Published On: 14th January, 2025
Authored By: Maryam Khalid
Gillani Law College
Abstract
The prosecution of genocide remains one of the most complex challenges in international criminal law. Originating from Raphael Lemkin’s 1944 conceptualization of genocide, the term signifies not just mass killings but the systematic destruction of a group’s biological, cultural, and social existence. Codified under the United Nations Genocide Convention of 1948, genocide is now addressed by international judicial bodies like the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Court (ICC). However, issues related to state sovereignty, non-ratification of the Rome Statute, and selective justice hinder effective prosecution. The principle of complementarity encourages domestic prosecutions, but concurrent jurisdiction with the ICC has led to conflicts, particularly regarding double jeopardy and the credibility of national legal systems. While the ICC provides a forum for prosecuting perpetrators, the lack of universal recognition and the absence of an independent enforcement mechanism undermine its ability to bring high-profile offenders to justice. The prosecution of Sudanese leader Omar al-Bashir illustrates these limitations, exposing gaps in international cooperation and enforcement. Thus, while strides have been made in prosecuting genocide, significant legal, political, and procedural challenges persist.
Introduction
The jurist Raphaël Lemkin coined the term “genocide” in 1944 in reaction to the systematic, automated, and institutionalised murders that were a key component of the Nazi government during World War II. Genocide was “an old practice in its modern development,” according to Lemkin.[1]
Genocide is the biological, cultural, and social breakdown of a targeted people; it is more than mass killings and economic and cultural dominance. The International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993, the International Criminal Tribunal for Rwanda (ICTR) in 1994, and the International Criminal Court (ICC), established in 1998, have all focused on genocidal crimes since the United Nations codified them in 1951. When it comes to collective action against the ongoing commission of a crime that ought to “shock the conscience of humanity,” these legal bodies serve as a voice for the global community and a declaration of intent. [2]
An important turning point in the identification and handling of the crime was the International Law Commission’s use of the term “genocide” in its report. At the same time as Nuremburg, in Tokyo the United Nations was running a parallel conference debating Lemkin’s term genocide in relation to the crimes committed in the Far East during the Second World War. This conference culminated in the “Convention for the Prevention and Punishment of the Crime of,” which was adopted by the United Nations General Assembly on December 9, 1948, Genocide and enacted in law 12 January 1951.[3]This legislation, based on the work of Lemkin, defined Genocide
in legal terms 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;
(e) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(f) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.[4]
The Principle of Sovereignty
The Rome Statute’s provisions pertaining to specific immunities that refer to the surrender of their citizens before the ICC make states reluctant to ratify it. Such an attitude, which stems from a stubborn notion of sovereignty, becomes a roadblock to the possibility of very real domestic prosecutions of those crimes. In order to grant universal authority to both domestic tribunals and the ICC, the sovereign member states have to voluntarily ratify the Rome Statute. The prospect of governments ratifying the Statute at their own discretion and, thus, a reluctance to accurately incorporate internationally specified criminal crimes into domestic legislation were both brought about by such a strategy. Although the complementarity[5] approach strikes a balance to address the concerns of state sovereignty[6]and gives an option to the states to prosecute these international crimes, nevertheless, many notion of sovereignty by the member states empowers them to decide as to which acts ought to be criminalised when a particular treaty enjoins upon those states to prosecute and penalise their organs and individuals in vertical[7] and horizontal relationships.[8] The extradition treaties [9]permitting refusal on pretext of the ongoing adjudication is an example to prevent the liability in such horizontal relationship. Some of the prosecutions may be implemented in such a way as to allow the states exert their influence, which may actually end up in non-compliance with the international law. For instance, despite a brutal crackdown by the Syrian military forces on the pro-democracy protestors, the European-sponsored resolution was not put to a vote because China and Russia exercised their “veto” power in the security council over the situation in Syria, with support from some non-permanent members such as Brazil, Lebanon, India, and South Africa. As a result, no sanctions could be placed on Syria. The emerging scenario extending recognition to the international organisations as legal persons subject to international law,[10]gives rise to the trend of restricting state sovereignty. Several international treaties such as Hague Convention of 1907 and the Geneva Convention of 1949 are epitomes of the acceptance of International legislations by the states.[11] In actuality, the question of how the principles of sovereignty relate to universal jurisdiction shouldn’t be interpreted as a phenomenon that infringes on state sovereignty.[12] In order to comprehend that international criminal law does not weaken but rather strengthens national sovereignty in accordance with the complementarity principle, it is imperative that member states have a clear understanding of the link between international criminal law and sovereignty.
