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the role of international criminal law in prosecuting genocide

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This thesis dwells on the role of international criminal law in combating crimes in the world. The main machinery for the prosecution of international crimes is the international criminal court (ICC) located at The Hague. The ICC came into existence as a result of the Genocide Convention which defines the crime of genocide and enjoins states to prevent and take measures for the punishment of the crime. Owing to the loopholes of the Genocide Convention, there was a felt need to prosecute the crime at the international level. To this end, ad hoc courts were created to prosecute the crime of genocide. The ad hoc courts such as ICTY and ICTR operated on a regional basis. The ICC came into existence permanently to prosecute perpetrators of genocide. The jurisdiction of the ICC in prosecuting genocide is enunciated in the Rome Statute. The Rome Statute is therefore the principal working document of the ICC. The ICC has played a vital role in combating genocide but it is not without limitations. In this light, the Enforcement of rulings of the ICC is the major attribute of the weaknesses of the court. This problem is illustrated in the Case of Al-Bashir of Sudan. He was found guilty of genocide but still “live as a free man”. A case of genocide that really shocked the world was the Rwanda genocide where about 1000 people were killed in just three days. The question to answer here is whether international criminal law was silent on this genocide. The intervention of international criminal law in the Rwanda genocide was illustrated in the role of the ICTR in prosecuting the perpetrators. It is submitted that international crimes in the world can be effectively prosecuted if the Rome Statute is amended to take into consideration the problem of enforcement




1.1      Introduction

The emergence of international criminal law is very special in post-World War II international law.[1] International criminal law is a subset of public international law. While international law typically concerns inter-state relations, international criminal law concerns individuals. In particular, international criminal law places responsibility on individual persons, not states or organizations, and proscribes and punishes acts that are defined as crimes by international law. The five sources of ICL[2] used by international and hybrid criminal courts generally are treaty law; customary international law (custom, customary law); general principles of law; judicial decisions (subsidiary source); and learned writings (subsidiary source).[3]

The entire enterprise of holding war criminals individually responsible for their actions goes back to the Nuremberg and Tokyo trials after World War II.  Then, in 1993, the conflict in the former Yugoslavia erupted, and War Crimes, Crimes Against Humanity, and Genocide in the guise of “ethnic cleansing” once again commanded international attention. To bring an end to this widespread human suffering, the UN Security Council established the ad hoc  International Criminal Tribunal for the Former Yugoslavia, to hold individuals accountable for those atrocities and, by so doing, deter similar crimes in the future. After more than half a century’s efforts, the  Rome Statute of the International. The Security Council created the International Criminal Tribunal for Rwanda in 1994 in the wake of the genocide in Rwanda. The mass killings of more than 800,000 people were over by the time, the Rwanda  Tribunal was set up,  and so unlike the ICTY, it was involved in retrospective justice.

The ad hoc International Criminal Tribunals have been widely praised for playing a pioneering role in the formation and implementation of international criminal law. Because of the underdeveloped and rudimentary nature of international criminal law at the time of the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), it can be argued that the ad hoc Tribunals simply could not carry out their primary mandate to prosecute those responsible for serious violations of international humanitarian law if they did not also engage in adventurous lawmaking[4].

According to the Report of the Secretary-General on the establishment of the ICTY, the judges of the Tribunal could only apply those laws that were beyond doubt part of customary international law. The Secretary-General’s Report was formulated in this way in an attempt to avoid law-making. The Report further states that“in assigning to the International Tribunal the task of prosecuting persons responsible for serious violations of international humanitarian law, the Secretary-General would [thus] not be creating or purporting to ‘legislate’ that law. The Tribunals would rather have the task of applying existing international humanitarian law.”In practice, however, the judges relied upon all the sources of international law and took a particularly flexible approach to custom.[5]

The ICTR, on the other hand, is not bound by the same restriction to only use law that is “beyond any doubt” customary international law. The Security Council took a more expansive view of the subject matter jurisdiction of the Rwanda Tribunal and included not only customary international law but international instruments regardless of whether they were part of customary international law.[6]The ICTR is, therefore, empowered to use both customary international law and treaty law as far as it was binding on Rwanda at the time of the crimes committed.[7] Genocide, as General Assembly Resolution 96 (1) declared, ‘is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings’. It is a crime simultaneously directed against individual victims, the group to which they belong, and human diversity.[8] The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) was adopted by Resolution 260 (III) A of the United Nations General Assembly on December 9, 1948, and entered into force on January 12, 1951. This Convention contains provisions that prohibit the crime of genocide.

