LEGAL EXCEPTIONALISM

The previous three chapters have primarily addressed the strategies and dispositions of legal actors at the ICTY, with a view to understanding the process leading up to the Tribunal's judgments and legal decisions. The present chapter turns to the International Criminal Tribunal for Rwanda (ICTR) and evaluates the Tribunal's reasoning on one fundamental and highly contested topic: whether Rwandan social groups constituted protected groups under the UN Genocide Convention of 1948. Resolving this issue was essential to the viability of the Tribunal, because if the social categories “Hutu” and “Tutsi” were not protected groups, then the Tribunal would not be able to find that genocide occurred in Rwanda in 1994. This would have been a disastrous result for the Tribunal, because the charge of genocide had been the single most important reason for the UN Security Council to establish the ICTR in the first place. When UN Resolution 955 founded “an international tribunal for the prosecution of persons responsible for genocide,” it could be said that the Security Council prejudged the question of whether the crime of genocide had occurred in Rwanda and allowed little room for maneuver on the part of the ICTR Trial Chamber.

Despite these external pressures, actually fulfilling the legal criteria for genocide was more arduous than expected at the ICTR, although this was true to an even greater extent at the ICTY. Whereas prosecutors at the ICTY struggled to convince judges that the accused held the requisite special intent to commit genocide, at the ICTR one of the thorniest legal issues was the definition of Rwandan social groups.