Indiana Int’l & Comp. Law Review
Volume 32 Number 3 2022

NOTES

LEGAL IDENTITY AS A TOOL OF STATE-SPONSORED

GENOCIDE: ENFORCING THE RESPONSIBILITY TO

PREVENT THROUGH A NORM OF ACTIVE ENGAGEMENT

ELIZABETH G. HALODIK*

ABSTRACT

The world is not ignorant of the plight facing the most vulnerable communities,
yet there are no enforceable binding mechanisms to identify, prevent, or intervene
in the development of state genocidal regimes. As the global community
advanced international legal customs for prosecuting state actors of genocide,
limited development has been made towards identifying cognizable factors for
legitimizing early intervention. The international community has repeatedly stated
“never again” following atrocities, but will States ever enforce their
“Responsibility to Prevent” to hinder sovereign domestic policies from escalating
to the crime of genocide? Can there be a preventative approach to genocide, or
has the codification of the crimes of persecution and genocide confined the
international community to retrospectively punish genocidal actors?

I. INTRODUCTION

It is widely accepted that genocide is not an incidental occurrence; rather
genocides are built and effectuated through societies. As argued here, and
elsewhere in the context of discrimination and persecution, the law is often the
tool with which the seed for violence is planted. Genocide, and tragedies such as
mass killings, “are preceded and prepared by identity conflicts.”1 Therefore, it is
essential to determine a process of identifying the characteristics of group identity
in the framework of genocide. The identification of victims, similar to the
characterization of genocide, must consider the “political, social and cultural

* J.D. and Graduate Certificate in Civil and Human Rights Law, 2021, Indiana University

Robert H. McKinney School of Law; B.A., International Relations, 2018, Roanoke College. The

author would like to thank the Volume XXXI Executive and Faculty Board for the honor of the

Best Student Note Award. The author would also like to dedicate this Note to her grandfather, Gary

Gray, whose family stories inspired the author to write this Note and pursue her career.  

1. I. WILLIAM ZARTMAN, PREVENTING IDENTITY CONFLICTS LEADING TO GENOCIDE AND

MASS KILLINGS 1 (Adam Lupel ed., 2010).



426 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

context.”2 Following the proposition of Frank Chalk and Kurt Jonassohn that “in
order to perform a genocide the perpetrator has always had to first organize a
campaign that redefined the victim group,”3 legal identity not only has the ability
to characterize groups or subgroups in a society, but also carries the appearance
of legitimacy within domestic law. The characterization of an identity under the
law often corresponds with legal rights and protections,4 whereas the
characterization of an individualized identity may correspond with determinative
social power.5 By comparing the establishment and evolution of the legal identity
of victims in state-sponsored genocides, there is clear evidence of the law as a
tool being used to target, weaken, and weaponize the affected population group.
Future policy must recognize the significance of an overlapping legal
characterization and oppression of identity as precursors and effectuating
mechanisms of genocide and persecution.

In Part IA, this Note lays the foundation of analysis by defining relevant
concepts in international law, specifically “genocide,” “victim,” and “legal
identity.” In Parts II and III, this Note addresses the transformation of the legal
identity through the analysis of the Porajmos6 in Germany and the Rwandan

2. Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgment and Sentence, ¶ 56 (Dec. 6,

1999) (“The Chamber notes that the concepts of national, ethnical, racial and religious groups have

been researched extensively and that, at present, there are not generally and internationally accepted

precise definitions thereof. Each of these concepts must be assessed in the light of a particular

political, social and cultural context . . .”).

3. FRANK CHALK & KURT JONASSOHN, THE HISTORY AND SOCIOLOGY OF GENOCIDE:

ANALYSES AND CASE STUDIES 28 (1990) (“[T]he performance of a genocide required, first, the

dehumanization of victims, and second, a strong, centralized authority and bureaucratic

organization.”).

4. See Jessica A. Clarke, Identity and Form, 103 CAL. L. REV. 747-49 (2015). Clarke

included the following examples: characterizing identity for affirmative action, the importance of

the identity of a “father” for custody rights, and the previous importance of identity of sex for

purposes of marriage (citations omitted); see also Debra Ladner et al.,  A Critical Assessment of

Legal Identity: What It Promises and What It Delivers, 6 HAGUE J. ON RULE L. 47, 48 (2014)

(discussing that legal identity, specifically birth certificates, has implications across development

issues such as eligibility to access benefits and opportunities, protection of human rights, and

demographic statistics to inform and direct development planning resources). 

5. Immanuel Wallerstein, The Construction of Peoplehood: Racism, Nationalism, Ethnicity,

2 SOCIO. F., 373, 385 (1987) (“For there to be minorities, there needs to be a majority. It has long

been noticed by analysts that minority hood is not necessarily an arithmetically-based concept; it

refers to the degree of social power.”).

6. Renata Berkyová, Concept of the Porajmos as a Reflection of the Marginalization of

Roma in Historiography, ROMEA.CZ (July 6, 2018, 1:25 PM), http://www.romea.cz/en/news/

world/renata-berkyova-concept-of-the-porajmos-as-a-reflection-of-the-marginalization-of-roma-in-

historiography [https://perma.cc/3KNT-DSZJ] (explaining how the term ‘Holocaust’ is understood

as an umbrella term for the genocide of the 1933-1945 National Socialist regime, ‘Shoah’ is the

term used to identify the Jewish suffering during the Holocaust, and ‘Porajmos’ is a term derived

from Romani that refers to the Roma “devouring” during the Holocaust). While recognizing the



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427

genocide.7 
The Roma are Europe’s largest ethnic minority group8 and one of the most

persecuted minorities on the continent.9 The constant persecution against the
group is documented throughout European history10 and remains prevalent
today.11 The considerable amount of scholarly literature surrounding the
Holocaust demonstrates a notable gap in research and narratives related to the
Roma victims,12 and the prominence of the rejectionist position among historians
which forsook Roma and Sinti as legitimate victims has only recently
dissipated.13 This Note analyzes the persecution of Roma in Germany while
acknowledging the significance of discriminatory and persecutory policies against
the group across Europe. Notably, scholarly discourse has recognized the
continuous persecution against subgroups as one explanation as to why certain
societies devolve into genocide while others do not.14 

existence of a debate within the Roma community over the use and spelling of Porajmos due to the

translative meanings in different dialects, the term will be used for the purposes of this Note as

there appears to be consensus over its usage. The term “Holocaust” is also referenced

interchangeably throughout the Note in the discussion of the 1933–1945 genocidal period.  

7. For an in-depth investigation into the history of the Rwandan genocide, see ALISON DES

FORGES, LEAVE NONE TO TELL THE STORY: GENOCIDE IN RWANDA (1999).

8. Roma Equality, Inclusion, and Participation in the EU, EUR. COMM’N, https://ec.europa.

eu/info/policies/justice-and-fundamental-rights/combatting-discrimination/roma-eu/roma-equality-

inclusion-and-participation-eu_en [https://perma.cc/X3PL-ATRS].

9. Jonathan Fox, Patterns of Discrimination, Grievances, and Political Activity Among

Europe’s Roma: A Cross- Sectional Analysis, J. ON ETHNOPOLITICS AND MINORITY ISSUES IN

EUROPE, WINTER 2001/2, at 2 (“The Roma have historically been and continue to be one of the

most discriminated against minorities in Eastern and Western Europe.”). 

10. Arno Tanner, The Roma of Eastern Europe: Still Searching for Inclusion, MIGRATION

POL’Y INST. (May 1, 2005), https://www.migrationpolicy.org/article/roma-eastern-europe-still-

searching-inclusion [https://perma.cc/5HPL-QYY7].

11. See, e.g., Orla Barry, Roma Persecution Intensifies During the Coronavirus Pandemic

in Europe, THE WORLD (Aug. 24, 2020, 1:15 PM), https://www.pri.org/stories/2020-08-24/roma-

persecution-intensifies-during-coronavirus-pandemic-europe [https://perma.cc/4DR3-Q5LG].

12. See, e.g., C. R. Sridhar, Historical Amnesia: The Romani Holocaust, 41 ECON. AND POL.

WKLY. 3569 (2006).

13. Sybil Milton, Sinti and Roma in Twentieth-Century Austria and Germany, 23 GERMAN

STUD. REV. 317, 324 (2000) (“Some historians focusing on the fate of Sinti and Roma during the

Nazi period have accepted the arguments advanced by the Nazi regime that “Gypsies” were an

antisocial and criminal group to question their status as legitimate victims of Nazi genocide.

Historians of the Holocaust, both in Germany and elsewhere, have also tended to reject the claims

of Sinti and Roma. These historians, most prominently Yehuda Bauer, have echoed the German

rejectionist position, adding that, in any event the regime never intended to kill all members of this

persecuted minority.”) (footnote omitted). 

14. ERVIN STAUB, THE ROOTS OF EVIL: THE ORIGINS OF GENOCIDE AND OTHER GROUP

VIOLENCE 4-5 (1989) (“Certain characteristics of a culture and the structure of a society, combined



428 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

The Rwandan genocide demonstrates the importance of a state-influenced
identity and the impact of a legal identity on the regulation and flow of society.
Rwanda is also reflective of the influence of colonialism and foreign-involvement
on a state-constructed identity and the difficulties caused in genocide
classification when identity was not constructed from a unique language or
culture but rather societally-imposed.15 This analysis will be constitutive only of
a small portion of selected identity characterization and persecution and does not
have the capacity to conduct a full historical, sociological, and legal analysis of
the laws and society of these two genocidal periods. 

In Part IV, this Note compares the evolution of legal identity between the two
conflicts through separation of the timelines into (A) pre-genocide, (B) genocide,
and (C) post-genocide. In Part V, this Note recommends the reevaluation of
existing international mechanisms as the basis for future intervention-based
policy. Lastly, in Part VI, the conclusion calls for filling the gap in existing
literature and the importance of viewing group identity and legal identity through
an interdisciplinary lens which incorporates the legal paradigm. 

A. Defining Concepts Within International Law

Genocide

The term “genocide” was first introduced towards the end of World War II.16

Originally described by Sir Winston Churchill as the “crime without a name,”17

the legal nature has shifted in the international sphere so exponentially that the
prohibition of genocide is now regarded by the International Court of Justice as
a jus cogens norm,18 and by ad hoc international tribunals as the “crime of

with great difficulties or hardships of life and social disorganization, are the starting point for

genocide or mass killing . . . What motives arise and how they are fulfilled depend on the

characteristics of the culture and society. For example, a society that has long devalued a group and

discriminated against its members, has strong respect for authority, and has an overly superior and/or

vulnerable self-concept is more likely to turn against a subgroup. Genocide does not result directly.

There is usually a progression of actions. Earlier, less harmful acts cause changes in individual

perpetrators, bystanders, and the whole group that make more harmful acts possible . . .”).  

15. See Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgement, ¶¶ 170-73 (Sept. 2, 1998).

16. Staub, supra note 14, at 7 (discussing that the term was introduced by jurist Raphael

Lemkin, as the etymology of the word “denotes the destruction of a nation or ethnic group, from

the ancient Greek word genos (race, tribe) and the Latin cide (killing).”).

17. Sir Winston Churchill, Prime Minister Winston Churchill’s Broadcast to the World About

the Meeting with President Roosevelt (Aug. 24, 1941), in BRITISH LIBR. INFO. http://www.

ibiblio.org/pha/policy/1941/410824a.html [https://perma.cc/5TNA-Z3SB].

18. Armed Activities on the Territory of Congo (Dem. Rep. Congo v. Rwanda), Judgement,

2006 I.C.J. 6, ¶ 64 (Feb. 3); see also Claus Kres, The Crime of Genocide under International Law,

6 INT’L CRIM. L. REV. 461, 468 (2006) (discussing genocide as a subject of an international legal

prohibition imposed on States: “Already in 1951 the ICJ considered the prohibition of genocide as

customary in nature. In 1996, the ICJ supplemented this early determination by attributing to the



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crimes.”19 The codification of the crime of genocide occurred in the latter part of
the 20th century,20 and mass atrocities throughout history have since been
acknowledged and discussed by States and scholars under the umbrella of
genocide.21 

In light of the gravity of the crimes committed by the National Socialist Party
during World War II, the international community began the process of
constructing acts of genocide into an attributable and prosecutable crime. The
Agreement for the Prosecution and Punishment of the Major War Criminals of
the European Axis designated jurisdiction to the Charter of the International
Military Tribunal to prosecute all actions regarded as “crimes against
humanity,”22 the crimes which are now defined as genocide. Concurrent with the
codification of acts constituting “crimes against humanity” was the
acknowledgement of persecution in execution of or connection to these crimes.23

While subsequent charters granting authority to ad-hoc tribunals have altered the

prohibition an effect erga omnes. Finally, the ICJ recognized in 2006 that the prohibition of

genocide amounts to jus cogens.”) (footnotes omitted). See Rep. of the Int’l Law Comm’n, ¶ 56,

U.N. Doc. A/74/10 (Aug. 20, 2019) (defining jus cogens norms in international law). 

19. Prosecutor v. Kambanda, Case No. ICTR 97-23-S, Judgement and Sentence, ¶ 16 (Sept.

4, 1998).

20. See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, Jan.

12, 1951, 278 U.N.T.S. 1021 [hereinafter Genocide Convention].

21. See, e.g., H.R. Res. 296, 116th Cong. (2019) (stating that the U.S. policy was to: “(1)

commemorate the Armenian Genocide through official recognition and remembrance; (2) reject

efforts to enlist, engage, or otherwise associate the United States Government with denial of the

Armenian Genocide or any other genocide; and (3) encourage education and public understanding

of the facts of the Armenian Genocide, including the United States role in the humanitarian relief

effort, and the relevance of the Armenian Genocide to modern-day crimes against humanity.”); see

also Resolution on a Political Solution to the Armenian Question, EUR. PARL. DOC. A2-33/87

(1987) (stating the belief that the events of 1915–1917 involving the Armenians living in the

Ottoman Empire constituted genocide within the meaning of the Genocide Convention); Ass’n of

Genocide Scholars of N. Am., Armenian Genocide Resolution (June 13, 1997) (reaffirming that

the mass murder of Armenians in Turkey in 1915 constituted genocide); Int’l Ass’n of Genocide

Scholars, Resolution (Dec. 26, 2007) (recognizing that the Ottoman campaign against Christian

minorities between 1914 and 1923 constituted a genocide against Armenians, Assyrians, and

Pontian and Anatolian Greek). 

22. Agreement for the Prosecution and Punishment of the Major War Criminals of the

European Axis, art. 6(c), Aug. 8, 1945, 280 U.N.T.S. 251 (“Crimes against humanity: namely,

murder, extermination, enslavement, deportation, and other inhumane acts committed against any

civilian population, before or during the war, or persecutions on political, racial or religious

grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal,

whether or not in violation of the domestic law of the country where perpetrated.”) [hereinafter

Charter of the IMT].

23. Id.



430 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

representation of persecution as a crime against humanity,24 rather than attributing
the acts to the crime of genocide, it appears to remain stagnant as a factor in
international crimes.25 The tribunals appear to balance persecution as a crime of
nature in-between crimes against humanity and genocide26 but also
simultaneously emphasize the important relationship and genus that genocide and
persecution share. Thus, persecution may amount to genocide when “escalate[d]
to the extreme form of willful and deliberate acts designed to destroy a group or
part of a group.”27 

As persecution is not defined in international treaties,28 scholars have
analyzed international tribunal jurisprudence for guidance on the scope of the
crime.29 As originally rationalized in the jurisdiction for the Charter of the IMT,
the temporal scope for persecution included acts which predated the outbreak of
the war.30 International tribunals have sought to narrow the actus reus31 and mens
rea32 of persecution, and scholars have attributed the following as acts that
International Criminal Tribunals may constitute as persecutions:

the unlawful detention of civilians, the deportation and forcible transfer

24. For a comparison on persecution in the ICTY, ICTR, and Rome Statutes, see Caroline

Fournet & Clotilde Pegorier, Only One Step Away from Genocide: The Crime of Persecution in

International Criminal Law, 10 INT’L. CRIM. L. REV. 713, 715-16 (2010). 

25. See David Scheffer, Atrocity Crimes Framing the Responsibility to Protect, 40 CASE W.

RES. J. INT’L 111, 128-31 (2007) (discussing the crime of persecution as a sub-category of crimes

against humanity and discussing the definition within the Rome Statute of the International

Criminal Court and the ICTY Appeals Chamber) [hereinafter Atrocity Crimes].

26. Fournet & Pegorier, supra note 24, at 718. 

27. Id. (quoting, Prosecutor v. Kupreškiæ., Case No. IT-95-16-T, Judgement, ¶ 636 (Jan. 14,

2000) (“[. . .] persecution as a crime against humanity is an offence belonging to the same genus

as genocide [. . .] Thus, it can be said that, from the viewpoint of mens rea, genocide is an extreme

and most inhumane form of persecution. To put it differently, when persecution escalates to the

extreme form of willful and deliberate acts designed to destroy a group or part of group, it can be

held that such persecution amounts to genocide.”). 

28. See Fournet & Pegorier, supra note 24, at 725 (discussing that by separating persecution

and genocide in the Genocide Convention this has ignored the real legacy of Nuremberg, restricted

the understanding of genocide, and led to the coexistence of two international crimes). 

29. See, e.g., Fournet & Pegorier, supra note 24, at 726-38. 

30. Charter of the IMT, supra note 22, at art. 6(c) (“Crimes against humanity . . . against any

civilian population, before or during the war, or persecutions on political, racial, or religious

grounds . . . .”). 

31. Fournet & Pegorier, supra note 24, at 726 (quoting Prosecutor v. Stakiæ, Case No. IT-97-

24-T, Judgement, ¶ 732 (1) (July 31, 2003) (“an act or omission that: discriminates in fact and

which denies or infringes upon a fundamental right laid down in customary international or treaty

law.”)).

32. Fournet & Pegorier, supra note 24, at 726 (quoting, Prosecutor v. Stakiæ, Case No. IT-97-

24-T, Judgement, ¶ 732 (2) (July 31, 2003) “the intent to discriminate on political, racial, and

religious grounds.”).



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of civilians, murder, extermination, torture, humiliating treatment,
constant humiliation and/or degradation, harassment, humiliation and
psychological abuse, hate speech- as potentially causing an irreversible
harm, destruction, wilful damage and looting of residential and
commercial properties, destruction of, or wilful damage to, residential
and cultural buildings. . . More generally, political, social, economic
rights violations have been recognized as constitutive of persecution, as
have violations of elementary and inalienable rights of man.33

Persecution, whether acknowledged through the argument of being substantively
integral to genocide34 or as an individual factor on the timeline of genocide, is
intrinsic in the foundational argument of identifying genocidal intent prior to the
intensification of acts to destroy. This argument can be found correspondingly in
the post-hoc jurisprudence rationale of the Nuremberg Trials, which recognized
the systematic legal persecution of Jews as having “paved the way for the ‘final
solution.’”35

Genocide was codified as an international crime in the Convention on the
Prevention and Punishment of the Crime of Genocide.36 Genocide, as proposed
in the Convention, is defined as 

any of the following acts committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group, as such: (a) Killing
members of the group; (b) Causing serious bodily or mental harm to
members of the group; (c) Deliberately inflicting on the group conditions
of life calculated to bring about its physical destruction in whole or in
part; (d) Imposing measures intended to prevent births within the group;
[and] (e) Forcibly transferring children of the group to another group.37

Similar codification has subsequently occurred in the statutes granting
jurisdiction to international tribunals to identify and prosecute allegations of

33. Fournet & Pegorier, supra note 24, at 728-29 (citations omitted).

34. Id. at 721 (arguing that “by encapsulating the notion of ‘persecutions’ within a precise

timeline, the IMT Charter acknowledged the fact that persecutions were not mere discriminatory

acts endorsing a ‘preparatory’ character in anticipation of the genocide, but rather they were the

genocide.”).

35. Prosecutor v. Tadiæ, Case No. IT-94-1-T, Opinion and Judgement, ¶ 706 (May 7, 1997)

(discussing the Nürnberg Tribunals findings that “[t]he persecution of the Jews was immediately

begun in the General Government. . . They were forced into ghettos, subjected to discriminatory

laws, deprived of the food necessary to avoid starvation, and finally systematically and brutally

exterminated. . . . The Nürnberg Tribunal focused on anti-Semitic laws drafted, signed and

administered . . . designed to exclude Jews from the German life and economy. These led up to a

final decree placing Jews “outside the law” and handing them over to the Gestapo, all of which

“paved the way for the ‘final solution.’”) (citations omitted). 

