Is Legal Realism overtaking International Genocide Jurisprudence?
by Abraham Joseph*
One of the most significant dimensions of Genocide jurisprudence in recent years has been the decisive shift from ‘Objective’ standards to ‘Subjective’ standards in defining the four protected groups under the Genocide Convention, 1948. Jargon aside, what this essentially means is that controversial objective factors like skin color, physical appearance among others no longer exclusively constitute the determinative tests to assess the commission of the ultimate crime.
In its place, subjective criteria like the perpetrators/victim’s perception (as belonging to a protective group); socio-historical constructs are enough to put the victims in one of the four protected categories.
To simplify further, the Genocide Convention protects four specific groups from the defined mischief of Genocide: National, Ethnic, Religious and Racial. However, none of these categories is defined by the Convention. So what are Judges adjudicating Genocide cases in International Criminal Tribunals supposed to do? They have two options: Firstly, define objective benchmarks (which can have universal validity) to specify the domestic groups and then assess whether victimized individuals (on account of their group identity) fall in one of the four categories. If not, adopt a case to case approach and subjectively evaluate factors that would place the victimized individuals (as members of a protected group) in any of the four categories.
Both these approaches are fraught with problems. Objectivity is likely to be possible in two distinct scenarios. Firstly, where the Constitution/Laws/ National Policy documents objectively define protected groups. This in itself is not enough, a victim community must explicitly (preferably) be defined as belonging to such an expressly protected group. The explicit mention of ‘Bosnian Muslims’ as a ‘Nation’ in the Yugoslav Constitution of 1963 simplified the job of the ICTY in the Kristic Case to come to a conclusion that the Srebrenica Massacre was a genocide against a ‘National’ group (the Bosnian Muslims). The ICJ applied the same logic in its 2007 Genocide Verdict. However, this was providential. What would the ICTY/ICJ have done if the 1963 Yugoslav Constitution had not specified Bosnian Muslims as a ‘Nation’? Would it have come to a conclusion that Bosnian Muslims cannot be objectively classified under a protected group and hence the Crime of Genocide was not committed? Additionally, the objective approach can lead to case specific problems: What would be the plight of a Bosnian Muslim man murdered by Serbian Christians on the belief that he belonged to the Bosnian Muslim community (when it is subsequently discovered that he was of mixed origin; say a Bosnian Muslim mother and a Serbian Christian father)? Would an accused facing Genocide charges in such a scenario be let off on the grounds of ‘Mistake of Fact’ if the Courts follow the objective criteria. Such, a conclusion would fly at the face of justice and logic.
Secondly, faced with a historic opportunity, an international tribunal may (quite rightly) objectively state the factors required to constitute a protected group. This was precisely the logic in the Akayesu case which was celebrated as the first Genocide judgment since the operationalization of the 1948 Convention. The judgment is noteworthy in its attempts to formalize the legal conception of Genocide. In fact, it would be no exaggeration to state that subsequent judicial attempts in treading the path of subjectivity were built on the solid positivistic plank of Akayesu. However, despite the same, objectivity would remain a theoretical guiding light and much of practical jurisprudence would dwell in the practical realities of subjectivity.
Subjectivity on the other hand comes in with its own set of problems. The quest to broad-base and lay down may to too tempting a proposition for many. This may lead to conclusions that may be welcome but difficult to temper with legal formalism. The International Commission on Darfur’s conclusion that persecuted tribes can constitute a protected group is one such illustration. The conclusion was based on the logic that the perpetrators mental framework to target a group should be basis of identifying victimhood for the purposes of the law. While moralistic and realistic in its assessment, the logic is at odds with conventional notions of legal formalism. In addition, its controversial interaction with the principle of legality has haunted international criminal jurisprudence. In the midst of all this, lies the obvious fallout of broad judicial discretion and necessity of a behaviouralist assessment of judicial law making in International law.
The ICTR judgment in Rutaganda was illustrative of this trend. The Tribunal was of the opinion that since the four protected categories defies an internationally accepted definition it’s most advisable to approach the situation on a case to case basis. However, this notion was tempered with reality that a degree of stability and permanence is required for a group to fall under the protective categories. Kayishema and Ruzindana strengthened the approach by adding the element of identification by others as an appropriate test. The ICTY followed this trend in Jelisic, virtually cementing the place of subjectivity in the Genocide jurisprudence debate. Subsequent verdicts of the ICTY further strengthened this philosophy. While Akayesu remains intact in form, in substance its boundaries have cracked. If Genocide scholars are to be believed, this trend is essential to re-invigorate the spirit of the Genocide Convention as historical and social constructs play a vital role in assessing the nature of group identities.
This leads one to a question frequently asked by American legal realists: Are formalistic objective legal rules slowly losing their relevance in a behavioral revolution? Does the virtual abolition of the objectivity criteria in the Genocide protected group debate smack of a form of ‘Rule- Fact Skepticism’ to quote the legendary Jerome Frank? While the move to subjectivity has positively expanded the scope of Genocide studies, has it not necessitated a behavioral assessment of international judicial making? This promises to be an interesting debate in the times to come.
*Abraham Joseph is a PhD candidate in International Criminal Law from NLSIU, Bangalore and an Assistant Professor in Ansal School of Law, Ansal University, Gurugram.