The crime of genocide under international and South African law: a critical race perspective.

Abstract

The racial politics of international criminal law has been the subject of controversy for a considerable amount of time. The conceptualization of “race” in the crime of genocide has, in particular, been persistently problematic. Apart from having avoided interpreting “race” in the crime of genocide altogether in some instances, international tribunals and authors have developed inconsistent and ambiguous methods of interpretations for genocidal acts committed against a racial group. As a result, international criminal law has produced interpretations of “race” in the crime of genocide that have fallen short of the strict rules of legal interpretation. Further, such interpretations have been inconsistent with both the very specific historical production of “race” and “racism” and the very specific way in which racial hegemony continues to shape contemporary law and society. In light of this, this study proposes an alternative theorisation of “race” for the crime of genocide using a Critical Race Theory perspective. Complementary to this endeavor, this study particularly considers South Africa’s unique race discourse and its possible implications for the interpretation of genocidal acts committed against a racial group in South Africa.