36. Genocide Convention, supra note 20, at art 2. 

37. Id.



432 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

genocide. The international tribunals include the International Criminal Tribunal
for the Former Yugoslavia (ICTY),38 the International Criminal Tribunal for
Rwanda (ICTR),39 and the International Criminal Court (ICC).40 

The tribunals that were established following the conflicts in the former
Yugoslavian nation-states and Rwanda have been instrumental in the
interpretation and application of the Genocide Convention, including in the
categorization of protected groups.41 However, scholars heavily critique the ad-
hoc tribunals’ characterization of genocide and advocate that successful
prosecution is more likely if acts are brought under the lens of crimes against
humanity.42 Scholarly discourse has continuously recognized the overlap in
persecution, discrimination, and genocide.43 Discrimination may in fact be an
essential element in associating persecution with the crime of genocide; the
special intent of the perpetrator creating the distinction from acts otherwise
attributable to crimes against humanity.44 However, legal frameworks for the

38. G.A. Res. 1877, art. 4, Statute of the International Criminal Tribunal for the Former

Yugoslavia (July 7, 2009). 

39. G.A. Res. 143, art. 2, Statute of the International Criminal Tribunal for Rwanda (Jan. 30,

2007).

40. G.A. Res. 38544, art. 5, Rome Statute of the Int’l. Crim. Court (Jan. 16, 2002). For a

scholarly analysis on the Rome Statute in the influence of genocide as an international crime, see

Thomas E. Davies, How the Rome Statute Weakens the International Prohibition on Incitement to

Genocide, 22 HARV. HUM. RTS. J. 245 (2009).

41. David L. Nersessian, The Razor’s Edge: Defining and Protecting Human Groups under

the Genocide Convention, 36 CORNELL INT’L. L.J. 293, 307-14 (2003) (discussing the different

objective and subjective approaches and the international tribunal cases that defined racial groups,

ethnic groups, religious groups, and national groups). 

42. See Leila Sadat, Crimes Against Humanity in the Modern Age, 107 AM. J. OF INT’L L.

334, 340-56 (2013) (discussing the ICTY’s declination to find ethnic cleansing in Bosnia and

Herzegovina as genocide despite characterizations of such a nature by the United Nations General

Assembly and the European Court of Human Rights and listing genocide as only 2.4 percent of the

total charges and less than 1 percent of convictions at the ICTY).

43. Monika Ambrus, Genocide and Discrimination: Lessons to be Learnt from

Discrimination Law, 25 LEIDEN J. OF INT’L. L. 934, 936 n.5 (2012) (discussing an essential link

between genocide and direct discrimination: “the concept of genocide has a discriminatory

component and the crime of genocide is the result of serious and far-reaching discrimination against

certain groups.”) (quoting Prosecutor v. Kupreškiæ, Case No. IT-95-16-T, Judgement, ¶ 636 (Jan.

14, 2000) (“[b]oth persecution and genocide are crimes perpetrated against persons that belong to

a particular group and who are targeted because of such belonging. In both categories what matters

is the intent to discriminate: to attack persons on account of their ethnic, racial, or religious

characteristics.”) (emphasis added).

44. Ambrus supra note 43, at 938. See Prosecutor v. Kupreškiæ, Case No. IT-95-16-T,

Judgement, ¶ 636 (Jan. 14, 2000) (“In both categories what matters is the intent to discriminate: to

attack persons on account of their ethnic, racial, or religious characteristics (as well as, in the case

of persecution, on account of their political affiliation). While in the case of persecution, the

discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of



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identification and prevention of discrimination exists primarily in tandem with
State obligations under international human rights law.45 Notably permeated
throughout treaty and soft law are State obligations related to protecting specific
minority groups and affirmatively disavowing discrimination in domestic
mechanisms.46 

Victims

Genocide as an international crime contains an objective47 and subjective
element.48 The subjective element or unique concept of dolus specialis is the
“aggravated criminal intention,” which “implies that the perpetrator consciously
desired the prohibited acts he committed to result in the destruction, in whole or
in part, of the group as such, and knew that his acts would destroy in whole or in
part, the group as such.”49 International jurisprudence has explicitly distinguished
the group dynamic for the crime of genocide, specifically “the victim is chosen
not because of his individual identity, but rather on account of his membership
. . . the victim of the crime of genocide is the group itself and not only the
individual.”50

The protected groups under the Genocide Convention include those
belonging to a national, ethnic, racial, or religious group.51 The proper
identification of victims is essential for genocide and may lead to the exclusion

actions including murder, in the case of genocide that intent must be accompanied by the intention

to destroy, in whole or in part, the group to which the victims of the genocide belong.”); see also

Atrocity Crimes, supra note 25, at 129 (discussing the crime of persecution as defined in art. 7 §

1 (h) in the Rome Statute of the ICC, “[i]n effect, the crime of persecution adds discriminatory

intent to the underlying crime or, in the case of genocide, supplements the more narrowly defined

genocidal intent to destroy [. . .].”).  

45. See e.g., G.A. Res. 36/55, art. 3, Declaration on the Elimination of All Forms of

Intolerance and of Discrimination Based on Religion or Belief (Nov. 25, 1981). G.A. Res. 47/135,

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic

Minorities (Dec. 18, 1992). International Convention on the Elimination of All Forms of Racial

Discrimination art. 1(1), Jan. 4, 1969, 660 U.N.T.S. 195 [hereinafter ICERD].

46. See ICERD, supra note 45, at art. 2(a)-(d); see also G.A. Res. 36/55, supra note 45, at

art. 4(2); G.A. Res. 47/135, supra note 45, at art. 1, art. 2(3).

47. International Commission of Inquiry on Darfur, Report of the International Commission

of Inquiry on Darfur to the United Nations Secretary-General, ¶ 490 (Jan. 25, 2005) [hereinafter

Darfur Report] (stating that the twofold objective element includes the prohibited conduct and the

targeted group). 

48. Id. ¶¶ 490-91.

49. Id. ¶ 491. 

50. Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgement, ¶ 521 (Sept. 2, 1998) (internal

citations omitted). 

51. Genocide Convention, supra note 20, at art. 2. 



434 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

of victimology of those otherwise targeted during a genocidal period,52 such as
moderate Hutus in Rwanda.53 The Genocide Convention does not further define
the broad category of group or victim identity. Following the Darfur Report
which characterized victims through both subjective and objective lenses,54

commentators have noted the controversy over the proper approach for
determining protected groups.55 For purposes of this Note, the strict Genocide
Convention definition of victim is appropriate.56 However, it is important to note
the ICTR’s initial difficulty in characterizing victim identity in Rwanda, which
is relevant to the previously utilized colonial legal identities.57 Nevertheless, an
approach under the Genocide Convention is appropriate as future victim
identification will likely follow ad hoc tribunal guidance and uphold the travaux
preparatories of the Genocide Convention in identifying group identity.58 

52. Nersessian, supra note 41, at 299 (“If the victim in question lacks membership in a

protected group, genocide has not occurred with respect to that victim, even if the actor’s ultimate

intention is to facilitate the destruction of a protected group.”).

53. See Akayesu, Case No. ICTR 96-4-T, ¶ 173 (discussing the massacre of Hutus that were

sympathetic to or supportive of Tutsi in the context of chargeable crimes against humanity). 

54. Darfur Report, supra note 47, ¶ 501 (suggesting that the interpretation of the element of

a protected group to include connotations and subjective perceptions of members of groups has

become “part and parcel of international customary law.”). But see Prosecutor v. Rutaganda, Case

No. ICTR 96-3-T, Judgment and Sentence, ¶ 56 (Dec. 6, 1999) (“Moreover, the Chamber notes that

for the purpose of applying the Genocide Convention, membership of a group is, in essence, a

subjective rather than an objective concept. The victim is perceived by the perpetrator of genocide

as belonging to a group slated for destruction. In some instances, the victim may perceive

himself/herself as belonging to the said group.”).

55. For a full contextual consideration of whether international law identifies the victim

group of genocide based on objective indicators or subjective perceptions, including an analysis

of ad hoc international tribunals determinations, see Rebecca Young, How Do We Know Them

When We See Them: The Subjective Evolution in the Identification of Victim Groups for the

Purpose of Genocide, 10 INT’L CRIM. L. REV. 1 (2010). For an analysis of defining a protected

group and manifesting genocidal intent, see Nersessian, supra note 41. 

56. As this Note analyzes mass killings that have previously been regarded as genocide, the

debates over which groups fall under the definition of victim have already been largely resolved. 

57. See Akayesu, Case No. ICTR 96-4-T, ¶ 170-73 (noting that the Tutsi population does not

have its own language or a distinct culture from the rest of the Rwandan population, however there

were a number of objective indicators of a distinct identity, such as an official governmental

classification system which included identity cards, customary rules of determination following

patrilineal lines of hereditary, and a registration/categorization system imposed through colonial

rule). 

58. Id. ¶ 516 (“. . . it is particularly important to respect the intention of the drafters of the

Genocide Convention, which according to the travaux preparatories, was patently to ensure the

protection of any stable and permanent group.”). For an analysis of the case holding, see

Nersessian, supra note 41, at 304-07. 



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Legal Identity

The term “legal identity” may be defined as “referring to an official, state-
issued document that includes basic information attesting to the holder’s identity,
status, and legal relationship.”59 Legal identity may be both reflective and
constitutive of determinations such as race, sex, family, and citizenship60 and may
be configured through documentation such as birth, marriage, and death
certifications, citizenship cards, identity cards, and passports.61 

The models of attributing identity include ascriptive, elective, and formal.62

Generally, the different models do not change the nature of the identity, rather
only how the legal identity was created or designated.63 Jessica A. Clarke,
Associate Professor at University Minnesota Law School, defines formal identity
as self-construed, “the execution of formalities by individuals claiming identities
for themselves.”64 The “formalities” that Clarke describes within formal identity
are practices intended to confer a legal status in “the eyes of the law.”65 Whereas
ascriptive models “determine identities based on certain biological or social
standards considered to be objective” and elective models “view identities as self-
determined labels that each individual may freely adopt and change.”66 

Similar to Clarke’s conclusory argument of the appropriateness of a context-
dependent identity model,67 this Note will incorporate different models to reach

59. Ladner et al., supra at note 4, at 47-48.

60. See Jessica Clarke, supra note 4, at 749-50 (“These practices do not simply reflect an

underlying identity status; they create and constitute that status for legal purposes.”). 

61. Ladner et al., supra note 4, at 53.

62. Jessica Clarke, supra note 4, at 750-51.

63. Id. at 756 (demonstrating in the table that the legal identity created by citizenship could

be achieved differently through each of the three models: the ascriptive model would formalize

citizenship through factors such as birthplace, physical presence, parentage or marriage, language,

or civics; the elective model would formalize citizenship through consent of individual and state;

and, the formal model would formalize citizenship through naturalization papers and ceremony,

passport); see id. at 756 n.33 (answering the “entangled question” of “who decides” an identity

claim, “[u]nder the ascriptive model, the law defers to experts or community standards. Under the

elective model, the law defers to the individual claiming the identity. Under the formal model, the

law defers to the evidence that the formality was executed – generally a document demonstrating

that the individual complied with the official rules to claim the identity.”).

64. Id. at 750 (emphasis added); see also id. at 750 n. 12 (the definition does not include

“those identities conferred by formalities executed by someone other than the individual laying

claim to an identity, such as birth certificate race designations assigned by hospital staff.”). 

65. Id. at 750.

66. Id. at 751. 

67. Id. at 828 (concluding that a context-dependent, rather than all-purpose identity definition

may be appropriate depending on the substantive aims; “Elective definitions may be appropriate

where the law’s concern is protecting privacy and autonomy. Ascriptive definitions may be

appropriate where the law regulates identity as a proxy for another substantive interest apart from



436 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

the legal “identity” of victims in addition to utilizing the subjective and objective
lens of determining the “group” of victims. Through combining the understanding
of the subjective and objective lens of victim identity with the different models
of characterizing identity, the different methods resolve gaps otherwise present.
For example, if one only utilizes the elective model of identity or the subjective
lens of victim in which the identity was established only if personally identified
as such, these self-identifications would be irrelevant in the genocidal context as
historical inference has proven that victims could not choose to change their
identity once proscribed by the State. Therefore, the importance of state-conferred
identity cannot be devalued. 

In today’s society, an individual may self-identify as a certain racial, ethnic,
or religious group in order to register for a government form of identification
such as a passport, but their formal identity of citizenship is not conferred until
the State grants the passport, and the denial of a passport on the grounds of the
racial, ethnic, or religious identity, would restrict—or oppress through the
simultaneous denial of citizenship based benefits and protections—the
individual’s legal identity through discrimination of their group identity. While
“ethnicity is socially constructed,”68 legal identity is a political, State
construction. Similarly, Mahmood Mamdani refers to this proposal in his
characterization of “political identities.” 

If the law recognizes you as a member of an ethnicity, and state
institutions treat you as a member of that ethnicity, then you become an
ethnic being legally and institutionally. In contrast, if the law recognizes
you as a member of a racial group, then your relationship to the state, and
to other legally defined groups, is mediated through the law and the state.
It is a consequence of your legally inscribed identity. If your inclusion or
exclusion from a regime of rights or entitlements is based on your race
or ethnicity, as defined by law, then this becomes a central defining fact
for you, the individual and the group. From this point of view, both race
and ethnicity need to be understood as political—and not cultural, or
even biological—identities.69

Significant research has been produced on the multidisciplinary aspect of societal
and cultural influences in classifying race or ethnicity for purposes of legal

protecting the right to self-definition. Formal definitions may be appropriate when the law seeks

to facilitate identity choices, but it is necessary to mark a clear division between those who do and

do not hold particular rights or duties, to caution individuals before they choose those rights or

duties, and to provide stability and security in those identities.”). 

68. James D. Fearon & David D. Laitin, Violence and the Social Construction of Ethnic

Identity, 54 INT’L ORG. 845, 847-48 (2000) (describing identity as a social category that labels

individuals and distinguishes categories based on rules of membership and sets of characteristics,

beliefs, or behaviors expected or required or members).

69. MAHMOOD MAMDANI, WHEN VICTIMS BECOME KILLERS: COLONIALISM, NATIVISM, AND

THE GENOCIDE IN RWANDA, 22 (2001).



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identity.70 A considerable mechanism for classifying individuals based on ethnic,
racial, or religious identity is national identity cards. This classification results in
the forceful affiliation with a “governmentally-defined group,” potentially
exposing individuals to profiling and discrimination based on their identity.71 The
utilization of national identity cards in times of conflict contributes to easier
targeting and identification of individuals based on identity—resulting in more
organized detention, deportation, and the ultimate State goal of destruction of a
group.72

Legal identity is also based on the right to be recognized as a person before
the law, which is embodied throughout international law.73 This recognition
ranges in practical implementation from rights in nationality,74 birth registration,
75 and civil registration systems.76  The process and purpose of individual and
legal identity formalities often overlap,77 but civil registration does not necessarily

70. See, e.g., Kathryn Clarke, The Blood Quantum and Indian Identification, 2 DARTMOUTH

C. UNDERGRADUATE J. L. 40 (2004) (discussing the various approaches and use of the “blood

quantum” which measures how much “Indian  blood” a person has to determine Indian identity for

purposes of eligibility criteria such as tribal membership (arguably national identity), health care,

and federal benefits). See, e.g., Natsu Taylor Saito, Model Minority, Yellow Peril: Functions of

Foreignness in the Construction of Asian American Legal Identity, 4 ASIAN L.J. 71, 75-90 (1997)

(discussing the legal discrimination against Asian immigrants – including the “racialized

identification of Japanese Americans as foreign” – and justification of this discrimination being

founded on racial, cultural, or religious difference).

71. Jim Fussell, Group Classification on National ID Cards a Factor in Genocide and Ethnic

Cleansing, Prevent Genocide International (presented on Nov. 15, 2001 to the Seminar Series of

the Yale University Genocide Studies Program), http://www.preventgenocide.org/prevent/

removing-facilitating-factors/IDcards/ [https://perma.cc/84W2-VZHT].

72. Id. 

73. See G.A. Res. 217 (III) A, Universal Declaration of Human Rights, at art. 6 (Dec. 10,

1948) (“Everyone has the right to recognition everywhere as a person before the law.”) [hereinafter

UDHR]; G.A. Res 2200A (XXI), International Covenant on Civil and Political Rights, at art. 16

(Dec. 16, 1966) [hereinafter ICCPR]; ICERD, supra note 45, at art. 5.

74. UDHR, supra note 73, at art. 15 (“(1) Everyone has the right to a nationality; (2) No one

shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”);

ICCPR, supra note 73, at art. 24(3); G.A. Res. 44/25, Convention on the Rights of the Child, at art.

7 and art. 8 (Nov. 20, 1989) [hereinafter CRC].

75. See ICCPR, supra note 73, at art. 24 (“(1) Every child shall have, without discrimination

as to race, colour, sex, language, religion, national or social origin, property or birth, the right to

such measures of protection as are required by his status as a minor, on the part of his family,

society and the State; (2) Every child shall be registered immediately after birth and shall have a

name . . . ”); CRC, supra note 74, at art. 7(1).

76. United Nations Handbook on Civil Registration and Vital Statistics Systems:

Management, Operation and Maintenance Revision 1, U.N. ¶ 2 (2018) [hereinafter U.N. Handbook

on Civil Registration].

77. See, e.g., Annette R. Appell, Certifying Identity, 42 CAP. U. L. REV. 361, 362 (2014)



438 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

in itself confer the protections associated with a legal identity.78 The United
Nations has characterized civil registration as establishing “the existence of a
person under the law,” and has therefore been the “fundamental means of
granting legal identity.”79 Despite its significance, there is not a universal
understanding of “identity management,”80 and domestic civil registration
systems significantly vary and are affected by discriminatory regimes.81 The
international community has largely advocated for civil registration systems to
promote development,82 while also acknowledging that ineffective or
discriminatory systems may contribute to greater risks of statelessness among
certain population groups, such as minorities.83  However, international
scholarship often fails to discuss the significant relationship between restricting
registration of legal identity and consequential statelessness existing as
longstanding discriminatory regimes for persecuted minorities in Europe,
specifically the Roma.84

(discussing the importance of birth as to questions of identity, race, gender, kinship, belonging,

rights, inheritance, property, citizenship, and political power, and how these questions are

subsequently certified through birth and identity in government-prescribed categories).

78. U.N. High Comm’r for Refugees (UNHCR), Action 7: Ensuring Birth Registration for

the Prevention of Statelessness, Good Practices Paper: Global Action to End Statelessness

2014–2024 at 3 (Nov. 2, 2017), https://www.unhcr.org/ke/wp-content/uploads/sites/2/2017/11/

Good-Practices-Paper-on-Ensuring-Birth-Registration-for-the-Prevention-of-Statelessness.pdf

[https://perma.cc/TRQ4-2CSM] (explaining that birth registration and nationality are two distinct

laws, and states often vary as to whether a birth certification is proof in itself of nationality or

merely a prerequisite to obtaining a national identity document). 

79. U.N. Handbook on Civil Registration, supra note 76, at ¶ 2.  See also Training Course

on: Civil Registration and Vital Statistics Systems, Participant’s Notes - September 2015, CDC

Global Program for Civil Registration and Vital Statistics Improvement,  https://www.cdc.

gov/nchs/data/isp/Participants_Manual.pdf [https://perma.cc/ZT8Q-R44N] (“The primary purpose

of civil registration is to establish the legal documents required by law.”).

80. U.N. Handbook on Civil Registration, supra note 76, ¶ 21.

81. Ladner et al., supra note 4, at 61 (“Discriminatory laws, practices, and attitudes present

a barrier to registrations, particularly for women and minority groups. Laws related to citizenship,

birth registration, marriage, property, and inheritance may all contain discriminatory provisions

which undermine the goal of universal registrations.”).

82. See, e.g., Civil Registration, UNICEF: South Asia, https://www.unicef.org/rosa/what-we-

do/child-protection/civil-registration [https://perma.cc/2U46-CJBW] (discussing that the

demographics provided by civil registration helps governments create and monitor population

statistics and support planning and decision-making). 

83. See Action 7: Ensuring Birth Registration for the Prevention of Statelessness, supra note

78, at 3 (“Some population groups are at particular risk of statelessness because their situation

makes it difficult for them to register births or obtain related documents. They include nomadic and

border populations, minorities, refugees, IDPs, and migrants . . . Minorities are often denied equal

access to rights and services, including access to documentation.”).

