely disseminated and very widely embraced. 85 00:11:11,830 --> 00:11:25,330 Another publication in 1921 by a professor who says, I deem it probable that crossing between widely differing races leads to degeneration. 86 00:11:25,330 --> 00:11:30,250 We have also examples of this in the vegetable kingdom. 87 00:11:30,250 --> 00:11:32,740 So so understand what is happening here. 88 00:11:32,740 --> 00:11:47,800 They're taking knowledge from biology plants and transforming it onto people, and they're creating racial hierarchies in doing so. 89 00:11:47,800 --> 00:11:55,000 You probably understand where this is heading. This is heading to the science of eugenics. 90 00:11:55,000 --> 00:12:03,790 This is, again, a placard by Mune and his laboratory of so-called harmonic race crossing's. 91 00:12:03,790 --> 00:12:09,760 So what the scientists and those are in a primarily physical anthropologists 92 00:12:09,760 --> 00:12:17,920 conclude is that races should not not mix because it will lead to D generation. 93 00:12:17,920 --> 00:12:26,860 And it also led to a new science where one was encouraged to keep the so-called races as clean as possible. 94 00:12:26,860 --> 00:12:35,320 And you can see a similar figure of salt in, for example, the the Jim Crow legislation, 95 00:12:35,320 --> 00:12:41,410 where it was about one drop of blood or apartheid, where it is as soon as you mix bloods. 96 00:12:41,410 --> 00:12:46,930 That's when when the races are seen as on harmonic are crossed. 97 00:12:46,930 --> 00:12:53,500 And of course, the consequences, especially of ideas like this, are extremely grave. 98 00:12:53,500 --> 00:12:59,100 The mass sterilisation, for example, of the Roma originated directly from Sing's. 99 00:12:59,100 --> 00:13:10,960 Think, think or thought processes like this here at eugenics and race crossing scholarship. 100 00:13:10,960 --> 00:13:21,010 And also, we know where it ended. It ended in publications like, for example, this one here published in the German Reich. 101 00:13:21,010 --> 00:13:28,420 As you can see, the text is not very well visible, but it's on the my left side. 102 00:13:28,420 --> 00:13:43,270 It says about the Jews. They are the leader of the sub humans, whereas the Germans in uniform are presented as the fighter for the noble and the good. 103 00:13:43,270 --> 00:13:46,300 So what you do is not only you create races, 104 00:13:46,300 --> 00:13:57,700 you also give them certain stereotypes and create prejudices according to which group a person belongs to. 105 00:13:57,700 --> 00:14:03,220 This salts, these kind of thoughts were also transformed into children publication. 106 00:14:03,220 --> 00:14:10,990 This is a children's book that was published prior to the SEC and WorldWar Jews are here on a wanted. 107 00:14:10,990 --> 00:14:15,850 It says on the picture and also look at the way the people are drawn. 108 00:14:15,850 --> 00:14:20,710 It is the two little blonde or many also little blonde Aryan children playing. 109 00:14:20,710 --> 00:14:27,220 And then the Jews, their noses are drawn in a much profiled white way. 110 00:14:27,220 --> 00:14:38,600 It is about creating stereotype types of people. 111 00:14:38,600 --> 00:14:46,950 This publication here juxtaposes German youth versus Jewish you use and it bears the title. 112 00:14:46,950 --> 00:14:51,860 Ask them, Gazi. Sure. These a'la that lossa. 113 00:14:51,860 --> 00:14:58,160 From the soul and from the face speaks the soul of the race. 114 00:14:58,160 --> 00:15:02,990 So you might look like a person, but actually you're not. 115 00:15:02,990 --> 00:15:08,720 That's what the idea was. Here in the Jewish understanding of it. 116 00:15:08,720 --> 00:15:19,650 Sorry. My apologies in the area and on the standing of Jews that they belong to another race. 117 00:15:19,650 --> 00:15:27,350 So let's still talk about the elephant in the room. But why should we why should we talk about the elephant? 118 00:15:27,350 --> 00:15:32,900 Why it is a lot easier to ignore and focus on as a group categories rather than 119 00:15:32,900 --> 00:15:39,800 having to deal with a very contested and very difficult concept such as race? 120 00:15:39,800 --> 00:15:44,720 Race has been tainted by history, as we have seen from the pictures. 121 00:15:44,720 --> 00:15:51,230 So wouldn't it just be easier if we could ignore the elephant? 122 00:15:51,230 --> 00:15:56,540 I argue that because of the principle of effectiveness, 123 00:15:56,540 --> 00:16:05,120 which is one of the core principles of treaty interpretation, we have to deal with every prince, with every term. 124 00:16:05,120 --> 00:16:13,940 It compels us to deal with race. So the word of race is in and in a number of treaties amongst ourselves. 125 00:16:13,940 --> 00:16:21,020 The genocide convention, the apartheid convention, the Rome Statute to talk at tribunals, statutes. 