Misreading like a Lawyer: Cognitive Bias in Statutory Interpretation

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C. Genocide

Though genocide has occurred throughout history, "the crime of crimes" first became cognizable in 1948 through the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (133) ("Genocide Convention"). With its roots in the work of Polish jurist Raphael Lemkin (who coined the term to capture the gravity of the Holocaust), (134) the Genocide Convention's genocide definition has perplexed international tribunals and stirred debate in human rights commentary. (135)

Trials now being conducted by the International Criminal Tribunal for Rwanda (ICTR) are a case in point. (136) The 1994 campaign of violence by the majority Hutu against the minority Tutsi population of Rwanda caused an estimated 800,000 deaths and was condemned worldwide as genocide. (137) In the social science literature on the causes and characteristics of genocide, there is little disagreement that the Rwandan mass killings constituted a genocidal campaign that targeted an entire people for destruction based on group identity, (138) where group-directedness is the sine qua non of genocidal intent. (139) One prominent genocide scholar cites Rwanda as an uncommonly clear case of genocide, due to the perpetrators' explicit intent--as shown by their incitements to violence on state-sponsored radio programming, for example--to exterminate the Tutsi "vermin." (140) Yet when it comes to interpreting the definition of genocide as a crime under international law, the ICTR has struggled to find that even those responsible for large-scale massacres possessed the requisite men's rea as the Genocide Convention defines it. (141)

1. Interpreting Genocide in the Rwanda Tribunal.--In order for violence to be criminalized under the Genocide Convention, the defendant must be shown to have acted "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." (142) The stumbling block for the ICTR has been that, by its accepted definitions of four dimensions of group difference (national, ethnical, racial, and religious), it is unclear which of them, if any, describe the distinctiveness of the Tutsi people. (143) Historically, the categories Tutsi and Hutu originated in a precolonial socioeconomic hierarchy among Rwanda's main identity groups, and these categories were later racialized and reified by Belgian colonizers beginning in the 1930s. (144) But to the extent anyone could speak of race as an objective fact, Rwandan Tutsis are not racially distinct from the Hutu majority. (145) Nor do they have different national identities. (146) They do not practice a different religion from Hutus, and the two groups' shared language and culture blur any distinction by ethnicity. (147) Moreover, while Rwandan citizens in 1994 carried state-issued identity cards classifying them as ethnically Hutu or Tutsi, the boundary between the categories was originally porous enough to permit movement between the two. (148) Thus, while it was obvious that perpetrators had possessed the intent to destroy the Tutsis as a group, ICTR proceedings were dominated by debate on the threshold question: "Is this group in fact a racial, ethnic, religious, or national group?" In its early deliberations, the ICTR was clearly "vexed" by the question of whether perpetrators of mass murder could be convicted of genocide if in fact the Tutsis do not meet the criteria of being a nationality, ethnicity, race, or religious group. (149) The conventional answer, based on what many assert to be a literal reading of the Convention's text, was "no." (150)

The ICTR waffled on how to resolve this dilemma in its early judgments. In the prosecution of Jean-Paul Akayesu, a mayor who had overseen mass murder in his commune, the tribunal compared "objective" facts about the Tutsis in history and Rwandan society to the categories found in the genocide definition. (151) In what one commentator calls a "seriatim approach" to applying the statute, (152) the panel tested the fit of each term to the Tutsi category one at a time, focusing on race and ethnicity as more likely matches. …