84. But see Jessica Parra, Stateless Roma in the European Union: Reconciling the Doctrine

of Sovereignty concerning Nationality Laws with International Agreements to Reduce and Avoid



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II. RECOGNIZING THE SYSTEMIC AND ENDURING DISCRIMINATION

AGAINST ROMA IN GERMANY

A. The Roma Identity in Unified Germany

The term “Roma” as understood in European politics encapsulates numerous
sub-groups into the minority identity.85 Discrimination of Roma in Eastern
Europe and Western Europe has historically differed;86 discrimination in Western
Europe is set apart by some as “societal,” perhaps rooted in the lack of
recognition of Roma citizenship status by many Western governments.87 The
Roma identity is multifaceted, but for purposes of this Note, Roma identity will
encapsulate the German Roma88 and Sinti89 group identities. Roma were first
documented in Europe in the Middle Ages90 and, similar to the Jewish population,
were one of the only indigenous minorities historically native to Germany.91

In Germany, Roma and Sinti were previously identified through the German
term Zigeuner, which is a term primarily used by outsiders to the group and
carries negative implications.92 The English equivalent of Zigeuner, “gyspy,”

Statelessness, 34 FORDHAM INT’L L.J. 1666 (2011). 

85. Roma Equality, Inclusion and Participation in the EU: Roma People in the EU, EUR.

COMM’N, https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-

discrimination/roma-eu/roma-equality-inclusion-and-participation-eu_en [https://perma.cc/X3PL-

ATRS] (“The umbrella-term ‘Roma’ encompasses diverse groups, including Roma, Sinti, Kale,

Romanichels, Boyash/Rudari, Ashkali, Egyptians, Yenish, Dom, Lom, Rom and Abdal, as well as

Traveller populations (gens du voyage, Gypsies, Camminanti, etc.).”).

86. Fox, supra note 9, at 3 (“Discrimination against the Roma tends to be worse in Eastern

Europe than in Western Europe and includes both governmental and societal discrimination. At its

worst, official discrimination in Eastern Europe since World War II has included assimilation

campaigns, forced settlement, segregation, police abuse, denial of citizenship and/or the right to

vote, denial of the right to use their own language, and discrimination in employment and

education. The Roma have been victims of ethnic cleansing campaigns in some of the former states

of Yugoslavia . . . .”). 

87. Id. at 4. 

88. Milton, supra note 13, at 318 (“The term Roma connotes ethnic self-description and

refers to the language Romani, spoken by the group.”).

89. Id. (“In Germany, the largest population group is called Sinti . . . a term based on their

linguistic origins in the Sind region of India. In Austria, Roma are the larger group, whereas in

Germany, Sinti are more numerous. There are also linguistic subgroups, such as the Lalleri,

generally considered Sinti. Moreover, some Sinti and Roma have designated themselves by their

profession although they belong to one of the two main language groups. For example, Roma in

Austria involved in itinerant horse trading were known as Lowara.”)

90. Fox, supra note 9, at 2. 

91. Milton, supra note 13, at 325. 

92. Id. 



440 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

carries similar negative connotations, as the word refers to the Middle Ages’
incorrect connotation of the group as “Egyptian.”93 In any discussion of the
group, this Note will refer to the group as “Roma” or “Sinti.” However, the term
“Gypsy” appears throughout historical documents and will be discussed in the
context of the broad use of the term in Germany in contributing to a larger legal
identity.  

The transformation of the legal identity of the term Zigeuner in German
history is important in defining the subjective and objective lens of group
identity. As argued by Leo Lucassen, the evolution of the identity has cautioned
some against the assumption of a homogeneous ethnic group.94 However, this
transformation is also important in understanding the progression of persecution
into genocide. Lucassen based his argument on the tendency of the police to label
individuals identified by their itinerant lifestyle as gypsies; an itinerant lifestyle
was sufficient to be labeled as dangerous and considered a potential criminal.95

However, as time progressed, stereotypes (rooted in either racial or social
classification) were replaced with racial science, and this racial science eventually
led to a universal racially based identification system. There is considerable
documentation of historical proposals for both the adoption and rejection of
racial-anthropological theories, and relevant ideologies such as a “West Aryan”
or “Germanic race” and the basis for “eugenics” programs were widespread as
early as the 1880s.96 

While tracing the discrimination of Roma in Germany poses numerous
difficulties, primarily due to the various independent German states prior to
unification97 and the various terms of identification each state applied to the

93. MICHAEL BURLEIGH & WOLFGANG WIPPERMANN, THE RACIAL STATE: GERMANY 1933-

1945, at 113 (1991) (citations omitted).

94. Leo Lucassen, Harmful Tramps, Police Professionalization and Gypsies in Germany,

1700-1945, 1 CRIME, HIST. & SOCIETIES 29 (1997) (explaining the history of gypsy-labelling and

the persecution of and stigmatization of gypsies and travellers). See also SINTI AND ROMA: GYPSIES

IN GERMAN-SPEAKING SOCIETY AND LITERATURE x (Susan Tebbutt ed.) (1998) (discussing that

despite the term “traveller” being accepted by the Roma community in Great Britain, the term

refers to a life-style rather than ethnic origins and would be rejected by the German Sinti and

Roma). 

95. Lucassen, supra note 94, at 30-31 (explaining that the increase in the identification of

gypsies was introduced in 1700-1830 through a simultaneous evolution of police investigative

methods; the use of the composition and distribution of warrants that contained names, professions,

and descriptions of persons suspected of crime was an important method). But see Ludwig Eiber,

The Persecution of the Sinti and Roma in Munich 1933-1945, in SINTI AND ROMA: GYPSIES IN

GERMAN-SPEAKING SOCIETY AND LITERATURE 17, 19 (Susan Tebbutt ed.) (1998) (arguing that the

reform in the Bavarian police administration was explicitly based on race and ethnic affiliation,

evident in the shift from identifying itinerant people in terms of social and occupational criteria,

with the racist “Gypsy.”).

96. BURLEIGH & WIPPERMANN, supra note 93, at 22-32 (citations omitted). 

97. German unification occurred in 1871. There were several noted difficulties in pursuing

unification, one of which was the numerous ethnicities in the region of Central and Southeastern



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Roma, there is no ambiguity that the discrimination and persecution of Roma
existed as a systematic and widespread practice before the National Socialist
government gained power in Germany. Specifically, special legislation, or
Sonderrech, were passed in the German Empire and Weimar Republic and were
directed at “gypsies.”98 Despite the group’s early appearance in German society,
Antiziganismus (anti-Gypsy ideology) has been prevalent throughout German
history, and stereotypes of Roma as nomadic, socially marginalized,
economically unproductive, sexually licentious, criminally “inclined,” and
racially inferior predated the twentieth century.99 The Zigeunerfrage, or the
“Gypsy question,” also appears to have emerged in the nineteenth century.100

The foundation for an ethnic-based registration system was created in 1899
in the German state of Bavaria through the Information Agency about Gypsies,
which collected genealogical data, photographs, and fingerprints of “Gypsies”
above the age of six.101 Subsequently, in 1926, the Bavarian Law for Combatting
Gypsies, Vagabonds, and the Work Shy “mandated registration of domiciled and
migratory Gypsies with the police, local registry offices, and labor exchanges.”102

Further, the law prohibited “roam[ing] about or camp[ing] in bands,” and risked
forced labor up to 2 years for “[Gypsies] unable to prove regular employment.”103

The introduction of identity cards followed registration in a 1927 Prussian
decree.104

The influence and role of the police in forging stereotypes cannot be
understated.105 In April 1929, a national police commission adopted the
Combatting Gypsies, Vagabonds, and Work Shy Decree of 1926 as the federal
norm and simultaneously created a Center for the Fight against Gypsies in
Germany.106 As the Weimar Republic declined, police established the practice of
arbitrary arrests and detention of itinerant gypsies in support of the theory of

Europe. See U.S. State Department, Office of the Historian, Issues Relevant to U.S. Foreign

Diplomacy: Unification of German States, https://history.state.gov/countries/issues/german-

unification [https://perma.cc/K5FM-LSAB].

98. Special Legislation Directed Against ‘Gypsies’, RACIAL DIAGNOSIS: GYPSY: THE NAZI

GENOCIDE OF THE SINTI AND ROMA AND THE LONG STRUGGLE FOR RECOGNITION, https://www.

sintiundroma.org/en/introduction/special-legislation/ [https://perma.cc/3CWU-ACWD].

99. Milton, supra note 13, at 318. 

100. KAROLA FINGS ET AL., FROM “RACE SCIENCE” TO THE CAMPS: THE GYPSIES DURING THE

SECOND WORLD WAR 1, 1 (1997).

101. Milton, supra note 13, at 319. 

102. Id. 

103. See BURLEIGH & WIPPERMANN, supra note 93.

104. Id. (the identity cards required fingerprints and photographs for 8,000 Sinti and Roma

above the age of six).

105. Lucassen, supra note 94, at 30 (discussing the responsibility of the police in labelling

“travelling people gypsies.”)

106. Milton, supra note 13, at 319. 



442 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

crime prevention.107 

B. Germany Under National Socialist Rule: 1933–1945

The National Socialist Party, commonly known as the Nazi Party, came to
power in Germany on January 30, 1933.108  The National Socialist Party staged
a compressive and intensive persecution through legislation. As previously
discussed, the Roma population in Germany faced systematic discrimination and
oppression prior to 1933. However, the argument has been presented that the Nazi
persecution—specifically the oppression and persecution that existed through the
law—would not have been as effective, nor as quick, had there not been existing
legal discrimination against Roma.109 Specifically, scholars argue that in 1935,
there was a transition from “pseudo-legal to the totally illegal persecution of both
‘alien’ races and those of ‘lesser racial value.’”110 Significantly, post-1935 Roma
and Sinti were “carriers of non-German or related blood,” which created a legal
recognition similar to the Jewish population.111

To demonstrate the expansive scope of persecutory laws on Roma legal
identity, examples of relevant legislation and legal orders are separated into the
following categories: (1) limitation, restriction, and elimination of all state-
conferred relationships and benefits; (2) criminalization of identity; (3) creation,
implementation, and enforcement of a new state identity; and (4) discriminatory
laws implementing physical genocidal policy. 

Limitation, Restriction, and Elimination of All State-Conferred
Relationships and Benefits

To create a uniform national approach and reconcile the varying statutes of
individual states, the National Socialist Party enacted the Cooperative Interstate
Agreement to Combat the Gypsy Plague in March 1933, and the earlier 1926
Bavarian Law and 1927 Prussian Act were combined and expanded.112 The
Cooperative Interstate Agreement restricted issuance of Roma and Sinti itinerant
trade licenses, mandated the supervision of Roma children by municipal welfare
authorities, limited travel to routes monitored by police, remanded Roma without
proof of employment to forced labor camps, and provided that states could issue
additional regulations.113 Through the Law for the Restoration of the Professional
Civil Service, all non-Aryans lost their employment as civil servants, officials of
local government and local government associations, and as officials of public

107. Id. 

108. BURLEIGH & WIPPERMANN, supra note 93, at xiii. 

109. See e.g., FINGS ET AL., supra note 100, at 18. 

110. BURLEIGH & WIPPERMANN, supra note 93, at 49. 

111. Id. at 54. 

112. SYBIL H. MILTON, “Gypsies” as Social Outsiders in Nazi Germany, in SOCIAL

OUTSIDERS IN NAZI GERMANY 214 (Robert Gellately & Nathan Stoltzfus eds., 2001).

113. Id.  



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corporations, institutions, and enterprises.114  
Despite not being explicitly listed in two laws of 1935, the Law For

Protection of German Blood of Honor115 and the Reich Citizenship Law,
subsequent commentaries interpreting these laws resulted in their application  to
“Gypsies.”116 Thus, German Sinti and Roma were effectively second-class
citizens,117 and interracial marriages with “Aryans” were prohibited.118 The Reich
Citizenship Law of 1943 subsequently deprived “full Gypsies and part-Gypsies
with predominant or equal parts of Gypsy blood” of their already “limited rights,
and equated [Roma] with Jews with regard to labour legislation.”119 In 1935, the
State Office for Domestic Affairs (Bundesamt für das Heimatwesen) removed
entitlement to social benefits through regional welfare funds for itinerant and
permanent Gypsy residents.120 To receive welfare payments, Roma were required
to be located in the Gypsy camps and perform compulsory labor.121 

Criminalization of Identity

The German Sinti and Roma population were often implicitly targeted in the
earlier, broad legislation of the Nazi Socialist period by designation of either
“asocial” or “habitual criminals.” For example, the November 1933 Law against
Dangerous Habitual Criminals permitted broad discretion for the detention and
sterilization of “habitual criminals” as determined by a “racial-biological”
investigation.122 The German Sinti and Roma were also classified under the
“asocial” category, which resulted in an unknown number of the groups being
targeted by the Law against Dangerous Habitual Criminals and other laws
purposefully broad on a racial scientific basis.123

The December 1937 Decree on the Fight to Prevent Crime Through the
Police, and the Special Operation which implemented it, were largely designed
to purify the “body of the nation from criminal and anti-social (asozial)

114. Gesetz zur Wiederherstellung des Berufsbeamtentums [Law for the Restoration of the

Professional Civil Service], April 7, 1933, § 3 translation at http://ghdi.ghi-dc.org/sub_document.

cfm?document_id=1520 (Ger.) [https://perma.cc/Y5J3-NYQZ]. 

115. DONALD KENRICK & GRATTAN PUXON, THE DESTINY OF EUROPE’S GYPSIES 71 (1972)

(“The Law for the Protection of German Blood (1935) stated that: ‘A marriage cannot take place

if offspring dangerous to the preservation of the purity of German blood can be expected from

it.’”). 

116. See generally id. at 69-72. 

117. BURLEIGH & WIPPERMANN, supra note 93, at 45-49. 

118. Id. at 49. 

119. Id. at 126-27. 

120. FINGS ET AL., supra note 100, at 45. 

121. Id. (explaining that this practice was a continuation of earlier Weimar Republic policy

which exchanged welfare payments for labor). 

122. BURLEIGH & WIPPERMANN, supra note 93, at 48. 

123. Id. at 116. 



444 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

elements,” and were aimed at targeting men able to work in concentration
camps.124 German Roma were targeted through the second Special Operation of
the Decree and were deported to concentration camps for compulsory labor
alongside male Jews.125 According to scholars, the Decree and latter instructions
demonstrated the clear purpose of the law under the National Socialist Party; “for
Gypsies and Jews[,] the rule of the Third Reich meant the complete loss of both
collective and individual rights.”126 The effect of the law for these groups
“entailed a complete loss of civil rights together with the possibility of
annihilation—not on behavioral grounds but simply because of a ‘foreign race.’
These ‘non-citizens’ were taken away to concentration camps ‘in order to protect
society.’”127

Creation, Implementation, and Enforcement of New State Identity

The racial science behind the genocidal policy was regulated and
implemented through the Racial Hygiene and Population Biology Research
Centre, which was created in 1936.128 The aim of the staff, led by Dr. Ritter, was
to “track down every pure and part Gypsy in the country.”129 The Centre was
responsible for completing genealogical tables of individuals, often through the
threat of forced sterilization or deportment to a concentration camp, and to
determine and classify individuals as pure or part-Gypsy.130 The definition of a
part-Gypsy included “a person who has one or two Gypsies among his
grandparents. Further, a person is classed as a part-Gypsy if two or more of his
grandparents are part-Gypsies as defined above.”131 The classification systems
were utilized in legislation and were influential in determining the affected groups
under each law. For example under a 1943 law “pure Gypsies” were explicitly
dismissed from labor and military service, whereas “part-Gypsies” were to serve
in the Second Reserve.132 The classification system was later revised in August
1941.133

124. FINGS ET AL., supra note 100, at 29-30. 

125. Id. at 30. 

126. Id.

127. Id.

128. KENRICK & PUXON, supra note 115, at 61.  

129. Id. (discussing that Ritter was largely responsible for the number of German Roma and

Sinti killed during this period due to his classification system; Ritter was never prosecuted for his

role nor did he face any judgement for his crimes). 

130. Id. 

131. Id. at 67 (discussing that, “if two of a person’s sixteen great-great-grandparents were

Gypsies he was classed as part-Gypsy and later, in 1943, could be sent to Auschwitz . . . a person

with one Jewish grandparent (four great-great-grandparents) was not generally affected by Nazi

anti-Jewish legislation.”) (citations omitted). 

132. Id. at 92. 

133. FINGS ET AL., supra note 100, at 32 (“(Z): Full blooded Gypsy, or part Gypsy; (ZM):

Gypsy half-breed with equal parts of Gypsy and German blood; (ZM+, ZM(+)): Gypsy half-breed



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In May 1938, the Research Centre merged with the Central Office for
Fighting the Gypsy Nuisance and the Central Police Headquarters in order to
produce legislation that utilized the experience of the police and the racial
scientists in classifying Roma.134 Thus, the 1938 Fight against the Gypsy Menace
Law provided for different treatment for part and pure-Gypsies as a “matter of
race”; the establishment of “racial affinity” of every Gypsy living in Germany
through ordered registration with the Central Office for the Fight against the
Gypsy Nuisance; mandatory police reporting by any person who “by their looks
and appearance, by their customs or habits are to be regarded as Gypsies or part-
Gypsies”; an official census of all Gypsies, part-Gypsies, and “vagrants living a
Gypsy-like existence” over six years old; the classification of nationality (or a
consideration of statelessness in the lack of proof of nationality) on an index card;
and, that the final decision on classification rested on the expert advice of  the
Criminal Police.135 

In March 1939, to carry out the Fight against the Gypsy Menace Law,
instructions were given for passes based on classification (pure Gypsies received
brown passes, part-Gypsies received light-blue passes, and non-Gypsy travelers
were given gray passes).136 Further, each police headquarters was to establish a
unit for Gypsy problems with specially assigned officers, and the aim of measures
“must be racial separation once and for all of the Gypsy race (Zigeunertum) from
the German nation (Volkstum), then the prevention of racial mixing and finally
the regulation of the conditions of life of the racially pure Gypsies and the part-
Gypsy.”137

Discriminatory Laws Implementing Physical Genocidal Policy

Similar to the enforcement of other legislation in 1933, the Law for the
Prevention of Offspring with Hereditary Defects did not explicitly refer to the
German Roma and Sinti population, but an unknown number of these groups
were sterilized under this law.138 Sterilization would also occur later in
concentration camps such as Ravensbrück, where all Gypsy women, as well as
Gypsy children, were sterilized.139

Between 1935 and 1939, individual municipalities limited the activities of the

with a greater proportion of Gypsy blood; (ZM 1st Class): One parent is pure Gypsy, the other of

German blood; (ZM 2nd Class): One parent is ZM 1, the other of German blood; (ZM-, ZM(-)):

Gypsy half-breed with a greater proportion of German blood; (NZ): Non-Gypsy (i.e. nomads with

no Romany or Sinti blood).”).

134. KENRICK & PUXON, supra note 115, at 73. 

135. Id. at 73-74. 

136. Id. at 74. 

137. Id. 

138. BURLEIGH & WIPPERMANN, supra note 93, at 116.

139. FINGS ET AL., supra note 100, at 91 (discussing that the sterilizations were often

experimental and torturous, and killed many women and children). 



446 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

Sinti and Roma by placing them in guarded internment camps, while
simultaneous local rules “imposed greater police surveillance and arbitrary
intimidation of German Roma and Sinti, intensified restrictions on their freedom
of movement, and limited their employment.”140 The internment camps were used
for forced labor, genealogical registration, and compulsory sterilization until
1939, when the camps became essential in the organization of deportations to
concentration camps, ghettos, and killing centers.141 An appendix to the 1939
Settlement Decree, which restricted German Sinti and Roma from leaving their
place of residence and required counting of the population by police officials,
announced plans for deportations to begin in May 1940. 

The deportation of May 1940 expelled German Sinti and Roma into occupied
Poland. The following instructions were issued to officials who organized the
deportation: 

[a]ll identity documents . . . were to be confiscated . . . Gypsies over the
age of six who had not previously been registered were to have their
fingerprints taken and all those over fourteen were to be photographed.
Registered numbers were to be inscribed with coloured ink on the left
forearm . . . a racial classification report was to be prepared for each
deportee.142

In the final years of the genocidal period, the National Socialist government
shifted the persecutorial regime against the Roma from an oppression of legal
identity to a total elimination of individual identity through the use of mass group
identification and registration systems in concentration camps. Upon arrival at
concentration camps, German Sinti and Roma were tattooed with a camp
number.143 After 1939, the categories of camp prisoners were usually identified
by a marking system of differently colored inverted triangles on camp
uniforms.144  It is possible that the classification of German Roma and Sinti varied
by each camp and included black triangles, brown triangles, and the sign “Z.”145

The Auschwitz Order of December 16, 1942 ordered all “Sinti Gypsy half-
breeds, Rom[a] Gypsies and members of Gypsy tribes of Balkan origin with non-

140. SUSAN TEBBUTT, Piercing Together the Jigsaw: The History of the Sinti and Roma in

Germany, in SINTI AND ROMA: GYPSIES IN GERMAN-SPEAKING SOCIETY AND LITERATURE 7 (Susan

Tebbutt ed.) (1998).

