Is a numerus clausus (or apertus) list the one contained in the genocide concept?

Genocide:  a denial of the right of existence of entire human groups, as homicide is the denial of the right to life of individual human beings’.

Regulation: article 6 of the ICC Statute:

   For the purpose of this Statute, «genocide» means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a)     Killing members of the group;

(b)     Causing serious bodily or mental harm to members of the group;

(c)     Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d)     Imposing measures intended to prevent births within the group;

(e)     Forcibly transferring children of the group to another group.

 

Whether or not the list is exhausted ( …a national, ethnical, racial or religious group…)

This list is numerus clausus, that is a close list as the majority of the ICC and ad hoc tribunals jurisprudence held. All evidence is that list of groups are intended to be exhaustive, apart from the Darfur Commission and the Akayesu case. By contrast, the view that any ‘stable and permanent group’ is included within the Convention’s protected group was, however, followed by the Commission of Inquiry established at the law and human rights in Darfur. This line was also held by some scholars, such as Drost, the mention of only four groups must be understood as loopholes than can be exploited. The Commission found indeed that this expansive Commission’s finding in this regard, which indicates that the Convention list of groups and opinio juris, and cannot be seen as reflective of current law. Therefore, no other TC of the two ad hoc Tribunals, or the ICC has followed the Akayesu approach, and the AC has consistently, albeit quietly, kept to the view that the four groups are the exclusive focus of the Genocide Convention.

Otherwise, the denial of an exhausted list would dilute or belittle genocide making it too broad. Indeed, it should be reserved only for acts of exceptional gravity and magnitude which shock the conscience of humankind and which, therefore, justify the appellation of genocide as the ‘ultimate crime’. (Karadzic and Mladic TC ICTY Prosecution).

However, there are national jurisdictions that have adopted wider formulations of the protected groups in their domestic law. At the domestic level, States are entitled to use broader definitions (e.g. Ethiopian or Spanish law) but other States are not required to accept those definitions. It has been rightly said that it is precisely because of the rigours of the definition, and because of its focus on crimes aimed at the eradication of particular groups, that genocide is especially stigmatized.