126 00:16:21,020 --> 00:16:29,520 The term is contained and it is not supposed to be interpreted as lacking a meaning or a purpose. 127 00:16:29,520 --> 00:16:39,250 Rather, we should import interpret them in order to giving it a meaning to an attribute, meaning to the racial group. 128 00:16:39,250 --> 00:16:43,420 Because, for example, if you imagined the crime against humanity of apartheid, 129 00:16:43,420 --> 00:16:50,200 if you do not and cannot interpret the word of racial group, there is no Özer group to revert to. 130 00:16:50,200 --> 00:17:06,270 It's the only one that the law provides. Let us for now focus on the law of genocide. 131 00:17:06,270 --> 00:17:11,280 This is the standard definition which is also reflected in the ICC statute. 132 00:17:11,280 --> 00:17:18,570 And I'll talk tribunals, a most actually also national legislations on the crime of genocide. 133 00:17:18,570 --> 00:17:27,450 And as you can see, it protects four groups, only the national, ethnic or racial and religious group. 134 00:17:27,450 --> 00:17:33,750 And the group, it seems, is contained in the men today are which is the so-called special intent. 135 00:17:33,750 --> 00:17:38,220 It's the intent to destroy a group, but also in the OCTA states. 136 00:17:38,220 --> 00:17:44,400 So it's the killing of the group or causing harm to members of the group. 137 00:17:44,400 --> 00:17:53,650 And I will return to the group element later, because it is very important for the definition of the crime. 138 00:17:53,650 --> 00:17:58,570 So if one turns to the Vienna Convention on the law of treaties and tries to figure out, 139 00:17:58,570 --> 00:18:04,600 well, what then is the ordinary meaning of race or racial group, 140 00:18:04,600 --> 00:18:12,170 it becomes nearly impossible because no matter which discipline you turn to, you will get 10 different definition. 141 00:18:12,170 --> 00:18:21,970 And topology uses a different one than the social sciences, like sociology or social psychology, biology that uses another one. 142 00:18:21,970 --> 00:18:32,470 Maybe law has yet to. One more. So it was impossible to really find the core of the meaning of race or racial group. 143 00:18:32,470 --> 00:18:43,150 So it is probably a wise step to go back to the prep preparatory works, because if you define race as in the original way it was used, 144 00:18:43,150 --> 00:18:49,120 when in times of colonialism with the so-called five groups of mankind, 145 00:18:49,120 --> 00:18:55,690 five races of mankind, I think it would lead to an absolutely manifestly absurd result. 146 00:18:55,690 --> 00:19:01,000 You cannot classify people into coherent groups of races. 147 00:19:01,000 --> 00:19:08,060 There is no biological DNA or there's no DNA for race. 148 00:19:08,060 --> 00:19:13,520 So if you look at how the draughting process occurred, of course, 149 00:19:13,520 --> 00:19:19,730 genocide and the crime of genocide was heavily influenced by the writing of Rafael Lemkin, 150 00:19:19,730 --> 00:19:29,000 who later took part in the in the committee for the Genocide Convention on behalf of the United States. 151 00:19:29,000 --> 00:19:36,590 He termed the word genocide as a combination of, again, those which is an ancient word for ancient Greek, 152 00:19:36,590 --> 00:19:43,970 for race or tribe and see there, which is the suffix of Khadra, the old Latin word for killing. 153 00:19:43,970 --> 00:19:49,550 So the term of race is already included into the word of genocide. 154 00:19:49,550 --> 00:19:53,970 It is the killing of a race or the killing of a tribe. 155 00:19:53,970 --> 00:20:01,910 And in the time when he wrote his book, which which was the foundation for the creation of the crime, 156 00:20:01,910 --> 00:20:05,570 he understood and people around him, there are many examples. 157 00:20:05,570 --> 00:20:14,420 Race is a combination of both an understanding of people belonging to a nation state, but also being subgroups of people, for example. 158 00:20:14,420 --> 00:20:18,680 He talks about the Polish race or the Jewish race. 159 00:20:18,680 --> 00:20:26,140 This was uncontested. This was the way one refer it to groups belonging to different countries and. 160 00:20:26,140 --> 00:20:33,070 In the case of the Jews, many different countries. But maybe what we would term ethnicity nowadays. 161 00:20:33,070 --> 00:20:46,160 But there was also in Baik notion of hereditary biological understanding of races. 162 00:20:46,160 --> 00:20:52,820 When the genocide convention was draughted and adopted in nineteen forty eight race, 163 00:20:52,820 --> 00:20:58,040 and for the matter of sake, none of the three also categories was defined. 164 00:20:58,040 --> 00:21:05,930 And there are some indications from the from the press prior to works that this was done purposely and since it was done purposely. 