Prosecuting Crime against Genocide: Challenges and Recent Case

Published on 25th January 2025

Authored By: Yusupha Jabbi
Universitas Jambi, Indonesia

Abstract

The specific difficulties of prosecuting genocide are perhaps one of the most important issues in international criminal justice. The legal, evidentiary, and practical obstacles confronting the International Criminal Court (ICC) in addressing systematic human rights violations and the difficulty that re-shaped genocide concept formation. The research explores the nuances that impede the establishment of genocidal intent, middling the lofty standard of proof, which entails setting a distinctive line between individual guilt and state responsibility. Contemporary genocidal acts often manifest through sophisticated mechanisms, such as resource exploitation, systematic discrimination, and politically disguised conflicts, which further complicate legal recognition and prosecution. The objective of this legal dissertation is to unravel the challenge and recent case in the sphere of prosecuting crimes against genocide.

Keywords: Genocide; International Criminal Court, Human Rights; Transitional Justice. 

Introduction

The International Criminal Court (ICC) was established in 1998 and became operational in 2002. This occurred during a significant era of development of international criminal law, marked by the creation of the ad hoc tribunal for the former Yugoslavia and Rwanda in 1993 and 1994 respectively through Security Council resolutions[1]. The ICC was viewed as a complementary permanent mechanism to these existing ad hoc accountability measures. Following the ICC establishment, additional ad hoc tribunals were created, such as the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon[2]. In the bigger picture crime against genocide, defined as the intentional destruction of a national, ethnic, racial, or religious group, does not pose significant challenges for prosecutors and the international criminal justice system, as some may have argued.  The complexities that are involved in either its investigations, definition, or/and even its adjudication on egregious violations of human rights can be substantial.  Genocide is a heinous crime and deplorable, labeled as a crime of crimes ruled in the Rome Statute has more a half of the UN member states as a party(ratified) to it. Excluding the most iconic permanent members of the Security Council of the United Nations. Traditionally, the Rome Statute which is the most referenced legal instrument by the ICC has a majority of the African continent, Latin America, and a majority of European nations as signed parties, including Jordan which has accepted the court’s ad-hoc jurisdiction for acts committed in occupied Palestine in 2002 and is yet to ratify it. This indicates a widespread support of but not necessarily a global consensus that would guarantee it power and legitimacy. However, the Rome statute is binding on states, making it a founding treaty of the International Criminal Court, an independent judicial institution that prosecutes the most serious crimes of concern to the international community.  Since the establishment of ICC, it has been faced with some limitations that are of great importance to this legal research. From its inception, the ICC has been identified with a limited reach of jurisdiction and admissibility regime, the principle of complementarity and its implications, and the challenges of carrying out investigations and collecting evidence in remote and unstable regions3. And of these challenges, some challenges are at the heart of this dissertation. The need for the ICC to consider its development into an efficient and professional international organization and a functioning and credible court, the importance of the prosecutor and his office in driving the ICC’s work, as well as the needed reformation and collegiality among the judges. Ultimately, this legal paper will cover paramount cases and challenges the ICC battled within its machinery owing to certain derivatives.  Thereto, the question is why the has been a slow-motion or “roller coaster” development since 2002. In conjunction with selective justice in the guise of immunity that is non-colloquial in its nature.  Besides that, the evidence admissibility such as hearsay position in an indictment for international pillared this case appraisal. 

Prosecution Challenge Against Genocidal Crime

According to Howard Ball prosecuting war crimes and genocide on how a pained, shocked, and unbelieving civilized world has struggled for a century to define the “what’s” and understand the “whys” of war crimes, crimes against humanity, torture, and genocide[3]. He further argued that the question of what to do with the perpetrators has been difficult, almost torturous.  A dozen of questions arose from the ashes of the post-genocidal tragedies of the twentieth century. The thoughts on this controversial nature of genocide, in the event of defining it in a comprehensive and lucid picture and highlighting the aftermath difficulty and anguish involved in deciding the fate of the perpetrator for such atrocities. One of the primary debacles in prosecuting crime against genocide is the high evidentiary bar required to establish the specific intent (dolus specialis) to destroy or decimate a protected group, in whole or in part. Too often than not, prosecutors grapple with nuances of separating individual culpability from the broader state responsibility for acts of genocide, a distinction that is not clear-cut. The epitome of this Sudan (Darfur) genocide, which existed for decades between the northern and southern regions but was disguised as a civil war. Many countries like Sudan are faced with slow-motion genocide[4].  The fact that the Genocide fulfillment bar according to the Convention on Genocide is almost unreachable or is indecisive due to the nature of today’s genocidal acts. Single-handedly, the most influential countries like the United States labeled the crimes committed as genocide under the United Nations Genocide Convention.  Nonetheless, the majority of these perpetrators are tried for mass atrocity rather than genocide.  In addition to this, is the unique nature of genocide as discussed by Howard, corresponding to the severity and inhumane portrait, it often involves the targeted and systematic annihilation of entire communities. Which pose significant logistical and practical obstacles for investigators and prosecutors. The sheer scale and complexity of such crime overwhelm the capacity of international criminal courts and tribunals, leading to difficult decisions regarding case selection and prioritization. Article III of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide categorizes conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, complicity in genocide, and genocide itself as a punishable act but most often than not these acts either framed mass atrocity or fulfill the evidentiary bar for other crimes.  As mentioned in the introduction section there is a challenge to the court’s credibility and effectiveness, coupled with well publicized political objections to the court.  The pace of investigation and prosecutions is inherent in the proper administration of justice. As well as limited collegiality among judges and prosecutors of different legal system backgrounds, to whom accused, victims, and witnesses find themselves. 

