This is less an argument against the use of criminal methods for human rights and more an argument for careful matching of phenomena with the right institutional action. Harm arising from cultural practices within families and communities is arguably the broadest, most abstract, and most difficult category of human rights for governments to prevent. Changing this mindset, as Ethiopian Prime Minister Meles Zenawi points out, cannot be achieved by jailing a whole community.
Criminal adversarial proceedings may not be a good fit for changed embed- ded cultural practices, not only because it may be unfair to single out individ- uals for punishment, but also because it overlooks the deeper structure of the international human rights framework. Under the human rights framework, individual rights are the obligation of national governments. In other words, when a government promises to ensure gender equality through signing on to the CEDAW, that government not only endorses the principle of gender equality; it also undertakes to weave the principle of equality into the fabric of
Criminalizing Culture 89 everyday life through the everyday functions of government. Criminalization may divert resources away from other structural goals: For example, criminal sanctions against FGC may divert attention from underlying gendered social and economic structures that would be a more productive use of government resources. It may be more important that governments provide better educa- tional opportunities for girls than punish a girl’s parents for ensuring her future economic welfare and marriageability through FGC.22
Traditional practices justified as “culture” are the most resistant to UN pres- sures of “naming and shaming” because governments can discount the UN as culturally out of touch, or even imperialistic. Governments are often resis- tant to intervening in harmful cultural practices, and pressure from both formal international institutions and more inchoate pressure groups such as human rights lobbies have little effect on governments that isolate their coun- tries from the international community. Like the now-contested history of widow-burning in India, the sensationalistic nature of the anticutting cam- paign coming from the first-world risks alienating African women prominent in the movement against FGC because of the complicated dynamics of colo- nial history. Given the differences in attitudes toward controversial cultural practices, it seems unlikely that a purely legal solution, such as criminal pro- hibition, will bring cultural practices to a halt when the major forces behind them are deeply rooted in historical, religious, and social phenomena.
VI. CONCLUSION
Laws signal the symbolic importance of collective social standards. With the advent of new institutions of international criminal law, today’s international human rights system has both “hard” and “soft” law – both criminal courts and also human rights treaties. The burgeoning body of international crim- inal jurisprudence is providing structural and procedural examples for inter- national and national institutions alike. International criminal law is doing important human rights work – important not just for the communities who are affected by these atrocities but also as a signaling mechanism of the col- lective of nation-states that make up the international community.
Different types of law serve different ends, however, and use different means.
Criminal law works at the margin of human behavior, selecting the very worst behavior of individuals for prosecution and punishment. The purpose of criminal sanctions for human rights violations is to punish individuals and
22This is an extension of Lon Fuller’s point about law overreaching itself. The methods that law uses may instead misfire. C.f., Lon Fuller, “The Forms and Limits of Adjudication,”92 Harvard Law Review(1978):353–409.
90 Helen Stacy (although more contestably) to deter others. Whereas criminal law is sensibly a growing tool in humanitarian law, my argument is that criminal law is an imperfect tool for human rights law, especially in relation to embedded cultural practices.
The purpose of human rights laws at the domestic level is improving the distribution of human rights across broader populations. International human rights standards are aimed at governments. Human rights need to rest upon policy frameworks and to be embedded in cross-cutting institutions of educa- tion, health, and employment. A better approach for everyday human rights violations is to reemphasize the role of governments in delivering human rights.
5 Identifying Groups in Genocide Cases Larry May
The [ICTR] Chamber notes that the Tutsi population does not have its own language or a distinct culture from the rest of the Rwandan population. However, the Chamber notes that there are a number of objective indicators of the group as a group with a distinct identity. Every Rwandan citizen was required before 1994to carry an identity card which included an entry for ethnic group. . .The Rwandan Constitutions and laws in force in1994also identified Rwandans by reference to their ethnic group. . .Moreover, customary rules existed in Rwanda governing the determination of ethnic group, which followed patrilineal lines of heredity. . .The Rwandan witnesses who testified before the Chamber identified themselves by ethnic group. . .Moreover, the Tutsis were conceived of as an ethnic group by those who targeted them for killing.1
Currently in the international law of genocide, there is a debate about whether groups should be defined objectively, on the basis of criteria that anyone can apply, or subjectively, in which only the perpetrators decide who is a member of a group and even what are relevant groups. Genocide is defined as “the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such,”2so it matters quite a bit how groups are identified.
