The Vienna Convention on the Law of Treaties
sets out, as a general rule of interpretation, that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (United Nations 1969
The BIA stated: “persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, colour, or kinship ties, or in some circumstances, it might be a shared past experience such as former military leadership or land ownership” (Re Acosta, 19 I&N, Dec 211 at 233 (BIA 1986)).
Justice La Forest, writing for the Court, found “[t]he meaning assigned to “particular social group” in the Act should take into account the general underlying themes of the defence of human rights and anti-discrimination that form the basis for the international refugee protection initiative” (Canada (Attorney General) v Ward,  2 SCR 689 at 739).
In Islam v Secretary of State for the Home Department Immigration Appeal Tribunal and Another, Ex Parte Shah,  UKHL 20, 2 All ER 545 (25 March 1999) BailII at 20, the House of Lords stated: “[i]f one is looking for a genus in order to apply the ejusdem generis rule of construction to the phrase “particular social group”, it is to be found in the fact that the other Convention reasons are all grounds on which a person may be discriminated against by society. See also the New Zealand Refugee Status Appeals Authority decision in Re GJ, Refugee Appeal No 1312/93, 1 NLR 387 (RSAA 1995) at 23–34 for an extensive analysis of MPSG.
The BIA’s social visibility requirement led to a split in the Circuit courts, with the Seventh and Third Circuit rejecting this component as unreasonable in decisions such as Gatimi v Holder
, 578 F.3d 611 (USCA, 7th Cir 2009) [“It is true that our sister circuits have generally approved ‘social visibility’ as a criterion … We just don’t see what work ‘social visibility’ does”] and Valdiviezo-Galdamez v Attorney General of the United States
, 663 F.3d 582 at 609 (USCA, 3rd Cir 2011) [“the BIA’s requirement that a ‘particular social group’ possesses the elements of ‘social visibility’ and ‘particularity’ is not entitled to Chevron deference. … Indeed, we are hard-pressed to understand how the ‘social visibility’ requirement was satisfied in prior cases using the Acosta standard”]. For a review of the US approach, see (Marouf 2019, pp. 489–92
; Owens 2018, pp. 1259–62
; Grant 2017, pp. 904–21
; Vogel 2019, pp. 359–61
). For the UNHCR’s position rejecting this expanded test, see Grace v Barr (Attorney General)
, Brief for the UNHCR as Amicus Curiae, No 19-5013 (DC Cir 2019); OLBD v Barr (Attorney General)
, Brief for the UNHCR as Amicus Curiae, No 18-1816 (1st Cir 2019).
See e.g., A v Minister for Immigration & Ethnic Affairs
,  HCA 4, (1997) 190 CLR 225, 242: “There is more than a hint of circularity in the view that a number of persons may be held to fear persecution by reasons of membership of a particular social group where what is said to unite those persons into a particular social group is their common fear of persecution” cited in (Foster 2012, pp. 5–6
See e.g., Minister for Immigration and Multicultural Affairs v Khawar
, (2002) 210 CLR 1,  HCA 14, 33: “cohesiveness may assist to define a group; but it is not an essential attribute of a group. Some particular social groups are notoriously lacking in cohesiveness” cited in (Foster 2012, p. 5
See e.g., Hernandez v Canada (Minister of Citizenship and Immigration), 2007 FC 1297[finding transgender identity may constitute a PSG].
The first category of PSG in Ward
recognizes “gender is an innate characteristic and, therefore, women may form a particular social group within the Convention refugee definition” (IRB 1996, A(III)
For example, the Netherlands, following the Qualification Directive’s approach, does not recognize ‘women’ alone, while Austria, Belgium, Germany, Spain, and Switzerland have recognized women or a subset of women as a PSG (Hathaway and Foster 2014, p. 437
; Foster 2012, p. 41
For example, Latin American countries including Costa Rica, El Salvador, Guatemala, Mexico, Nicaragua, Paraguay, Uruguay, and Venezuela include gender in their domestic legislation on refugee protection (Hathaway and Foster 2014, p. 438
). Countries including Australia, Canada, the United Kingdom, and the United States have guidelines for decision-makers assessing gender-based claims (Boyd 2018, p. 19
See e.g., AI (Saudi Arabia),  NZIPT 801491 at para. 72 [finding the reason for the claimant’s “predicament is her membership of a particular group which is severely marginalized on a religious, legislative and social level in Saudi Arabia. That particular social group is ‘women’.”]; AB (Malawi),  NZIPT 800672 at para. 83 [finding a real risk of persecution on “the Convention grounds of political opinion and membership of a particular social group, namely women. Either suffices”]. But see BQ (Pakistan),  NZIPT 800675 at para. 45–46 [qualifying the PSG as “Ahmadi women”].
