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TOWARD A COMPARATIVE APPROACH TO THE CRIME OF GENOCIDE
Posted By Tatiana Sainati On November 9, 2012 @ 1:01 am In Duke Law Journal, International Law, Law Review Note | No Comments
The annihilation of more than 1.5 million Cambodians at the hands of the Khmer Rouge is widely considered a quintessential case of genocide. Whether these atrocities meet the definition of genocide as a legal matter, however, remains unsettled. As of October 2012, the question of whether genocide occurred in Cambodia within the meaning of the 1948 United Nations Genocide Convention is pending before the Extraordinary Chambers in the Courts of Cambodia (ECCC). The ECCC will determine this question against the backdrop of an ongoing debate about the appropriate scope of the crime of genocide. This debate pits expansionists, who believe the definition of the crime should be broadened to include mass killings of political groups, against restrictivists, who assert that genocide’s definition must remain tightly tethered to the crimes first articulated in the 1948 Genocide Convention. This restrictivist/expansionist dichotomy in some ways reproduces a larger debate in the human rights field. In this larger debate universalists, who assert that human rights derive power from their ability to transcend local, national, or international laws, geographically as well as temporally, clash with relativists, who insist that human rights ideals should not be imposed uniformly across cultures. The interpretive approach employed by restrictivists in the genocide debate mirrors the interpretive approach universalists use to make sense of human rights. Similarly, the expansionist approach to the law of genocide reflects the relativist interpretation of human rights more generally. In light of these similarities, lessons drawn from the broader human rights debate can provide guidance to the ECCC as it approaches the definition of genocide. This Note argues that the court should eschew dichotomies in favor of a comparative law approach to the crime of genocide. By approaching the crime of genocide in the Cambodian context as a legal transplant, the ECCC can achieve the uniformity critical to international law without sacrificing the cultural specificity necessary to ensuring that international legal principles remain locally meaningful.
The relativist approach to international law rejects the notion that universal legal principles can be imposed on another culture without accounting for how local cultural conditions and values should temper their interpretation. In the context of genocide, for example, a relativist approach may encourage an overly flexible definition of genocide—one that can be stretched to encompass any instance of mass killing. Such an expansive definition could ultimately strip all real meaning from the concept of genocide, thereby divesting it of practical and rhetorical force.
An uncompromisingly universalist approach to the definition of genocide is hardly superior. Universal human rights movements have been criticized as “‘civilizing’ crusade[s]” in which rights are wielded “as an instrument of global domination and neocolonialism.” In the context of international tribunals, for instance, the failure to take local cultural values into account has led local populations to dismiss the tribunals’ findings, thereby rendering the courts’ work illegitimate and ineffective.
Legal transplants offer an alternative to these uncompromising approaches. Legal transplants metaphorically describe “the moving of a rule . . . from one country to another, or from one people to another.” As laws are transplanted, they must be adapted or “domesticat[ed]” to make sense in new cultural contexts. The idea of legal transplants thus works to undermine the perception of the law as a “coherent and consistent object,” and instead demands an “analytic, dynamic, and realistic picture of the . . . law”—one capable of recognizing that the law takes on a multiplicity of substantive and structural meanings when it crosses borders. Transplant theory offers a mechanism for appreciating these differences, and provides both a method and a rationale for applying the “reasonable freedom of interpretation” necessary to making human rights principles meaningful in local settings.
Legal transplants also have tremendous implications for the law of genocide. In 1948, still reeling from the horrors of World War II, the international community first defined the crime of genocide in the Genocide Convention as 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.
Three restrictions in the official definition reveal the limitations that resulted from the context in which the Genocide Convention was drafted. First, the Genocide Convention confines the crime of genocide to acts ultimately designed to ensure the physical destruction or extermination of a group. Second, international tribunals have emphasized the distinction between motive and intent. Thus, whether a perpetrator is motivated by personal greed, military expediency, or a desire to cleanse a region of a particular ethnicity has no impact on the specific intent to accomplish these purposes through genocidal means. Finally, the Genocide Convention expressly limits its protections to just four enumerated human groups, defined by race, ethnicity, nationality, or religion. Due to these restrictions, several scholars have cast the Genocide Convention as a “retrospective condemnation of the Nazi enterprise” rather than a mechanism to prevent and punish future genocide.
In spite of its perceived limitations, the textual definition of genocide has been transplanted verbatim into the governing statutes of the ICTY, the ICTR, and the ICC. Although unrecognized, these courts already employ a method similar to the comparative analysis. This tacit use of legal transplants can be demonstrated by assessing the definitions that have been developed in the tribunals for the genocidal actus reus, and determining the contours of the protected groups.
