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The defining feature of the crime of genocide is the deliberate destruction of a group. That the term genocide denotes group destruction is evident in the term itself: Sensing that no word captured the horror of Nazi atrocities, Polish attorney Raphael Lemkin coined the term from the ancient Greek genos (meaning race, nation, or tribe) and the Latin suffix cide (meaning "killing") (1947, p. 147). Article II of the 1948 United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter referred to as the 1948 UN Genocide Convention) thus describes genocide as the commission of a specified act or acts "with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such." Murder motivated by hatred of one person, as opposed to hatred of the group of which the person is a member, does not comport with this definition. Nor does the deliberate starvation of others, unless the perpetrator deprives victims of food for the purpose of eradicating the group to which the victims belong. There is no doubt that an action perpetrated against an individual can be criminal—in some cases, a crime against humanity. But such an action could not be genocide, the offense often called "the crime of crimes."

The designation of genocide as the supreme crime recognizes the importance of human grouping. Much of human rights law focuses on the autonomy, security, and development of the individual; accordingly, many human rights norms are intended to protect the individual against mistreatment at the hands of those in positions of power. Yet even classical liberals, whose work has provided a philosophical basis for human rights law, consider an individual's assimilation into a society a step toward the realization of individual human dignity. Human beings group together because of shared ideas and interests, and to work for common goals. The intentional destruction of a group—the essence of genocide—warrants the most severe condemnation for the very reason that it thwarts these ends.

Some have argued that all, or perhaps many, human collectivities should be counted as among those groups protected by bans on genocide. The drafters of the 1948 UN Genocide Convention thought otherwise, extending protection only to national, ethnical, racial, and religious groups, and thus excluding other groups, such as political, cultural, or social groups.

Group membership implies a common identity, shared attributes, and a sharing of ideas or beliefs with others. Group members may be linked by a single commonality, such as an affinity for jazz piano, or a passion for the local football team. Groups susceptible to the possibility of genocidal aggression and protected by the ban on genocide typically share unique complexes of traits. Identification denotes the process by which one of these complexes of shared attributes—this identity—is recognized. Group nonmembers, as well as members, participate in this process of creating group identity. With regard to genocide, the phenomenon of identification provokes two lines of inquiry: Is it the victim or the perpetrator of genocide who identifies the victim as belonging to a group? Does the subjective understanding of either, or both, suffice to establish group membership? Ad hoc international tribunals established in the 1990s, set up to investigate violations of international criminal law, expressed ambivalence with regard to these questions.

In what was the first international judgment of conviction for the crime of genocide, the International Criminal Tribunal for Rwanda (ICTR) placed emphasis not on subjective perceptions but on objective factors. It thus interpreted the UN proscription against genocide to be applicable only to "'stable' groups, constituted in a permanent fashion," and to groups whose members belong to those groups "automatically, by birth, in a continuous and irremediable manner" (Prosecutor v. Akayesu, para. 511). This stable-and-permanent-group formula, as it came to be known, drew criticism. Many social scientists as well as biologists have in recent decades rejected claims that race is fixed and biologically determined; to the contrary, they have concluded that attributions of "race" derive from "social myth," formed in no small part by subjective perceptions (UNESCO Statement, 1950, p. 15). By the mid-1990s Professor Thomas K. Franck had posited a right of individuals "to compose their own identity by constructing the complex of loyalty references that best manifest who they want to be" (Franck, 1996, p. 383). Assignment of group status based on a search for constant and unchanging attributes clearly would run counter to this latter view of group identification as a dynamic process of social construction. The Rwanda tribunal's second decision thus underscored the subjective aspects of identity and group membership; in attempting to refine its concept of what constitutes a group, it wrote of "a group which distinguishes itself, as such (selfidentification); or, a group identified as such by others, including perpetrators of the crimes (identification by others)" (Prosecutor v. Kayishema, para. 98). This new emphasis won praise as "a welcome shift that takes into account the mutable and contingent nature of social perceptions, and does not reinforce perilous claims to authenticity in the field of ethnic and racial identities" (Verdirame, 2000, p. 594).