Part of addressing this challenge is educating lawyers not to rely on overly technical descriptions, particularly as the claimant often defines the group which is then narrowed throughout the proceeding (Foster 2012, pp. 42–43
(Hathaway and Foster 2014, p. 439
). In Fornah v Secretary of State for the Home Department
,  UKHL 46 at para. 26, the House of Lords recognized that “claims based on fear of FGM have been recognized or upheld in courts all [a]round the world.” Recently, the National Asylum Court in France in No 16029780 (CNDA 2017) found that young women who oppose FGM practiced in Nigeria were a PSG. For another example of an overly complex description of the PSG, see Litvinov v Canada (Secretary of State)
, (1994) 83 FTR 60, para. 11 (TD), describing “new citizens of Israel who are women recently arrived from elements of the former Soviet Union and who are not yet well integrated into Israeli society, despite the generous support offered by the Israeli government, who are lured into prostitution and threatened and exploited by individuals not connected to government, and who can demonstrate indifference to their plight by front-line authorities to whom they would normally be expected to turn for protection.”
This decision may be problematic where age (youth) is considered by some as an immutable characteristic: see Section 2.2.4
See also AS (Iran) v The Secretary of State for the Home Department
,  EWCA Civ 1539 at para. 28 [finding “woman in Iran” could constitute a PSG]; Fornah v Secretary of State for the Home Department
,  UKHL 46 at para. 55–58 [recognizing women in Sierra Leone could constitute a PSG, but it was possible to define the PSG more precisely as uninitiated (not affected by FGM) women in Sierra Leone]. For a discussion of Fornah
and other United Kingdom decisions where gender-based PSGs have been found, see (Querton 2012
For example, there is legislative protection for refugee status based on sexual orientation in Sweden, South Africa, Ireland, and Spain (Hathaway and Foster 2014, pp. 443–44
). Despite this longstanding recognition, only a small number of claims are based on sexual orientation (Millbank 2009, p. 4
See e.g., Canada (Attorney General) v Ward,  2 SCR 689; Matter of Toboso-Alfonso, I&N Dec 819 (BIA 1994) [In 1990, the BIA found homosexuality as constituting a PSG. In 1994, the Attorney General ordered that BIA decision to be a precedent].
Homosexuality is incorporated as an example or protected ground in some countries, but in a German decision homosexuality was found not to be distinct enough (Foster 2012, pp. 48–49, 53
The Qualification Directive (EU 2011, art 30
) expressly recognizes sexual orientation may constitute a PSG. This recognition has been affirmed by the CJEU (EASO 2016, pp. 50–51
) and by Member States such as France (EASO 2016, p. 51
; Mr O v OFPRA, No 16014463 (CNDA 2017)).
(Hathaway and Foster 2014, p. 443
) referencing Canada (Attorney General) v Ward
,  2 SCR 689, p. 739 [“[t]he first category would embrace individuals fearing persecution on such bases as gender, linguistic background, and sexual orientation”].
Homosexuality has been recognized as a protected characteristic in Canada, Belgium, Germany, New Zealand, South Africa, the United Kingdom, and the United States (Foster 2012, pp. 49–50
France’s approach is that if a person hides their sexual identity others cannot perceive it (Foster 2012, pp. 52, 54
). But see Hathaway and Foster
(2014, p. 445
) rejecting this view as behavioural limits should be in accordance with international human rights law and principals.
For example, decision-makers have drawn an adverse inference when assessing the credibility of an individual claiming status based on sexual identity that have been involved in a heterosexual relationship. Claimants have faced more difficulties in Australia and the United Kingdom, but less so in Canada and New Zealand. In Canada, the Federal Court has been alive to avoiding simplistic notions of sexual orientation. See e.g., Leke v Canada, 2007 FC 848,  FCJ 1108 [the Federal Court overturned a tribunal decision that found it was highly improbable a gay Nigerian man married and had two children for ignoring country-specific evidence on difficulties facing gay men]; Korienko v Canada (Minister of Citizenship and Immigration), 2012 FC 1419 [the Federal Court overturned a tribunal decision that a man’s claim of homosexuality was not genuine because he had not had a sexual encounter in years based on the (mistaken) belief that all gay may are promiscuous. The matter was sent back to the tribunal and later overturned on grounds of state protection, not whether he was a member of a PSG]; Ogunrinde v Canada (Public Safety and Emergency Preparedness), 2012 FC 760 [finding the decision-maker erred, in part, by focusing on whether the claimant was a homosexual rather than the risk he faced because the Nigerian police believed him to be a homosexual]. In Europe, see e.g., A (C-148/13), B (C-149/13), C (C-150/13), Grand Chamber (CJEU 2014) [assessments based solely on homosexual stereotypes does not meet the requirement to consider an individual’s personal circumstances], Case C-473/16, 3rd Chamber (CJEU 2018) [decision-makers cannot base their decision solely on an export report assessing an individual’s sexual orientation]. In the United States, the Ninth Circuit’s decision in Hernandez-Montiel v Immigration and Naturalization Service, F 3d 1084 (9th Cir 2000) is precedential for its finding that sexual orientation can be self-defined rather than an immutable characteristic [finding that gay men with female sexual identities constitute a PSG].
