GENOCIDE AND INTERNATIONAL JUSTICE

INTRODUCTION

Genocide is often described as the “crime of crimes,” not only because of the scale of suffering it entails, but because it strikes at the heart of what it means for human beings to live in communities. It is an attempt to erase a people—not just through violence, but through the destruction of their culture, identity, and collective memory. The twentieth and twenty-first centuries are scarred with moments where the world vowed “never again,” only to witness history repeat itself.

These tragedies have pushed the international community to reflect on how such crimes occur and what can be done to prevent them. They have also shaped the development of international justice—from the early efforts after the Second World War to the more complex legal institutions that exist today. Yet, despite treaties, courts, and political commitments, the path to accountability remains uneven, often obstructed by political interests, lack of cooperation, or the sheer difficulty of proving intention behind mass atrocities.

This article explores how the law understands genocide, how international justice has evolved to address it, and why accountability remains so challenging. While much progress has been made, the struggle to prevent and punish genocide reveals the limits of international law when it confronts real-world power dynamics.

THE LEGAL FRAMEWORK OF GENOCIDE

The Genocide Convention and Its Legacy

The modern legal understanding of genocide traces back to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Inspired by the horrors of the Holocaust, the Convention defines genocide as certain violent acts committed with the intention of destroying a protected group. ¹ This focusses on the intent to destroy has become the cornerstone of genocide law.

Over the decades, the prohibition of genocide has grown into a principle of customary international law. The International Court of Justice (ICJ) has confirmed that it is a jus cogens norm—so fundamental that no state may ever legally violate it. ² This gives the crime a special moral and legal weight.

The Debate Around Protected Groups

One recurring criticism of the Convention is that its list of protected groups—national, racial, ethnic, and religious—is too narrow. It excludes groups targeted for political reasons, gender identity, or socio-economic class. Scholars argue that this reflects the political compromises of the post-war period more than the realities of how and why groups are targeted in modern conflicts. ³

Nevertheless, international courts have tried to interpret these categories with sensitivity. In Akayesu, for example, the ICTR recognised that ethnicity can be shaped by social perception and lived experience, not just biology. ⁴ This flexible approach allows courts to acknowledge the complexity of identity in violent conflicts.

The Challenge of Proving Intent

Intent is what legally separates genocide from other atrocity crimes. But proving that perpetrators intended to destroy a group—rather than displace, harm, or terrorise them—is one of the hardest tasks in international criminal law. Courts rarely have access to explicit orders or written policies. Instead, they infer intent from patterns of violence, public statements, or the systematic nature of attacks. ⁵ While this method is necessary, it can also lead to legal uncertainty and intense debate.

THE JOURNEY OF INTERNATIONAL JUSTICE

The Early Foundations: Nuremberg and Beyond

Although the term “genocide” was not used at Nuremberg, the trials laid the groundwork for the concept. Raphael Lemkin, the Polish-Jewish lawyer who coined the term, campaigned relentlessly for the recognition of genocide as a distinct crime. His efforts helped turn a moral outrage into a legal category.

It was not until the 1990s, however, that the first individuals were tried specifically for genocide. The wars in the former Yugoslavia and the genocide in Rwanda prompted the creation of the ICTY (1993) and ICTR (1994). These tribunals broke new ground by issuing the first convictions for genocide and by clarifying what the crime means in practice. ⁶ Their work demonstrated that international justice, though slow, could be real and enforceable.

The International Criminal Court and Ongoing Challenges

The establishment of the ICC in 1998 was a major milestone—a permanent court with jurisdiction over genocide, crimes against humanity, war crimes, and aggression. Its design signalled an ambition to move beyond ad hoc justice.

Yet the ICC’s effectiveness depends heavily on the cooperation of states. This challenge became clear in the Al Bashir case, where multiple states failed to arrest the former Sudanese president despite outstanding warrants for genocide. ⁷ These failures highlight the political constraints that courts face, even when legal obligations are clear.

STATE RESPONSIBILITY FOR GENOCIDE

The Duty to Prevent and Punish

The Genocide Convention imposes proactive obligations: states must work to prevent genocide, not simply avoid committing it themselves. The ICJ clarified that this duty requires states to act when they are aware of a serious risk of genocide and are in a position to influence the actors involved. ⁸ This framing acknowledges that prevention is a shared international responsibility.

ICJ Cases and Their Impact

Inter-state genocide cases have been rare but significant. In the landmark Bosnia v Serbia decision, the ICJ concluded that Serbia had not committed genocide directly but had failed to prevent the Srebrenica massacre. ⁹ This finding emphasised that inaction can carry legal consequences.

The Difficulty of Proving a State’s Intent

Holding individuals accountable for genocide is one challenge; proving that an entire state had the intention to destroy a group is even more complex. Courts need to attribute actions and intentions to state organs or officials acting on behalf of the state. ¹⁰ Because of this high threshold, findings of state genocide are extremely rare.

MECHANISMS FOR ENFORCING ACCOUNTABILITY

International and Hybrid Courts

Modern accountability relies on a patchwork of institutions: the ICC, former ad hoc tribunals, hybrid courts such as those in Sierra Leone or Cambodia, and domestic courts that exercise universal jurisdiction. Hybrid courts, in particular, allow for international oversight while maintaining local relevance.

Universal Jurisdiction: A Tool of Last Resort

Universal jurisdiction enables states to prosecute genocide even when they have no connection to the crime. Several European countries have used this principle to prosecute individuals involved in atrocities in Rwanda and Syria. ¹¹ While politically sensitive, universal jurisdiction ensures that perpetrators cannot rely on crossing borders to escape accountability.