The 1948 UN Genocide Convention's definition of genocide, it would seem, rested only on the perpetrator's subjective perception. The UN proscription against genocide arose of a desire not just to punish those who succeeded in destroying groups, but more fundamentally to prevent such destruction from occurring in the future. The convention thus prohibits acts executed with the intent to destroy, and permits conviction even if those acts failed to wreak permanent harm on a group. The definition speaks of a group not as an independent and objectively demonstrable element, but rather of one's subjective belief in the existence of a group as a component of the mens rea (the guilty mind) that one must possess before one's crime qualifies as genocide. The text of the definition could be construed to mean that all that matters is the state of mind of the perpetrator; that is, that the element of the group is met as long as the perpetrator subjectively identified the victim as belonging to a group.

Wholly subjective determinations of group status could lead to absurd results, however. Surely there is a risk of overinclusion. Imagine a serial killer who, aiming to bring an end to the wearing of earrings, chose victims solely on the basis of whether they wore earrings. Earring-wearing could then be viewed as the shared attribute according to which the perpetrator subjectively grouped persons. To identify as composing a group persons who have never grouped themselves—who have never engaged in any of the joint human endeavors that the ban on genocide is supposed to shield—could result in a finding that genocide was "committed against a group that does not have any real objective existence" (Schabas, 2000, p. 110). Conversely, there is also a risk of underinclusion. Imagine a defendant who professed to be unaware of victims' group membership, who maintained that any such membership was coincidental to any violence that might have occurred. If all that mattered were the perpetrator's state of mind, this kind of testimony alone might lead to acquittal, even in the face of objective evidence that victims belonged to an identifiable and protected group. Decision on whether a defendant possessed the requisite malevolent intent, therefore, must entail an examination of more than just the defendant's own perceptions.

Evidence that relates to the subjective understandings of persons who identify with a group is thus key to the resolution of a victim's group status. As in the case of the perpetrator's perceptions, however, this criterion of victim perception ought not to provide the exclusive basis for identification. During the first fifty years that followed World War II, in the absence of any treaty that defined crimes against humanity, groups that had been the objects of certain kinds of violence endeavored to have their sufferings recognized as the aftereffects of genocide; even into the twenty-first century, conventional wisdom reserves its harshest condemnation for persons labeled génocidaires. But a desire to establish that victims belonged to a group protected by bans on genocide, and thus that their sufferings constituted a byproduct of genocide, could distort testimony regarding commonalities. In contrast with this risk of overinclusion, there is, again, a risk of underinclusion. Victims unaware that they were targeted because the perpetrator believed that they belonged to a group—victims who may not, in fact, have belonged to any such group—would be unable to establish that they suffered harm on account of the perpetrator's group loathing.

Early tribunal judgments were not oblivious to these concerns; even those that emphasized one type of evidence gave at least passing attention to other types. Group status in the twenty-first century is determined by the comprehensive examination of a particular context. Considerable weight is placed on subjective perceptions. The defendant's understanding, manifested both by the defendant's testimony at trial and by things the defendant has written or told others, receives careful scrutiny. Also receiving careful scrutiny is testimony that victims saw themselves as belonging to a group, or that other group members claimed a victim as one of their own. Contextual inquiry likewise looks to objective indicators. The Rwanda tribunal, for example, recognized Tutsi as a group, in no small part because of the evidence adduced regarding identity cards that the Rwandan government had issued, cards that perpetrators used to confirm cardholders' ethnicity, as a means to select whom to victimize (Prosecutor v. Akayesu, paras. 83, 122–123, 170, 702; Prosecutor v. Kayishema, paras. 523–526). Similarly, the International Criminal Tribunal for the Former Yugoslavia, even as it refused to look for "scientifically irreproachable criteria," found objective evidence of victims' group status in the Yugoslav Constitution's description of Bosnian Muslims as a "nation" (Prosecutor v. Krstic, paras. 70, 559). Both tribunals relied on expert sociohistorical testimony to bolster their conclusions. In short, a combination of case-specific factors—subjective and objective evidence, evidence of self-identification and of other-identification—is relevant to resolution of whether a victim was identified as belonging to a group protected against genocide.

SEE ALSO Ethnic Groups; Racial Groups; Religious Groups

Diane Marie Amann