141. Id. 

142. FINGS ET AL., supra note 100, at 35.

143. KENRICK & PUXON, supra note 115, at 155.

144. United States Holocaust Memorial Museum, Classification System in Nazi Concentration

Camps, Holocaust Encyclopedia, https://encyclopedia.ushmm.org/content/en/article/classification-

system-in-nazi-concentration-camps [https://perma.cc/GDL9-5G5C].

145. KENRICK & PUXON, supra note 115, at 60 (discussing that the authors did not accept the

suggestion of some that Nazis classified the Gypsies as “asocials” in camps, rather the authors’ note

that Gypsies were considered as “non-Aryan” from the beginning of the Nazi period and formed

a separate group from targeted “asocials.”). 



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German blood” to be deported to Auschwitz.146 On January 29, 1943, the majority
of the remaining German Roma and Sinti, “without consideration of the
proportion of Gypsy blood [were to be deported] to the concentration camp
(Gypsy Section) at Auschwitz, in families.”147 Following a series of
transportations, mainly of men capable of hard labor, the Gypsy Family Section
at Auschwitz was liquidated on August 2, 1944, and 2,897 men, women, and
children were murdered in the gas chambers.148 The total number of Sinti and
Roma victims is still unknown, but the estimates of the total number of victims
for all sub-groups of Roma range from 250,000149 to 500,000.150 

C. Post- WWII Germany and Reconstruction

The identity of German Roma and Sinti as victims of the Holocaust was
continuously ignored or suppressed throughout the period of reparations,
restitution, and justice. Roma and Sinti victims were purposefully excluded from
acts which allowed for compensation claims, and the judicial system upheld the
continued use of former Nazi classifications and stereotypes.151 The newly
established Western German government made compensation available for
victims of persecution in September 1953.152 However, the Federal Court of
Justice utilized the racist stereotypes of the National Socialist Party and held on
January 7, 1956, that there was no racial persecution of “gypsies” prior to
Himmler’s Auschwitz Decree on December 16, 1942.153 The court determined

146. FINGS ET AL., supra note 100, at 95.

147. Id., at 36.

148. Id., at 108.

149. U.S. Holocaust Mem’l Museum, Genocide of European Roma (Gypsies), 1939-1945,

Holocaust Encyclopedia, https://encyclopedia.ushmm.org/content/en/article/genocide-of-european-

roma-gypsies-1939-1945 [https://perma.cc/4NEU-BTQ9].

150. Racial Diagnosis: Gypsy, The European Dimension of the Genocide Perpetrated on the

Sinti and Roma, SINTI UND ROMA, https://www.sintiundroma.org/en/genocide-in-europe/

[https://perma.cc/F5CX-FA4J].

151. See Racial Diagnosis: The Nazi Genocide of the Sinti and Roma and the Long Struggle

for Recognition, https://www.sintiundroma.org/en/exclusion-after-1945/difficult-new-beginnings/

[https://perma.cc/9SW8-YSG2].

152. Bundesergänzungsgesetz zur Entschädigung für Opfer der national-sozialistischen

Verfolgung [BErG][Additional Federal Compensation Act for Victims of National Socialist

Persecution], 1953, (BGBI. I. S. 1387) (Ger.) (“provides a right to compensation to all those who

suffered acts of violent persecution because of political conviction . . . on grounds of race, faith,

or beliefs (persecution grounds) in the period from 30 January 1933 to 8 May 1945 . . . hereby

suffering damage to life, body, health, liberty, property, assets or to professional or economic

advancement.”).

153. The Judgment of the Federal Court of Justice of 1956, Sinti und Roma, https://www.

sintiundroma.org/de/ausgrenzung-nach-1945/verweigerte-entschaedigung/bgh-urteil-1956/

[https://perma.cc/E5XW-MEFH] (“Sie [die Zigeuner] neigen, wie die Erfahrung zeigt, zur



448 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

that “[a]ll state persecution measures before 1943 were legitimate because they
were caused by ‘gypsies’ by their own asociality, crime and migratory drive.”154

Therefore, all forms of persecution of the German Sinti and Roma were
considered by German courts to be “security measures.”155 This precedent, which
affected compensation for Sinti and Roma survivors and supported the alleged
justification of former perpetrators,156 was only recently publicly rejected in
2015.157 However, the impact of this precedent was felt, even outside of Germany.
As recently as September 2020, pleas for restitution from Roma victims in France
were rejected by upholding the precedent that the differentiation between victim
groups for restitution was legal.158 

Following 1945, many former National Socialist officials continued the
discriminatory registration (Sondererfassung) of German Sinti and Roma under
the new Central Offices for Travellers of the Roads (Landfahrerzentralen).159

Many of the top officials in the National Socialist offices previously focused on
the registration of and experimentation on Roma carried their research and files
to the newly established federal agencies, where they attained amnesty status and
continued application of racial-based science to the administration and
implementation of government services. 

In 1945, the Allied occupation government immediately ordered Control
Council Law No.1, which repealed “laws of a political or discriminatory nature
upon which the Nazi regime rested.”160 Excluded from the itemized Nazi
regulations were all those of an explicitly anti-Roma and Sinti in nature, and local
governments passed directives upholding Nazi regulation against Roma and
issued new regulations compelling survivors to return to the former internment
camps.161 The denial of Roma victim identity was simultaneously effectuated

Kriminalität, besonders zu Diebstählen und Betrügerein, es fehlen ihnen vielfach die sittlichen

Antriebe der Achtung vor fremdem Eigentum, weil ihnen wie primitive Urmenschen ein

ungehemmter Okkupationstrieb eigen ist.”) .

154. Anti-Discrimination Work, ZENTRALRAT DEUTCHER SINTI & ROMA, https://zentralrat.

sintiundroma.de/arbeitsbereiche/antidiskriminierungsarbeit/ [https://perma.cc/D9ZJ-GAGB].

155. KENRICK & PUXON, supra note 115, at 75.

156. ZENTRALRAT DEUTCHER SINTI & ROMA, supra note 154. 

157. Id. (discussing that BGH President Bettina Limperg called the 1956 judgment

“unjustifiable case law” for “which one can only be ashamed.”).

158. French Court Blocks Roma Bid For Restitution under Jewish Holocaust Victim Law,

TIMES OF ISRAEL (Sept. 26, 2020, 11:53 AM), https://www.timesofisrael.com/french-court-blocks-

roma-bid-for-restitution-under-jewish-holocaust-victim-laws/ [https://perma.cc/4GFV-Q4C7].

159. Exclusion After 1945, The Perpetrator’s Defining Powers, SINTI UND ROMA,

https://www.sintiundroma.org/en/exclusion-after-1945/the-perpetrators-defining-powers/

[https://perma.cc/YT66-AG85].

160. Enactments and Approved Papers of the Control Counc. and Coordinating Comm., Allied

Control Auth. Ger. (1945), Vol. I, Law No.1, Art. 1 (1), at 101 (Sept. 20, 1945); see MILTON, supra

note 112, at 36, 35-49. 

161. MILTON, supra note 112, at 36-37 (discussing the Cologne and Düsseldorf regulations

of 1949 which validated the 1938 directive for “Fighting the Gypsy Plague,” and the continued



2022] LEGAL IDENTITY AS A TOOL OF STATE-
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449

through the continuous oppression of Roma legal identity. The Bavarian vagrancy
ordinance (Landfahrerrordnung) was in effect until 1970 and included the
Vagrancy Office registry of West German Roma and Sinti.162 The registry
included fingerprints, detailed personal information, and tattooed concentration
camp numbers, and was used as a mechanism to dismiss compensation claims by
German Roma and Sinti victims.163 

A new form of registration occurred between 1960 and 1982.164 The Federal
Criminal Investigation Department utilized Guidelines that authorized special
registration of German Sinti and Roma under “ZN” (Zigeunername).165 The
German Conference of Interior Ministers intended for the special registration
under “ZN” to continue, but this was fought by German Sinti and Roma
advocates.166 Despite the promise of the removal of special registration, police
departments continued registration by renaming the “ZN” data field as “HWAO”
(Häufig Wechselnder Aufenthaltsort.)167 

Another practice of German authorities was the arbitrary confiscation and
denial of identity papers.168 German authorities frequently confiscated German
Sinti and Roma identity papers that were issued by the Allied occupation
authorities, alleging a lack of proof of German nationality.169 Despite local
German offices containing documentation of identity from receipts signed during
forced transfer of property or confiscation, Roma and Sinti were continuously
stripped of citizenship and all accompanying rights, and some were expelled or
deported.170 The combination of the previous confiscation of identity papers
during the National Socialist period and the confiscation of new identity papers
effectively denied large numbers of the group their citizenship, making them
stateless.171 

restrictions on licenses for iterant trades, the registration and surveillance of all Gypsy employment,

the compelling of Sinti and Roma to the city internment camps, and power of city councils to evict

and prosecute whenever found residing on unapproved sites).

162. Daniela Gress, Sinti and Roma in the Federal Republic of Germany, RomArchive,

https://www.romarchive.eu/en/roma-civil-rights-movement/sinti-and-roma-federal-republic-

germany/ [https://perma.cc/AE54-NMCH]. 

163. Id. 

164. Protests Against Special Registration by the Police,  EUR. HOLOCAUST MEM’L DAY FOR

SINTI AND ROMA, https://www.roma-sinti-holocaust-memorial-day.eu/recognition/protests-against-

special-registration-by-the-police/ [https://perma.cc/S54W-S7AW].

165. Id. 

166. Id. 

167. Id. (meaning frequently changing place of residence).

168. See MILTON, supra note 112, at 39, 35-49.

169. Id.

170. Id.

171. Id.



450 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

D. 1980s to Present-Day Society

The fall of the National Socialist government, the resolution of the
Nuremberg Trials, and the movement towards victim restitution did not end the
continuous and systemic discrimination agenda toward Roma in Germany. The
German Sinti and Roma civil rights movements in the 1980s began a grassroots
movement to call for recognition, compensation, remembrance as victims, and
elimination of discrimination suffered in spite of protections from West
Germany’s Basic Law.172 

The Federal Republic of Germany finally recognized the Roma as genocide
victims in March 1982.173 Alongside the awaited acknowledgment of victim
identity, German Sinti and Roma were fighting for recognition as a national
minority. In May 1995, Roma obtained legal recognition as a minority, which
guaranteed protection against discrimination and promised active support to
enable greater participation in society and politics.174 Currently, Germany only
recognizes four national minorities175 and has a set criterion for the recognition
of each group

(1) they are German nationals; (2) they differ from the majority
population in having their own language, culture and history and thus
their own distinct identity; (3) they wish to maintain this identity; (4)
they have traditionally been resident in Germany (usually for centuries);
and (5) they live in Germany within traditional settlement areas.176

This minority status does not apply to foreign Roma, such as those who sought
asylum and refugee status in the 1980s-1990s due to persecution across Europe.177

Despite slow recognition and a transformation of a new legal identity, one
with the transference of enforceable rights and protections, the persecutory
practices from the previous regimes continued under State authority. For
example, the Federal Republic transferred the registration files created during the
Third Reich, police surveillance continued, and laws passed as recently as the

172. The Recognition of the Nazi Genocide of the Sinti and Roma  EUR. HOLOCAUST MEM’L

DAY FOR SINTI AND ROMA, EUR. HOLOCAUST MEM’L DAY FOR SINTI AND ROMA, https://www.

roma-sinti-holocaust-memorial-day.eu/recognition/the-recognition-of-the-nazi-genocide-of-the-

sinti-and-roma/ [https://perma.cc/9MLX-CQDQ].

173. Id.

174. Id.

175. National Minorities, Federal Ministry of the Interior, Building and Community,

https://www.bmi.bund.de/EN/topics/community-and-integration/national-minorities/national-

minorities-node.html [https://perma.cc/T5WM-HVQL] (discussing that the four officially

recognized national minorities are the Danes, the Frisians, the German Sinti and Roma, and the

Sorbs).

176. Id. 

177. See Gress, supra note 162. 



2022] LEGAL IDENTITY AS A TOOL OF STATE-
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451

1990s registered Sinti and Roma under a public danger justification.178 The
20,000 race reports (Rassenguatchten) that were created by the Racial Hygiene
Research Centre have disappeared, and despite numerous court cases filed by
Roma activists, remain undisclosed today.179 

For the protection of all minority groups, the German government has
established an anti-discrimination legislative framework180 as inscribed through
the German Basic Law181 and the German Equal Treatment Act.182 The scope of
the German Equal Treatment Act is intended to prohibit any discrimination in
relation to conditions for access to employment and self-employment,
employment and working conditions, access to vocational guidance and training,
membership and involvement in worker or employer organizations, social
protection such as social security and health care, social advantages, education,
and access and supply of goods and services available to the public.183 The acts
constituting prohibited discrimination include direct18 4  and indirect
discrimination,185 harassment,186 and instructions to discriminate.187 Current
German legislation continues the regulation of citizens through civil registration

178. Milton, supra note 13, at 317. The Bavarian police registered Sinti and Roma on “special

police forms without reason or legal basis, justifying this practice as vobeugende

Verbrechensbekümpfung (crime prevention) because they believed that ‘Gypsies’ could become

a public danger.” 

179. The Search for the Nazi Race Files, EUR. HOLOCAUST MEM’L DAY FOR SINTI AND ROMA,

https://www.roma-sinti-holocaust-memorial-day.eu/recognition/the-search-for-the-nazi-race-files/

[https://perma.cc/5Z9U-SVF3].

180. The Guide to the General Equal Treatment Act describes the following as encompassing

the legal basis for protection against discrimination in Germany: (1) the protections for human

rights in the German Basic Law and the Universal Declaration of Human Rights; (2) the Treaty of

Amsterdam which empowered the Council of the European Union to undertake legislation against

discrimination on race, sex, ethnic origin, religion or belief, disability, age, or sexual orientation,

and the subsequent four pieces of legislation on Racial Equality, Framework Directive on

Employment, Equal Treatment in Goods and Services Directive, and Equal Treatment Directive;

and (3) the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz) which

incorporates the EU directives and extends the scope to include race/ethnic background. Federal

Anti-Discrimination Agency, Guide to the General Equal Treatment Act: Explanations and

Examples, http://www.antidiskriminierungsstelle.de/SharedDocs/Downloads/EN/publikationen/

agg_wegweiser_engl_guide_to_the_general_equal_treatment_act.pdf [https://perma.cc/4K9J-

2MXA]. 

181. Grundgesetz, Basic Law, Art. 3 Equality of all Human Beings before the Law.

182. See generally Allgemeines Gleichbehandlungsgesetz [AGG] [General Equal Treatment

Act], Aug. 14, 2006, Bundesgesetzblatt,Teil I [BGBL I] at 1897 (Ger.).

183. Id. at § 2. 

184. Id. at § 3(1).

185. Id. at § 3(2).

186. Id. at § 3(3).

187. Id. at § 3(5).



452 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

(which includes denoting membership of religious community),188 identity
cards,189 citizenship,190 and passports.191

German Sinti and Roma are specifically protected in framework agreements
with regional governments,192 and through a constitutional amendment in
Schleswig-Holstein.193 Despite protections in both regional and federal law,

188. Bundesmeldegesetz [BMG] [Federal Act on Registration], May 3, 2013,

Bundesgesetzblatt, Teil I [BGBL I] at 1084, last amended by Art. 11 des Gesetzes vom 18. Juli

2017 [Article 11 of the Act of July 18, 2017], July Jul. 18, 2017, Bundesgesetzblatt.Teil I [BGBL

I] at 2745, Sec. 3 (Ger.), translation at https://www.gesetze-im-internet.de/englisch_bmg/englisch_

bmg.html#p0015 [https://perma.cc/DZ2E-T5PB]. 

189. Personalausweisgesetz [PAuswG] [Act on Identity Cards and Electronic Identification],

June 18, 2009, Bundesgesetzblatt. Teil I [BGBL I] at1346, last amended by Art. 4 des Gesetzes

vom 22. Dezember 2011 [Art. 4 of the Act of Dec. 22, 2011], Dec. 22, 2011, Bundesgesetzblatt.

Teil I [BGBL I] at 2959, Sec. 5(2) (Ger.) “identity cards shall clearly indicate only the following

information about the card holder: (1) family name and name before marriage, (2) given names, (3)

doctoral degree, (4) date and place of birth, (5) photograph, (6) signature, (7) height, (8) eye colour,

(9) address; in case of an address outside Germany, then the statement “no main residence in

Germany”, (10) nationality, (11) serial number, and (12) religious name/stage or pen name.”

translation at  https://www.gesetze-im-internet.de/englisch_pauswg/englisch_pauswg.html#p0013

[https://perma.cc/J2G2-F4P8].

190. Staatsangehörigkeitsgesetz [StAG] [Nationality Act], July 22, 1913, Reichsgesetzblatt,

Teil I [RGBl I] at 583, last amended by Artikel 1 des Gesetzes vom 20 November 2019 [Article 1

of the Act of Nov. 20,  2019], Nov. 20. 2019, Bundesgesetzblatt. Teil I [BGBL I] at 1626, Sec. 1

(Ger.) (“A German within the meaning of this Act is a person who possesses German citizenship.”),

Sec. 3 (1) (“Citizenship is acquired, (1) by birth (Section 4), (2) by a declaration pursuant to Section

5, (3) by adoption as a child (Section 6), (4) by issuance of the certificate pursuant to Section 15

(1) or (2) of the Federal Expellees Act (Section 7) (Bundesvertriebenengesetz), (4a) for Germans

without German citizenship within the meaning of Article 116 (1) of the Basic Law (Grundgesetz)

under the procedure laid down in Section 40a, (5) for a foreigner by naturalization (Sec. 8 to 16,

40b and 40c))”, Sec. 3(2) (“German citizenship is also acquired by any person who has been treated

by German public authorities as a German national for 12 years due to circumstances beyond his

or her control. In particular, any person who has been issued a certificate of nationality, a passport

or a national identity card is treated as a German national. . . .”), translation at https://www.gesetze-

im-internet.de/englisch_stag/englisch_stag.html#p0012 [https://perma.cc/75N9-AZYA].

191. Passgesetz [PassG] [Passport Act], Apr. 19, 1986, Bundesgesetzblatt, Teil I [BGBL I] at

537, last amended by Artikel 8 des Gesetzes vom 25. Juli 2013 [Article 8 of the Act of July 25,

2013], July 25, 2013, Bundesgesetzblatt, Teil I [BGBL I] at 2749, Sec. 1 (1) (Ger.), translation at

https:/ /www.gesetze-im-in ternet .de/englisch_pa_ g/en glisch _ pa_ g .h tm l# p0 013

[https://perma.cc/GBJ8-4NEK]. 

192. Legal Framework, Minderheiten Sekretariat, https://www.minderheitensekretariat.de/en/

legal-framework/specific-minority-legislation-and-measures [https://perma.cc/67CG-JZ6K]

(discussing framework agreements under public law between regional governments and regional

associations of German Sinti and Roma in Rhineland-Palatinate, Hesse, and Bremen, and a “Joint

Declaration” in Bavaria).

193. Id. (discussing that the amendment of the Constitution of Schleswig-Holstein in



2022] LEGAL IDENTITY AS A TOOL OF STATE-
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453

German Sinti and Roma continue to face discrimination by government agencies,
in housing, employment, and education.194 An expert report submitted in 2013 to
the Federal Anti-Discrimination Agency concluded that there was “need for
action on the part of society and politicians as well as the sector of education and
research” largely based on the country’s ignorance  and indifference toward Sinti
and Roma.195 The results of the study found that “[d]erogatory stereotypes and the
existence of prejudice can be found in all segments of the population,” and that
in comparison with attitudes towards other minorities, “[t]here is no other group
which continuously showed similar average values. They are met with the least
degree of sympathy, they are least appreciated as neighbors, their lifestyle is
considered to be extraordinarily different.”196 

III. THE CREATION OF IDENTITY IN RWANDAN SOCIETY AND ITS

SUBSEQUENT ELIMINATION

A. Rwandan Identities and Colonialist Rwanda

The Rwandan population is composed of a Hutu majority (85%), whereas
Tutsis (15%) and Twa (less than 1%) represent minorities.197 The terms Tutsi,
Hutu, and Twa are the singular, English forms of Batutsi, Bahutu, and Batwa.198

The characterization of identity in Rwanda must be done through noting the
historical context and the significance of the colonial period. As Mahmood
Mamdani argues, the identities of Hutu and Tutsi have changed concurrently with

November 2012 was the first explicit protection in a German federal land for German Sinti and

Roma).