165 00:21:05,930 --> 00:21:11,600 One can argue that an evolutis development has occurred. 166 00:21:11,600 --> 00:21:23,750 So it leaves the term open to develop in the course of time in order to adjust to an understanding that might have changed from 1948 to today. 167 00:21:23,750 --> 00:21:29,840 I argue that race evolved to a pure perception based concept. 168 00:21:29,840 --> 00:21:36,800 And I will lead you through this understanding. 169 00:21:36,800 --> 00:21:48,500 So recall, the convention was adopted in 1948. And it took 50 years until the first ever judgement on the crime of genocide was rendered. 170 00:21:48,500 --> 00:21:58,100 We had to wait for 50 years until a court was forced to interpret the law of genocide. 171 00:21:58,100 --> 00:22:06,080 One hundred days of killing in Rwanda led to the astep establishment of the ICC TR 172 00:22:06,080 --> 00:22:13,740 and the court was given the very difficult task of classifying the primarily Hutu, 173 00:22:13,740 --> 00:22:20,360 the Tutsi beke Tutsi victims. My apologies as one of four groups. 174 00:22:20,360 --> 00:22:28,820 And it defined the national group as a collection of people based on common citizenships citizens. 175 00:22:28,820 --> 00:22:34,250 So it juxtaposes citizenship with nationality, ethnic group. 176 00:22:34,250 --> 00:22:40,220 Our people share a common language or culture. Religious groups share the same religion. 177 00:22:40,220 --> 00:22:46,220 So it's somewhat of a circular definition then nomination or mode of worship. 178 00:22:46,220 --> 00:22:54,290 And finally, the race group, hereditary physical traits often identified with a geographical region. 179 00:22:54,290 --> 00:23:07,940 The court did not provide any sources for these four definitions except for the national group, where it refers to the ICJ Noteboom judgement. 180 00:23:07,940 --> 00:23:18,050 What it tried to do here is create a legal on this or excuse me, an objective category for the different groups, 181 00:23:18,050 --> 00:23:24,650 an objective definition where it would be easy to place the different victims into different groups. 182 00:23:24,650 --> 00:23:33,470 However, it already ran into trouble because of the Tutsis, because the Tutsis and the Hutus did share their citizenship. 183 00:23:33,470 --> 00:23:38,600 They had the same language and culture. They more or less shared the same religions. 184 00:23:38,600 --> 00:23:42,880 So what would they then be? Race. 185 00:23:42,880 --> 00:23:52,180 Well, there are some authors that argued that they have spin a racialized understanding of the Tutsi group prior to the genocide. 186 00:23:52,180 --> 00:23:58,000 But we do not have to enter that pass now. 187 00:23:58,000 --> 00:24:12,350 So by creating this objective approach to the groups, Kasuke started a larger process because it led also its sister tribunal that I see 188 00:24:12,350 --> 00:24:19,780 T.Y. only one year later to conclude that the defining groups using objective and 189 00:24:19,780 --> 00:24:25,930 scientifically irreproachable criteria would be a perilous exercise whose result would 190 00:24:25,930 --> 00:24:32,770 not necessarily cause correspond response to the perception of the persons concerned. 191 00:24:32,770 --> 00:24:39,610 So your message clearly moves to the perception of a person's group membership. 192 00:24:39,610 --> 00:24:43,180 This sentence does not show who the person is. 193 00:24:43,180 --> 00:24:48,570 It is the perpetrator. Is it the victim? Is it a third party? 194 00:24:48,570 --> 00:24:51,420 But it then is a bit more precise and says, well, 195 00:24:51,420 --> 00:25:01,560 it is in fact more appropriate to evaluate the status of the group from the point of view of those persons who wish to single that group out. 196 00:25:01,560 --> 00:25:07,440 So they clearly moved the focus to the perpetrator and they. 197 00:25:07,440 --> 00:25:07,740 Right. 198 00:25:07,740 --> 00:25:19,160 Rightfully recognised that it is the stigmatisation which allows to be to determine whether a group is a group in the eyes of the alleged perpetrator. 199 00:25:19,160 --> 00:25:31,760 This was a very progressive interpretation, especially considering, though, the KSU judgement only one year earlier. 200 00:25:31,760 --> 00:25:37,310 And it seems the ICR was influence. But what what about what was happening in the ICP? 201 00:25:37,310 --> 00:25:43,220 Why? Because four years later in Khajeh, allegedly it held well, yes, of course, 202 00:25:43,220 --> 00:25:48,830 membership of a group is a subjective rather than an objective concept where the victim 203 00:25:48,830 --> 00:25:56,250 is perceived by the perpetrator as belonging to a group slated for destruction. 