Prosecuting Crimes of Genocide

 

  Introduction

  The greatest evil of humanity was on show when the Nazis were exterminating Jews under the leadership of Hitler. As rightly quoted by Sir Winston Churchill, the world is shifting from one crime that had no name. Another term of current usage originated in the twentieth century and is taken from two parts ‘genos’, the Greek word for tribe or race and ‘cide’ meaning killing. This urge to penalize these criminals of the worst acts against humanity initiated the Nuremberg Tribunal. Unlike with the definition of genocide, the Tribunal turned the killings and persecution of civilian’s on ethnic, religious, and political grounds actionable. Thus, the legal dictionary took account of the instances of genocide which were admitted in the trials. Thus, the UN General Assembly Resolution 96(I) was issued in 1946 and December 9, 1948 the Genocide Convention was signed and it went into force on January 12, 1951. The resolution among other things reaffirmed as follows; genocide is an international crime. The preamble of the convention is devoted to the idea that genocide is an act punished by International law and cannot be tolerated in the civilized society. This was based on the fact that genocide has proven thus challenging humanity and as such there is the need for co-operation internationally to get rid of the vice.[1] (Sanjay Kumar)

Article II of Convention on the Prevention and Punishment of the Crime of Genocide defines Genocide as,

Genocide means 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;

(e) Forcibly transferring children of the group to another group.

Article III says that,

The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.[2] (United Nations, Convention on the prevention and punishment of … 1948)

   Even before the world was introduced to the term genocide, many had happened for centuries all over the world. While no two genocides may be similar there are always consequences including mass suffering and death to the innocents. Some genocides took years for completion such as the holocaust[3] (Berenbaum, Holocaust 2024) and some took about 100 days such as the Rwandese genocide.[4] (Rwanda genocide of 1994 2024) The concept of genocide erasing families, communities, ethnic groups and nations is explicit by the use of the two cases of genocide despite situated in two different backgrounds; A sweeping Cambodian genocide or even a contemporary Srebrenica genocide.

   Today there is a specialized tribunal in form of what is referred to as the International Criminal Court or ICC for short that deals with all atrocities of all kinds and genocide.[5] Global courts such as ICC still have a lot of challenges in prosecuting genocide majorly in getting jurisdiction in non- member states. The ICC only takes action if it is founded on the member state’s territory or their nationals but the United Nations Security Council can also refer a situation to be dealt with by the ICC. The Statute of the ICC does not apply to non-member states; for example the United States, China and other nations, meaning there are holes in the enforcement mechanism. In addition, international courts also depend on the cooperation of the states in apprehension of offenders and collectors of evidences as well as protection of witnesses. However, many states that are involved in genocide are averse to cooperation, thus result in either postponement or failure to arrest suspects. Of course, the absence of enforcement power weaken the ICC’s authority by the political will of states, which hampers the organization in preventing genocide.

      Political barriers play a crucial role in the failure to prosecute genocide in international courts because political ambitions and state sovereignty stand in opposition to justice. States who are either charged with genocide or complicit in shielding the offenders often use sovereignty to require that they cannot be intruded upon and that international legal domain does not apply to them. This dance of geopolitics and sovereignty erodes the international law system and the victims get no compensation.

    Long drawn trials and insufficient resources significantly erase the sentiment of justice in genocide trials, dominate more often than not leaves the victims and communities devastated. As seen earlier, trials arising from genocide cases entail complex issues of serious Proofs, eye-witnessing statements and a demand for proof of pre-meditation or specific intent to commit the crimes which take years to conclude. The foregoing experiences delay the delivery of justice and water down its adjuvant effect and subsequently denies justice to the victims. These challenges bring perception that justice is slow, inaccessible, and inefficient this lowers credibility of international legal procedures formulated in fighting mass atrocities.

What type of crimes is prosecuted at the ICC?

Based on the Rome Statute[6](Rome statute 1998), the ICC is the unique international criminal court[7](About the Court) which may try the case for genocide, crimes against humanity and war crimes – all universally termed as atrocity crimes. Nonetheless, having the resemblance to each other, there could be some disparities that may be capable to differentiate the crimes, and they may be tried differently.

     As provided for under the Rome Statute, the legal classification of crimes against humanity consists of the following; a prohibited act, which was committed as part of a widespread attack on any civil population or systematically. These include murder, extermination, slavery, rape, medical and other types of torture and other inhuman acts inflicting great suffering or serious injury to the affected body or physical or mental integrity.[8] (Hassenstab, 2023)

Recent Cases:

1. Myanmar (Rohingya Genocide)

Genocide on Rohingya is a continuous rape, killings, and oppressions of the Rohingya Muslims by Myanmar’s military. It suffices to recall that the crisis created more than a million refugees from the Rohingya seeking asylum in other countries. Myanmar has not signed Rome Statute; the jurisdiction of ICC is limited to crimes committed, at least in part, in Bangladesh, which being a state party to the Statute from where large number of Rohingyas were expelled. On a similar note in the ICJ, there is now a case based on the Genocide Convention by the Gambia arguing that Myanmar still does not do enough to deter and prosecute genocide against Rohingya. In September 2020, the Gambia led by Said KY led an application to the ICJ for an order to restrain Myanmar including ordering the Myanmar to prevent genocidal acts against the Rohingya, to refrain from destroys any evidence in relation to the Rohingya minority and to report to the court on what steps are being taken to protect the Rohingya minority.[9] (Rohingya genocide 2024)