194. Federal Anti-Discrimination Agency, Ethnic Origin / Racism, Antidiskriminierungsstelle,

https://www.antidiskriminierungsstelle.de/DE/ThemenUndForschung/Ethnische_Herkunft/frage

n_antworten_Sinti_Roma/faq_Sinti_und_Roma_node.html [https://perma.cc/89YC-X3LZ]

(discussing the study results from STUDY ON THE CURRENT EDUCATIONAL SITUATION OF GERMAN

SINTI AND ROMA-DOCUMENTATION AND RESEARCH REPORT (Daniel Strauss ed., 2012)). 

195. Federal Anti-Discrimination Agency, Research of the FADA at a Glance: Between

Indifference and Rejection- Population’s Attitudes Towards Sinti and Roma,

ANTIDISKRIMINIERUNGSSTELLE (2014), https://www.antidiskriminierungsstelle.de/Shared

Docs/Downloads/EN/publikationen/factsheet_en_Bevoelkerungseinstellungen_gegenueber_Sint

i_und_Roma.pdf;jsessionid=50FE99C4D430010D33937FEF6EEDDC12.1_cid360?__blob=pub

licationFile&v=1 [https://perma.cc/QE3G-RAHX].

196. Id. 

197. Deborah Mayersen, A Political Monopoly Held by One Race: The Politicisation of

Ethnicity in Colonial Rwanda 169 (Jan 1, 2011) (unpublished manuscript) (on file with University

of Wollongong Faculty of Arts, Social Sciences & Humanities) https://ro.uow.edu.au/cgi/

viewcontent.cgi?article=2263&context=artspapers [https://perma.cc/EJM5-2ZWX] [hereinafter A

Political Monopoly].

198. Trusteeship Council, Rep. of the U. N. Visiting Mission to Tr. Territories in E. Afr., 1957,

on Ruanda-Urundi 4 U.N. Doc. T/1346 (1958).



454 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

the State enforcing them.199 The distinction and characterization of the Rwandan
sub-groups was previously characterized as a fluid identity, “one of race, tribe,
caste, class, domination and subjugation, ethnicity and political identity,” but the
predominant view has shifted from racial to what is now understood largely as
ethnic.200  

In pre-colonial Rwanda, “Tutsiness” and “Hutuness” existed as permeable
social classifications or classes, and social promotion (“Tutsification”) or semi-
demotion (“Hutufication”) was possible.201 The colonial regime began under
German rule (1884-1919) and continued through Belgian colonial rule until
1962.202 Colonial Belgian rulers created and enforced perceived identities of
Hutu, Tutsi, and Twa that have since permeated into an enduring misconstruction
of Rwandan culture and society. The colonial period established and
institutionalized ethnic identity through the Belgian theories of race and based
access to government services, such as education and employment, on an ethnic-
quota system.203 The model for Colonial Rwanda placed the administration of the
country in the hands of the Tutsi monarchy.204 Scholars argue this model was
largely based on either a misunderstanding of pre-colonial societal structure, or
on the German and Belgium belief that the lighter-skin Tutsi were racially
superior, an invocation of the European “Hamitic hypothesis.”205 This structure
in effect led to the colonial classification of Hutu as second-class citizens and
intense discrimination against the Twa.206 

The scholarly consensus appears to agree that ethnic identity cards were
introduced alongside a population census in colonial Rwanda in 1933;207 the

199. MAMDANI, supra note 69, at 34 (discussing that the origin of violence is connected to the

construction of political identities by the colonial state, Hutu as indigenous and Tutsi as alien, and

that the reason for continued violence is connected with the failure of nationalism to transcend these

colonial constructions). 

200. A Political Monopoly, supra note 197, at 169.  

201. Hum. Rts. Council, Rep. of the Independent Expert on Minority Issues: Mission to

Rwanda, ¶ 8, Doc. A/HRC/19/56/Add. 1 (2011) [hereinafter Report on Minority Issues].

202. Ryan Hurst, Bahutu Manifesto (1957), BLACK PAST (May 22, 2009), https://www.

blackpast.org/global-african-history/bahutu-manifesto-1957/ [https://perma.cc/MZJ6-28TG].

203. Report on Minority Issues, supra note 201, at ¶ 10. 

204. See generally MAMDANI, supra note 69. 

205. Deborah Mayersen, “Race” Relations in Rwanda: An Historical Perspective (2010),

h t t ps :/ /ro.uow.edu .au / cg i/v iewcon ten t . cg i?a r t ic le= 2 3 0 6 &con tex t=ar t spaper s

[https://perma.cc/SM2F-625K] (describing the “Hamitic hypothesis” as a theory of racial hierarchy

which proposed that ruling groups of Africa, such as the Tutsi, were “not truly ‘Negro,’, but the

lowest rung on the Caucasian ladder.”) (internal citations omitted).

206. Catherine Newbury, Ethnicity and the Politics of History in Rwanda, 45 AFR. TODAY 7,

11 (1998). 

207. Rosamunde van Brakel & Xavier Van Kerckhoven, The Emergence of the Identity Card

in Belgium and Its Colonies, in HISTORIES OF STATE SURVEILLANCE IN EUROPE AND BEYOND 178

(Kees Boersmaet al. eds.) (discussing that the decree which introduced the identity card also

referred to a passport which was largely required in Belgian colonies. The indigenous colonial



2022] LEGAL IDENTITY AS A TOOL OF STATE-
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455

ethnic categories including Butusi, Buhutu, Butwa.208 However, some scholars
argue that analysis of official documents may suggest the introduction of identity
cards was intended only as an extension of existing Belgium regulations, rather
than as a desire to ethnically classify the population.209 But this argument is
largely contradicted by scholars utilizing a multi-disciplinary analysis of colonial
Rwanda and Belgium.210 A similar contradiction may be found in the expert
witness testimony of Alison Des Forges before the International Criminal
Tribunal for Rwanda which provides that

The primary criterion for (defining) an ethnic group is the sense of
belonging to that ethnic group . . .  But, if you fix any given moment in
time, and you say, how does this population divide itself, then you will
see which ethnic groups are in existence in the minds of the participants
at that time. The Rwandans currently, and for the last generation at least,
have defined themselves in terms of these three ethnic groups . . . .
[R]eality is an interplay between the actual conditions and peoples'
subjective perception of those conditions. In Rwanda, the reality was
shaped by the colonial experience which imposed a categorisation which
was probably more fixed, and not completely appropriate to the scene.
But, the Belgians did impose this classification in the early 1930's when
they required the population to be registered according to ethnic group.
The categorisation imposed at that time is what people of the current
generation have grown up with. They have always thought in terms of
these categories, even if they did not, in their daily lives have to take
cognizance of that. This practice was continued after independence by
the First Republic and the Second Republic in Rwanda to such an extent
that this division into three ethnic groups became an absolute reality.211

Des Forges’ testimony similarly supports an argument that identity in Rwanda
was originally based on ascriptive models created through the xenophobic
theories of Belgian Colonial rule until the group identities were so categorized to
become a self and state-construed formal identity. 

populations would need to obtain permission to receive a passport in order to leave the colony,

essentially “travel passes.”).

208. Id. at 177.

209. Id. at 180. 

210. See, e.g., DES FORGES, supra note 7, at 29 (“Once the Belgians had decided to limit

administrative posts and higher education to the Tutsi, they were faced with the challenge of

deciding exactly who was Tutsi . . . tracing genealogies was time – consuming and could also be

inaccurate. . . The Belgians decided that the most efficient procedure was simply to register

everyone, noting their group affiliation in writing, once and for all. All Rwandans born

subsequently would also be registered as Tutsi, Hutu, or Twa at the time of their birth.”); see

generally MAMDANI, supra note 69.

211. Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgement, ¶ 172 (Sept. 2, 1998).



456 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

B. Tensions During the Twentieth Century

The colonial period of Rwanda shifted in 1954 when Rwanda was
administered as part of Ruanda-Urundi as a U.N. Trust Territory under Belgian
trusteeship.212 The trusteeship created international pressure on Belgium and, as
a result, the colonial administrators sought to shift their political support to
include Hutu participation.213  The “Hutu Revolution,” or Rwandan Revolution,
was a series of violent incidents that led to the transfer of the majority of political
power to Hutus.214 Scholars have since detailed and debated the precise factors
that led to the Revolution. The factors usually include whether the events were
manufactured by Belgian colonial authorities and the Catholic Church or the
significance of key Hutu leaders and the rural majority in attempting to end the
privilege of Tutsi in employment, access to political power, economic
advancements, and promotion of an end to Hutu discrimination.215 Hutu political
support was radicalized in the Bahutu Manifesto in 1957. The Manifesto
promoted the need for Hutu self-preservation, political disenfranchisement of the
Tutsi, banning inter-group marriage, and banning Tutsi from the military.216 The
shift in political power also implemented a shift in social and cultural status, and
the new government justified violence and discriminatory measures under
racialized propaganda, such as discrimination in employment and education based
on identity card classification.217

Rwanda became an independent State on July 1, 1962.218 The Constitution
drafted thereafter in November 1962 eliminated the Tutsi monarchy219 and several
provisions provided for equality among citizens.220 However, the immediate
ramifications of the 1959 revolution were burgeoning racial tensions in the
country’s politics and military. The later conflicts in 1964 and 1990 have been
attributed to a recurrent pattern of threatened regimes targeting ethnic scapegoats

212. DES FORGES, supra note 7, at 30. 

213. Id. 

214. Id.

215. Newbury, supra note 206, at 9.

216. Hurst, supra note 202.

217. DES FORGES, supra note 7, at 31.

218. Constitution de la République Rwandaise, in CONSTITUTIONS OF NATIONS 672 (Amos J.

Xydis Peaslee & Dorothy Peaslee trans. and ed. 1962).  

219. See id. at 676, art. 2.

220. See id. at 676, art. 3 (“The Rwanda Republic ensures the equality of all its citizens

without distinction of race, origin, sex or religion”); see id. at 677, art. 13 (“The fundamental

liberties, as they are defined by the Universal Declaration of the Rights of Man, are guaranteed to

all citizens. Their exercise may be regulated by law and by regulation.”); see id. at 677, art. 16 (“All

citizens are legally equal before the law, without distinction of race, clan, color, sex or religion.”);

see id. at 677, art. 17 (“The privileges of caste are abolished and may not be restored. No new

privileges may be instituted of any kind whatsoever.”).



2022] LEGAL IDENTITY AS A TOOL OF STATE-
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457

and rationalizing military actions based on ethnicity.221 
The Rwandan Patriotic Front, which would invade Rwanda in 1990, was an

army of Tutsi refugees who had been previously expelled during anti-Tutsi
campaigns that started in 1959.222 The total number of exiled Rwandans in the late
1980s was 600,000 and the right of the refugees to return was largely contested
by the Rwandan government, contributing to the RPF policies of a forceful return
and the establishment of a new government.223 A Rwandan military meeting in
December 1991 was called to propose a plan in response to RPF influence and led
to the adoption of a widely circulated report which classified the Tutsi as enemies
of the State.

The principle enemy is the Tutsi inside or outside the country, extremist
and nostalgic for power and who have never recognised and will never
recognise the realities of the social revolution of 1959 and who want to
take back their power by any means, including weapons. The accomplice
of the enemy is anyone who supports the enemy.224

The events of the 1959 revolution were also incorporated into the later media
propaganda campaigns disseminated before and during the genocide by radio and
print media meant to incite killings against Tutsi.225 

The military further facilitated racial conspiracies, and trained armed militia
(Interahamwe) and secret groups to lead organized killing sprees in Rwanda as
early as November 1991 aimed to “neutralise the enemy,” which was a
“euphemism in the military for killing Tutsi.”226 Moreover, explicit legal
references to ethnic identity included Article 57 of the Civil Code of 1988, which
identified a person's ethnic group, and Article 118 of the Civil Code, which
provided for the identification of ethnic groups on birth certificates.227 Despite
President Habyarimana’s administration circumventing and inspiring ethnic
divides,228 the 1991 constitution provided for equality before the law.229

221. Newbury, supra note 206, at 16. 

222. Linda Melvern, The Past is Prologue: Planning the 1994 Rwandan Genocide, in AFTER

GENOCIDE 23 (Philip Clark & Zachary D. Kaufman eds., 2009).

223. DES FORGES, supra note 7, at 37. 

224. Melvern, supra note 222, at 27 (quoting VÉNUSTE NSHIMIYIMANA, PRÉLUDE DU

GENOCIDE RWANDAIS: ENQUÊTE SUR LES CIRCONSTANCES POLITIQUES ET MILITAIRES DU MEUTRE

DU PRÉSIDENT HABYARIMANA 35 (1995)). 

225. Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgement, ¶ 123 (Sept. 2, 1998).

226. Melvern, supra note 222, at 29.

227. See Akayesu, Case No. ICTR 96-4-T, Judgement, ¶ 170.

228. Id. ¶ 93 (discussing the Habyarimana administration continuing the ethnic quota system

in universities and government services and favoring Hutu from his native region).

229. Journal Officiel de la République Rwandaise [Constitution] Dec. 15, 1978, No. 24, art.

16 (Rwanda), translated in HEINONLINE WORLD CONSTITUTIONS ILLUSTRATED LIBRARY 2018

(Maria del Carmen Gress trans., Jefri Jay Ruchti ed., 2018) (“All citizens are equal before the law,



458 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

Amid international pressure, President Habyarimana signed the Arusha
Accords on August 4, 1993, to end the conflict between the Rwandan government
and the RPF.230 The Accords provided for the limitation of obstacles to
nationality, specifically ethnicism,231  the rejection of “political ideologies based
on ethnicity,”232 “deletion of reference to ethnic groups in all official documents,”
233 and the establishment of “efficient mechanisms aimed at eliminating
discrimination and exclusion” as a matter of urgency in restoring national unity.234

The acknowledgement of the “recurring delays in implementing the Accords” is
among the factors scholars attribute to the escalation of the violence into a
genocide.235 Also among the factors were the “increasingly vicious incitements
to hatred and violence,” and the “the widespread awareness of training and
arming the militia” which existed within the country.236

C. Genocide of 1994

The Rwandan Genocide took place between April and July 1994;237 the
beginning violence of which was largely provoked by the April 6, 1994
assassination of President Habyarimana.238 There is a consensus among literature
and jurisprudence that the Rwandan genocide against the Tutsi was a systematic
plan implemented by the Hutu-led government.239 In 1994, Tutsi were labeled as

without any discrimination, notably, of race, of color, of origin, of ethnicity, of clan, of gender

[sexe], of opinion, of religion or of social position.”). 

230. DES FORGES, supra note 7, at 88. 

231. Protocol of Agreement between the Government of the Republic of Rwanda and the

Rwandese Patriotic Front on the Rule of Law, Rwanda-Rwandese Patriotic Front, art. 2, Aug. 18,

1992, Annex III (“National unity implies that the Rwandese people, as constituent elements of the

Rwandese nation, are one and indivisible. It also implies the necessity to fight all obstacles to

national unity, notably, ethnicism, regionalism, integrism and intolerance which subordinate the

national interest to ethnic, regional, religious and personal interest.”).

232. Id. at art. 8. 

233. Protocol of Agreement Between The Government of the Republic of Rwanda and the

Rwandese Patriotic Front on Miscellaneous Issues and Final Provisions, Rwanda-Rwandese

Patriotic Front, art. 16, Aug. 3, 1993, Annex VII. 

234. Protocol of Agreement on Power-Sharing Within the Framework of a Broad-Based

Transitional Government Between the Government of the Republic of Rwanda and the Rwandese

Patriotic Front Rwanda-Rwandese Patriotic Front, art. 23(c)(1)(a), Jan. 9, 1993, Annex IV. 

235. DES FORGES, supra note 7, at 126-27.

236. Id. 

237. See Outreach Programme on the 1994 Genocide Against the Tutsi in Rwanda and the

United Nations, https://www.un.org/en/preventgenocide/rwanda/historical-background.shtml

[https://perma.cc/42YK-ZYSU].

238. DES FORGES, supra note 7, at 127.

239. See AFTER GENOCIDE: TRANSITIONAL JUSTICE, POST-CONFLICT RECONSTRUCTION AND

RECONCILIATION IN RWANDA AND BEYOND 5-6 (Phil Clark & Zachary D. Kaufman eds., 2009)

(discussing high-level government meetings for training youth militia, stockpiling weapons, and



2022] LEGAL IDENTITY AS A TOOL OF STATE-
SPONSORED GENECIDE

459

“enemies of the state,” and the call for murder was published in the press and
radio broadcasts.240 The exact number of victims is estimated between 800,000
to 1 million, but the official government number of those killed is 1,074,017, of
whom 93.7 percent were Tutsi. 241 

An analysis of the Rwandan genocide would be incomplete without noting
the impact of the national identity cards (Indangamuntu). The testimony before
the ICTR Chamber documented numerous instances in which an individual’s
“identity card” was in fact a life-or-death determination to the perpetrators.242

Rwandan military officers and Interahamwe erected roadblocks around the capital
city of Kigali and most localities to target identity cards of individuals trying to
flee,243 and identity cards were found among mass killing sites of Tutsis.244 De
Forges explained the vitality of the administrative system and the hope of many
to avoid the death sentence associated with the identity card:

Persons who hoped to pass for Hutu often “lost” their identity cards and
then requested temporary papers from the councilor or a new card from
the burgomaster [head of the local administration who was the ultimate
authority of contested ethnic classification], hoping the administrator
would be persuaded to falsify the document.245

Prior to April 1994, the local administrative system recorded births, deaths, and
movements in and out of the area, giving officials the number of Tutsi (male or
female, adult or child), in each administrative unit.246 The local officers utilized
the administrative system during the genocide period by instructing displaced
Tutsi to register in the communes where they sought refuge, by requiring written
authorization for travel outside the communes, and granting/denying passes for

rehearsal mass murders of Tutsi); see Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgement,

¶ 126 (Sept. 2, 1998) (characterizing the genocide as “meticulously organized.”).

240. Newbury, supra note 206, at 7.

241. Statistics, SURVIVOR’S FUND (Oct. 6, 2021), https://survivors-fund.org.uk/learn/statistics/

[https://perma.cc/RTZ7-7APA].

242. See, e.g., Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgement and Sentence, ¶

281 (Int’l Crim. Trib. for Rwanda Dec. 6, 1999), https://ucr.irmct.org/LegalRef/CMSDocStore/

Public/English/Judgement/NotIndexable/ICTR-96-03/MSC17327R0000620654.PDF

[https://perma.cc/C7FM-QAYF] (“[. . .] The Hutus were then asked to show their identity cards and

to separate themselves from the group, following which they were allowed to leave. Witness DD

also saw a person who tried to pass for a Hutu, shot on the spot. Once the Hutus had been separated,

the soldiers began to kill people and throw grenades.”).

243. See Melvern, supra note 222; see also Prosecutor v. Akayesu, Case No. ICTR 96-4-T,

Judgement, ¶ 123 (Sept. 2, 1998).

244. Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgement, ¶ 116 (Sept. 2, 1998).

245. DES FORGES, supra note 7, at 165-66. 

246. Id. at 166. 



460 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

travel during curfew periods.247 The information provided to these authorities
often resulted in targeted attacks on Tutsis. 248 

The interim government was eventually militarily defeated by the RPF,
ending the genocide period.249 The genocide ended in the assumption of power
by the Tutsi-led government and triggered the subsequent shift in legal and
politicized identity.