The CJEU decision in C-199/12, c-200/12, C201/12 X, Y Z, 4th Chamber (CJEU 2013) held that criminal laws prohibiting homosexuality supports finding that such persons form a PSG, but the existence of such laws is not itself “sufficiently serious” to be an act of persecution. Laws criminalizing homosexuality are not required to determine an individual is persecuted for their sexual orientation: see e.g., No 399780, 2nd Chamber (Conseil d’Etat 2017).
For a list of reasons sexual orientation-based claims were rejected in a study of unreported refugee decisions in Canada, the United Kingdom, and the United States, see (Braimah 2016, p. 564
See, e.g., Fornah v Secretary of State for the Home Department
,  UKHL 46 at para. 19–20 [finding there is consensus that membership in a certain family may constitute a PSG]; (Foster 2012, p. 55
) [noting Belgium frequently adopts the UNHCR statement that persecution may be based on “an individual’s membership of a family or clan engaged in a blood feud”].
|31|Hathaway and Foster
(2014, p. 448
) highlight several examples from the United Kingdom and United States. For a recent example where a person was found to be at risk because of a family member’s actions, see the New Zealand Immigration and Protection Tribunal’s decision in AC (Venezuela)
,  NZIPT 801438-439 at para. 201 [finding the mother is at risk from groups in Venezuela and Colombia for her political opinion opposing the Venezuelan government, and her son is at risk for MSPG, namely family].
For example, Germany rejected a claimant in the context of a “personal vendetta” and the US rejected “retaliation” as a basis for a claim (Foster 2012, p. 56
See (Boyd 2018
) for a recent review of case law on domestic violence-based refugee claims in Australia, Canada, Costa Rica, New Zealand, South Africa, the United Kingdom, and the United States.
But see (Boyd 2018, p. 14
) finding the rejection rate in Canada for domestic violence-based claims is high.
The Attorney General rejected that persecution by non-state actors in relation to domestic violence and gang violence could constitute a PSG. For an extensive review of the United States’ approach to gender-based violence as a PSG and critique of Matter of A-B-
, see (Vogel 2019
See Grace v Barr (Attorney General), Brief for the UNHCR as Amicus Curiae, No 19-5013 at 24-34 (DC Cir 2019; OLBD v Barr (Attorney General)), Brief for the UNHCR as Amicus Curiae, No 18-1816 at 24-36 (1st Cir 2019).
See Matter of S-E-G- et al, 24 I&N Dec 579 (BIA 2008) at 583-84 [finding youth is not immutable because it changes over time, but acknowledging that “mutability of age is not within one’s control, and that if an individual has been persecuted in the past on account of an age-described particular social group, or faces such persecution at a time when that individual’s age places him within the group, a claim for asylum may be cognizable”]. See also Cece v Holder, 733 3d 662 (7th Cir 2013) [recognizing a PSG was characterized by several factors, including being young].
|40|Hathaway and Foster
(2014, p. 449
) find that age is frequently applied in claims by children, though it could apply to the elderly. For an example where the elderly was a relevant PSG, see RRT Case No 1005628
,  RRTA 822 at para. 37 [finding “elderly Afghan women without male protection” as a PSG].
|41|For example, Foster
(2012, pp. 59–60
) points to claims described as young males have been rejected as too imprecise, while claims describing young Salvadorian males recruited but refusing to join a gang as too narrow.
See, e.g., X v Canada (Immigration and Refugee Board), 2001 CanLII 26953 (CA IRB) [finding “disabled minor” as a PSG]; X (Re), 2014 CanLII 90950 (CA IRB) [finding “disabled” (and women) as a PSG]; X (Re), 2012 CanLII 100292 (CA IRB) [finding “intellectual disability” as a PSG]; Ampong v Canada (Citizenship and Immigration, 2010 FC 35 [finding the decision-maker failed to adequately consider discrimination against disabled persons in Ghana and it is possible the claimant may belong to such a PSG].