204 00:25:56,250 --> 00:26:10,130 However, it also demand that some kind of objective criteria and it never made clear what those criteria are. 205 00:26:10,130 --> 00:26:19,000 If we move on to the quasi judicial view and look at what's the international commission of enquiry on Darfor in the report. 206 00:26:19,000 --> 00:26:28,160 Right. The report has notably no legal force, but it was led at the commission was led by Antonio Casesa, 207 00:26:28,160 --> 00:26:35,120 one of the fawzia's of modern international criminal law, and did perform a legal analysis. 208 00:26:35,120 --> 00:26:45,980 So there is a legal value to their analysis. And also the report was used by the ICC in the indictment of all Bashir. 209 00:26:45,980 --> 00:26:58,310 Later on. It said that the approach has evolved to taking into account that collective identities are, by their very nature, 210 00:26:58,310 --> 00:27:07,520 social constructs, so they're imagined identities entirely dependent on perceptions and what is what is very nice. 211 00:27:07,520 --> 00:27:23,330 Here it is. The commission takes inspiration from the very famous book of Benedict Anderson on imagined communities and transforms it into law. 212 00:27:23,330 --> 00:27:31,900 It then also says. That the process of formation of this perception can harden. 213 00:27:31,900 --> 00:27:36,010 So from being initially subjective on what doesn't quite know where it's going. 214 00:27:36,010 --> 00:27:41,740 It becomes hardened and it crystallises into a real factual opposition. 215 00:27:41,740 --> 00:27:50,750 And then the two opposing groups become visible. 216 00:27:50,750 --> 00:27:56,690 So if we try to look at the different approaches that the that exist or that could exist, 217 00:27:56,690 --> 00:28:04,850 I tried to create an overview here and I tried to place the different judgements. 218 00:28:04,850 --> 00:28:10,130 Surprisingly, not one single judgement ever took a victim based approach. 219 00:28:10,130 --> 00:28:20,180 So where the victim perceives him or herself as a member of a certain group and the majority of the cases are perpetrator based. 220 00:28:20,180 --> 00:28:32,550 So it's the middle part. However, they demand some kind of objective elements that unfortunately usually remain on defined. 221 00:28:32,550 --> 00:28:45,180 I argue that all of those cases should be moved over into the pure subjective approach where it's only the perpetrators perception that counts. 222 00:28:45,180 --> 00:28:56,040 Why is that a problem or why has it not be done? Well, because subjectivity sits at odds with legal predictability. 223 00:28:56,040 --> 00:29:00,690 So remember, even if the perpetrator has an idea of what the groups are like, 224 00:29:00,690 --> 00:29:05,490 they still have to be coherent to the groups that the law puts at our disposition. 225 00:29:05,490 --> 00:29:08,040 We only have four to choose from. 226 00:29:08,040 --> 00:29:17,490 So in any case, we will have to classify the groups as one of the four protected groups in order to both prosecute as they see there, 227 00:29:17,490 --> 00:29:24,670 but also to provide protection to victims. 228 00:29:24,670 --> 00:29:30,050 And since the group in our case, the racial group appears to be in the OCTA suit is, 229 00:29:30,050 --> 00:29:35,570 one could wonder whether it also demands an objective determination. 230 00:29:35,570 --> 00:29:45,430 But then how can you objectively determine a group if it only is created in the fantasy of a person's mind? 231 00:29:45,430 --> 00:29:55,280 Or shall we turn it around and say, well, does the group at all have to be objectively definable? 232 00:29:55,280 --> 00:30:03,530 Perception and I argue not only perception, but any mental element is, of course, a challenge to international criminal jurisprudence. 233 00:30:03,530 --> 00:30:10,130 And why is that so foremost? Because of the principle of legality. 234 00:30:10,130 --> 00:30:13,730 The law has to be foreseeable and specific enough. 235 00:30:13,730 --> 00:30:20,330 And also because of the procedural rights of the accused. He or she has to know what he's accused of. 236 00:30:20,330 --> 00:30:29,770 So you cannot just suddenly create some groups that nobody has ever heard often that originate in the fantasy of a person. 237 00:30:29,770 --> 00:30:34,360 The courts have to be able to render verifiable judgements that show some kind of 238 00:30:34,360 --> 00:30:42,410 coherence in the way they're applied to different cases and not least how do you prove? 239 00:30:42,410 --> 00:30:50,280 Perception. I will now bring you from the law into the social sciences. 240 00:30:50,280 --> 00:30:51,420 And why do I do that? 241 00:30:51,420 --> 00:31:03,780 Because I believe the social science is understanding of genocide is highly relevant for the legal interpretation of the crime interconnected. 