Prosecuting Hate: Genocide and the International Criminal Court

Genocides have occurred for centuries around the world even before the crime had a name. No two genocides are exactly alike, but all have resulted in devastation and the loss of innocent lives. Some genocides lasted for years like the Holocaust, while some only lasted around 100 days as seen during the Rwandan genocide. Whether a genocide is widespread across a country like the Cambodian genocide, or primarily located in a small town like the Srebrenica massacre, it is undeniable that genocides destroy families, communities, ethnic groups, and nations.

According to the United Nations Office on Genocide Prevention and the Responsibility to Protect, the term “genocide” was first used in 1944 by Raphael Lemkin, a Polish lawyer. Derived from the Greek prefix geno and the Latin suffix cide, the term literally means race or tribe killing.

While the term was adopted in reference to the Nazi’s systematic murder of Jews in Europe, it also gave a name to the previous targeted killings of different groups throughout history. Genocide is a crime that many experts believe has occurred since ancient times; however, it was not recognized as an international crime until 1946 and was not codified as a crime until the 1948 Genocide Convention

Since the crime of genocide was established in international law, there have been many efforts made to prosecute and hold the orchestrators and actors of genocides accountable, as well as to bring some sense of justice to the countless victims and survivors. The first official genocide conviction under international law did not occur until 1996, following the Rwandan genocide. Previous genocides, such as the Holocaust, were previously prosecuted as crimes against humanity, as opposed to the specific crime of genocide.

Today, the International Criminal Court (ICC) is the judicial body responsible for prosecuting all crimes against humanity and genocide. To understand more about how the ICC works, how genocides get prosecuted, and how groups seek justice and healing, we asked SIS professors Chris Rudolph, Jeffrey Bachman, Claudine Kuradusenge-McLeod, and Barbara Wien to share their expertise on these topics.

Establishing the International Criminal Court

The International Criminal Court was created under the Rome Statute on July 17, 1998, which was signed by 120 countries. The ICC and Rome Statute officially went into effect on July 1, 2002, following ratification by 60 countries. The United States signed the Rome Statute but has not ratified it. The United States currently holds observer status in the ICC Assembly of States and has updated national laws to include Rome Statute offenses. 

The ICC is an independent and treaty-based organization comprised of 18 judges chosen from a pool of candidates and elected by the Assembly of States Parties. The Assembly consists of representatives from every country that has ratified the Rome Statute and is a member of the ICC. ICC judicial candidates must be nationals of and nominated by an ICC member state. These candidates must meet a strict set of criteria to be considered including extensive experience in criminal and international law,

Prior to the creation of the ICC, crimes against humanity and the crime of genocide were tried by either military or criminal international tribunals. For example, the Nuremberg and Tokyo trials following World War II addressed crimes against humanity committed by the Nazi party and the Empire of Japan, and these courts set the precedent for international tribunals. More recent genocides, such as the Bosnian and Rwandan genocides, have been prosecuted by international criminal tribunals, which are courts established by the UN Security Council. The International Criminal Tribunal for the former Yugoslavia (ICTFY) lasted from 1993 to 2017 and sought to prosecute those responsible for crimes against humanity in the Balkans in the 1990s, including the Srebrenica Massacre or Bosnian Genocide. The International Criminal Tribunal for Rwanda (ICTR) lasted from 1994 to 2015 and prosecuted perpetrators of the 1994 Rwandan genocide.

The tribunals for both the former Yugoslavia and Rwanda were blueprints for the creation of the ICC; however, the tribunals were not without their flaws.

SIS professor Claudine Kuradusenge-McLeod, who has researched the Rwandan genocide and its lasting impacts, highlighted the impact of the ICTR, but also its shortfalls: “The ICTR was conceptually an important initiative aiming at prosecuting high-ranking individuals who have been instrumental in the planning and execution of the genocide. In practice, it is another failure of the international system. For it to work as intended, it had to seek the facts and go after anyone who had a hand in the atrocities regardless of ethnic affiliation. That is where it failed.”

What Crimes Does the ICC Prosecute?

Under the Rome Statute, the ICC is the only court that has the authority to prosecute genocide, crimes against humanity, and war crimes, which are collectively known as “atrocity crimes.” Although these crimes have similar characteristics, they do differ in some ways and are sometimes prosecuted separately.