The Security Council’s Political Influence

The UN Security Council has the power to refer situations to the ICC. In reality, however, geopolitics often prevent such referrals. Repeated vetoes have blocked efforts to bring the Syrian conflict before the ICC. ¹² This political gridlock illustrates the limits of legal mechanisms in the face of strategic interests.

ENDURING CHALLENGES IN PREVENTING AND PROSECUTING GENOCIDE

Selective Application of Justice

A persistent criticism of international justice is that it is inconsistent. Some atrocities draw immediate global attention; others are sidelined. This perceived selectivity undermines trust in international institutions and creates doubts about their fairness.

Collecting Evidence in Chaotic Environments

Investigations into genocide often take place in dangerous and unstable environments. Access to crime scenes is limited, and perpetrators may actively destroy evidence. ¹³ As a result, courts frequently rely on witness testimony, which is crucial but can be fragile due to trauma and the passage of time.

The Long Road to Justice

Genocide trials are notoriously slow, sometimes taking decades to begin. By the time cases reach trial, witnesses may have passed away, memories fade, and public interest wanes. This was evident in the Cambodian genocide trials, where proceedings began many years after the crimes.

The Ongoing Failure of Prevention

Rwanda and Srebrenica serve as painful reminders that early warnings do not always trigger early action. ¹⁴ Despite modern advances in intelligence and monitoring, the political will to intervene remains inconsistent, and preventable atrocities continue to unfold.

THE FUTURE OF INTERNATIONAL JUSTICE

Strengthening Institutions and Cooperation

The effectiveness of international justice depends on the strength of its institutions and the cooperation of states. Reforms aimed at enhancing investigative capacities, reducing political dependence, and supporting domestic prosecutions are essential.

Revisiting the Definition of Genocide

There is growing debate about whether the definition of genocide should be expanded to reflect contemporary forms of targeting—such as attacks on political groups or gender-based persecution. While politically controversial, such reforms could make the law more responsive to modern realities.

Investing in Early Warning and Rapid Response

Technological tools—satellite imagery, digital forensics, data analytics—offer new possibilities for identifying risks early. But technology alone cannot overcome political inaction. Prevention still depends on the willingness of states to act decisively.

Fighting Denial and Preserving Memory

Genocide denial remains widespread and damaging. Beyond legal accountability, societies must invest in education, memorialisation, and truth-telling to ensure that histories of violence are not erased or manipulated.

CONCLUSION

Genocide is not only a legal concept; it is a profound human tragedy that leaves deep wounds on societies. International justice has evolved significantly—from Nuremberg to today’s ICC—and has shown that the world can hold perpetrators accountable. Yet it also reveals how fragile justice can be in the face of political interests, limited capacity, and the difficulty of proving intent.

Still, the international community’s commitment to preventing and punishing genocide remains essential. Strengthening legal institutions, improving early warning mechanisms, and supporting survivors are all part of building a world where “never again” can be more than a promise. Ultimately, genocide is an attack on humanity itself, and responding to it is a responsibility shared by all nations.

REFERENCES

1. Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277, art II. https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf 
2. Bosnia and Herzegovina v Serbia and Montenegro (Judgment) [2007] ICJ Rep 43 [161]. https://www.icj-cij.org/case/91/judgments 
3. William Schabas, Genocide in International Law (3rd edn, CUP 2020) 123–130). https://legal.un.org/avl/pdf/ls/Schabas_outline.pdf 
4. Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96-4-T (2 September 1998) [513]– [515]. https://casebook.icrc.org/case-study/ictr-prosecutor-v-jean-paul-akayesu 
5. Paola Gaeta, ‘The UN Genocide Convention: A Commentary’ (OUP 2009). https://global.oup.com/academic/product/the-un-genocide-convention-9780199570218 
6. Prosecutor v Radislav Krstić (Judgment) IT-98-33-T (2 August 2001). https://www.icty.org/x/cases/krstic/acjug/en/ 
7. Prosecutor v Omar Hassan Ahmad Al Bashir ICC-02/05-01/09. https://www.icc-cpi.int/sites/default/files/CaseInformationSheets/AlBashirEng.pdf 
8. Bosnia v Serbia (n 2) [430]–[431]. https://www.ejiltalk.org/symposium-on-the-genocide-conventionis-the-duty-to-prevent-genocide-an-obligation-of-result-or-an-obligation-of-conduct-according-to-the-icj/ 
9. https://www.icj-cij.org/case/91 
10. Carsten Stahn, A Critical Introduction to International Criminal Law (CUP 2019) 245–250. https://assets.cambridge.org/97811084/23205/frontmatter/9781108423205_frontmatter.pdf 
11. Alexandra Huneeus, ‘International Criminal Law by Other Means’ (2019) 107(1) California Law Review 150. https://restorativejustice.org/rj-archive/international-criminal-law-by-other-means-the-quasi-criminal-jurisdiction-of-the-human-rights-courts/ 
12. UN Security Council, Draft Resolution S/2014/348 (22 May 2014). https://research.un.org/en/docs/sc/quick/meetings/2014 
13. https://www.hrw.org/report/2024/11/14/hopeless-starving-and-besieged/israels-forced-displacement-palestinians-gaza 
14. https://gchragd.org/wp-content/uploads/2025/02/Panel-Discussion-on-Early-Warning-and-Genocide-Prevention.pdf