242 00:31:03,780 --> 00:31:13,750 Also the understanding of racial groups or racial racialized discrimination. 243 00:31:13,750 --> 00:31:20,800 Genocide is an identity based crime where there are two or several competing groups. 244 00:31:20,800 --> 00:31:26,500 So the group notion, again, is very important to understand the crime as whole. 245 00:31:26,500 --> 00:31:35,800 The individual is attacked not for being who he is in his own right, but for being a member of a group that also makes the individual replaceable. 246 00:31:35,800 --> 00:31:47,360 Because you are just one of many. You're just being targeted because you belong to a group or a presumed group. 247 00:31:47,360 --> 00:31:55,520 This is based on what social scientists often called the authoring, it's the creation of negative identities. 248 00:31:55,520 --> 00:31:56,630 It's us. 249 00:31:56,630 --> 00:32:08,240 Our group, the ingroup and them, it's the outgroup that is visible in any genocide or also pre genocide where those group categories are created. 250 00:32:08,240 --> 00:32:19,360 And that is also what the Darfor commission, for example, noted. Social psychology and more specifically, 251 00:32:19,360 --> 00:32:28,390 the social identity theory has found out that just the perception does not belong to different groups without actually belonging to them, 252 00:32:28,390 --> 00:32:33,890 is sufficient to trigger intergroup discrimination where you favour your own group. 253 00:32:33,890 --> 00:32:38,230 It's as we we have to go first because we count more. 254 00:32:38,230 --> 00:32:39,790 We are more valuable. 255 00:32:39,790 --> 00:32:51,760 And you see, it's, again, this hierarchical thinking that we are on that different level or on a better level, a more valuable than the others. 256 00:32:51,760 --> 00:32:58,580 The competition is very important because it creates the groups and it then escalates to group. 257 00:32:58,580 --> 00:33:05,800 So you you create a process that can hardly be stopped because the more you identify as is, 258 00:33:05,800 --> 00:33:14,470 the more you will see the answers as incompatible with your own group. 259 00:33:14,470 --> 00:33:20,060 And it's not only the groups, but you you give the group certain characteristics, whether they're real or not, 260 00:33:20,060 --> 00:33:27,990 it doesn't matter because you assign them values and prejudice and they're seen as of lesser value. 261 00:33:27,990 --> 00:33:34,740 And by being of a lesser value, of course, they become much more susceptible to attacks. 262 00:33:34,740 --> 00:33:47,020 They're just people of a lesser value. So they they don't really matter as much as our valuable group. 263 00:33:47,020 --> 00:33:52,280 So did the other group is seen is perceived. 264 00:33:52,280 --> 00:33:57,350 As containing some immutable characteristics, those characters, 265 00:33:57,350 --> 00:34:03,740 this cannot be changed because they belong to your personality, to your group personality. 266 00:34:03,740 --> 00:34:12,290 And since they cannot be changed, the members cannot really be assimilated to your own group because it's something that is innate, 267 00:34:12,290 --> 00:34:17,150 at least in the understanding of the perpetrators. So that. 268 00:34:17,150 --> 00:34:24,380 Innate characteristic that cannot be changed constitutes a threat in the eyes of the perpetrator. 269 00:34:24,380 --> 00:34:34,280 And therefore often is is pre-emptively goes into a defence mode where the other group is attacked. 270 00:34:34,280 --> 00:34:44,490 And in the case of genocide, also with the intent to be destroyed. 271 00:34:44,490 --> 00:34:54,920 So there is an understanding of the other group as a fretful and that is created based on stigma and. 272 00:34:54,920 --> 00:34:59,750 As we have seen in the picture in India in the earlier pictures off the Jews, 273 00:34:59,750 --> 00:35:07,160 the victim group is seen as maybe they look like people, but what they really are, they're subhuman here. 274 00:35:07,160 --> 00:35:12,560 In the case of a publication where the Jews are seen as gift fail things. 275 00:35:12,560 --> 00:35:18,110 So it's a poisonous mushroom or here as rats. 276 00:35:18,110 --> 00:35:25,810 But also, for example, in the case of Rwanda, in a publication several years before the genocide, 277 00:35:25,810 --> 00:35:30,860 where in the writing at the bottom, the Tutsis are compared to in the NZD and Tutsi. 278 00:35:30,860 --> 00:35:37,930 So it is the cockroach Tutsis. And you can clearly see the picture of Marchette, the. 279 00:35:37,930 --> 00:35:45,910 Or here, where a patient is lying on at the doctor's office and says, I'm sick doctor, and the doctor says, well, what's your sickness? 280 00:35:45,910 --> 00:35:49,790 The Tutsi. The Tutsi. The Tutsi. So what is it? 281 00:35:49,790 --> 00:35:53,680 The the the group. The group of others. 