D. Elimination of Identity in Post-Genocide Rwanda

As the identity of Tutsi-victimhood was acknowledged, so too was the
identity of Hutu as perpetrators. In the months following the genocide, the newly
established Tutsi-led government began attacking refugee camps in Zaire, largely
under the veil of “a corporate view of ethnicity” which labeled “all Hutu refugees
as genocidaires (persons who helped perpetrate genocide).”250 The UN High
Commissioner for Refugees estimated the number of victims from RPF killings
between April and August 1994 as between 25,000 and 45,000.251 A U.N.
Independent Commission of Experts recognized the massacres and summary
executions committed by the RPF as serious breaches of international
humanitarian law and crimes against humanity.252 The ICTR Chief Prosecutor
originally announced in 2002 that RPF crimes would be investigated, but in 2008
the files for RPF officials were transferred for domestic prosecution in Rwanda.253

This transfer was believed by one human rights organization to be based on the
potential political conflict if the ICTR proceeded with the crimes and faced the
“likely need to indict senior figures in Rwanda’s military or current
government.”254 The human rights organization described the later trial against
the RPF officials as a “miscarriage of justice,” and called on the ICTR for an
official assessment and to recall the case within the Tribunal. 255

247. Id. at 167.

248. Id.

249. Id. at 10-11 (noting that killing did not necessarily stop as the RPF ended the genocide,

as its troops “committed grave violations of international humanitarian law by attacking and killing

unarmed civilians,” specifically killing Interahamwe or others who were believed to have

participated in the genocide). 

250. Newbury, supra note 206, at 8.

251. Kenneth Roth, Letter to the Prosecutor of the International Criminal Tribunal for

Rwanda Regarding The Prosecution of RPF Crimes, HUM. RTS. WATCH (May 26, 2009, 4:01 AM),

https://www.hrw.org/news/2009/05/26/letter-prosecutor-international-criminal-tribunal-rwanda-

regarding-prosecution-rpf [https://perma.cc/6PTW-4U9G].

252. Preliminary Report of the Independent Commission of Experts Established in Accordance

with Security Council Resolution 935 (1994), ¶ 79-81, U.N. Doc. S/1994/1125 (Oct. 4, 1994). 

253. Roth, supra note 251.

254. Id.

255. Id. (describing the trial, “. . . a Rwandan military court charged and tried four RPF

officers with war crimes for the 1994 killing of 15 civilians, 13 of them clergy. The trial proved to

be a political whitewash and a miscarriage of justice, betraying the rights of victims’ families to



2022] LEGAL IDENTITY AS A TOOL OF STATE-
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461

Following the genocide, the Rwandan government adopted a policy referred
to by some as “Rwandicite,” the basis of which is the total erasure of race and
ethnicity.256 The center of the policy is arguably that, “[i]f awareness of ethnic
differences can be learned, so too can the idea that ethnicity does not exist.”257

The newly established government led by the Rwandan Patriotic Front committed
to establishing a multiparty system and to eliminating ethnicity from identity
cards.258 Not only do ethnic minorities not exist in the law, but there is a
prohibition on the use of referencing identities such as Bahutu, Batustsi, or Batwa
in official documents.259 A Government adviser regarded classification as “‘. . .
the only way they [the former Government] could maintain their discriminatory
system’ [. . . ] ‘Otherwise, you could not easily tell who was a Hutu and who was
a Tutsi.’”260 Meanwhile former Vice-President Kagame, who has served as
President since 2000, noted that self-identification could continue but that the
identification “can no longer be used to infringe on somebody’s rights.”261 

The erasure of ethnic identity is present within the new civil registration
system. The 2008 Law on Governing Registration of the Population and Issuance
of the National Identity Card required the issuance of national identity cards to
every Rwandan sixteen and above,262 and a birth declaration within thirty days
from date of birth.263 The identity cards include: name, date of birth, sex, place of
issue, signature, and a national identity number.264 The possession and carrying

obtain justice for their loved ones. Both the prosecution and defense presented the killings and

spontaneous reactions by soldiers overcome with grief for their fellow RPF officers who had lost

relatives in the genocide. The court heard testimony only from witnesses supporting this version

of events, despite evidence [the ICTR] transmitted to Rwanda’s prosecution service indicating that

the killings were part of a planned military operation involving more senior officials. Two of the

officers confessed to the killings and were sentenced to eight years in prison, reduced to five years

on appeal. Two more senior officers were acquitted after a very brief trial.”).  

256. Frédéric Mégret, Protecting Identity By Ignoring It? A Critical Look at the French and

Rwandan Paradoxes, 38 DALHOUSIE L.J. 549, 552 (2015).

257. René Lemarchand, The Politics of Memory in Post-Genocide Rwanda, in AFTER

GENOCIDE 65, 65 (Phillip Clark & Zachary D. Kaufman eds., 2009) (quoting M. Lacey, Rwanda:

There Is No Ethnicity There, INTERNATIONAL HERALD TRIBUNE 2 (Apr. 10, 2004)). 

258. Raymond Bonner, Rwanda’s Leaders Vow to Build a Multiparty State for Both Hutu and

Tutsi, N.Y. TIMES ARCHIVES (Sept. 7, 1994), https://www.nytimes.com/1994/09/07/world/rwanda-

s-leaders-vow-to-build-a-multiparty-state-for-both-hutu-and-tutsi.html [https://perma.cc/AR2A-

RKFE].

259. Report on Minority Issues, supra note 201, ¶ 11.

260. Bonner, supra note 258. 

261. Id. 

262. Governing Registration of the Population and Issuance of the National Identity Card Law,

art. 11, No. 14/2008 (Rwanda) (July 16, 2008), https://gazettes.africa/archive/rw/2008/rw-

government-gazette-dated-2008-07-16-no-special.pdf [https://perma.cc/M6BF-TFXX]. 

263. Id. at art. 8.

264. Ministerial Order 12/07.01, art. 4 (2008) (Rwanda).



462 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

the national identity card is obligatory and any act that contravenes the provisions
of the law may result in civil and criminal penalties.265

Recent amendments to the Rwandan constitution have caused considerable
examination of the State’s constitutional provisions related to genocide and the
exclusion of identity. The reference to the genocide is immediate in the
constitutional preamble,266 and references are continued throughout. The 2003
Constitution overturned the previous practices of removing nationality and
provided for the automatic reacquisition of citizenship for those deprived in
previous conflict periods.267 Moreover, political organizations based on
individualized identity were prohibited.268 Additionally, the eradication of ethnic
division and the commitment to fighting ideologies of genocide became
fundamental principles for the State,269 while discrimination on ethnic origin was
prohibited and punishable by law.270 The effect of the 2003 political overhaul was
the banning of the largest Hutu opposition party, Mouvement Démocratique
Républicain (MDR), which eliminated the “only significant Hutu voice in the
Rwandan parliament,” and the dissolvement of the State’s largest human rights
organization, Ligue Rwandaise pour la Promotion de la Défense des Droits de
l’Homme (LIPRODHOR).271 The legal basis of both actions were alleged on the
grounds of “divisionism.”272 The legal grounds of “divisionism” have been

265. Governing Registration of the Population and Issuance of the National Identity Card Law,

supra note 262, at art. 13. 

266. La Constitution de la Republiqe du Rwanda [Constitution], Aug. 13, 2008 (Rwanda)

(“Preamble: We, the People of Rwanda. . . In the wake of genocide against the Tutsi that was

organised and supervised by unworthy leaders and other perpetrators and that decimated more than

a million sons and daughters of Rwanda; Resolved to fight the ideology of genocide and all its

manifestations and to eradicate ethnic, regional and any other form of divisions. . . ; Emphasizing

on the necessity to strengthen and promote national unity and reconciliation which were seriously

shaken by the genocide against the Tutsi and its consequences . . .”) [hereinafter Rwandan

Constitution].

267. Rwandan Constitution, supra note 266, at art. 7 (“Every person has a right to nationality

[. . .] No person may be deprived of Rwandan nationality of origin. . . No person shall be arbitrarily

deprived of his or her nationality [. . .] Rwandans or their descendants who were deprived of their

nationality between 1st November 1959 and 31 December 1994 by reason of acquisition of foreign

nationalities automatically reacquire Rwandan nationality if they return to settle in Rwanda [. . .]

All persons originating from Rwanda and their descendants shall, upon their request, be entitled

to Rwandan nationality.”). 

268. Rwandan Constitution, supra note 266, at art. 54 (“Political organizations are prohibited

from basing themselves on race, ethnic group, tribe, clan, region, sex, religion or any other division

which may give rise to discrimination. . .”).

269. Rwandan Constitution, supra note 266, at art. 9.

270. Rwandan Constitution, supra note 266, at art. 11 (“[. . .] Discrimination of whatever kind

based on, inter alia, ethnic origin, tribe, clan, colour, sex, region, social origin . . . culture, language,

social status . . . or any other form of discrimination is prohibited and punishable by law.”). 

271. Clark & Kaufman, supra note 239, at 14. 

272. Immigr. and Refugee Bd. of Can., Responses to Info. Requests, Legislation Governing



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criticized by non-governmental organizations and was described in 2007 “. . . to
mean any form of opposition to [the current government’s] policies. On occasion,
however, (e.g., at the time of the 2003 election) the government has even applied
this term to the Liberal Party, a political party strongly identified with survivor
groups, because it appealed to survivors to vote for it instead of for the dominant
RPF.”273

As a result of the elimination of ethnic identity, the Twa lost their official
designation as a minority ethnic group.274 As a result, the “government no longer
recognizes groups advocating specifically for Twa needs, and some Twa believed
this government policy denied them their rights as an indigenous ethnic group.”275

The Rwandan government maintained in its periodic report to the Committee on
the Elimination of Racial Discrimination in 2011 that from “an anthropological
point of view” ethnic groups only exist when there are different “languages,
culture, history, and territory.”276 Further, the government considered that despite
“divisionist ideologies” the only “inimitable ethnic group in Rwanda” is the
Banywawrwanda.277 However, experts noted in both 2011 and 2016 that the
State’s refusal to recognize minority ethnic groups is both in contravention of
international standards and compromising the implementation of policies directed
at inequality.278 

In constructing criminal penalties post-genocide, Rwanda enacted transitional
justice mechanisms that eventually became focused on the U.N.-sponsored
international ad hoc tribunal, domestic criminal courts, and community-based

Divisionism and its Interpretation (Aug. 3, 2007), https://www.justice.gov/sites/default/

files/eoir/legacy/2014/10/14/RWA102565.E.pdf; see also Rwandan Republic, Ministry of Justice,

the 9th and 10th Periodic Report of the Republic of Rwanda Under the African Charter on Human

and People’s Rights, Period Covered by the Report 2005- July 2009, 22 (2009) [hereinafter 9th and

10th Periodic Report of Rwanda] (“Rwanda does not have a particular law defining divisionism,”

but that “[t]he term . . . is closely linked to discrimination and sectarianism- whose definitions are

found in the Law No. 47/2001 on 18/12/2001 on Prevention, Suppression and Punishment of the

Crimes of Discrimination and Sectarianism. Divisionism is though generally understood as the use

of any speech, written statement or action that is likely to divide people or spark conflicts among

people, or cause an uprising which might degenerate into strife among people based on

discrimination. It is thus considered illegal to do anything that is tantamount to divisionism based

on race, tribal, ethnic, religion, or region in Rwanda.”). 

273. 9th and 10th Periodic Report of Rwanda, supra note 272.

274. U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Country Reports on Human

Rights Practices for 2018: Rwanda (2018) at 33, https://www.justice.gov/eoir/page/file/1146601/

download [https://perma.cc/RJX8-QPRC].

275. Id. 

276. Comm. on the Elimination of Racial Discrimination, Consideration of Reports Submitted

by States Parties Under Article 9 of the Convention, ¶ 12, CERD/C/RWA/CO/13-17 (2010).

277. Id. 

278. Minority Rights Group International, Rwanda, Twa (2020) https://minorityrights.

org/minorities/twa-2/ [https://perma.cc/Y9Y8-54E7].



464 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

Gacca courts.279 The basis for later criminal penalties was the legalization of the
identity of victims and perpetrators in the genocide, effectively criminalizing any
denial that the genocide was a “Tutsi” genocide with “Hutu” genocidaires. In
conjunction with criminal penalties for genocidal acts was the criminalization of
discrimination or sectarianism.280 

IV. ANALYSIS

Prior to any comparison, it must be noted that the international community
is in consensus that while the acts of genocide may be universal, the context of
each genocide is individual in nature.281 Thus, while factors may be argued as
contributory or identifiable of an escalating context of persecution, the ultimate
devolution of a society into genocide is somewhat conditioned on the nature of
each society and their law. 

A true comparative analysis between the two genocides, both in this context
and future scholarly context, may be limited due to three factors. First, despite an
increasingly globalized society, the majority of legislation and primary sources
predating the 20th Century remain far and few between on legal databases.
Second, foreign domestic legislation is often binding only in the original
language, and variations in translations confer misinterpretations and
misunderstandings of which the impact is arguably inconceivable in a contextual
analysis. Third, despite official policies of reconciliation and reconstruction,
sovereign States often wish to erase or hide the true effect of former repressive
regimes from the international community. The immediate or long-standing
approach of transitional governments then is to erase or destroy the
documentation that is necessary to conduct a complete analysis. The circumstance
of each genocide may present additional factors for difficulty, such as those posed
by Donald Kenrick & Grattan Puxon in an analysis of Roma during the Nazi
period, including: the destruction of files when the Germans realized they would

279. See Pietro Sullo, Lois Memorielles in Post-Genocide Societies: The Rwandan Law on

Genocide Ideology under International Human Rights Law Scrutiny, 27 LEIDEN J. INT’L L. 419

(2014). 

280. Instituting Punishment for Offences of Discrimination and Sectarianism Law, art.1, No

47/2001 (Official Gazette of the Republic of Rwanda): (“(1) Discrimination is any speech, writing

, or actions based on ethnicity, region or country of origin, the colour of skin, physical features, sex,

language, religion or ideas aimed at depriving a person or group of persons of their rights as

provided by Rwandan law and by International Conventions to which Rwanda is a party; (2)

Sectarianism means the use of any speech, written statement or action that divides people, that is

likely to spark conflicts among people, or that causes an uprising which might degenerate into strife

among people based on discrimination mentioned in article one 1.”).

281. Mark A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda,

75 N.Y.U. L. REV. 1221, 1224 (“Each genocide is unique. This uniqueness manifests itself in the

differences of experiences of genocide survivors, the levels of social mobilization of aggressors,

the public or secretive nature of the aggression, and the historical context from which the violence

emerged.”). 



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be defeated, the illiteracy rate among German Roma and Sinti survivors limiting
survivors writing of their own experiences, and limited literature compared to that
on the persecution of the Jews. 282

A. Comparison of Legal Identity in Pre-Genocide

In the immediate periods before the start of genocide, there are numerous
similarities in the Rwandan and German socio-political environments. First, both
States had established a state-created identity through legislation or legal
mechanisms that influenced the perception of the group’s identity in society, and
ultimately shifted the construction by including societal and cultural
misperceptions into a singular encapsulating ethnic and legal identity. In pre-
unified Germany, the previous ethnic misperceptions of Roma related to an
itinerate lifestyle inspired the legal codification of stereotypes (e.g. the 1926
registration of all “Gypsies, Vagabonds and the Work Shy” in Bavaria ),283

whereas the ethnic perceptions occurred in Rwanda mostly after the codification
and formalization of the distinct ethnic groups.284 

Secondly, both States continued the monitoring and enforcement of identities
through formalities such as identity cards and administrative registration systems,
even after a major transition in the State: German unification and Rwandan
independence. Rwanda continued the use of ethnic identification cards following
political shifts and tension in 1959, 1962, and 1991 and post-1991 the political
administration continued existing discriminatory quota systems for civic benefits
and the use of administrative registration systems to identify the number and
location of Tutsis within each locality. Following political transformations in
Germany, both the Weimar Republic and the National Socialist Party worked
towards federalizing the registration and monitoring systems to create and enforce
the use of Gypsy registration and identity cards. Additionally, the National
Socialist Party created a legal persecutory regime supplementing existing
discriminatory laws based on the classification-registration.  

However, the requirement of the use of identity cards varied between the two
States. In Rwanda, all ethnic groups were required to maintain an identity card
with their respective group identity; whereas, in Germany, identity cards and
registration were mandated only for specific ethnic groups, and the corresponding
card was registered per ethnic group. Thus, the importance of an identity card in
Rwanda was based on the ethnic classification on the card, and the importance of
an identity card in Germany was whether an individual was assigned one. 

Third, both States had administrative authorities classify and assign ethnic
and legal identity based on racial science and delineate government benefits based
on the assignment. Colonial authorities in Rwanda utilized racial science in
pursuit of blood tests and measurements of weight, nasal, and facial

282. KENRICK & PUXON, supra note 115, at 69. 

283. See Milton, supra note 13, at 319. 

284. See Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgement, ¶ 172 (Sept. 2, 1998).



466 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

characteristics to classify between Hutu, Tutsi, and Twa.285 This classification
then related to assignment of political power,286 ethnic-quota systems for
employment, and citizen-class status.287 The administrative office of the Racial
Hygiene and Population Biology Research Centre in Germany utilized racial
science in attributing classifications between part-Gypsy and pure Gypsy.288

Thereafter, the classification similarly related to employment289 and demotion of
citizen status.290

B. Comparison of Legal Identity During Genocide

In both genocidal periods, the use of legal identity became an innate factor
in the execution of genocide, essentially the identity that the state administered,
or arguably created, became the targeted victim group.291 Legal identity was used
as a means to register, discriminate, persecute, and ultimately to effectuate
genocidal policy aimed at the groups’ total destruction. 

In both Rwanda and Germany, the state-administered forms of legal identity
became weaponized to identify targeted group members for mass destruction. In
Rwanda, the colonially imposed national identity cards benefited whichever
group was in power and were used to grant preferential and unequal treatment in
society, until they later became part of an organized and systematic plan to
identify, target, and kill Tutsis and later Hutus. Whereas in Germany, the identity
documents based on racial classification as “pure” or “part” Gypsy were used to
implement discriminatory laws, legitimize internment, arbitrary detention, forced
labor, compulsory sterilization, and deportation to concentration camps. 

The danger of national identity cards in furtherance of a genocidal policy has
previously been advocated. Specifically, Jim Fussell argued that classification
based on individual identity in categories such as religion or ethnicity may be a
facilitating factor in genocide: 

What classification on national ID cards does is take group classification
schemes one step further- from the classification of populations as a
whole (in aggregate)- to the classification of individual persons by group.
The effect of policies which apply group classification upon individuals
is to make group identity more rigid and to make one form of societal
affiliation excessively prominent (usually religion or ethnicity),

285. van Brakel & van Kerckhoven, supra note 207, at 178. 

286. Id.

287. Report on Minority Issues, supra note 201, ¶ 11. 

288. KENRICK & PUXON, supra note 115, at 61. 

289. Law for the Restoration of Professional Civil Service, supra note 122. 

290. BURLEIGH & WIPPERMANN, supra note 93, at 45-49.

291. Prosecutor v. Gacumbtsi, Case No. ICTR-2001-64-T, Judgment, ¶ 254 (June 17, 2004)

(“Membership of a group is a subjective rather than an objective concept . . . in a given situation,

the perpetrator, just like the victim, may believe that there is an objective criterion for determining

membership of an ethnic group on the basis of an administrative mechanism for the identification

of an individual’s ethnic group.”). 



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highlighting that particular area of difference above others, such as
regional or local identity, social class or others [. . .] But the fact that
these classification on national ID cards must actually be carried and
used by individuals makes the practice unlike other classification
practices. The ramifications of this form of classification for individual
persons should cause the practice to become of international concern [.
. .] Classifications on ID cards are instead a facilitating factor [in
engagement in human rights violations], making it more possible for
governments, local authorities or non-state actors such as militias to more
readily engage in violations based on ethnicity or religion.292

While Fussell argues that, “ID cards are not a precondition to genocide, but have
been a facilitating factor in the commission of genocide,”293 the pre-genocidal
persecutory regimes in National Socialist Germany and pre-1994 Rwanda both
show that the national identity cards were used as one of the means to legitimize
societal hierarchy based on ethnic perceptions, deprive fundamental rights based
on group identity, and to create administrative preparedness for ethnic cleansing
and mass extermination. Only after the proscribed legal identity had effectively
restricted means of opposition and solidified support for a majority ethnic group
were the identity cards able to be used in the commission of genocide. The Trial
Chamber of the ICTY previously characterized similar acts as evidence of the
specific intent of genocide: 

[Specific intent] may be inferred from a certain number of facts such as
the general political doctrine which gave rise to the acts possibly covered
by the definition in Article 4 [of the ICTY Statute], or the repetition of
destructive and discriminatory acts. The intent may also be inferred from
the perpetration of acts which violate, or which the perpetrators
themselves consider to violate the very foundation of the group - acts
which are not in themselves covered by the list in Article 4(2) but which
are committed as part of the same pattern of conduct . . . this intent
derives from the combined effect of speeches or projects laying the
groundwork for and justifying the acts, from the massive scale of their
destructive effect and from their specific nature, which aims at
undermining what is considered to be the foundation of the group.294

The societal legitimization and majority group support in both cases may be
viewed through the lens of “mirror politics” as initially described by Des Forges
and later summarized by the ICTR Chamber in the context of the Rwandan
genocide: 

To make the economic, social and political conflict look more like an

292. Fussell, supra note 71. 

293. Id. 

294. Prosecutor v. Mladic and Karadžiæ, Review of the Indictments Pursuant to Rule 61 of the

Rules of Procedure and Evidence, Case No. IT-95-5-R61,¶ 94-95 (July 11, 1996).