Incidental genocidal case effects

The International Criminal Court has had a noticeable track record of prosecuting perpetrators of war crimes, crimes against humanity, and Genocide. Particularly Rwanda and former Yugoslavia pogroms, making a new era of international law evolution. The case law of these genocides became a landmarked decision or more credibly stare decisis (precedent). However, the evidentiary bar or standard of proof for genocide does not accommodate today’s genocidal elements. The epitome of this is the Democratic of Congo’s “natural resources genocide”, from the exploitation of the Democratic Republic of the Congo’s rich natural resources in the perpetration of massive human rights abuses. Despite DRC having an abundance of natural wealth, which includes a multitude of minerals such as diamonds, gold, copper, cobalt, cassiterite (tin ore), and coltan, as well as timber, coffee, and oil. However, these vast resources have caused the Congolese people faced with decades of conflict, and numerous serious human rights abuses. The alleged natural resources genocide has not had the international criminal court’s attention, due to the complicated standard of proof to prove genocidal intent, attempt, incitement, conspiracy, and complicity, ruled in the Convention on the Prevention and Punishment of the Crime of Genocide. As a result, these grave crimes are portrayed as violations of international humanitarian. Despite the challenges, the International Criminal Court, for example, has pursued several high-profile cases involving allegations of genocide, including the ongoing investigation into the situation in Darfur, Sudan. The ‘Democratic apartheid’ regime in Israel was designed to bring the notion that ‘the people’ does not include all the inhabitants [5]. With a delimitation of those who are defined as ‘the people enjoy basic democratic rights, such as formal equality and freedom. Meanwhile, the rest who out of this fold (citizens and inhabitants who are excluded) are instead be categorized as ‘non-people’ and are subject to a series of laws, policies, and/or practices that discriminate against them and that ensure their domination and incite their elimination as well.  This standard of categorizing and labeling Palestine as non-human due to their ethnicity and their religious identity qualifies as a punishable act of genocide.

Falling under the incite or an attempt to decimate Palestinian identity. The nightmare of this situation is Israel’s self-proclamation of the notion calling ‘Jewish sovereignty’, justifying it and deploying it as repertoires of violence, subjugating the Palestinians in the name of ‘non-people’ with the ultimate manifestation is elimination. On the one hand, the genocidal tragedies prerequisite rehabilitation that should be regarded as a free-standing human right for genocide survivors.  Hence, rehabilitation remains a significant concern among survivors.  Furthermore, rehabilitation falls under tertiary prevention, which is a core function of longer-term needs. The case is almost all the survivors of genocide undergo physical and psychological effects, which may last for generations. On the other hand, traumatic events when compared to the impact on survivors of the Nazi genocide with that of an atomic bomb that disperses radiation for a long time after the actual explosion, the reality of contemporary has a deep-cut scar in this civilization age where psychological distress still runs deep[6].

Conclusion 

Genocide reveals a profound moral and legal predicament that extends out of the courtroom proceeding this sheds light on the global struggle to be comprehended. The understanding of these gravest of human atrocities is fundamentally constrained by intricate legal frameworks that often struggle to capture the nuanced, deeply traumatic realities of systematic human destruction. Besides, the international community faces significant obstacles in defining and prosecuting genocide. The extraordinarily high evidentiary bar required to establish specific intent creates a nearly insurmountable barrier to justice.  Prosecutors must leave no stone unturned and prioritize collegiality in the event of complex distinctions between individual culpability and broader state responsibilities, which demands exceptional legal sophistication and extensive investigative resources.  Moreover, contemporary genocidal acts have become increasingly sophisticated and subtle. The question ‘What were once overt campaigns of mass violence now often masquerade as civil conflicts, resource disputes, or systematic discrimination?’ is addressed in this legal dissertation. In addition, the case of Sudan’s decades-long conflict and the Democratic Republic of Congo’s” natural resources genocide” exemplifies how modern atrocities can be disguised, making legal recognition and prosecution extraordinarily challenging.  The psychological aftermath of genocide transcends immediate physical destruction. Rehabilitation is necessary to be recognized not merely as a humanitarian gesture but as a fundamental human right. More importantly, international legal institutions like the International Criminal Court represent nothing more than the importance of accountability. Yet, their effectiveness remains limited by political complexities and lack of cooperation. And the evolution of international prerequisite continuous reimagining of legal standards. In essence, recognizing genocide requires more than a legal definition, it calls for a collective moral commitment to acknowledge human dignity, regardless of ethnic, religious, or cultural differences.  

 

References

[1] MARLIES GLASIUS, THE INTERNATIONAL CRIMINAL COURT (2006).

[2] Giorgia Tortora, The Financing of the Special Tribunals for Sierra Leone, Cambodia and Lebanon, 13 INTERNATIONAL CRIMINAL LAW REVIEW 93 (2013).

[3] BALL HOWARD, PROSECUTING WAR CRIMES AND GENOCIDE: THE TWENTIETH-CENTURY EXPERIENCE. (1999). 5 SUDAN: ETHNIC CLEANSING IN WEST DARFUR.

[4] Gregory S Gordon, Complementarity and Alternative Forms of Justice, 01 STAHN C., EL ZEIDY MM, THE INTERNATIONAL CRIMINAL COURT AND COMPLEMENTARITY. FROM THEORY TO PRACTICE 745 (2011).

[5] Gordon Neve, Antisemitism and Zionism: The Internal Operations of the IHRA Definition., MIDDLE EAST CRITIQUE 1 (2024).

[6] Uwamaliya et al, Rehabilitation for Survivors of the 1994 Genocide in Rwanda: What Are the Lessons Learne, RESEARCHONLINE.

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