For example, the Council of State of the Netherlands requested the UNHCR to submit its views on whether women of a “western lifestyle” that do not adhere to religious or cultural norms constitute a PSG under the Refugee Convention
and the Qualification Directive. The UNHCR
(2018, para. 7–18
) took the position that women who assert their human rights and are viewed as not adhering to prevailing norms can be a PSG because their beliefs are so fundamental they should not be renounced (satisfying the protected characteristic approach) or they are perceived as different from society (satisfying the social perception approach).
The persecution of professionals in Cambodia is often cited as a classic example of class-based persecution (Hathaway and Foster 2014, p. 452
). For example, Ram v Minister for Immigration and Ethnic Affairs
,  57 FCR 565 at 568 described Pol Pot’s regime in Cambodia as a “textbook example” of persecution based on MSPG (AAT 2019, p. 30
). Class-based persecution may have motivated the Swedish proposal (Foster 2012, p. 70
) and early commentary on international refugee law suggests wealthy targets such as landowners, professions, etc. constitute a PSG of some kind (Schoenholtz 2015, p. 108
See e.g., X (Re), 2018 CanLII 83464 (CA IRB) at para. 21 and 29 [finding the claimant’s former status as a “small business owner facing criminality in Hungary” does not constitute a PSG].
See e.g., Tapiero de Orejuela v Gonzales, 423 F 3d 666 at 672 (7th Cir 2005) [finding the “educated, landowning class of cattle farmers targeted by FARC [Colombian] rebels” constitutes a PSG]; AATA Case No 1500142,  AATA 3781 at para. 33 [accepting “a commercially successful wealthy middle-class family in a rural area targeted by cartel gangs for extortion” as a PSG].
See also Mia v Canada (Minister of Citizenship and Immigration)
, 2000 CanLII 14882 (FC) where the court did not oppose the PSG comprised of the poor in Bangladesh, though the claim was rejected on other grounds (IRB 2018, s. 4.5
The Federal Court of Canada in Alvarez v Canada (Citizenship and Immigration), 2016 FC 402 upheld the decision-maker’s finding that the claimant’s status as an engineer did not constitute a PSG, though it did not conclude that such a status could never meet the requirements of MPSG. The Court went on to affirm that employment and occupation will generally not raise issues related to human rights or non-discrimination that underpin refugee protection.
See e.g., Étienne v Canada (Citizenship and Immigration), 2007 FC 64 at para. 15 [finding a person who gains wealth or wins the lottery does not constitute a PSG]; Saint Hilaire v Canada (Citizenship and Immigration), 2010 FC 178 at para. 17 [finding a person’s (perceived) wealth associated with past business success does not constitute a PSG]; Navaneethan v Canada (Citizenship and Immigration), 2015 FC 664 at para. 53 [finding a person’s (perceived) wealth in Sri Lanka because of family in Canada is not a PSG. The Court stated that “[t]he [Federal] Court has consistently held that perceived wealth does not, without more, constitute membership in a particular social group”].
Articles 1(3), while articles 13(b), 55(c) and 76(c) refer to the same groups (United Nations 1945b
Article 2, with article 16 dealing with the right to marry refers to race, nationality and religion (United Nations 1948b
(OHCHR 2008, p. 3
). For a brief description of first-generation rights (civil and political rights), second generation rights (economic, social and cultural rights) and third generation rights (solidarity or group rights), see (Kälin and Künzli 2009, pp. 31–32
ICCPR, articles 2(1) and 26, of which the first one is general while the second refers to equality before the law, which mirror the text of article 2 of the UDHR and the ICCPR as well as general article 2(2) in the ICESCR.
ICCPR article 4(1), referring to public emergencies, prohibits discrimination on the ground of race, colour, sex, language, religion or social origin and article 24(1), referring to children, prohibits discrimination based on race, colour, sex, language, religion, national or social origin, property or birth.