Indeed, in the Rwanda genocide there was, and remains, much dispute about whether the victim group, the Tutsis, was indeed a group of the sort that could be the subject of genocide and hence a group that could seek redress in international law for the harms that the Hutus perpetrated against the Tutsis.
In the quotation that begins this chapter, the International Criminal Tribunal
1Prosecutor v. Jean-Paul Akayesu, Trial Chamber, International Criminal Tribunal for Rwanda, Case No. ICTR-96–4-T, September2,1998,170–1.
2Convention on the Prevention and Punishment of Genocide, adopted December9,1948; entered into force January12,1951,78United Nations Treaty Series277; and Rome Statute of the International Criminal Court (ICC), Article6.
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92 Larry May
for Rwanda (ICTR) also seemingly draws a distinction between objective and subjective factors, although what are called objective might be challenged.
William Schabas says that the subjective approach was used in the Rwanda trials when it was determined that “the Tutsis were an ethnic group based on the existence of government-issued official identity cards describing them as such.” He goes on to say:
This approach is appealing up to a point, especially because the perpetrator’s intent is a decisive element in the crime of genocide. Its flaw is allowing, at least in theory, genocide to be committed against a group that does not have any real objective existence. . .Law cannot permit the crime to be defined by the offender alone.3
In this chapter, I discuss how a nominalist might respond to Schabas’s worries.
There is another debate that bears on the first. This debate concerns whether there must be physical destruction, not merely cultural destruction, of the group for genocide to take place. The question arises most evidently in the case of putative genocide against a religious group. The religion could be destroyed without the physical destruction of the people who are the members of a religious group, for instance, when the members are forbidden to practice their religion. This so-called cultural genocide is not currently recognized as genocide proper in international law, and at least in part this is because cultural genocide mainly involves a loss to the mental lives of the people in question but seemingly not something objectively tangible. In this chapter, I also set the stage for explaining why such a view seems confused from a nominalist perspective.
From a nominalist perspective, a significant divide between objective and subjective means for identifying a group in genocide does not exist. Nominal- ists generally do not think that groups have reality or existence. Rather, groups are mere “names” that partially stand for our experiences and about which judgments can be made. Indeed, groups are artificial in that they are made up by humans, just as are states, universities, or corporations. Because of the lack of reality of groups, they must be identified by subjective perception and self-perception. This fact in itself is not a problem, because most identifica- tions are made on the basis of perceptions, which are made by individuals and thus are all (to one extent or another) subjective. The problem arises when one attempts to determine what sort of test can be employed by a judge or
3William A. Schabas,Genocide in International Law(Cambridge: Cambridge University Press, 2000),110.
Identifying Groups in Genocide Cases 93 jury about whether the perceptions are stable enough to be the basis for group identification in law.
In his article “The Model of Rules I,” Ronald Dworkin frames the debate about legal positivism by linking legal positivists such as H. L. A. Hart with nominalism:
In their view, the concepts of “legal obligation” and “the law” are myths invented and sustained by lawyers for a dismal mix of conscious and subconscious motives. . .They are. . .unreal. . .We would do better to flush away the puzzles and the concepts altogether, and pursue our important objectives without this excess baggage. This is a tempting suggestion, but it has fatal drawbacks.4
Dworkin says that many adherents of nominalism “bluff ” in that they continue to use the terms and concepts they regard as unreal. This point is important, but Dworkin also admits that when the details of the practice, of referring to such concepts, are laid bare, they may indeed be “thick with illusion.” His point is that the claimed lack of reality has to be argued for, not merely bluffed.
I will try to avoid this flaw in what follows.
In this chapter, I first examine a seemingly nominalist approach taken by the International Commission of Inquiry on Darfur established by the United Nations Secretary-General in 2004. Second, I build on the analysis of the Commission’s findings to develop a more satisfactory account of how to identify groups for purposes of genocide law. Third, I confront arguments advanced by Schabas against the nominalist approach. Fourth, I discuss other objections that could be raised to the strategy of identification that I have sketched.
Finally, I indicate how international law should change to accommodate my understanding of group identification. Throughout, I argue for a somewhat more expansive way of thinking of groups in the international law of genocide, while recognizing that there remain significant conceptual puzzles with the whole idea of group identification.