468 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

ethnic conflict, the President's entourage, in particular, the army,
persistently launched propaganda campaigns which often consisted of
fabricating events. Dr. Alison Desforges in her testimony referred to this
as “mirror politics”, whereby a person accuses others of what he or she
does or wants to do. In this regard, in the morning hours of 5 October
1990, the Rwandan army simulated an attack on Kigali and, immediately
thereafter, the Government claimed that the city had just been infiltrated
by the RPF, with the help of local Tutsi accomplices. Some eight
thousand Tutsi and members of the Hutu opposition were arrested the
next morning. Several dozens of them died in jail . . . Mirror politics was
also used in Kibulira, in the north-west, and in the Bagoguye region. In
both cases, the population was goaded on to defend itself against
fabricated attacks supposed to have been perpetrated by RPF infiltrators
and to attack and kill their Tutsi neighbours.295

The aims of mirror politics were largely disseminated in Rwanda through radio
and print media, including in one instance where circulated pamphlets accused
Tutsis of planning a Hutu genocide.296  While political propaganda may not reach
the specifics of mirror politics in the German genocidal period, the National
Socialist Party disseminated numerous propaganda articles depicting Roma and
Sinti in the previously constructed stereotypes of “Vagabonds” and encouraged
ethnic Germans to “combat the Gypsy plague.”297 Notably, the language used in
Nazi propaganda appears to mirror the language used in the discriminatory and
persecutory legislative measures, such as the 1938 “Combating the Gypsy Plague
Decree.”298 Importantly, Rwandan Tutsi and German Roma and Sinti were
already identified through forms of legal identity by the propaganda waves,
meaning that both the government and society could differentiate the group
identity members from other identities when the governments garnered for
societal legitimization and acquiescence in persecution. 

Both German and Rwandan identity cards were implemented as a means of
ethnic identification rather than a strict traditionalist form of legal identity. The
intention to establish a state-created legal identity for the sole purpose of a
persecutory State intent is manifest in the federal registration of Roma in
Germany in 1933.299 The classification of Roma identity into a subsequent

295. Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgement, ¶ 99-100 (Sept. 2, 1998)

(emphasis added).

296. Id. ¶ 100.

297. See Anti-Roma (Gypsy) Propaganda, UNITED STATES HOLOCAUST MEMORIAL MUSEUM,

https://www.ushmm.org/propaganda/archive/anti-roma-propaganda/ [https://perma.cc/6SGD-

GGG4].

298. See e.g. Guenter Lewy, Himmler and the ‘Racially Pure Gypsies,’ 34 J. CONTEMP. HIST.

201, 201-14 (1999) (discussing the 1938 decree within the context of existing stereotypes and the

previously enacted Nuremberg Laws of 1935). 

299. KENRICK & PUXON, supra note 115, at 73 (citing the Fight Against the Gypsy Menace

Law (1938), art. I.I. (1) “Experience gained in the fight against the Gypsy menace and the



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classification of legal identity may demonstrate the Nazi government’s attempt
to consolidate the variation of group identity within the Roma.300 While the
legislation was centrally based on racist ideology, analysis of Roma persecution
across the population may be difficult to deduce, as legal identity markers treated
German Roma and Sinti differently based on factors such as itinerancy, tribe, or
genealogy. Whereas in Rwanda, the intention of the State and the persecuted
identities shifted with the political transitions. Rather than stagnant persecution,
the protections and benefits of individual legal identity were predicated on the
political – and ethnic – group in power. 

There are four significant differences in the “genocidal periods,” the period
in which acts of genocide were actively being committed. Firstly, compared to
Rwanda, the length of the legal persecution of Roma identity in Germany pre-
dates and out-dates the typically understood characterization of the genocidal
period. The persecutory fundamental deprivations of rights through the law were
done systematically, rather than a singular removal of all state-conferred rights
and protections. The methodical deprivation may have been specifically designed
to allow the discrimination to exist outside of international attention. 

The continued use of legal persecution by the National Socialist government
may also be explained through the co-occurrence of a large-scale war, the timely
practice of directing and implementing existing discriminatory laws in occupied
territories, and the desire to essentially legalize and legitimize their actions. While
discriminatory practices in Rwanda were similarly significant in length and
existed throughout the political transfer of power and independence, the
persecution of Tutsis during the genocidal period appears to have largely
occurred through political propaganda and societal influence, rather than through
legal regimes. However, the heavy reliance on national identity cards and the
practice of local administrative officials registering hiding Tutsi to facilitate
attacks,301 suggests that administrative mechanisms played a significant role in the
facilitation of the genocide.  

Second, while both genocides existed outside of widespread international
knowledge – and correspondingly outside of an international response – the
regional and international approaches to each genocide demonstrate the
overwhelming failures of the international community to protect the targeted
victim groups from genocide.  

As occupied Nazi Germany expanded across Europe, so too did the
movement to identify, discriminate, persecute, and execute Roma. As
governments fell to Germany, anti-Roma policies were quickly adopted by
occupied governments, similar to or in conjunction with the adoption of anti-
Semitic policies.302 The continual lack of research in some European countries

knowledge derived from race-biological research have shown that the proper method of attacking

the Gypsy problem seems to be treated as a matter of race.”). 

300. See FINGS ET AL., supra note 100, at 32. 

301. DES FORGES, supra note 7, at 167.

302. See Mark Biondich, Persecution of Roma-Sinti in Croatia, 1941-1944, in ROMA AND



470 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

increases the difficulty associated with characterizing the Porajmos,303 however
existing research shows that most European countries had prevailing anti-Roma
stereotypes or persecution in place as some anti-Roma legislative measures pre-
dated German military intervention,304 and mass deportations and killings were
sometimes prompted or encouraged by local officials.305 Notwithstanding the
similar lack of international intervention, the Tutsi- Rwandan genocide was much
more geographically localized and largely connected to foreign attempts to
maintain influence from the colonialist and imperialist periods. A report
published in 2021 by the French government, demonstrated the close relationship
between the French and Rwandan presidents and criticizes the French as bearing
“‘serious and overwhelming’ responsibilities” for the genocide.306 Similarly, a
1999 report commissioned by former United Nations Secretary-General Kofi
Annan, assessed the United Nations failures towards 1994 Rwanda. Specifically,
the report identified that the former U.N. peacekeeping mission in Rwanda had
an “insufficient mandate”, the U.N. Security Council failed to strengthen ground

SINTI UNDER-STUDIED VICTIMS OF NAZISM, SYMPOSIUM PROCEEDINGS, UNITED STATES

HOLOCAUST MEMORIAL MUSEUM: CENTER FOR ADVANCED HOLOCAUST STUDIES 34 (2002)

(discussing the adoption of a series of race laws in 1941 Croatia which segregated both Jews and

Roma, and the adoption of registration for both Jews and Roma two months later).

303. See generally id. at 33 (noting the “general neglect of the Roma within the Western

scholarly community.”).

304. See, e.g., Denis Peschanski, The Gypsies in the Upheaval: The Situation in France, 1939-

1946, in ROMA AND SINTI UNDER-STUDIED VICTIMS OF NAZISM, SYMPOSIUM PROCEEDINGS,

UNITED STATES HOLOCAUST MEMORIAL MUSEUM: CENTER FOR ADVANCED HOLOCAUST STUDIES

50 (2002) (describing the influence of a 1912 French law which required identification of

“Nomads” based on the stereotypes of the “spy-Gypsy” and the “thief-Gypsy,” which were later

raised in 1940 prior to German invasion and forbade internal movement); see Giovanna Boursier,

The Nazi Period in Italy, PROJECT EDUCATION OF ROMA CHILDREN IN EUROPE: COUNCIL OF

EUROPE, https://rm.coe.int/the-nazi-period-in-italy-factsheets-on-romani-history/16808b1ac5

[https://perma.cc/D97X-JF9R] (describing a 1926 Italian circular ordering the expulsion of “foreign

Gypsies” in order to “cleanse the country of Gypsy caravans which, needless to recall, constitute

a risk to safety and public health by virtue of the characteristic Gypsy lifestyle”.). 

305. See also Peschanski, supra note 304, at 51-52 (describing that the “French authorities did

not shrink from playing an active role in the decision to intern Gypsies . . . [i]n some cases, these

French police officials took advantage of the situation to indulge personal animosities, going further

than the German dictates, and rounding up vagrants and other unwelcome groups.”). See Michael

Zimmerman, The Nazi Period in the Baltic States, PROJECT EDUCATION OF ROMA CHILDREN IN

EUROPE: COUNCIL OF EUROPE 3, https://rm.coe.int/the-nazi-period-in-the-baltic-states-factsheets-

on-romani-history/16808b1c1e [https://perma.cc/5GXS-LP4K] (describing a circular by a 1941

Latvian official declaring agreement with mass killings of Roma which resulted in the Baltic state

with the largest Roma population having “nomadic and settled Roma . . . handed over for shooting

to the [German] Security Police.”). 

306. Norimitsue Onishi, France Has ‘Overwhelming’ Responsibility for Rwanda Genocide,

Report Says, N.Y. TIMES (March 26, 2021), https://www.nytimes.com/2021/03/26/world/europe/

france-rwanda-genocide.html [https://perma.cc/9DV3-CZHV].



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support following earlier warnings of genocide, and the Security Council failed
to act once killing had started.307

Third, one area of discrimination in legal identity which is largely missing
from Rwanda is the legal prohibition of inter-group marriage. The Law for the
Protection of German Blood prohibited all non-Aryan and Aryan marriages,308

and while the Hutu Manifesto proposed the prohibition of marriage,309 the
practice of inter-group marriage was already so ingrained as a societal practice
that the proposal did not garner any legitimacy. Despite inter-group marriage
between Hutu and Tutsi, there are no “hybrids,” or “Hutsi.”310 As Mamdani
explained 

[w]hen cohabitation takes the form of marriage, the wife takes on the
identity of the husband. The social identity is passed on through
patrilineal descent. If the father is a Tutsi, then the child will be socially
identified as Tutsi; and if the father is a Hutu, the child will be identified
as Hutu. As the child takes on a unidimensional identity, that of the
father, the identity of the mother- whether Hutu or Tutsi- is
systematically erased.311

Notably, while there was not a prohibition of marriage in Rwanda, the prevalence
of inter-group marriage did not influence the genocidal intent to target Tutsi, and
there were examples of pregnant Hutu women being targeted during the genocide
because of their unborn child being fathered by a Tutsi.312 

Fourth, there is a significant variation in the collective number of victim
identities between the two genocides. In Germany, the total victims of persecution
included groups such as political opponents, Jehovah’s Witnesses, homosexuals,
Jews, Roma, Black people, Poles, and Slavs.313 The variation in victim identity
can also be rationalized by the existence of a pluralistic German society following
unification in 1871. In Germany, despite a large majority of ethnic “Aryans,” the
unification amassed a population containing numerous ethnic minorities.314 

However, in viewing identity in Rwanda through either cultural or social
classification, Rwandan society was arguably composed of only two, at most

307. Nicole Winfield, UN Failed Rwanda, A.P. (Dec. 16, 1999), https://archive.

globalpolicy.org/component/content/article/201-rwanda/39240.html [https://perma.cc/L3EJ-

9QWM].

308. KENRICK & PUXON, supra note 115, at 71. Roma were also targeted with mass

sterilization to prevent births within the group; see FINGS ET AL., supra note 100, at 91-94.

309. Hurst, supra note 202.

310. MAMDANI, supra note 69, at 53.

311. Id. 

312. Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgement, ¶ 121 (Sept. 2, 1998).

313. United States Holocaust Memorial Museum, Classification System in Nazi Concentration

Camps, https://encyclopedia.ushmm.org/content/en/article/classification-system-in-nazi-

concentration-camps [https://perma.cc/TF4Y-ZYCJ]. 

314. See U.S. State Dep’t., supra note 97. 



472 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

three, groups. Thus, the mentality of perpetrators in Rwanda differed from that
in Nazi Germany in only targeting one ethnic group as Rwanda was largely a
dualistic rather than pluralistic society. Additionally, while some scholars have
vigorously attempted to gather the documents of both genocidal periods, there
appears to be considerably more records of primary sources from the Holocaust,
even with a large portion of Nazi records being intentionally destroyed. This gap
may be explainable through the complex system of administrative systems that
different regimes in the Rwandan government implemented following
independence, or the concerted German effort to document and implement their
genocidal policies across conquered land throughout World War II. 

C. Comparison of Legal Identity Post-Genocide

While comparison of post-genocidal legal identity may lead to greater
similarities due to similar mechanisms of transitional justice,315 the creation and
implementation of these structures are arguably distinct in each State. The
influence of internal state actors was essential in determining the direction of
post-genocidal justice; the rebuilding of which is similar in theory to the concept
of “post-conflict reconstruction”316 and “reconciliation.”317

While ethnic politicization was a forefront in both government systems,
Rwanda’s positioning of two competing political manifestations was, and
arguably still is, distinct. As the successive regime in Rwanda, the Tutsi-led
Rwandan Patriotic Front was able to construct the entire State narrative of the
genocide in legislation, affecting  the legal identity of victims, the corresponding
rights and protections of a victim, education of the genocide, memorialization,
criminalization, and punishment of a constructed perpetrator identity. The State
narrative was a codification of both the legal and victim identity of Tutsis, and the
legal and perpetrator identity of Hutus. 

 Additionally, it is important to note that the end of the recognized genocidal
period did not end persecution based on a state-created legal identity in either

315. For a definition of transitional justice, see Ruti Teitel, Transitional Justice Genealogy,

16 HARV. HUM. RTS. J., 69 (2003) (“the conception of justice associated with periods of political

change, characterized by legal responses to confront the wrongdoings of repressive predecessor

regimes.”). 

316. Compare WORLD BANK, POST-CONFLICT RECONSTRUCTION: THE ROLE OF THE WORLD

BANK 14 (1998) (defining post-conflict reconstruction as, “the rebuilding of the socioeconomic

framework of society; reconstruction of the enabling conditions for a functioning peacetime society

[to include] the framework of governance and the rule of law.”) with John J. Hamre & Gordon R.

Sullivan, Toward Postconflict Reconstruction, 25 WASH. Q. 85, 89 (2002) (“[P]ost-conflict

reconstruction should include providing and enhancing not only social and economic well-being

and governance and rule of law but also other elements of justice and reconciliation and, very

centrally, security.”). 

317. Clark & Kaufman, supra note 239, at 3 (defining reconciliation as, “rebuilding fractured

individual and communal relationships after conflict, with a view to encouraging cooperation

among former antagonists.”).



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State. The RPF persecuted Hutu moderates and refugees for months following the
genocide, as well as contributing to ethnic violence in bordering states.318 The
RPF’s acts were even argued by many to be crimes against humanity and were
largely ignored by the international community, despite the effect of regional
weakness and large-scale violence.319 Despite a regime shift and government re-
organization in Germany, the Roma were persecuted by the same State officials
and through the same laws as during the genocidal period.320 The persecution
against the Roma was rooted in the same racist and xenophobic rationales
proscribed by the Nazi government and was also largely ignored by the
international community. 

Due to the similar emergence of new post-conflict legal regimes, scholars
have previously compared the current Rwandan and German constitutions in
numerous provisional aspects, such as through the paradigms of free speech and
the right to association.321 Comparison is also relevant on the different approaches
the two legal regimes have enacted for the explicit protection of the previously
persecuted groups, the frameworks for the prevention of discrimination based on
ethnic identity, and the current construction of previously exploited mechanisms
of legal identity. 

The federal German government recognizes and protects German Roma and
Sinti as a national minority through the groups’ fulfillment of the criterion of
being German nationals, having a minority language and culture, the traditional
residence of the group being in Germany, and the current residence of the group
in settlement areas.322 The Rwandan government has stated that there is only one
ethnic group in Rwanda, and that ethnic groups require different “languages,
culture, history, and territory.”323 The approach of the Rwandan government
conflicts with the approach of utilizing both subjective and objective lenses to
determine group identity, and denies the Twa minority benefits and protections
which they may be entitled to under international law. Additionally, the approach
conflicts with the principle of self-identification324 and contrasts the criterion

318. Sec. Council, Preliminary Report of the Independent Commission of Experts Established

in Accordance with Security Council Resolution 935, ¶¶ 79-81, U.N. Doc. S/1994/1125 (1994).

319. Id.

320. The Search for the Nazi Race Files, European Holocaust Memorial Day For Sinti and

Roma, https://www.roma-sinti-holocaust-memorial-day.eu/recognition/the-search-for-the-nazi-race-

files/ [https://perma.cc/5Z9U-SVF3].

321. For a comparison of the two constitutions in the areas of speech and association and laws

addressing social stability in the post-genocide context, see Zachary Pall, Light Shining Darkly:

Comparing Post-Conflict Constitutional Structures Concerning Speech and Association in

Germany and Rwanda, 42 COLUM. HUM. RTS. L. REV. 5 (2010).

322. Minorities, Federal Ministry of the Interior, Building and Community supra note 175.

323. Comm. on the Elimination of Racial Discrimination, Consideration of Reports Submitted

by States Parties Under Article 9 of the Convention, ¶¶ 12, CERD/C/RWA/CO/13-17 (2010).

324. See Report on Minority Issues, supra note 201, ¶¶ 12-14 (discussing the right to identity

as belonging to an ethnic, religious, or linguistic group as being well-established in international



474 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

proposed by the German Ministry. Through denying the right to self-
identification and denying the existence of ethnic groups in Rwanda, the State is
not only attempting to ascribe one legal identity but is also challenging
individualized and group identity. Though there is sufficient evidence that the
original distinctions of Hutu and Tutsi were State-created, the erasure of the entire
history of individualized identity is most likely hostile to the goals of
reconciliation in the post-genocide period.325

Both Rwanda and Germany still implement identity cards as a mechanism for
legal identity. While neither law appears to require information on identity of an
ethnic group,326 Germany’s legislation does require the registration of legal
membership of a religious group.327 Also absent from both States is an indication
of a monitoring mechanism or anti-discriminatory framework specifically for
civil registration and legal identity mechanisms. Germany does have an anti-
discrimination legislative framework which encompasses many of the previous
benefits and protections previously oppressed, but there does not appear to be any
indication of a preventative or monitoring mechanism,328 nor does Rwanda appear
to have a comparable mechanism. The absence of an anti-discriminatory
monitoring mechanism limits the ability of the individual states and the
international community to recognize future trends in discriminatory and
persecutory legal measures, especially those related to legal identity. 

There is a significant concern in societal education and acknowledgment of
both post-genocide societies. The difference in education encompasses education
in schools and academic interpretations. The prevalence of historians to classify
Nazi legislation which applied to all “non-Aryans” as solely “anti-Semitic” may
be dangerous in providing full recognition and treatment of victims. By implying
that “non-Aryan” solely meant “non-Jewish,” historians are systematically
erasing all other identities in claim for victim identity and for societal acceptance
and recognition of a victim identity. The Special Rapporteur on Minority Issues
specifically noted a concern for the limited global awareness of Roma persecution
during the Holocaust and highlighted throughout the report the continued
vulnerability of the group from State actors, including forced sterilization,
arbitrary detainment due to identity, and violent attacks.329 The implementation
of a Holocaust victim identity which acknowledges German Roma and Sinti
could significantly impact German and European understanding of the Roma
population. 

Education of the genocide in Rwanda is strictly proscribed through the

law). 

325. See generally Clark & Kaufman, supra note 239, at 3. 

326. Compare Governing Registration of the Population and Issuance of the National Identity

Card Law (Rwanda), supra note 262, with Federal Act on Registration, supra note 188.

327. Federal Act on Registration, supra note 188, at sec. 3(11). 

328. See generally The Guide to the General Equal Treatment, supra note 180. 

329. Report of the Special Rapporteur on Minority Issues, Comprehensive Study of the Human

Rights Situation of Roma Worldwide, with a Particular Focus on the Phenomenon of anti-

Gypsyism, ¶¶ 19-22, U.N. Doc. A/HRC/29/24 (2015).