The Concurrent Universal Jurisdiction
Since all member states have been ordered to investigate and bring war crimes cases before their own courts, the ICC must likewise support domestic prosecutions of its citizens in those nations. As a matter of fact, a State itself and the ICC are vested with concurrent jurisdiction; therefore, universal jurisdiction has a wider scope than the jurisdiction of the ICC. A state cannot justify its failure to comply with international obligations of prosecuting those criminals on the premise of its inadequate implementing legislation. National prosecution of the crimes is encouraged by the complementarity concept.[13] As a last resort, the ICC is meant to use its jurisdiction. The Rome Statute allows the ICC to take over its jurisdiction after a state fails to bring charges against those criminals. The referral of the case of Uganda was a manifestation of unwillingness to prosecute at domestic level as such. A state opting to invoke waiver is also treated as a state unwilling or unable to prosecute.[14] Although the ICC was not intended to serve as an appeal body for rulings made by domestic courts, its voluntary admission of appellate authority is subject to harsh criticism. The non-adherence to fundamental principles of due process only leads to the inference of “victor’s justice” and derogates from a basic right of due process.[15]It is noteworthy that ad hoc tribunals had taken a more strict view than the ICC while taking national procedures into consideration.[16]Both the International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for Yugoslavia (ICTY) statutes provide that a case may be retried even if an accused was prosecuted at national level despite the fact that elements of crime in domestic laws were identical in substance.[17]Hence, it appears that ICTR and ICTY could cast aspersions on the prosecutions and procedures before the domestic courts. Such an attitude to the domestic implementing legislations, patently contrary to the principles of double criminality, is inconsistent with the principles of natural justice and operates as a challenge to the efficient prosecution of war crimes. Negotiating criteria for the ICC’s assumption of jurisdiction in cases where national prosecution had already been completed proved to be particularly challenging during the Rome Statute’s deliberations. When this was further disputed, the ambiguous term “genuinely” was created as a foundation for the ICC’s assessment of national prosecution processes for these crimes.[18]
International Recognition and Execution Mechanism
Although the ICC has made significant progress in addressing flaws in the international legal system, much more work must be done to ensure successful prosecutions before this august body. After ratifying the Statute, a member state is required to provide this judicial body with the best possible support. Although the ICC has put in place institutional mechanism to ensure cooperation by the member states[19] in criminal prosecutions but it has not yet received universal recognition by many countries, which has precipitated a serious challenge to the prosecutions of these crimes for administration of global justice and the countries that have not become party thereto do not fall under its universal jurisdiction. The 2004 UN Security Council Resolution No. 1564, which called for the issuance of warrants against former Sudanese Interior Minister Ahmad Haroon and Janjaweed leader Ali Kushayb for their roles in the war crimes in Darfur that killed hundreds of thousands of people in Sudan, was unable to be implemented. The relevant government protested the requisition for the warrants’ execution, arguing that since Sudan was not a party to the Rome Statute, the ICC could not exercise its jurisdiction over the case.[20] Since it appears that only those nations that have participated in or have a tendency to participate in violations of international law and are afraid of being held accountable as such have chosen not to ratify the Statute, such a situation cannot help ensure effective and transparent prosecutions in the international criminal justice system. Their failure to acknowledge the universal jurisdiction not only undermines the justification for the Statute’s guarantee of world peace, but it also contradicts the alleged idea of preventing the loss of property and human life on a massive scale in the future. The dream has been overshadowed by the recurrence of crimes in Cambodia, Bosnia Herzegovina, and Rwanda, according to former General Assembly Secretary General Kofi Annan. For this reason, the upcoming international agreement must be given top priority in order to preserve the court’s honour and the legitimacy of the prosecutions that are brought before it.[21] It is therefore impossible to eliminate the perception that selective justice is being administered by prosecuting the weaker governments unless all UN-recognized states agree to uphold the ICC’s universal jurisdiction. Many authors have sharply criticised the ICC as a tool of the western governments due to the glaring continuous investigations and concentration on such prosecutions in the African countries.[22] Also failure of the ICC to arrest the perpetrator of war crimes like Omar al-Basher i.e. President of Sudan, even during his visits to Qatar and Egypt, both the member states of the ICC, due to his network support entailed enormous condemnation and significantly tarnished image of the ICC, as the failure to arrest him was the consequence of the lack of independent enforcement mechanism.[23]
Conclusion
Despite advances in the legal definition, recognition, and prosecution of genocide, the global justice system faces significant hurdles in ensuring accountability for such crimes. State sovereignty remains a contentious issue, with nations reluctant to cede jurisdiction or ratify the Rome Statute, thereby limiting the ICC’s reach. The principle of complementarity aims to balance sovereignty with international justice, yet concurrent jurisdiction complicates the prosecution process, especially when national legal systems are deemed inadequate. Moreover, the ICC’s credibility is undermined by perceptions of selective justice, particularly regarding African states, and its inability to enforce arrest warrants for high-profile figures like Omar al-Bashir. To strengthen international criminal justice, universal ratification of the Rome Statute, robust enforcement mechanisms, and an impartial approach to prosecution are essential. Addressing these challenges is critical to upholding global peace, deterring future atrocities, and restoring faith in international justice.