282 00:35:53,680 --> 00:35:58,930 The outgroup. The victim group is perceived as something that does not. 283 00:35:58,930 --> 00:36:02,920 That is a sickness. It's not real. It's subhuman. 284 00:36:02,920 --> 00:36:12,980 And you see it commonly in the way language is used when victim groups are mentioned in publications or elsewhere. 285 00:36:12,980 --> 00:36:22,790 In the case of Armenia, for example, a doctor who was involved in the killings of the Armenians and he was asked why he as a doctor could murder. 286 00:36:22,790 --> 00:36:29,720 He answered the Armenians had become hazardous microbes in the body of his country. 287 00:36:29,720 --> 00:36:35,160 Well, isn't it a doctor's duty to kill microbes? 288 00:36:35,160 --> 00:36:41,120 And by presenting the Armenians in this case as something scary, dangerous. 289 00:36:41,120 --> 00:36:46,610 That's a threat to your country. It's a lot easier to justify attacking them. 290 00:36:46,610 --> 00:36:57,680 They're not people anyway. They're microbe starer there. Did they have to be eradicated? 291 00:36:57,680 --> 00:37:05,690 There's been a lot of research on how those genocidal processes occur and a contested one, I admit, but nonetheless, 292 00:37:05,690 --> 00:37:14,240 useful tool is the eight stages of genocide by Gregory Stanton, where there are some early warning signs. 293 00:37:14,240 --> 00:37:26,000 And then in all of those different stages do occur, although not linearly, but they do occur at one point or another prior or during genocide. 294 00:37:26,000 --> 00:37:33,050 So, for example, classification, we have here a picture from a 17 20. 295 00:37:33,050 --> 00:37:38,900 So it's a very old one where the different people of Europe are compared. 296 00:37:38,900 --> 00:37:47,660 And then what is my left side is, is the Spaniards, and they are seen as male. 297 00:37:47,660 --> 00:37:53,490 And why is it then on the opposite side, you have the Turks and the Greeks. 298 00:37:53,490 --> 00:38:01,280 And I have to move away the picture here where it says they are tender but also lazy. 299 00:38:01,280 --> 00:38:09,350 This is a classification of people. This is trying to create some objective framework into which you place people. 300 00:38:09,350 --> 00:38:12,710 And it's certainly not meant in a evil way. 301 00:38:12,710 --> 00:38:22,210 But it is very dangerous. This was a classification in the case of Iran, though. 302 00:38:22,210 --> 00:38:31,220 Where are you in the identity cards? See the ethnicity of the person which makes it much more easy to single them out. 303 00:38:31,220 --> 00:38:40,300 So and roadblocks in Rwanda. They would cheque the I.D. cards and then just took out whoever had the Tutsi marked in their I.D. card. 304 00:38:40,300 --> 00:38:49,750 symbolisation, the symbols are very strong way of singling out people here in the case of the German Reich, that the J. 305 00:38:49,750 --> 00:38:57,760 The Red J for Jew or of course, the yellow star of David. 306 00:38:57,760 --> 00:39:07,390 And again, dehumanisation here from Poland, where Jews in a in a poster were described as lice. 307 00:39:07,390 --> 00:39:13,600 So it is creating this sub human understanding of the victims. 308 00:39:13,600 --> 00:39:20,810 But we don't have to look at genocides only. I can show you two very recent publications. 309 00:39:20,810 --> 00:39:29,150 Welcome to Europe, it's us and the Muslims crossing the European borders are portrayed as rats. 310 00:39:29,150 --> 00:39:36,110 They're crossing the borders. And you also see there's a picture of one man carrying an AK 47. 311 00:39:36,110 --> 00:39:40,850 So not only are they subhuman, they're rats, but they're also a threat. 312 00:39:40,850 --> 00:39:51,000 They're carrying weapons into Europe. The next one is disturbing, but this is a very recent one. 313 00:39:51,000 --> 00:39:59,620 I don't think I will have to comment it any further. 314 00:39:59,620 --> 00:40:08,140 The important part about this is that it is the perpetrator who controls the identity creation of the victims, 315 00:40:08,140 --> 00:40:14,350 the victims is has no influence on how the perpetrator perceives him or herself. 316 00:40:14,350 --> 00:40:22,090 So it is inherently perpetrator driven and therefore subjective in many cases, 317 00:40:22,090 --> 00:40:30,070 or I would say in most cases, the victim is reduced to one identity marker in the case of the Jews. 318 00:40:30,070 --> 00:40:37,670 It was a racial understanding. It was not a religious understanding, but it was race. 319 00:40:37,670 --> 00:40:44,540 And one can also see that in Orser Genocide's. 320 00:40:44,540 --> 00:40:54,100 The stigmatisation of the perpetrator then will reveal the way he perceives the victims and talking in legal terms, 321 00:40:54,100 --> 00:40:57,820 that would then be the intent to destroy a group. 