Article II of the Genocide Convention confines the definition of genocide to five enumerated acts when those acts are committed with the intent to destroy a protected group. Nevertheless, both the ICTY and ICTR have found ways to interpret the text of the Genocide Convention so that it reaches acts that would not otherwise fall within the plain language of the Convention’s definition. For example, although rape is not one of the genocidal acts enumerated in the Genocide Convention, ICTR’s trial chamber held in Prosecutor v. Akayesu that rape in Rwanda could be an act of genocide. This holding effectively domesticated the crime of genocide to the Rwandan context. The trial chamber recognized the devastating physical and mental consequences resulting from the use of rape as a weapon of war. In addition, the chamber emphasized the significance of rape in a patriarchal society: rape becomes a method to prevent births within a group, because a woman who is impregnated by a member of another group will bear a child who belongs to its father’s—not its mother’s—group. By assessing the legal definition of genocide in light of the cultural and social context in which the allegedly genocidal acts occurred, the chamber recognized “that certain women are being raped by certain men for particular reasons.”
The Genocide Convention explicitly confines its protections to “national, ethnical, racial or religious group[s].” Tribunals that are tasked with interpreting the law of genocide have struggled to provide precise definitions for the inherently imprecise concepts embodied in the terms “national,” “ethnical,” “racial,” and “religious.” As with the overall interpretation of the crime of genocide, the innate ambiguities in the classification of protected groups have enabled the ICTY and ICTR to apply a culturally driven approach to defining the protected groups.
The ICTR’s reasoning in Akayesu illustrates the superiority of this comparative approach. Addressing the question of whether the Tutsi constituted a protected group within the meaning of the Genocide Convention and the ICTR’s own statute, the Akayesu trial chamber discussed the features of the Tutsi population, noting that the Tutsi had neither a separate language nor a culture distinct from the larger Rwandan population. Nonetheless, the chamber held that the Tutsi were a protected ethnic group. In so holding, the chamber relied on several factors, including customary rules that dictated “the determination of ethnic group[s]” and through which the labels “Hutu” and “Tutsi” had become entrenched in the Rwandan culture. Thus, the trial chamber found that the Tutsi comprised an ethnic group because of the way the Tutsis perceived themselves and the way they were in turn perceived by the Hutus. The trial chamber’s logic implicitly recognizes that to be truly meaningful, the universalist notions embodied in the Genocide Convention must be granted different practical meanings after being transplanted into the context of the Rwandan genocide.
The vast majority of the Khmer Rouge’s victims express a longing, not for compensation, but for “the closure that only a legal accounting can bring.” Meeting this expectation requires that the ECCC judges translate the law of genocide so that it makes sense locally. Most Cambodian survivors “have little doubt that the Khmer Rouge committed genocide” because they were victims of and witnesses to the crimes perpetrated by the regime. Still, the Cambodian people believe that “only the Tribunal can help [them] begin to find answers by bringing forward the truth for all to see.” Treating the law of genocide as a transplant is crucial to the successful completion of this process. In Case 002, however, the ECCC’s co-investigating judges relied too closely on the holdings of the ICTY and the ICTR and thus risked applying the law of genocide too narrowly to be meaningful in the Cambodian context.
In Case 002 the co-investigating judges assessed the treatment of four different groups—the Cham, Vietnamese, and Buddhist populations in Cambodia, and other members of the Khmer majority—to determine whether genocide occurred in Cambodia. They also analyzed the impact of the Khmer Rouge’s policies on the overall population. In undertaking their analysis, the co-investigating judges looked to the jurisprudence of the ICTY and the ICTR as a source of “discovered truth or interpret[ed] higher law,” rather than as a source for guidance on how to identify and resolve the conflicting principles at issue in the case.
Echoing the definitions of ethnicities provided by the ICTY and ICTR, the co-investigating judges defined the Cham as an ethnic minority due to their shared language, culture, and religion as well as the popular perception of the Cham as a distinct ethnic group in Cambodia. The co-investigating judges derived their definition of the Vietnamese as an ethnic group from current international jurisprudence, asserting that the Vietnamese are an “ethnic group” for purposes of the law of genocide due to their shared language, culture, and their self-identification as an ethnic population distinct from the larger Cambodian society.