This convention says in article 13(7), dealing with extradition, the following: “Nothing in this Convention shall be interpreted as imposing an obligation to extradite if the requested State Party has substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of that person’s sex, race, religion, nationality, ethnic origin, political opinions or membership of a particular social group, or that compliance with the request would cause harm to that person for any one of these reasons.” (United Nations 2006a
This Convention uses the same language regarding protected groups in its preamble and general article 2(1) as was used in the UDHR
, the ICCPR
, and the ICESCR
(United Nations 1989
This Convention uses the same language regarding protected groups in its general articles 1(1) and 7 as was used in the UDHR
, the ICCPR
, and the ICESCR
and the previously mentioned Convention (United Nations 1990
This Convention uses the same language regarding protected groups in its preambular paragraph (p) as was used in the UDHR
, the ICCPR
, the ICESCR
and the two previously mentioned Conventions (United Nations 2006b
The preamble to the Equal Remuneration Convention
refers to discrimination based on sex (ILO 1951
). Article 1(e) of the Abolition of Forced Labour Convention
states that forced or compulsory labour “as a means of racial, social or national or religious discrimination” should be suppressed (ILO 1957
). Article 1(a) of the Convention concerning Discrimination in Respect of Employment and Occupation
defines discrimination based on “race, colour, sex, religion, political opinion, national extraction or social origin” (ILO 1958
The preamble and general article 2 use the same language as the UDHR
, the ICCPR
and the Convention on the Rights of the Child
It uses the same definition of refugee with the same protected groups as the Refugee Convention
in articles I(1) and IV (OAU 1969
It uses the same language as the UDHR
in general article 3 (OAU 1990
It uses the same language regarding protected groups as the UDHR
in its preamble (African Union 2003
It uses virtually the same language as the UDHR
but changes the last category from “any other status” to “any other social condition” in general article 1(1); it refers to a more limited set of protected group in articles 13(5) (dealing with hate propaganda and mentioning race
, color, religion
, language, or national origin); article 22(8) (dealing with deportation and referring to race
, nationality, religion
, social status, or political opinions) and article 27(1) (dealing with suspension of guarantees and referring to race,
color, sex, language, religion
or social origin) (OAS 1969
|76|Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights
), which repeats the ACHR
-protected groups in its general article 3, while the Protocol to the American Convention on Human Rights to Abolish the Death Penalty
) does not reference protected groups.
|77|Inter-American Convention to Prevent and Punish Torture
) with no reference to protected groups.
|78|Inter-American Convention on Forced Disappearance of Persons
) with no reference to protected groups.
|79|Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women
) with a reference to class, race or ethnic group, income, culture, level of education, age or religion in the preamble while general article 9 states “With respect to the adoption of the measures in this Chapter, the States Parties shall take special account of the vulnerability of women to violence by reason of, among others, their race or ethnic background or their status as migrants, refugees or displaced persons. Similar consideration shall be given to women subjected to violence while pregnant or who are disabled, of minor age, elderly, socioeconomically disadvantaged, affected by armed conflict or deprived of their freedom.”
|80|Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities
), with no reference to protected groups.
It repeats the wording of the UDHR
in general article 2 while adding at the end “and without any discrimination between men and women” (League of Arab States 1994
Article 1 for the most part repeats the wording of the UDHR
but does not mention colour, replaces “sex” with “gender” and “property” with “economic status,” and adds “age” and “disability” while deleting “other status” (ASEAN 2012
). There is also a 2007 Declaration on the Protection and Promotion of the Rights of Migrant Workers
) and a 2013 Declaration on the Elimination of Violence against Women and Elimination of Violence against Children
), but neither refer to protected groups.
General article 14 has a list of protected groups, which is similar to the one in the UDHR
but adds “association with a national minority” (Council of Europe 1950
); article 14 has been the subject of a large body of jurisprudence by the European Court of Human Rights, which has resulted in the inclusion of additional categories under the heading “other status”, specifically gender identity and sexual orientation, see (European Union Agency for Fundamental Rights, the European Court of Human Rights and the Council of Europe 2018, pp. 155–228
). The ECHR
initially provided for narrower protection against discrimination limited to the enjoyment of a Convention right. Protocol 12
(Council of Europe 2000
) creates a general prohibition against discrimination by replacing “enjoyment of rights and freedoms set forth in this Convention” with “enjoyment of any right set forth by law” in general article 1.
The Council of Europe was established in 1949 with a view of working towards European integration; it has 47 members.
A list of all the treaties can be found on the Council of Europe’s website (Council of Europe n.d.
). The protected groups are mentioned in seven of the 13 substantive treaties: race, colour, sex, religion, political opinion, national extraction or social origin (preamble of the 1961 European Social Charter
(Council of Europe 1961
)); race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status (1996 Revised European Social Charter
(Council of Europe 1996b
)); ethnic, cultural, linguistic or religious identity (Framework Convention for the Protection of National Minorities
, general article 6(2) (Council of Europe 1995
)); sex, religion, race, colour or national or ethnic origin (1997 European Convention on Nationality,
general article 5(1) (Council of Europe 1997b
)); genetic heritage (1997 Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine
, general article 11 (Council of Europe 1997a
)); sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status (2005 Convention on Action against Trafficking in Human Beings
, general article 3 (Council of Europe 2005a
)); sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, state of health, disability or other status (2007 Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse
, general article 2 (Council of Europe 2007
)); sex, gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status (2011 Convention on Preventing and Combating Violence against Women and Domestic Violence
, general article 4(3) Council of Europe 2011
See article 9 of the 1979 International Convention Against the Taking of Hostages
(United Nations 1979b
); article 12 of the 1997 International Convention for the Suppression of Terrorist Bombings
(United Nations 1997
); article 15 of the 1999 International Convention for the Suppression of the Financing of Terrorism
(United Nations 1999
); article 16 of the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism
(United Nations 2005
), while article XIII of the 2010 Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft
) updated its text to: “race, religion, nationality, ethnic origin, political opinion or gender”, which was also done in article 10(3) of the 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation
). A list of all terrorism treaties can be found on the United Nations Office on Drugs and Crime’s online database (UNODC n.d.
