| The protection regimes (international human rights law, international criminal law and international humanitarian law) are true expressions of the utopian ideals of the international community in trying to deal with mass human rights violations and atrocities. These expressions, however, can create hierarchies in the protection that is awarded and in a sense create categories of exclusion, rather than categories of protection. The subaltern outside these categories, the one that is not protected must be recognized. By using the definition of genocide, more specifically the mental component conceptualised in the Genocide Convention, the aim of this paper is to argue that the protection awarded is limited and therefore exclusionary. Starting from this premise, the question is whether the restrictive nature of the wording can be expanded using the tools of interpretation within international law. Drawing from the large corpus of legal tools, the aim of this paper is to show that there are ways to expand the categories in international criminal law, one of which is the idea of progressive development of the law. The Rome Statute and certain fundamental principles of international human rights law provide pillars of support to this argument. However, in trying to expand the categories of protection that is awarded, the rights of the alleged perpetrator must be taken into account and the Principle of Legality must be respected.; Within this contextual paralysis, the meta critique needs to be situated: That the fundamental aim of the crimes of all crimes is to protect the weak and helpless. Therefore, the philosophy of Emmanuel Levinas will be used to argue that the creation of priorities of protection cannot stand, as it does not recognize the other, rather only those that have become part of the self. |
