Genocide and Crimes Against Humanity: Legal framework and notable case laws

Abstract

This article treats genocide and crimes against humanity as grave violations of international law. It presents the essential legal instruments—namely, the Genocide Convention of 1948 and the Rome Statute—that outline the criteria for intent, capacity, and systematic execution of these crimes. It goes on to discuss some major decisions such as the set precedents made at the Nuremberg Trials, followed by recent cases at the International Criminal Court, which have improved the interpretation of prosecutorial impediments and strengthened international accountability. This analysis in totality shows the changes in legal norms and stresses that the international community must come together for a better fight against these crimes and to ensure justice for the victims.

Introduction

With the help of treaties, conventions, and international courts, international law prevents and punishes genocide and crimes against humanity. The UN Convention on the Prevention and Punishment of the Crime of Genocide serves as a primary legal instrument, imposing an obligation on states to prevent and to punish genocide, and promote international cooperation in this regard. States are thus bound by their own law to punish crimes that are universally recognized as punishable. Universal jurisdiction, on the other hand, enables states to prosecute genocide committed by any person in any territory for any reason without consideration of any local laws, which solidifies this global obligation to keep all countries accountable for the crime. Finally, the proposed global convention on crimes against humanity would give force to interstate cooperation, coordination, and harmonizing national laws for effective prosecution in relation to the concern of crimes against humanity.

Key Mechanisms in International Law

1. Legal Framework

• UN Genocide Convention: The “Convention on the Prevention and Punishment of the Crime of Genocide” is an international treaty of considerable importance that was adopted by the United Nations General Assembly on December 9, 1948, and came into force on January 12, 1951. This treaty was conceived because of World War II and the Holocaust; establishing it for the first time as international crime codified worldwide commitment to preventing the systematic extermination of entire groups.

According to Article II of the Convention, genocide is defined as any act committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. These acts include killing members of the group, causing serious bodily or mental harm to them, deliberately inflicting living conditions on the group to bring about its destruction in whole or in part, imposing measures to prevent births within the group, and forcibly transferring children from the group.

The Convention also clarifies that acts of genocide, including conspiracy, direct and public incitement, attempts, and complicity, shall be punishable under international law. It mandates the signatories of the states to adopt the required legislative measures to prevent genocide and prosecute offenders, therefore providing them with a legal structure of international accountability.

As this were said, the UN Genocide Convention has significantly influenced international criminal justice over time. Further, it is responsible for the creation of international tribunals such as those founded in the wake of the conflict in former Yugoslavia and Rwanda and supports modern legal mechanisms of the ICC. This great and abiding influence is evidence of its great role in creating global norms against mass atrocities. (Zhaisanbek Amanzholov, 2023)

• Universal Jurisdiction: Universal jurisdiction stands as a critical mechanism in the global fight against impunity for international crimes. By allowing national courts to act in situations where local jurisdictions fail or are unwilling to prosecute, it reinforces the principle that crimes against humanity are an offense against all. However, its successful application depends on a delicate balance between the pursuit of justice and respect for state sovereignty; thus, dialogue and cooperation must continue among countries.(Al-Haj, 2024)

2. International Criminal Courts

• International Criminal Courts: The ICC was established under the Rome Statute in 2002 and was to constitute a great step toward institutionalizing international criminal justice worldwide. Its jurisdiction is akin to that of genocide, war crimes, crimes against humanity, and aggression, founded on the common premise that certain crimes demand an international response. Mennecke critically analyzes the farreaching project, with special emphasis given to practical application and arising controversies. According to him, while the ICC is a symbol of common will to fight impunity on the part of the international community, the challenges in its implementation and the prevailing political dynamics have led to heated debates.(Mennecke, 2009)
• International Tribunals: It really means that International Tribunals are important agencies in enforcing international laws, which provide views on how accountability can go beyond borders and national interests. Jovašević (2018) asserts that these tribunals not only pass judgment on cases involving genocide, war crimes, and crimes against humanity but also contribute to the collective historical story and the reinforcement of worldwide norms against impunity. From the analysis of judicial proceeding such as, the International Criminal Tribunal for the Former Yugoslavia (ICTY), and International Criminal Tribunal for Rwanda (ICTR) and successor bodies on these mechanisms, Jovašević makes a point on how these mechanisms can be said to be developing conditions contributing to the evolution of legal standards as well as the wider international legal order. As concerns the jurisdiction, selectivity, and strong interferences by political entities through a holding international tribunal turned out to adaptively remain to justify the existence of this environment where it remains a universal commitment with its complexities.( Dragan Jovasevic, 2016) (Margaret M. deGuzman, 2010)
• Emerging Convention: New, emerging international law conventions are ongoing developments and reflections of the new realities of the present global legal systems, created to tackle contemporary transnational problems that were not foreseen in the basic instruments. Indeed, according to Murphy (2015), while the longstanding basic treaties, such as the UN (Genocide Convention), have been the bases on which grave crimes have been prosecuted, new revolutions in crimefrom cyber war to degradation of the environmenthave begun to inspire the drafting of specific instruments. Take, for instance, the Budapest Convention on Cybercrime, which was adopted in 2001 but is regularly reinterpreted so that it meets the demands of a world that is now digitizing very fast. This newly emerging legal regime not only underscores the need for both improved collaboration across international boundaries and the development of innovative jurisdictional approaches but also illustrates how legal instruments may need to evolve to ensure accountability operates beyond the traditional territorial and jurisdictional confines.(Murphy, 2015)