Article 14 of the 2002 Inter-American Convention against Terrorism
), dealing with mutual legal assistance, refers to race, religion, nationality, ethnic origin, or political opinion.
Article 21(1) of the 2005 Convention on the Prevention of Terrorism
(Council of Europe 2005b
), dealing with extradition, refers to race, religion, nationality, ethnic origin or political opinion. Articles 4(2) and 5(2) of the 2003 Additional Protocol to the Convention on Cybercrime, concerning the Criminalisation of Acts of a Racist and Xenophobic Nature committed through Computer Systems
(Council of Europe 2003
) respectively deal with racist and xenophobic motivated threats and racist and xenophobic motivated insults due to race, colour, descent or national or ethnic origin, as well as religion.
In Africa, see the 1999 Convention on the Prevention and Combatting of Terrorism
). In the Middle East, see the Arab Convention for the Suppression of Terrorism
(League of Arab States 1998
). In Asia, see the SAARC (South Asian Association for Regional Cooperation) Regional Convention on Suppression of Terrorism
Article 3(1), which has the same text in the other three Conventions, says: “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria” (ICRC
)). A different text (sex, race, nationality, religion, political opinions, other similar criteria) can also be found in article 12, dealing with humane treatment, of the First Geneva Convention
), which deals with the wounded, sick and shipwrecked member of armed forces and the Second Geneva Convention
), which deals with the wounded, sick and shipwrecked member of armed forces at sea.
“The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate the sufferings caused by war” (ICRC 1949d, art. 13
). This article can also be found in the Third Geneva Convention
(ICRC 1949c, art 16
) dealing with the treatment of prisoners of war.
“Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion” (ICRC 1949d, art. 27(3)
“The selection of personnel for return under Article 30 shall be made irrespective of any consideration of race, religion or political opinion” (ICRC 1949a, art. 31(1)
“[R]ace, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria” (ICRC 1977a, art. 9(1), 75(1)
; ICRC 1977b, art. 2(1)
They are internationalized in a number of aspects: first, they are the result of an agreement between the United Nations and the country where the tribunal is based; second, the funding is provided for the most part by the international community; third, the personnel of all the organs of these institutions are a mix of local and international employees. There have been other internationalized institutions, but they are of less importance as their statutes are derived from the two main ones while the jurisprudence emanating from them have been of less precedential value. For more information about these institutions, see (Currie and Rikhof 2013, pp. 219–25
There is the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (“Malabo Protocol”)
, which was adopted in 2014 but it does not add any new categories of protected groups for either genocide or crimes against humanity in its articles 28(B) and (C) (African Union 2014
); moreover, it is not yet in force.
The other crimes, listed in articles 7(1)(a) to (k) of the Rome Statute
(United Nations 1998
), are: murder, extermination, enslavement, deportation, imprisonment, torture, sexual offences, enforced disappearance, apartheid and inhumane acts. The Rome Statute
includes one other article with a reference to protected groups, namely article 21 regarding applicable law, which says the application and interpretation of law must be without distinction on grounds such as gender, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status, but there is no jurisprudence with respect to these protected groups (United Nations 1998
Judgment, Krnojelac (IT-97-25-A), Appeals Chamber, 17 September 2003, para. 185, Judgment, Nahimana el al., (Media) (ICTR-99-52-A), Appeals Chamber, 28 November 2007, para. 985; Judgment, Gotovina et al. (IT-06-90-T), Trial Chamber, 15 April 2011, para. 1802; Judgment, Lukić (IT-98-32/1-A), Appeals Chamber, 4 December 2012, para. 455; Judgement, Kaing Guek Eav alias Duch (Case File 001/18-07-2007-ECCC/SC), Supreme Court Chamber, 3 February 2012, para. 236–40; Šainović et al. (IT-05-87-A), Appeals Chamber, 23 January 2014, para. 579. Ethnicity has also been accepted as a ground in the ICTY jurisprudence, see Judgment, Stanišić and Župljanin (IT-08-91-T), Trial Chamber, 27 March 2013, para. 68; Judgment, Nyiramasuhuko et al. (ICTR-98-42-A), Appeals Chamber, 14 December 2015, para. 2129, 2138; Judgment, Karadžić (IT-95-5/18-T), Trial Chamber, 24 March 2016, para. 497; Judgment, Mladić (IT-09-92-T), Trial Chamber, 22 November 2017, para. 3228; Judgment, Prlić et al. (IT-04-74-A), Appeals Chamber, 29 November 2017, para. 422; Judgment, Case 002/02 (Case File No. 002/19-09-2007/ECCC/TC), Trial Chamber, 16 November 2018, para. 713.