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government and classroom discussion of the genocide is effectively censured
through the genocide ideology laws, any mention of the moderate Hutu victims
would be sufficient for a criminal conviction.330 The textbooks have been
rewritten to change the previous education based on “highlighting how to
physically distinguish between Hutus and Tutsis,” but the changes were made to
describe “a factually incorrect “pre-colonial golden age” in which there were no
conflicts between Hutu and Tutsi.”331 The education of the previous identity crises
which escalated to acts of genocide should be essential for Rwandan students who
“are being taught that they need to say they are ethnically blind, their lived reality
is that ethnicity still structures access to power and sometimes still structures their
daily life.”332 

V. ADDRESSING LEGAL IDENTITY IN FUTURE POLICY: INTERVENTION

AND THE ABSENCE OF FORCE

A. Responsibility to Prevent

The importance of an effective preventative regime in international law is
best characterized by Justice Jackson in his closing argument at the Nuremberg
Trials, “[i]f we cannot eliminate the causes and prevent the repetition of these
barbaric events, it is not an irresponsible prophecy to say that this twentieth
century may yet succeed in bringing the doom of civilization.”333 In post-
genocidal periods, international leaders often acknowledge the lack of a timely
international response through thinly-veiled apologies to victims and
condemnation of non-intervention.334  While arguably existing as competing

330. Rwandan Schools Face Tricky Task Teaching Genocide History, NEWS24, (July 28,

2017), https://www.news24.com/news24/Africa/News/rwanda-schools-face-tricky-task-teaching-

genocide-history-20170728 [https://perma.cc/LM2S-F3A3].

331. Id. 

332. Id. 

333. Robert H. Jackson, Closing Arguments for Conviction of Nazi War Criminals, 20 TEMPLE

L. Q. 85 (1946), https://www.roberthjackson.org/wp-content/uploads/2015/01/Closing_Argument_

for_Conviction_of_Nazi_War_Criminals.pdf [https://perma.cc/5WV6-LAG7].

334. See President Clinton’s Speech in Kigali, CBS NEWS (Mar. 25, 1998, 3:44 PM),

https://www.cbsnews.com/news/text-of-clintons-rwanda-speech/ [https://perma.cc/PC5Z-F4L6]

(“The international community, together with nations in Africa, must bear its share of responsibility

for this tragedy, as well. We did not act quickly enough after the killing began. We should not have

allowed the refugee camps to become safe havens for the killers. We did not immediately call these

crimes by their rightful name: genocide. We cannot change the past . . .”); see U.N. Security-

General Kofi Annan addressing the Parliament of Rwanda, SG/SM/6552 (May 6, 1998) (“. . . The

world must deeply repent this failure. Rwanda’s tragedy was the world’s tragedy. All of us who

cared about Rwanda, all of us who witnessed its suffering, fervently wish that we could have

prevented the genocide. Looking back now, we see the signs which then were not recognized. Now

we know that what we did was not nearly enough . . . We will not deny that, in their greatest hour



476 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

ideas, the norms of non-intervention335 and the obligation to prevent genocide336

are rarely, if not absolutely, implemented evenly. The obligation to protect
populations from genocide is conveyed as a primary responsibility to the
international community.337 As specified in the 2005 World Summit Outcome, the
responsibility includes the commitment to assist other States “build capacity to
protect their populations from genocide, war crimes, ethnic cleansing and crimes
against humanity” and assist those “under stress before crises and conflicts break
out.”338 

However, under its current development the responsibility remains theory-
based and presents a challenge to accountability. The most significant actions
completed under the current theory include thematic U.N. Resolutions,339 reports
by Special Advisers,340 and a Framework of Analysis for Atrocity Crimes.341

Additionally, some states have adopted national legislation which incorporates
a national obligation to prevent genocide.342 However, there are stark criticisms

of need, the world failed the people of Rwanda.”). 

335. For codification of the norm of non-intervention and the principle of state sovereignty,

see U.N. Charter art. 2.  

336. The obligation to prevent genocide is ratified through the Genocide Convention. The

obligation under Article 1 has become a norm of customary law: “The Contracting Parties confirm

that genocide, whether committed in time of peace or in time of war, is a crime under international

law which they undertake to prevent and to punish.” However, further recognition of preventative

acts is recognized in the Genocide Convention through Article VIII, “Any Contracting Party may

call upon the competent organs of the United Nations to take such action under the Charter of the

United Nations as they consider appropriate for the prevention and suppression of acts of genocide

or any of the other acts enumerated in article III.” 

337. U.N. Sec. Council, Implementing the Responsibility to Protect: Accountability for

Prevention, ¶ 2, A/71/1016-S/2017/556 (2017). 

338. G.A. Res. 60/1, 2005 World Summit Outcome ¶ 139 (Sept. 20, 2005) (describing the

responsibility to use appropriate diplomatic, humanitarian and other peaceful means).

339. See e.g., S.C. Res. 1366 (2001); S.C. Res. 2150 (2014)’ Human Rights Council Res.

28/34, U.N. Doc. A/HRC/Res/28/34 (Apr. 7, 2015), G.A. Res. 69/323, International Day of

Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of

This Crime, Human Rights Council Res. 33/19, U.N. Doc. A/HRC/Res/33/19 (Oct. 5, 2016),

Human Rights Council Res. 37/26, U.N. Doc. A/RC/Res/37/26 (Apr. 6, 2018), Human Rights

Council Res. 43/29, U.N. Doc. A/HRC/Res/ 43/29 (June 29, 2020).

340. See, e.g., Rep. of the S.C. on the Prevention of Genocide, U.N. Doc. A/HRC/41/24

(2019), Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees On Non-

Recurrence and the Special Adviser to the Secretary-General on the Prevention of Genocide, Joint

Study on the Contribution of Transitional Justice to the Prevention of Gross Violations and Abuses

of Human Rights and Serious Violations of International Humanitarian Law, Including Genocide,

War Crimes, Ethnic Cleansing and Crimes against Humanity, and their Recurrence, U.N. Doc.

A/HRC/37/65. 

341. See U.N. FRAMEWORK OF ANALYSIS FOR ATROCITY CRIMES, A TOOL FOR PREVENTION

(2014).

342. See Elie Wiesel, Genocide and Atrocities Prevention Act of 2018, Public Law No: 115-



2022] LEGAL IDENTITY AS A TOOL OF STATE-
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477

of these legislative measures and advocates argue that politicians ignore
attempted civic engagement, do not properly publicize prioritized risks allowing
for civil participation, and that accomplishments so far only benefit political
willpower and popular criticism rather than active engagement.343 

A premier scholar on atrocity crimes, David Scheffer, originally called for
categorizing international crimes of genocide, war crimes, ethnic cleansing, and
crimes against humanity as atrocity crimes to promote accuracy and simplify
communication.344 Scheffer both characterizes the responsibility to protect as a
dual principle incorporating prevention and response, as well as cautions
triggering the responsibility to account for deference to the principle of
substantiality, especially when calling for states to take extreme measures for
genocide.345 There are slightly competing approaches to the theory of the
obligation to prevent “atrocity crimes.” The obligation in international law exists
as an individual State obligation. However, former U.N. Secretary-General Ban
Ki-moon referred to a “collective obligation.”346 The characterization of the
prevention of genocide as a collective obligation may be more aligned with the
findings of the International Court of Justice, which stated the Contracting
Parties’ obligation to prevent genocide within Article I of the Genocide
Convention created a direct obligation to prevent genocide, “over and above those
imposed by other Articles of the Convention,”347 and which is not territorially
limited.348 

In the 2017 Report of the Secretary-General on Implementing the
Responsibility to Protect: Accountability for Prevention, it was noted that in
approaching implementation, “precision is needed on who is responsible for the
prevention of atrocity crimes,” and through this precision an agenda for

441 (2019) (directing “the U.S. Department of State to provide additional training for Foreign

Service Officers assigned to a country experiencing or at risk of mass atrocities, such as genocide

or war crimes. The training shall include instruction on recognizing patterns of escalation and early

signs of potential atrocities, and methods of preventing and responding to atrocities.”).

343. Daren Caughron, Advocates for Peace Disappointed with State Department Report on

Atrocities Prevention, FRIENDS COMMITTEE ON NATIONAL LEGISLATION (Aug. 12, 2020),

https://www.fcnl.org/updates/2020-08/advocates-peace-disappointed-state-department-report-

atrocities-prevention [https://perma.cc/WBB8-CNJN].

344. David Scheffer, Atrocity Crimes Framing the Responsibility to Protect, 40 CASE W. RES.

INT’L L. 111, 111 (2007). 

345. Id. at 121. 

346. Learning from Rwandan Genocide Only Way To Shape A Better Future, U.N. REG’L

INFO. CTR. FOR W. EUR. (Apr. 12, 2012, 11:44 AM), https://archive.unric.org/en/latest-un-

buzz/27483-learn ing-from-rwandan-genocide-only-way-to-shape-a-better-fu ture

[https://perma.cc/3HDJ-BXS5].

347. Application of the Convention On the Prevention and Punishment of the Crime of

Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgement, 2007 I.C.J. 47 ¶ 165 (Feb. 26).

348. Id. at ¶ 153-54.



478 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

individual and collective action may be deduced.349 Arguably, precision is
needed, in essence, because there is no norm of enforcement of an active
collective obligation, and there is no associated norm of acting on the findings of
early-warning mechanisms. In constructing warning mechanisms under a
collective obligation, rather than an individual and non-enforceable individual
obligation, the international community would have an opportunity to fulfill both
the commitments to assist States and assist before conflicts are so large-scale as
to require military intervention. 

A monitoring mechanism centered around the principle of early warning
should be entrusted with monitoring the legal identity of at-risk groups,
monitoring civil registration and legal identity mechanisms, and constructing a
universal legal identity that omits the classification of individuals into state-
created groups. As characterized by Scheffer and echoed in reports by national
governments,350 policymakers are hesitant to call early attention to “genocide.”351

Scheffer argues that by acknowledging precursors to genocide and other
international crimes as “atrocity crimes,” thereby avoiding the political upheaval
associated with the word genocide, States would be more likely to promote earlier
policymaking and intervention.352 While early warning is a key task of the United
Nations Office on Genocide Prevention and the Responsibility to Protect, there
are essential factors absent from its current structure: (1) the existing frameworks
do not fully incorporate risk factors involving the manipulation and exploitation
of group legal identity, and (2) there is a lack of publication and informing of the
global community.

The current mechanisms primarily operate under the Framework of Analysis
for Atrocity Crimes. The framework includes common risk factors of all atrocity
crimes,353 and specific risk factors for genocide.354 The current risk factors do

349. U.N. Secretary-General, Implementing the Responsibility to Protect: Accountability for

Prevent, ¶ 9 U.N. Doc. A/71/1016-S/2017/556 (Aug. 10, 2017).

350. See Advisory Committee on Issues of Public International Law and External Advisor on

Public International Law, Joint Advisory Report: Advisory Report on the Scope for and the

Significance and Desirability of the Use of the Term ‘Genocide’ by Politicians, CAVV Advisory

Report No 28/EVA Advisory Report (Mar. 3, 2017) (Nethl.), https://www.advisory

committeeinternationallaw.nl/publications/advisory-reports/2017/03/03/the-use-of-the-term-

genocide-by-politicians [https://perma.cc/3YPS-9ESQ].

351. David Scheffer, Arresting War Criminals: Mission Creep or Mission Impossible?, 32

CASE W. RES. J. INT’L L. 319, 319-24 (2003).  

352. Id.

353. Framework of Analysis for Atrocity Crimes, U.N.v. (2014), https://www.un.org/en/

genocidepreven tion /documents/about-us/Doc.3_Framework%20of%20Analysis%

20for%20Atrocity%20Crimes_EN.pdf [https://perma.cc/H5H3-TZQF] (listing common risk

factors: “(1) Situations of armed conflict or other forms of instability; (2) Record of serious

violations of international human rights and humanitarian law; (3) Weakness of State structures;

(4) Motives or incentives; (5) Capacity to commit atrocity crimes; (6) Absence of mitigating

factors; (7) Enabling circumstances or preparatory action; (8) Triggering factors.”). 

354. Id. at 9 (listing specific risk factors: “(9) Intergroup tensions or patterns of discrimination



2022] LEGAL IDENTITY AS A TOOL OF STATE-
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incorporate indicators such as lack of protection in national legal frameworks, 355

ideologies and politicization of past grievances,356 and increased politicization of
identity357 that all would have contributed to early indications to genocide in
Rwanda and Germany. But the Framework does not incorporate indicators
explicit to legal identity, such as increased oppression or elimination of state-
conferred rights or protections or re-configuration of legal identities based on a
politicized or ethnically motivated individualized identity basis.358 All of these
factors likely would have indicated an early warning of the genocides in Rwanda
and Germany.

Publication of early warning signs is also a necessary factor in inspiring
active engagement, post-conflict analysis, deterrence, and international pressure.
Currently, the majority of the work of the U.N. Office on Genocide Prevention
and the Responsibility to Protect exists “outside of the public domain.”359 While
some work and diplomacy must operate behind closed doors, by limiting the
information available to the international community, actors are allowing for
passive responses. International leaders are elected through their country’s
population, and it is often at the will of this population that leaders choose to act.
By limiting the information of the global community, there is less accountability
for early action through diplomatic or economic measures. Further, the longer the
ignorance of the international community, the longer the mass atrocity or
genocide is allowed to engulf a population group. The result of which begins the
cycle of apologies, reconciliation, and a difficult individualized and group
healing. 

In upholding the obligation to prevent genocide, and in furtherance of the
idea that genocides are often planned and organized, existing mechanisms of legal
identity and civil registration must incorporate adequate protections. While
acknowledging the argument that identification can act as a source of
empowerment, legal identity mechanisms are often easily susceptible to
discriminatory policies and create effective tools to identity and persecute group
members. The examples of Germany and Rwanda demonstrate that legal identity
even after genocide can continue to be manipulated as tools, either by continuing

against protected groups; (10) Signs of an intent to destroy in whole or in part a protected group.”). 

355. Id. at 12 (discussing indicators to Risk Factor 3, Weakness of State Structures). 

356. Id. at 13 (discussing indicators to Risk Factor 4, Motives or Incentives). 

357. Id. at 16 (discussing indicators to Risk Factor 7, Enabling Circumstances or Preparatory

Action). 

358. Id. at 18. The risk factor and indicators involved in identity are primarily discussed within

the context of direct acts of discrimination. For example, “Denial of the existence of protected

groups or of recognition of elements of their identity.” However, this context does not allow for

recognition of when States are responsible for ascribing a formal legal identity based on

misperceptions or stereotypes of the group.  

359. Early Warning, U.N. Off. on Genocide Prevention and the Resp. to Protect

https://www.un.org/en/genocideprevention/early-warning.shtml [https://perma.cc/EG7D-5YLT].



480 INDIANA INT’L & COMP. LAW REVIEW [Vol. 32:425

discrimination through existing mechanisms or by eliminating all claims and
connections to an ethnic identity which creates internal, individualized struggles
of identity and external, legal struggles of recognition. This conclusion, however,
does not mean that mechanisms for legal identity should not exist. Any
mechanism has the potential for exploitation, but effective countering structures
will not be introduced and mainstreamed unless first accepted as a potential issue.

The United Nations Statistics Division (UNSD) is responsible for developing
norms in statistical activities and supporting individual country efforts to
strengthen national statistical mechanisms.360 The UNSD is also one of the U.N.
subsidiary mechanisms that contributes to the U.N. Legal Identity Expert Group,
an inter-agency group with the goal of building legal identity systems founded on
civil registration through a human rights approach.361 However, out of the
numerous publications, letters, and guidelines, there appear to be no practical
recommendations on oversight or regulation to prevent civil registration or legal
identity from being exploited as tools for discriminatory laws or policies. For
example, the discussion of the protection of vulnerable populations in the Draft
Guidelines on the Legislative Framework for Civil Registration, Vital Statistics
and Identity Management is limited to a discussion of ensuring protection and
access to vulnerable populations and the responsibility of States to ensure
confidentiality to prevent misuse.362 While the right to be recognized under the
law (through mechanisms of identity documents) is a protected right under
international law, the discussion of the frameworks and mechanisms should not
stop after the initial establishment of a legal identity. Rather, legal frameworks
should expand to enforce the responsibility to prevent genocide and atrocity
crimes by incorporating norms of oversight and monitoring, thereby
recharacterizing the efficacy of early intervention. 

VI. CONCLUSION

The terms “legal” and “identity” may be at odds in the divergence between
the “what” and the “who.”363 Moreover, identity may be “in principle [. . .] an

360. About Us, U.N. STAT. DIV., https://unstats.un.org/home/about/ [https://perma.cc/PEY4-

JLJ6]. 

361. UN Legal Identity Task Force (UN LIA TF), U.N. LEGAL IDENTITY AGENDA,

https://unstats.un.org/legal-identity-agenda/ [https://perma.cc/6AKE-FF5S].

362. U.N. Stat. Div. & Vital Strategies, Guidelines on the Legislative Framework for Civil

Registration, Vital Statistics and Identity Management, ¶ 153-164 (2019), https://unstats.un.org/

unsd/demographic-social/Standards-and-Methods/files/Handbooks/crvs/CRVS_GOLF_Final_Draft-

E.pdf [https://perma.cc/S5BS-UW5J] (discussing fundamental human rights in protection against

racial discrimination, gender discrimination, children born out of wedlock, religious discrimination,

intersex and transgender individuals, discrimination against persons with disabilities, indigenous

and tribal persons, elimination of stateliness, refugees, and internally displaced persons). 

363. Jessica Clarke, supra note 4, at 42-43 (describing the “what” as an impersonal legal

category and the “who” as the subjective and cultural aspect of identification). 



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individual’s self-awareness.”364 Despite the obscure dimensions of identity and
the co-existing, perhaps irreconcilable, multi-disciplinary approaches, legal
identity is the establishment of a vital relationship with the State and provides for
essential forms of protection, entitlement, and enforcement of benefits. Moreover,
the oppression, restriction, or elimination of a legal identity in furtherance of
persecution may facilitate an environment in which State-classified groups are at
risk for widespread violence, ethnic cleansing, or genocide. 

It is necessary for future literature to consider the interactions and dimensions
of ethnic identity, identity politics, and legal identity through the multi-faceted
lens of law, history, sociology, and anthropology to revisit the age-old question
of how individuals and States identify and regulate societies. In the literature
surrounding transitional justice in Rwanda, Clark and Kaufman addressed a gap
in holistic multi-disciplinary approaches.365 Their proposal saw the legal paradigm
as a hindrance to an approach that addressed the physical, psychological, and
psycho-social needs of groups post-conflict.366 However, in adopting a truly
holistic approach, legal paradigms must be acknowledged as both the institutional
blocks for identity-based discrimination and persecution and as a hinderance to
future advancement if not incorporated into a post-conflict approach. 

The phrase “never again” has become predominantly associated with the
post-genocidal phase of domestic and international memorialization of a failure
to prevent, and an apology to try harder next time. The hope of the international
community is for a solution, not a broad and unenforceable commitment or an
arguably limited prosecutorial mechanism after the genocide.367 The hope of this
discussion on identifying precursors or contributory factors to genocide,
therefore, is best aligned with that of Fussell, whose hope for future scholarship
was that “‘never again’ can become a motivation not only for commemorating
victims or punishing the perpetrators of past genocide, but also a basis for
rejecting and condemning policies that make genocide more likely.”368

364. Handbook on Civil Registration, supra note 82, ¶ 451. 

365. Clark & Kaufman, supra note 239, at 1 (discussing the absence of holistic, multi-

disciplinary literature on Rwanda and the genocide; “Holistic approaches explore responses to the

physical, psychological and psycho-social needs of individuals and groups during and after conflict,

reflecting the intricacies of the situations they seek to address. Often standing in the way of holistic

analyses, the legal paradigm has become dominant in the study of conflict and post-conflict

societies, proffering procedural, academic and institutional “remedies” that too often fail to

recognize other important perspectives. Legal processes have their place as responses to mass

violence, but they reflect only one among many means of addressing atrocities.”). 

366. Clark & Kaufman, supra note 239, at 1.

367. Melvern, supra note 222, at 31 n.40 (discussing that the initial list of suspected core

group genocidaires in Rwanda was close to 240 individuals, and that the majority of these

individuals had not yet been investigated by the ICTR and no effort had been made to extradite the

individuals from the Western countries where they were residing at the time). 

368. Fussell, supra note 71.