Prosecuting International Crimes in Africa - PULP - University of ...

The contribution of the International Criminal Tribunal for Rwanda 65
for defining these protected groups. Beginning with the Akayesu judgment
– the first judgment on genocide by an international criminal tribunal – the
ICTR pioneered the elaboration of the group victims of genocide.
While some aspects of the jurisprudence engendered by the ICTR are
contentious, the ICTR’s jurisprudence constitutes a foundational attempt
at elucidating a complex notion in the absence of existing precedents or
extensive scholarly literature. The Akayesu case found that the group
notion refers to stable groups constituted in a permanent fashion and
whose membership is determined by birth in a continuous and
irremediable manner. 6 Moreover, the groups which are protected are not
limited to the enumerated four, but extend to any stable and permanent
group. 7 Arguably, these positions raise controversy. With the possible
exception of a racial group, the other three enumerated groups are all
neither permanent nor stable. 8 Indeed, international law recognises that
persons can always change their membership of those groups. 9 In light of
the terms of the Genocide Convention, protection extends only to the four
groups, and not to every stable and permanent group.
It is worth noting that the ICTR’s judgments subsequent to Akayesu
appear to have hedged Akayesu’s position that the intention of the
provisions of the Genocide Convention (which the statutes of the ICTR,
ICTY and ICC mirror) was patently to protect only stable and permanent
groups. Many of these judgments construe the tests of stability and
permanence identified in Akayesu as mere presumptions which seem to
suggest rather than stating something patently, while others seek to rely on
objective and subjective perspectives to the definition of the notion. 10
Arguably, the positions taken by subsequent judgments created room for
the clarification of the legal position taken in Akayesu and the further
development of the jurisprudence.
The ICTR, notably in Akayesu, may also be credited for elaborating
some objective criteria defining each of the four groups protected by the
proscription of the crime of genocide. Its contribution also reflects a
6 Prosecutor v Akayesu para 511.
7 Prosecutor v Akayesu para 516
8
WA Schabas Genocide in international law: The crime of crimes (2001) 132-133; GW
Mugwanya The crime of genocide in international law: Appraising the contribution of the UN
Tribunal for Rwanda (2007) 70.
9
See eg Arts 15(a) and 18 Universal Declaration of Human Rights, 1948 GA Res
217A(III) UN Doc A/810; art 9(1) European Convention for the Protection of Human
Rights and Fundamental Freedoms; art 20(3) American Convention of Human Rights.
On controversies regarding the right to change one’s religion, see P Taylor Freedom of
religion, UN and European human rights law and practice (2006).
10 Prosecutor v Rutaganda (Case ICTR-96-3) Judgment and Sentence 6 December 1999
paras 57-58; Prosecutor v Musema (Case ICTR-96-13-T) Judgment and Sentence 27
January 2000 para 162; W Schabas ‘The crime of genocide in the jurisprudence of the
International Criminal Tribunals for the Former Yugoslavia and Rwanda’ in F Horst et
al (eds) International and national prosecutions of crimes under international law: Current
developments (2001) 451; Mugwanya (n 8 above) 67-107.