Judgment, Popović et al. (IT-05-88-T), Trial Chamber, 10 June 2010, para. 967; Judgement, Kaing Guek Eav alias Duch (Case File 001/18-07-2007-ECCC/SC), Supreme Court Chamber, 3 February 2012, para. 272–77; Judgment, Đorđević (IT-05-87/1-A), Appeals Chamber, 27 January 2014, para. 876; Judgement, Case 002/01 (Case File No. 002/19-09;-2007/ECCC/TC), Trial Chamber, 7 August 2014, para. 427–33 (for the notion of political group, see para. 430); Judgment, Karadžić (IT-95-5/18-T), Trial Chamber, 24 March 2016, para. 500; Judgment, Case 002/01 (Case File No. 002/19-09-2007-ECCC/SC), Supreme Court Chamber, November 23, 2016, para. 667–80; Judgment, Case 002/02 (Case File No. 002/19-09-2007/ECCC/TC), Trial Chamber, 16 November 2018, para. 714, 718, 720–21.
This definition is found in article 7(1)(h), while article 7(2)(g) says: “‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity” (United Nations 1998
). See Decision on the Confirmation of Charges, Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali
(CC-01/09-02/11), Pre-Trial Chamber II, 23 January 2012, para. 282–83.
See also ECtHR, Vasiliauskas v. Lithuania, Application no. 35343/05, 22 October 2015, para. 170–75.
Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, para. 512–15. See also ECtHR, Drėlingas v. Lithuania, Application no. 28859/16, 12 March 2019, para. 101–7 for the proposition that a partisan group in the late fourties can be a national group.
This seems a similar test as the social perception test used for membership in a social group (see above) but there is no evidence that the ICTR judges were aware or intended to rely on refugee law when determining this approach.
Judgment, Rutaganda (ICTR-96-3-T), Trial Chamber, 6 December 1999, para. 56; Judgment, Semanza (ICTR-97-20-T), Trial Chamber, 15 May 2003, para. 317; Judgment, Gacumbitsi, (ICTR-2001-64-T), Trial Chamber, 17 June 2004, para. 254; Warrant of Arrest Issued by Pre-Trial Chamber I, Separate and Partly Dissenting Opinion of Judge Anita Ušacka Al Bashir (ICC-02/05-01/09), Pre-Trial Chamber, 4 March 2009, para. 23.
Judgment, Brđanin (IT-99-36-T), Trial Chamber, 1 September 2004, para. 684. See also on this point Judgment, Gacumbitsi (ICTR-2001-64-A), Appeals Chamber, 7 July 2006, para. 39–40; Judgment, Blagojević et al. (IT-02-60-A), Appeals Chamber, 9 May 2007, para. 123; Judgment, Seromba (ICTR-2001-66-I), Trial Chamber, 13 December 2006, para. 320; and Judgment, Nahimana et al. (Media) (ICTR-99-52-A), Appeals Chamber, 28 November 2007, para. 523–25 and 561.
Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, 196; see also Judgment, Stakic (IT-97-24), Trial Chamber, 22 March 2006, para. 16–36; Judgment, Popović et al. (IT-05-88-T), Trial Chamber, 10 June 2010, para. 809; Judgment, Tolimir (IT-05-88/2-T), Trial Chamber, 12 December 2012, para. 735.
Judgment, Krstić (IT-98-33), Trial Chamber, 2 August 2001, para. 554–57 and 575–80 makes is clear that the destruction of groups with other characteristics than the ones mentioned in the definition does not amount to genocide; see also Judgment, Stakić (IT-97-24), Trial Chamber, 22 March 22, para. 23–24 and Judgment, Nahimana el al., (Media) (ICTR-99-52-A), Appeals Chamber, 28 November 2007, para. 496–97; regarding the issue of groups in the Genocide Convention in a historical context see also the ECtHR cases of Vasiliauskas v. Lithuania, Application no. 35343/05, 22 October 2015 and Drėlingas v. Lithuania, Application no. 28859/16, 12 March 2019.
