A survey of the case law of the ICTY and ICTR reveals inconsistencies and conceptual discrepancies in the approach to genocide cases, in particular with respect to the cornerstones of such cases – the identification of the protected group and its members – resulting in different levels of protection against genocide. A review model might help to address these issues, which are, arguably, preconditions of the legitimacy of these courts and of the effective enforcement of the prohibition of genocide. Given the close relationship between genocide and discrimination, this review model might be built on the ‘building blocks’ of discrimination law. The purpose of this contribution is twofold: (1) by unfolding the relationship between direct discrimination and genocide to devise a model of review, and (2) to analyse the consequences of the consistent application of this model for the identification of the protected groups and their members.
* The author would like to thank Aleksandar Momirov as well as the anonymous reviewers of the Leiden Journal of International Law for their valuable insights, comments and suggestions. [[email protected]]