322 00:40:57,820 --> 00:41:04,060 So it's the special the special intent TORDJMAN Serail. 323 00:41:04,060 --> 00:41:07,420 And how we'll be figuring out what the perception is. 324 00:41:07,420 --> 00:41:20,350 Well, by looking at the behaviour of the perpetrator, the perception will be revealed in the way the perpetrator speaks, what he publishes. 325 00:41:20,350 --> 00:41:27,460 For example, comments and utterances can actions as well. 326 00:41:27,460 --> 00:41:37,030 Of course. And that behaviour then will make the group at objectively identifiable in terms of law. 327 00:41:37,030 --> 00:41:47,170 So for a court of law, that's where you should start looking. 328 00:41:47,170 --> 00:41:57,370 If if we try to show this as a process where we have the perpetrator with his definitional power over the victim stubbled 329 00:41:57,370 --> 00:42:05,680 be his special intent because he creates the victims and then his creation will be shown in the way he behaves, 330 00:42:05,680 --> 00:42:09,430 in the stigmatisation, in the dehumanisation. The way he labels. 331 00:42:09,430 --> 00:42:18,670 What kind of prejudice as he has towards the group. And then, of course, that behaviour makes the group objectively definable. 332 00:42:18,670 --> 00:42:27,190 Whether the group exists or not is another question. So is it at the end only an issue of proof? 333 00:42:27,190 --> 00:42:39,990 I will revert to what Yellow Sage said. In the eyes of the perpetrator, and I believe what comes closest to a feasible solution is what movie MOLLE, 334 00:42:39,990 --> 00:42:42,610 not the isotropic judgement of two thousand five, 335 00:42:42,610 --> 00:42:51,700 said the prosecution has the burden of proving eser that the group that the victim belong to the targeted group, 336 00:42:51,700 --> 00:42:57,910 or that the perpetrator believed that the victim belonged to the group for the case of race. 337 00:42:57,910 --> 00:43:07,270 I do not believe one is able to prove that someone belongs to a racial group because there is no such thing as an objective racial group. 338 00:43:07,270 --> 00:43:18,490 They are no races of mankind. But if the perpetrator believed that his victims has a different racial being, 339 00:43:18,490 --> 00:43:28,980 then it would be possible to classify the victims as belonging to a racial group. 340 00:43:28,980 --> 00:43:35,010 So if the perpetrator perceives his victims as members of a group with a different race. 341 00:43:35,010 --> 00:43:42,240 In my view, they do acquire protection under the genocide convention, irrespective of their actual group membership. 342 00:43:42,240 --> 00:43:52,140 And irrespective of so-called objective elements that the courts have demanded. 343 00:43:52,140 --> 00:43:59,520 But we do we can we can transform this kind of logic if we want to, other crimes. 344 00:43:59,520 --> 00:44:06,180 Well, and I'm now pulling you a bit out of the international criminal law side into other areas of law. 345 00:44:06,180 --> 00:44:16,580 So if we have the pyramid of hope at the apex is genocide. The same logic can also be applied, be applied to acts of discrimination, for example. 346 00:44:16,580 --> 00:44:27,490 And I will show you two very recent cases at a judgement that was rendered by the Danish Supreme Court last week. 347 00:44:27,490 --> 00:44:31,240 Now, it's probably more than a week ago now that. 348 00:44:31,240 --> 00:44:45,460 Health, that's an understanding of the perpetrators of the victims as non Western migrants, asylum seekers and refugees was not racism. 349 00:44:45,460 --> 00:44:53,320 So they acquitted the perpetrators because they said the group of non Western migrants, 350 00:44:53,320 --> 00:45:01,770 refugees and asylum seekers could not be classified objectively as belonging to the same group. 351 00:45:01,770 --> 00:45:07,710 And of course, in my view, that is a very narrow reading of race or racial group or racial discrimination, 352 00:45:07,710 --> 00:45:19,590 because in the view of those of those perpetrators who who were distributing so-called asylum spray in the streets of a Danish city, 353 00:45:19,590 --> 00:45:24,960 the victims very much belongs to a coherent group. They knew exactly who they are talking about. 354 00:45:24,960 --> 00:45:33,780 And let's face it, they were talking about the Muslim immigrants to Denmark who they considered as a threat. 355 00:45:33,780 --> 00:45:41,970 And also in their political pamphlets, for example, said that they were a threat or a danger to the Danish women. 356 00:45:41,970 --> 00:45:47,340 So you have, again, this understanding of the Osas as being dangerous threat. 