LJIL Symposium: A Comment on Ambrus by Frederic Mégret

[Frederic Mégret is an Associate Professor of Law and the Canada Research Chair on the Law of Human Rights and Legal Pluralism, at  McGill University]

Monika Ambrus offers a compelling treatment of the question of what constitutes genocide and persecution as a crime against humanity relying on the human rights law of discrimination to reinforce the case that both protected groups and the definition of who belongs to them should be seen as subjective questions, focusing on the state of mind of the perpetrator, rather than objective as objective issues. In that, she suggests that it is time to move beyond international criminal courts’ constant indecision between an objective and a subjective approach, and to more resolutely move towards the latter. I could not agree more. I note also that in using international human rights law to make a larger point about international criminal law (and, one might hope, vice versa) she does a praiseworthy job of breaking barriers between sister disciplines that have no reason of standing wholly apart.

In this short reaction, I will start not from the case law as Ambrus does, but from some of the underlying ambiguities of the concepts of groups, and how these were bound to create problems for the Law that end up telling us something about the enterprise of international criminal justice.  In that respect, I want to help contextualize Ambrus’s arguments in some of the challenges of post-modernizing an international legal project whose structures often remain embedded in 19^th Century thinking.

At times, Ambrus’s arguments shows the difficulties of moving entirely away from the “objective” approach, if only because it has a long tradition and because, put simply, it is constantly against that objective approach that the “subjective” one defines itself. For example on occasions Ambrus contrasts subjective groups or group membership with “actual” groups or group membership. One gets a sense that she only does so to get her point across as it were, but it is remarkable how the objective paradigm still claims a hold on our understanding of the issue. Of course, the suspicion is (and Ambrus acknowledges this) that there is no safe standpoint from which one could ascertain that certain groups “really exist” or that certain persons “really belong to them.”

Rather these determinations entail constantly renegotiated processes about what is a group and who belongs to it. Consider for example endless debates about the nature of “Blackness,” “Jewishness” or “Tutsiness” and the complex claims they entail about genealogy, blood, appearance, cultural traits, history, identity, gender etc. Claims can be made from outside or from within the group; or by a minority or a majority within the group; one may be considered to be part of a group by others that one does not feel one belongs to and vice versa. The point is that all these claims are contested, and that even when they are not it is not as a result of some fundamental ontology impressing itself on the impartial observer, but of a precarious agreement between participants on the nature of some collective identity enterprise.

These processes, subjective in their essence, may confusingly pay homage to the idea of objectivity (or even be enamored with it) by constantly referring to certain traits that participants in the conversation agree group members share as if they objectively defined the group and its members. This is what Ambrus suggests when she speaks of the “evidentiary role” of objective conceptions of groups. But this is a subjective, a parodic objectivity, whose passing appearance of solidity testifies less to actual objective existence than to what often easily passes for it: the shared character of perceptions, possibly by both perpetrators and victims, about the group’s existence. Note also that the idea of groups as pure subjective constructs does not make groups less real: “real” groups that are not perceived as such might as well not exist, whereas socially constructed groups do really exist, a fortiori when they lead to a shared experience of victimization.

Some further historicization of concepts such as race or ethnicity in Ambrus’s piece might have been useful to understand how we got there. The original problem, one might think, is that the definition of genocide or of persecution as a crime against humanity are seemingly saddled with an epistemology of race and ethnicity that harks back to the 19^th Century. Under this view, groups are seen as “actually existing,” often in a strong (and dubious) biological or anthropological way. Sadly, it is that 19^th Century heritage that was taken to new and abject heights by the Nazis or the Hutu 1994 regime who, in a sense, constructed absolute groups with clearly defined contours as part of the technology of better destroying them (one need only think of the Nuremberg laws and the classification and identification of Jews as a prelude to the Holocaust).

The persecutory and exterminatory projects were always objectifying and pseudo-scientific projects, perhaps because that helped powerfully reinforce the sense of incommensurability between groups. Conversely, a vision of Judaism and Tutsiness as rich fields of social interaction, not incompatible with a variety of alternative identities, evolving over time, and allowing for circulation of members is one that significantly softens the contours of groups and emphasizes their fundamental porosity with society. It is one on which projects of extermination would find it much harder to piggyback. Hence it is no wonder that international human rights law, as Ambrus correctly detects, is naturally attracted to a model of discrimination that emphasizes intent and effect as opposed to some incontrovertible basis for groups and group membership.

After some avoidance and hesitation, international criminal justice has adapted quite felicitously to its encounters with the aporia of race and ethnicity in places like Rwanda and Sudan.  The danger would have been, under the guise of protecting groups, of reinforcing a sense of groupness being inscribed in stone, and thus in a sense of perpetuating some of the discriminatory fallacies that one is precisely trying to fight. This is of course a sensitive point, but it bears asking: Is the Genocide Convention “racialist” even if not “racist” ? The answer seems to be that of course it is and, seen from a Lemkinian perspective, could probably not have been otherwise at a time where the overall need to protect groups after the Holocaust overshadowed the rather unfortunate consequence that a seemingly intangible definition of groups might share some affinity with the genocidal impulse.

Although something of the “objective” approach to groups remains in the case law of international criminal tribunals (most visibly in the attempt to define Genocide convention groups as stable and by birth, for example), that approach is at least a legal-objective approach, not a bio-scientific one. It aims to elicit the intention of the drafters, outdated as it may be, not to define groups once and for all. It is not the less wrong for it, but at least it is less suspect of sharing an awkward moment with the génocidaires.

One could argue that the Genocide convention or persecution offences are oftentimes not really about protecting groups at all. Rather, they are about prohibiting the use of certain forms of violence that have a discriminatory intention against persons perceived by their perpetrators as being members of a perceived group, regardless of whether on some essentialist basis it makes sense to describe the group as one. The focus, then, is less on actual discrimination against a really existing group at the level of the actus reus,  as Ambrus rightly points out, than on the act of discriminating against a group “as if it were really a group.” This in turn suggests an international criminal law much more in tune with the actual feelings and experienced realities of various agents, and much less hung over outdated concepts. It would indeed be to international criminal justice’s credit if it did not end up further objectifying some of the categories whose objectification has been so central to murderous enterprises.