2. Yazidis (ISIS Atrocities)

This was genocide in the modern world at its worst; it occurred in August 2014. For two weeks, the territory of Sinjar in Iraq was overrun by the so-called ISIS. ISIS began a systematic way of wiping out the ethnic group of Yazidis by forcing them to convert or face extermination. Civilians were killed, or captured, and subjected to some of the harshest human atrocities – slavery, forced labour, conscription, and castration or rape. The ISIS reckoned the Yazidis as infidels and then forced the men to convert to Islam or face death. Women, however, were denied any such freedom and choice in the matter. They were kidnapped, sold into marriage, prostitution, and their main intention was to change their religion.

      Last year, in 2021, a German court gave a guilty verdict to Taha al-Jumailly, a former ISIS, on charges of genocide against the Yazidis; this means that for the first time, a court has accepted that ISIS committed genocide against the Yazidis. This was terribly engaging case that was prosecuted under the universal jurisdiction thus making the German court to rule on event that happened in other regions.[10] (Nadia’s Initiative, The genocide)

3. Darfur (Sudan)

RSF and allied militias in Sudan burned houses in West Darfur’s capital El Geneina, displacing hundreds of thousands of people and, at minimum, causing thousands of indirect deaths. The situation in Sudan oblige the United Nations and the African Union to, first, immediately introduce a ban to purchase weapons in the country and, second, to freeze the assets of those who have committed gross violations of human rights, as well as to send a security force to protect the oppressors. This is because the authorities in the Sudankongo continue to commit genocide against their own citizens. The attackers perpetrated also other grave violations like tortures, forceful rape, and robbery. Over half a million refugees from West Darfur have crossed over to Chad since April 2023.[11] (Sudan: Ethnic cleansing in West Darfur 2024)

4. Ethiopia (Tigray Conflict)

The war in Tigray started in November 2020, in the course of the dispute between central government of Ethiopia and TPLF the ruling party in Tigray Region about decentralization. The conflict resulted into thousands of deaths and humanitarian crisis, the international relations is urged to engage in diplomacy on Ethiopia while the in laws, on the ICEJ. The Ethiopian and Eritrean governments denied the accusations of war crimes and genocide one after another. Ethiopia has been accused of attempting to weaken the task of independent investigation while Eritrea has dismissed the tender as scandalous.[12] (Genocide in Tigray 2024)

Conclusion:

Genocide is one of the worst right abuses affecting humanity, and the international legal framework is struggling to provide justice and prevent recurrence of such acts. While frameworks like the ICC and ICJ play pivotal roles in addressing these crimes, their effectiveness is hindered by jurisdictional limitations, political barriers, and resource constraints. However, for the purpose of providing justice, eradicating impunity and fully protecting equality, liberty and justice in line with the international law, there should be proper representation from different countries and proper enforcement agencies so that nobody could play a higher role just for politics than rendering justice to the Genocide victims.

 

References

[1] Sanjay Kumar, Genocide and crime against humanity by …, https://lc2.du.ac.in/DATA/Topic-%20International%20Crimes.docx.

[2] Convention on the prevention and punishment of …, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention on the Prevention and Punishment of the Crime of Genocide.pdf

[3] Michael Berenbaum, Holocaust Encyclopædia Britannica (2024), https://www.britannica.com/event/Holocaust (last visited Dec 2024).

[4] Rwanda genocide of 1994, Encyclopædia Britannica (2024), https://www.britannica.com/event/Rwanda-genocide-of-1994 (last visited Dec 2024).

[5] History, History | INTERNATIONAL COURT OF JUSTICE, https://www.icj-cij.org/history (last visited Dec 2024).

[6] Rome statute, International Criminal Court, https://www.icc-cpi.int/sites/default/files/2024-05/Rome-Statute-eng.pdf (last visited Dec 2024).

[7] About the Court, International Criminal Court, https://www.icc-cpi.int/about/the-court (last visited Dec 2024).

[8] Nicole Hassenstab, Prosecuting hate: Genocide and the International Criminal Court American University (2023), https://www.american.edu/sis/news/20230907-prosecuting-hate-genocide-and-the-international-criminal-court.cfm (last visited Dec 2024).

[9] Rohingya genocide, Wikipedia (2024), https://en.wikipedia.org/wiki/Rohingya_genocide (last visited Dec 2024).

[10] The genocide, Nadia’s Initiative, https://www.nadiasinitiative.org/the-genocide (last visited Dec 2024).

[11] Sudan: Ethnic cleansing in West Darfur, Human Rights Watch (2024), https://www.hrw.org/news/2024/05/09/sudan-ethnic-cleansing-west-darfur (last visited Dec 2024).

[12] Genocide in Tigray, Wikipedia (2024), https://en.wikipedia.org/wiki/Genocide_in_Tigray (last visited Dec 2024).