Mindful of the ad-hoc tribunals, the main court responsible for the prosecution of international crimes is the International Criminal Court(ICC). The International Criminal Court was signed on 17th July 1998 at the United Nations Diplomatic Conference of  Plenipotentiaries on the establishment of the International Criminal Court. On 1st July 2002, this first permanent international criminal judicial organ in history was established at The Hague.[9] The International Criminal Court (ICC) is the first permanent international court with jurisdiction to prosecute individuals for “the most serious crimes of concern to the international community.”[10] Currently, 110 countries are States Parties to the ICC. Since its inception in 2002, the ICC has received three referrals for investigations by States Parties and one referral from the United Nations Security Council. It sits at The Hague in the Netherlands but may hold proceedings anywhere in the world. It is funded primarily by States Parties. Its jurisdiction is limited to the following crimes, genocide, war crimes, crimes against humanity, and the crime of aggression.[11]

1.2     Statement of the problem

If beauty is in the eye of the beholder, the same is similarly true of justice.[12]Hence, it must not only be done but must also be seen to be done. To date, however, the ICC has encountered significant difficulties in this latter regard. Questions have inevitably been raised, for example, concerning the quality and impartiality of any ‘justice’ dispensed by a court that is only focusing on crimes committed in Africa and is completely powerless to act against the United States.[13]Thus in 2009, according to the ICC’s Outreach Unit, people in Uganda frequently posed questions such as: ‘Why is it that powerful countries like the United States, Russia, and China are not parties to the Rome Statute?’ and ‘Why are all the cases before the ICC coming from Africa? Is the Court a new tool for Western imperialism in Africa?’[14]

That the ICC can only deal with a small number of cases an estimated two or three per year further exacerbates the problem of selective justice. According to the ICC’s 2009 Outreach Report, for example, a commonly asked question among Darfuri refugees in eastern Chad and the Darfuri diaspora was: ‘Why is the international community only focusing on crimes committed in Darfur, when there are also crimes committed in other regions in Sudan?’[15]

International courts having jurisdiction to prosecute genocide such as the ICC and the ICTR are one hundred percent dependent on effective criminal cooperation, on the support of state parties. As the Court generally has no executive powers and no police force of its own, it is totally dependent on full, effective, and timely cooperation from state parties[16]. As foreseen and planned by its founders, the Court is characterized by the structural weakness that it does not have the competencies and means to enforce its own decisions. The prosecution of genocide according to its first President, Antonio Cassese, the ICTY ‘remains very much like a giant without arms and legs it needs artificial limbs to walk and work. And these artificial limbs are state authorities. If the cooperation of states is not forthcoming, the ICTYcannot fulfills its functions. It has no means at its disposal to force states to cooperate with it.’[17]

There is a Genocide Convention that prohibits the commission of this crime but despite its existence, genocide is still committed. Peter Ronayne (2001) refers to the numerous cases of genocide that followed the Convention’s entry into force as evidence of its failure: “Despite the good intentions of the UNGC [United Nations Genocide Convention], post-World War II history has proven with disturbing clarity that the Holocaust was not the twentieth century’s last genocide.” [18] The failure to prevent genocide resides more with the permanent members of the Security Council than with the Genocide Convention.[19]

The statute of the international criminal court for Rwanda has been criticized for limiting punishment only to the actual commission of genocide. The fact that it does not punish conspiracy, complicity, incitement, and attempts to commit genocide makes perpetrators enjoy some harbor.[20]

1.3    Research questions

The target of this work is to answer the following questions:

  • How is the crime of genocide prohibited under the Genocide Convention?

  • Does the crime of genocide fall under the jurisdiction of the ICC?

  • What role did international criminal law play in combating the Rwanda Genocide?

  • What policy recommendations can be made to the problems raised in the work?

1.4    Objectives of the study

General objective

The goal of this research is to evaluate the role of international criminal law in combating genocide in the world.

Specific objectives

Specifically, this research seeks to:

  • Present a discussion on the prohibition of the crime of genocide according to the Genocide Convention
  • Examine the prosecution of the crime of genocide in the ICC
  • Present a case study of the Rwanda genocide and the role of the ICTR in addressing the genocide
  • To make policy recommendations to address the problems raised


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