In a survey of the legislation of 51 countries, it can be observed that the following 28 countries did not change any of the protected groups: Argentina, Australia, Bangladesh, Belgium, Brazil, Burundi, Comoros, Democratic Republic of the Congo (DRC), Germany, Iraq, Kenya, Malta, Israel, Mauritius, Nauru, Netherlands, New Zealand, Portugal, Republic of Korea, Samoa, Senegal, Spain, Suriname, South Africa, Trinidad and Tobago, Turkey, Uganda, UK; of these Iraq, Israel and Turkey have not ratified the ICC Statute while Turkey also deleted the ethnic component. In addition, eight other countries made changes to this existing iteration of protected groups: Bolivia, Paraguay, Peru, Honduras and Guatemala deleted racial group while El Salvador and Costa Rica deleted ethnic group and Nicaragua and omitted both racial and national groups. As a result of this survey, which includes the countries mentioned in the text and this footnote, a total 51 countries have been examined, of which 47 have ratified the Rome Statute
and have enacted implementation statutes while four countries, which have not ratified the Rome Statute
, have also enacted genocide legislation, namely Ethiopia, Iraq, Israel and Turkey (CICC 2017
For details, see the Coalition of the International Criminal Court’s case matrix on implementation of the Rome Statute
), the Legal Tools Database’s list of national criminal jurisdictions (Legal Tools Database n.d.
), and the Library of Congress’s chart of jurisdictions that punish genocide, crimes against humanity, and/or war crimes (Library of Congress 2016
Ethiopia has not ratified the Rome Statute
but has conducted a number of genocide cases using its Criminal Code with this definition of genocide in section 269 (Library of Congress 2016
The legislation was not a result of ICC implementation but already passed in 1992 and amended in 2003. See ECtHR, Vasiliauskas v. Lithuania, Application no. 35343/05, 22 October 2015, para. 50 and ECtHR, Drėlingas v. Lithuania, Application no. 28859/16, 12 March 2019, para. 58.
The Convention Governing the Specific Aspects of Refugee Problems in Africa is counted as an IHRL instrument, not a refugee law instrument, for analytical purposes to avoid double-counting.
The Convention on Preventing and Combating Violence against Women and Domestic Violence
(Council of Europe 2011, art. 4(3)
) lists sex and gender, as well as sexual orientation, in the same list of protected groups.
Linguistic background may also be recognized under MPSG, see: Canada (Attorney General) v Ward,  2 SCR 689 at 739.
Variants such as economic position, fortune, income, etc. can be found in the following instruments: Convention on the Protection of the Rights of all Migrant Workers and Members of their Families
(United Nations 1990
); African Charter on Human and Peoples’ Rights (Banjul Charter)
); African Charter on Human and People’s Rights on the Rights of Women in Africa
(African Union 2003
); African Charter on the Rights and Welfare of the Child
); American Convention on Human Rights
); Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights
); Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women
); Arab Charter of Human Rights
(League of Arab States 1994
); ASEAN Human Rights Declaration
“The Trial Chamber finds, however, that these cases cannot provide a basis for individual criminal responsibility. It would be contrary to the principle of legality to convict someone of persecution based on a definition found in international refugee law or human rights law. In these bodies of law, the central determination to be made is whether the person claiming refugee status or likely to be expelled or deported has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”. The emphasis is more on the state of mind of the person claiming to have been persecuted (or to be vulnerable to persecution) than on the factual finding of whether persecution has occurred or may occur. In addition, the intent of the persecutor is not relevant. The result is that the net of “persecution” is cast much wider than is legally justified for the purposes of imposing individual criminal responsibility. The definition stemming from international refugee law or human rights law cannot therefore be followed here.”, Judgment, Kupreskić (IT-95-16), Trial Chamber, 14 January 2000, § 589; see also UNHCR, Summary Conclusions, Expert Meeting on Complementarities between International Refugee Law, International Criminal Law and International Human Rights Law, Arusha, Tanzania, 11–13 April 2011 at para. 13–21.
Excludes art. 3 (the Convention shall be applied without discrimination as to race, religion, or country of origin).
Also listed under Table 2
, International Human Rights Law Instruments.
Art. 3 incorporates the Refugee Convention by reference (does not explicitly state the protected grounds).
Excludes art. 9 (Parties taking special account of women’s vulnerability due to their race, ethnic background, status as migrants, refugees or displaced persons, pregnancy, disabled, minor age, elderly, socioeconomically disadvantaged, affected by armed conflict, deprived of freedom).
Not yet in force.
But see Art. 14(2) (“measures shall be consistent with internationally-recognized principles of non-discrimination”).
But see Art. 19(2) (“measures shall be consistent with internationally-recognized principles of non-discrimination”).
Not yet in force.