The International Criminal Court And It’s Role In The Prosecution Of Genocide

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The International Criminal Court And It’s Role In The Prosecution Of Genocide


This dissertation seeks to identify the role of the International Court of Justice (ICJ or Court) to the international criminal law on genocide in its judgment on the Case concerning the Application of the Convention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). 1 The overall assessment is as follows: while the judgment contains welcome clarifi cation and consolidation of the international criminal law on genocide in several respects, the Court did not fully apprehend the complex structure of the crime. Most importantly, the Court did not provide a coherent explanation for its characterization of the atrocities committed in Srebrenica as genocide. This note will not deal in any detail with the concept of a state act of genocide constituting an internationally wrongful act, the ICJ’s factual fi ndings, or its approach to admitting and weighing evidence.

Chapter One


Background to Study

Regarding the sad chain of events that occurred in Bosnia and Herzegovina between 1992 and 1995, the international criminalCourt declared that it attaches ‘the utmost importance to the … legal findings made by the ICTY ’. 2 This statement of self-restraint would appear to be part of the Court’s judicial policy in responding to what may be called the ‘Tadic challenge ’. The Court argues for roughly the following division of labour between itself and international criminal jurisdictions: where confronted with a preliminary question of international criminal law, the Court will defer to the pertinent case law of an international criminal court; at the same time, the Court expects an international criminal court to exercise a corresponding degree of self-restraint when faced with a preliminary question of general public international law.

Such a division of labour is certainly desirable insofar as it promotes stability and legal certainty in the international legal order. However, these ends must be delicately balanced against the need for substantive justice. In this regard, the Genocide judgment could benefi t from some refinement. First, the contemplated division of labour should not be mistaken by the Court as a licence to apply its own jurisprudence without responding to legal challenges made to it. The Court must remain open to having its case law challenged on legal grounds, and respond to these challenges in a reasoned manner. Applied to the Genocide judgment, this means that it was not good enough for the ICJ to hold that the applicable rule of attribution is ‘e ffective control’ based simply on one of its previous judgments. Instead, the ICJ should have squarely addressed the legal challenge posed by the Applicant when it directed the Court to reconcile its rule of attribution with the case law of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY).

Secondly, and similarly, the Court should not unquestionably accept international criminal law jurisprudence emanating from international criminal tribunals if this case law is still evolving, is inconsistent, or is otherwise open to serious challenge. Accordingly, the ICJ should not have adopted, without explanation, the ICTY’s position that genocide was committed in Srebrenica. At the same time, the ICJ must be commended for making fi ndings on the concept of ‘p rotected group’ in the defi nition of genocide, and on the question of whether or not a policy of so-called ‘ ethnic cleansing ’ amounts to genocide under international criminal law.

1.2.0 Objective of Study

It is against this backdrop that this paper examines the international criminal court and its role in the prosecution of genocide with a view analyzing its strategic position, procedure and its implications.

1.3.0 Scope of the Study

The enormity of the subject matter has led to the selection of some aspects of international law. In general, reference is made to Section conditions for crime punishment.

1.4.0 Methodology

This research methodology is normative or doctrinal research (library research). Normative legal research is the legal researches which use the law as foundation of norm. The norm system in question is related to principle, norm, and rule from legislation, verdict, treaties, and doctrine concerned annulment of an arbitration award. First stage of normative research comprises a research with purposes to achieve objective law, by conducting research on legal issues. The second stage of normative legal research is aimed at obtaining subjective law (rights and obligations). It also concerns with critical review of legislation and of decisional processes and their underlying policy

Literature Review

Policy and scholarly interest in genocide and mass violence has grown dramatically in recent years. The field of genocide studies was pioneered in the 1970s and 1980s but remained the interest of a select few scholars until the 1990s. Two major developments pushed genocide from the margins of academic scholarship to greater prominence within the social sciences; the end of the Cold war, which saw a new interest in international human rights, of which genocide and it associated atrocities is a part; and the genocidal violence in Yugoslavia and Rwanda and the failure of the international community to respond to such violence. Consequently, genocide and mass violence became a matter of high profile debate.

To date much of the literature on genocide has been written by historians or specialists of specific genocides who focus on the analysis of individual cases of genocide (For Armenia see, Hovannisian, 1992; Balakian, 2003. For Cambodia see, Chandler, 1988; Kiernan, 1996; Vickery, 1999. On Rwanda see, Des Forges, 1999; Gourevitch, 1999, Prunier, 1997; Dalliare, 2003). These include histories of the period of the actual genocide, histories of the after-effects of the genocide, usually for the targeted population but sometimes also for the perpetrators, and perhaps most common, histories of the events and philosophies leading to the particular genocide under consideration.
While pertinent, such studies on their own do not explain why genocide, in general, occurs and how such atrocities can be prevented. Other comparative studies have created theories, which focus on a single primary precondition. The work of social scientists and historians have linked genocide to the advent of modernity (Bauman, 1989), radical, revolutionary and or racist political ideologies (Melson, 1992 and Weitz, 2003), totalitarianism (Horowitz, 1997), or the absence of liberal democracy (Rummel, 1994). Psychologists have focussed on the dehumanisation of the individual and the inaction of bystanders (Charny, 1982 and Staub, 1989, Waller, 2002). Sociologists have examined the societal conditions, which are necessary for the emergence of genocide (Horowitz, 1976, 1980; Kuper, 1977 and Fein, 1979). Quantitative cross national studies have been carried out by political scientists, such as Brabara Harff (2003) and Valentino and Huth and Krain (1997). The timidity, apathy, or outright complicity of foreign powers in the face of genocide has led to scholarly interest in the way the international community has responded to such violence (Barnett, 2002; Power, 2002).

In order to construct a truly comparative and comprehensive theory of genocide and the war and or regime crises, which accompany or precede it, the variables at play must be clearly identified and defined and the relationship between the variables set out and explored. A theoretical framework on genocide enables the identification of commonalties that extend beyond particular data to other comparable data. This moves the thought beyond the specific to the development of a range of general characteristics.

Chapter Five

Conclusion and Recommendation


Time and space did not permit this presentation to go into great depths about the question whether, to what extent and for what crimes there exists an obligation to prosecute international law crimes. To a large extent, uncertainty abounds, to start with the precise contours of the concept “international law crimes” itself. Even if one day one were to reach a consensus on conceptually clear legal definitions and obligations, the major obstacle might well turn out to be States’ being often politically unwilling to implement in practice their duty to prosecute international law crimes. In order to overcome this, attention needs to be turned to assess the factors which induce States to prosecute international law crimes. Even more fundamentally, no effort should be spared to look for appropriate fora in which to challenge a State’s decision not to prosecute in spite of an international obligation to do so.


Tackling the underlying social, economic and political conditions that contribute to genocide is no easy task. It requires a long-term strategy and efforts that require sustained investment of resources and will. The model established in this thesis can be used to identify potential victims, minorities and political opponents at risk of being targeted for destruction and determine countries where those in power are more likely to adopt a genocidal strategy, during or in the aftermath of political upheaval. Engaging early in high-risk situations should save more lives, at less cost, than responding once the killings are already underway. Understanding the way genocide occurs and what motivates elites, and learning to recognize signs that could, in a certain environment, lead to genocide are important in turning ‘Never Again’ from rhetoric into a reality.

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