Reference(s):
[1] Raphaël Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposal for Redress (Washington, DC: Carnegie Endowment for International Peace, 1944), 79.
[2] United Nations, Rome Statute of the International Criminal Court. July 17, 1998 and corrected by process-verbaux of
November 10, 1998, July 12, 1999, November 30, 1999, May 8, 2000, January 17, 2001 and January 16, 2002 (UN Doc. A/ CONF.183/9).
[3] United Nations, General Assembly Resolution 260, Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948 (UN Doc. A/RES/260(III)).
[4] United Nations, Convention, 278.
[5] The principle of complementarity provides for the primary jurisdiction of the member States on account of easy access to the evidence for effectively carrying out the prosecution of war crimes and thereby reinforced their sovereignty.
[6] The Complementarity Conundrum: Are We Watching Evolution Or Evisceration?‟ (2010) 8 Santa Clara Journal of International Law, p. 115, 120-23.
[7] The vertical relationship inhibits a state form prosecuting an accused already prosecuted by the ICC and vice versa. The horizontal level refers to no trial of the accused for the second time within the same court system.
[8] Jennifer E. Costa, „Double Jeopardy and Non Bis In Idem: Principles of Fairness‟ (1998) 4 the University of California (UC) Davis Journal of International Law and Policy, p. 181, 184-85.
[9] Anthony J. Colangelo, „Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory‟ (2009) 86 Washington University Law Review, p. 769, 788. 812-15.
[10] Dan Sarooshi, International organisation and their exercise of sovereign powers (Oxford University Press, 2005) p. 10
[11] Varga Reka, Challenges of domestic prosecution of war crimes with special attention to criminal justice guarantees (Thesis submitted to Pazmany Peter Katolikus Egyetem, Budapest, 2012) p. 69.
[12] Bernhard Graefrath, „Universal Criminal Jurisdiction and an International Criminal Court‟ (1990) 1 European Journal of International Law, p. 72-75.
[13] Kevin Jon Heller, „A Sentence-Based Theory of Complementarity‟ (2012) 53 Harvard International Law Journal 85, p. 126-127
[14] EI Zeidy., „The Principle of Complementarity: A New Machinery to Implement International Criminal Law (2005), p. 104, <https://repository.law.umich.edu/mjil/vol23/iss4/3> (last viewed on 23. 06.2018).
[15] Melman Jesse, „The Possibility of Transfer (?): A Comprehensive Approach to the International Criminal Tribunal for Rwanda‟s Rule 11bis To Permit Transfer to Rwandan Domestic Cour‟ (2011) 79/3 (15) Fordham Law Review 1273-1332, p. 1321 and 1327.
[16] Article 10 para 2 (a) and Article 9 para 2 (a) of the ICTY and ICTR Statutes respectively. For corresponding case law, Prosecutor v. Munyeshyaka, Case No. ICTR-2005-87-I, (Nov. 20, 2007), para 8.
[17] Prosecutor v. Gatete, Case No. ICTR-2000-61-R11 (Nov. 17, 2008), para 21.
[18] Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court; Observers‟ Notes, Article by Article, 1999 Nomos, Baden-Baden. P.456 <http://booksandjournals.brillonline.com/content/journals/10.1163/157365102×00262> (last viewed on 23. 06.2018).
[19] Beth A. Simmons and Allison Danner, „Credible Commitments and the International Criminal Court‟ (2010) International Organization 64, No. 02: p. 225-256.
[20] Dapo Akande, „The Legal Nature Of Security Council Referrals To The ICC And Its Impact On Al Bashir’s Immunities‟ (2009) Journal of International Criminal Justice 7, No. 2, p. 333-352.
[21] Kofi Anan, „What is purpose of establishing ICC?‟ A speech presented at United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an International Criminal Court. Italy, July 1998.
[22] Ali Ezzatyar, “Fending off Failure: The International Criminal Court‟s New Chief Prosecutor”, The Moderate Voice (June 27, 2012).
[23] Gwen. P. Barnes, „International Criminal Court‟s Ineffective Enforcement Mechanism: The Indictment Of President Omar Al
Bashir‟ (2010) The Fordham international law journal 34, p. 1584