April 6, 2009, marked the fifteenth anniversary of the beginning of the Rwandan Genocide. In 1994, international outcry was not immediately forthcoming, but the commitment made by the United Nations Security Council for an international criminal tribunal to bring those who were responsible for the genocide to justice was an important statement condemning the actions of many Rwandans. The International Criminal Tribunal for Rwanda (“ICTR”) had many legal issues to face, but the most important, by far, was an exploration of the law of genocide at international law. The ICTR was the first international court to try an individual for genocide, and it has continued with an unprecedented number of genocide charges. Jean-Paul Sartre argued that “[genocide] itself is as old as humanity.” The international law that prohibits genocide, though, is only sixty-one years old. It took fifty of those years before an individual was found guilty under the relatively young international law. The contributions of the ICTR to developments in the law of genocide are unquestionably significant. And while judicial decisions are considered a subsidiary means for determining rules of international law, they are essential to any understanding the law’s application. Genocide has been described as “the crime of crimes.” “Attacks on groups defined on the basis of race, nationality, ethnicity and religion have been elevated [...] to the apex of human rights atrocities” through international law. This elevated status exists because of the special intent required for an individual to be responsible for the commission of genocide. The legal analysis of this “special intent” is one of the most important aspects of all ICTR jurisprudence. Concern arose early within the ICTR that the Tutsi of Rwanda did not constitute a “protected group” under the 1948 Genocide Convention. Determining what did constitute a “protected group” under the Convention became an ongoing concern for the Tribunal. Ultimately, the question to be answered is what is the appropriate way to define “protected groups” under the 1948 Genocide Convention, and how will this definition impact proceedings before the International Criminal Court (“ICC”). By analyzing the jurisprudence of the ICTR, the accompanying jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and academic commentary, this article will explore the issue of protected groups. More specifically, the four terms used in the Convention will be analyzed, followed by a discussion on the use of an objective or subjective approach to defining genocide. Although ICTR case law tends not to be as well-reasoned as much of the ICTY case law, the former is still significant and may more accurately represent the ongoing debate regarding the precise and appropriate meaning of the terms found in the Convention. The world turned a blind eye to Rwanda in 1994. As Boutros Boutros-Ghali stated, “[f]or us, genocide was the gas chamber - what happened in Germany. We were not able to realize that with the machete you can create a genocide.” The experience in Rwanda and the jurisprudence of the ICTR will forever shape notions of genocide at international law and will hopefully protect groups like the Tutsi of Rwanda from such atrocities in the future.
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Alison Hopkins, "Defining the Protected Groups in the Law of Genocide: Learning from the Experience of the International Criminal Tribunal for Rwanda" (2010) 19:infraread Dal J Leg Stud 26.