Thus, the co-investigating judges ultimately indicted the four accused persons for the crime of genocide against the Cham and the Vietnamese. The co-investigating judges, however, did not indict the accused for genocide against the Buddhist and Khmer populations. By adopting the language and logic of the various ICTY and ICTR chambers verbatim, the co-investigating judges embraced a strict universalist approach to the law of genocide and assumed that the ECCC must interpret the law of genocide in the same way that the ICTY and ICTR have done. This approach fails to address, however, whether the reasoning of either the ICTY and ICTR, or alternatively, the ambiguities in the textual definition of genocide provide space to consider the atrocities perpetrated against the Buddhist and Khmer majorities as genocidal. Such a restrictive reading of the Genocide Convention overlooks the particular context in which the ECCC applies the law of genocide and ignores the concerns of the Cambodian people.
Before the creation of the ECCC, Professor Hurst Hannum developed a framework for applying the existing law of genocide to the atrocities committed in Cambodia. Professor Hannum argued that even though the Khmer constitute a majority of the population, as a national group, they fall within the ambit of the Genocide Convention’s Article II protections. More critically, the leaders of the Khmer Rouge were “determined to cleanse, purify, and consolidate the Khmer national group—a grim reminder of the Nazi attempt to purify and propagate the ‘master race.’ Just as the Nazi determination to purify society extended beyond racial and ethnic groups . . . so did the national purification program of Democratic Kampuchea go beyond the elimination of ethnic and religious minorities.”
This approach risks extending the definition of genocide too far, divesting it “of any real meaning.” In contrast, approaching genocide as a legal transplant assesses not why certain groups were identified for annihilation, but on which groups were targeted. For example, many characterize the killings of members of the Buddhist and Khmer populations as politically motivated. Accordingly, these groups are classified as “political” rather than “national” or “ethnical.” This categorization effectively places the targeted killings of members of the majority Khmer and Buddhist groups beyond the reach of the Genocide Convention’s protections. But this approach ignores the significant fact that motive is irrelevant under the Genocide Convention; only intent matters. The Khmer Rouge deliberately targeted members of a “‘tainted’ national group” for annihilation, which should invoke the Genocide Convention’s protections.
This analysis treats genocide as a legal transplant and acknowledges the discrete context in which the principle is applied, thereby providing a basis for domesticating the law through a nuanced interpretation designed to tailor the law to fit local cultural norms and values. Both the Khmer Rouge’s party purges and their fatal social policies may have been politically motivated, but that does not mean that the Khmer Rouge’s victims constitute members of a political group. Although no court has specifically interpreted the protections of the Genocide Convention to include a majority national or religious group, that should not be a bar to the ECCC doing so if such an interpretation makes sense in the Cambodian context. Thus, an appropriately comparative consideration of the crime makes it unnecessary to amend the existing law of genocide. Just as the text provided ample space for the exercise of “reasonable freedom of interpretation” necessary to make the law of genocide applicable in Rwanda and the former Yugoslavia, so too can genocide’s textual ambiguities make the definition meaningful in a Cambodian context.
The law of genocide, like most other laws designed to preserve, and protect human rights, provides ample space for the judges tasked with applying it to exercise the interpretive freedom necessary to make the law locally meaningful. Treating the law of genocide as a legal transplant enables judges to acknowledge, through a practice divorced from political considerations, the changes to which the language of the law will inevitably be subjected in the transplant process. Thus, the law of genocide can be tailored to fit the local cultural framework and retain the ideas embedded in the Genocide Convention.
Copyright © 2012 Duke Law Journal
Tatiana E. Sainati is a student at Duke University School of Law. Duke University School of Law, J.D. and LL.M. expected 2013; University of Virginia, M.A. 2007; Northwestern University, B.A. 2005. I would like to thank Professor Ralf Michaels for the thoughtful critiques, keen insights, and general wisdom, which he so generously shared, and which greatly improved the quality of my piece, as well as my note editors, Leigh Krahenbuhl and Paige Gentry for their unflagging support, willingness to talk for hours about comparative law, and incredibly thoughtful feedback, which challenged me to strengthen my arguments and my writing. I would also like to thank the Duke Law Journal editorial staff for their meticulous review, insightful feedback and thought-provoking questions. In particular, I would like to thank Lauren Ross, Oscar Shine, and Matt McGuire for helping me polish and refine my writing, and Doug Dreier, Ethan Blevins, and Tina Praprotnik for ensuring that my above-the-line assertions are well-considered and well-supported. Thank you too to Ali Schultz, Melissa York, and Spencer Young for their unfailing support through the ups and downs of the writing process. Most especially, thank you to my mother, father, and sister for everything.
This Legal Workshop Editorial is based on the following article: Tatiana E. Sainati, Toward a Comparative Approach to the Crime of Genocide, 62 DUKE L.J. 161 (2012).
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