3. Limitation and Challenges

• Political Resistance: In its 2020 analysis of genocide and crimes against humanity, it identified that one of the formidable obstacles toward attempting to achieve comprehensive, universal accountability for the most serious of international crimes is political resistance. This would arise if, in the strategic, economic, or diplomatic interest of one state, efforts to prosecute mass atrocity offenders would be deliberately curtailed. This selective enforcement and immunities usually result in illfavorable impacts on the impartiality and effectiveness of the international legal mechanisms. All obstacles to justice erode the prestige of the international tribunals and new treaties. Still, this also shows the extent to which issues of state sovereignty and sovereignty interests outweigh the best efforts of states to pursue global justice. Political resistance is, therefore, the challenge ground at present in the evolving edifice of international criminal law that continues to shape debates on enforcement of norms against genocide and crimes against humanity.(Mettraux, 2020)
• Amnesty Laws: Amnesty laws have become one of the most controversial devices in a system of transitional justice. In a critical examination of such laws as often adopted in a postconflict situation for purposes of promoting political reconciliation or social stability, a 2012 Haynal analysis reveals that these laws grant immunity or much lesser penalties against perpetrators of serious crimes as consideration for cooperation or hastening peace processes. In fact, the premise behind such laws is the attainment of a favourable environment for reconciliation. At the same time, though, such laws raise serious questions over accountability and rule of law, particularly when applied to genocide and crimes of humanity.(Memari, 2012)

Case Rohingya Genocide Case

The case involves an interstate application submitted before the International Court of Justice (ICJ) by The Gambia. It alleges that Myanmar has violated the Genocide Convention by perpetrating acts aimed at the destruction of the Rohingya people in Rakhine State. This case exemplifies the international community’s efforts to enforce legal accountability for mass atrocities against vulnerable populations.

Facts:

The case was filed in November 2019 before the International Court of Justice by The Gambia against Myanmar for genocide and crimes against humanity perpetrated against the Rohingya population in the Rakhine State. The case outlines those systematic atrocities—mass killings, mass rape, and forced disappearance—were to destroy, in whole or in part, the Rohingya as an ethnic and religious group. The allegations describe these acts, orchestrated by the state and sometimes assisted by militias, as having caused great loss of life; hindered the Rohingya’s fundamental rights and facilitated circumstances of exodus. The application relies on obligations from the Genocide Convention, which imposes a duty on the international community to prevent and punish serious violations against humanity, and begs for the challenge of both national and international legal systems to hold accountable for these ongoing abuses of human rights.

Issues:

1. Whether The Gambia is a legitimate applicant under the Genocide Convention, despite its political associations and the support of the Organisation of Islamic Cooperation.
2. Whether the case qualifies under the Convention or constitutes an abuse of process.
3. Myanmar’s arguments regarding reservations to certain provisions of the Genocide Convention, particularly concerning the scope of its obligations.

Judgment:

The International Court of Justice has provisionally decided that it has jurisdiction under the Genocide Convention to hear The Gambia’s case against Myanmar. The Court found that the horrifying allegations of systematic atrocities, that is, mass killings, extensive rape, and forced displacement of the Rohingya, required urgent measures. Hence, the ICJ ordered the provisional measures, requiring Myanmar to cease all acts that could amount to genocide and ensure the preservation of all relevant evidence pertaining to the allegations immediately. The Court rejected preliminary objections concerning both The Gambia’s standing and the admissibility of the case so as to not impede the proceedings further. This judgment not only reaffirms the international will to prevent mass atrocities but also provides a basis for future proceedings aimed at attaining a final judgment on the merits of the case.

Conclusion

International law has come forth with landmark treaties such as the UN Genocide Convention and the Rome Statute for holding individuals accountable for genocide and crimes against humanity and other courts such as the ICC. The current legal paradigm, such as the universal jurisdiction and promising new conventions, has provided further impetus for fighting mass atrocity crimes as evinced by the examples of Rohingya genocide. However, such efforts are often undermined by political resistance and selective application of amnesty laws. Ultimately, meaningful international justice would require sustained global cooperation, innovative legalism, and a relentless commitment to the rights and dignity of victims.

References

1.  Gan Jovasevic, ‘The Crime Against Humanity Between The Statute of The Hague Tribunal (ICTY) and Serbian Criminal Law’ (2016) 6474.
2. AlHaj A, ‘The Concept of Global Jurisdiction in International Law Pertaining to the Crime of Genocide’ (2024) 311326.
3. Margaret M deGuzman, ‘Crimes Against Humanity’ (2010) Social Science Research Network 135152.
4. Memari R, ‘The Duty to Prosecute Crimes Against Humanity Under Universal Jurisdiction, Customary International Law, and Conventional International Law’ (2012).
5. Mennecke M, ‘Genocide Prevention and International Law’ (2009) Genocide Studies and Prevention 167175.
6. Guénaël Mettraux, International Crimes: Law and Practice: Volume II: Crimes Against Humanity (Oxford University Press 2020).
7. Sean D Murphy, ‘New Mechanisms for Punishing Atrocities Committed in NonInternational Armed Conflicts’ (2015) Social Science Research Network.
8. Zhaisanbek Amanzholov, ‘The United Nations Convention on Genocide and How It Can Be Implemented in Criminal Codes of State Parties’ (2023) Public Integrity.