357 00:45:47,340 --> 00:45:55,830 And you give them a stigma as being rapists, for example, in this particular case. 358 00:45:55,830 --> 00:46:05,120 So I think in this very case here, the Danish Supreme Court did, too, in our reading of the law. 359 00:46:05,120 --> 00:46:11,060 Here, a case from Norway, a man wrote this comment on a public Facebook page. 360 00:46:11,060 --> 00:46:17,270 Hello? They do. They belong on the video, not here with their ridiculous clown costumes. 361 00:46:17,270 --> 00:46:30,040 They're marching around in. If you smell lighter fluid, Asami is not far away with his one metre Sarti on his smell of fire. 362 00:46:30,040 --> 00:46:40,810 The perpetrator's understanding he was convicted. I must say his understanding is heavily influenced by the and informed also by the 363 00:46:40,810 --> 00:46:46,630 racialise science from the early 20th century that I have showed it to you earlier. 364 00:46:46,630 --> 00:46:52,730 This is the understanding that the saw me indigenous group or at the LOP, as they were called at that time, 365 00:46:52,730 --> 00:47:00,160 or ah, a back word development of mankind, that they are inferior, that their childish. 366 00:47:00,160 --> 00:47:14,040 This is that thinking that on the standing of a whole group that lingers and is very visible in those hateful comments that are published online. 367 00:47:14,040 --> 00:47:20,280 So if he returned to this case, according to the perpetrator, and this is parts of the judgement, 368 00:47:20,280 --> 00:47:26,790 the Saami do not belong to the civilised parts of Norway and actually not to the rest of the world easer. 369 00:47:26,790 --> 00:47:32,220 He asked them to go to [INAUDIBLE] and then a lot of other lovely words. 370 00:47:32,220 --> 00:47:33,150 And luckily, 371 00:47:33,150 --> 00:47:44,700 the Supreme Court of Norway did recognise that these comments are just yet an extension of our understanding of the Salmi as being of a lesser value, 372 00:47:44,700 --> 00:47:51,420 of being inferior, of being not as valuable as the majority Norwegian population. 373 00:47:51,420 --> 00:48:00,080 So they they concluded that it was a gross denigration of the saw me as an ethnic minority. 374 00:48:00,080 --> 00:48:06,200 The racialized thinking was not highlighted in this judgement, which in my opinion is wrong, 375 00:48:06,200 --> 00:48:11,330 too, because the Norwegian domestic law does not protect racial groups, 376 00:48:11,330 --> 00:48:20,210 but only hate speech based on skin colour, which is a very, very narrow way of looking at things. 377 00:48:20,210 --> 00:48:27,440 And we must also know that in most cases, the victims, both in this cases, but also the answer once earlier presented, 378 00:48:27,440 --> 00:48:34,460 belong to minority groups that already experience increased discrimination here. 379 00:48:34,460 --> 00:48:43,250 In the case of the saw me in a in a what I hope is a very developed and progressive country such as Norway, 380 00:48:43,250 --> 00:48:47,960 a ten fold discrimination compared to the majority population. 381 00:48:47,960 --> 00:48:57,590 This is a huge problem that lingers and has also to do with the racialized understanding. 382 00:48:57,590 --> 00:49:01,220 The Human Rights Committee concluded the same. 383 00:49:01,220 --> 00:49:09,700 There is a persistence of hate crimes in Norway. And it is concerned about the under reporting of crimes. 384 00:49:09,700 --> 00:49:18,400 But Norway is by no means alone because Euge EU survey found that one in four from 385 00:49:18,400 --> 00:49:24,730 minority and immigrant groups have been a victim of racially motivated crimes. 386 00:49:24,730 --> 00:49:27,130 This these are huge numbers. 387 00:49:27,130 --> 00:49:36,600 If you look at the European Union as a whole and another problem that is connected is that the perpetrators bias is not reported and the bias is, 388 00:49:36,600 --> 00:49:47,720 is stigmatisation. This perception, this understanding of hierarchies of lesser value, of why they are supposed to be so different. 389 00:49:47,720 --> 00:49:53,750 And according to the jurisprudence of the European Court of Human Rights, overlooking that bias, 390 00:49:53,750 --> 00:49:59,600 motivation amounts to the violation of the right to protection from discrimination. 391 00:49:59,600 --> 00:50:11,830 Some now bringing you into the human rights side of this problem. It is important that racially motivated crimes are understood as such. 392 00:50:11,830 --> 00:50:19,930 They're based on a perception of inferiority, hierarchical thinking and based on. 393 00:50:19,930 --> 00:50:27,390 Perceived or real characteristics. And I will end with a picture. 394 00:50:27,390 --> 00:50:36,030 Do you see a little man playing a saxophone? Or do you see a woman's face? 395 00:50:36,030 --> 00:50:45,190 Because we don't see things as they are, we see them as we are. 396 00:50:45,190 --> 00:50:47,627 Thank you for your attention.