Crimes against humanity are defined under the Rome Statute as “a prohibited act committed as part of a widespread or systematic attack directed against any civilian population.” Prohibited acts include murder, extermination, enslavement, rape, torture, and other “inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.”

Genocide is defined and codified by the UN Convention on the Prevention and Punishment of the Crime of Genocide as “any of the following acts committed against members of a national, ethnic, racial, or religious group with the intent to destroy the group in whole or in part: (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; and/or (e) forcibly transferring children of the group to another group.”

SIS professor and genocide studies expert Jeffrey Bachman explained that there are two key differences between genocides and crimes against humanity.

 “All genocides are crimes against humanity, but not all crimes against humanity are also genocide,” Bachman said. “Genocide differs from crimes against humanity in two important ways. First, genocide is a discriminatory act in that it is a crime perpetrated against individuals who are members of a specific human group, while crimes against humanity can be committed indiscriminately, meaning against members of a civilian population without accounting for specific group membership. Second, genocide involves the specific intent to destroy a targeted group in whole or in part. Crimes against humanity do not necessarily involve this specific intent.”

Limitations of the ICC

While the ICC was created with the intent to prosecute atrocity crimes, there are limitations to the court’s power. As a treaty-based organization, the ICC member countries create the rules of the court and are bound by those rules. Countries that are not members of the ICC are only subject to its jurisdiction if they accept it ad hoc or are referred to the ICC by the UN Security Council. The court also cannot retrospectively try crimes that occurred before July 1, 2002, before the court’s creation.

Another limitation of the ICC is that it is not a police force and cannot make arrests. If the ICC issues an arrest warrant, it is the responsibility of the member states to arrest and bring the accused to court, as they cannot be tried in absentia.

In recent months, Russia has been accused of crimes against humanity in Ukraine, and an arrest warrant was issued for President Vladimir Putin. Because neither country is a member of the ICC, there are limitations to how the court proceeds.

SIS Professor Chris Rudolph explained that even though “Ukraine has accepted the court’s jurisdiction over the current situation,” it is “highly unlikely that Vladimir Putin will be arrested and face trial in the Hague.”

“Russia has no intention of turning Mr. Putin over for trial at the ICC; moreover, it would be an extremely bold move for another country to execute the ICC’s arrest warrant if he were to pass through their territory,” Rudolph said. “The ICC’s track record regarding similar situations isn’t very good. For example, the former president of Sudan, Omar al-Bashir, was not arrested during a trip to South Africa even though that country is a member of the ICC So where does that leave the ICC? At this point, the ICC serves to collect evidence of crimes, should a trial be commenced at some point in the future.”

Justice and Healing Outside of International Courts

While the ICC’s goal is to prosecute the perpetrators of genocide at the international level, justice is not always so simple and can take many forms at many levels.

Outside of the ICC and previous tribunals, local and national courts have been established to hear cases against accused genocide perpetrators. One of the most famous examples of a local justice system is the Gacaca Courts in Rwanda, which were local courts that heard more than 1.9 million cases of those accused of being involved in the genocide. Today, 27 years after it occurred, there are still trials being conducted by the government of Serbia for atrocities committed during the Srebrenica Massacre. 

Justice and healing are not one-size-fits-all concepts, and although the ICC and previous tribunals seek justice at high levels, not all survivors feel that they received justice from the international response. In the case of Rwanda, 61 of the 96 cases brought before the tribunal ended in convictions.

“Many doubt, including myself, that the ICTR brought justice. It was about a ‘victor’s justice,’ and not justice for Rwandans,” said Kuradusenge-McLeod.

For survivors of genocide, healing is non-linear and is both a personal journey and a collective one for the nations and groups who were affected. Many international efforts have been dedicated to furthering healing and peace in communities post-genocide. SIS professor Barbara Wien has done extensive work in the field of peace education, including in Rwanda, where peace education is part of the K-12 curriculum in schools.

“The Rwanda Peace Education Program is probably one of the largest government-backed peace education programs. Through every grade level across the country, every student is exposed to it, and every teacher is trained,” Wien said. “Outside of Rwanda, several coexistence education peace education programs have been implemented in Bosnia Herzegovina, Croatia, Albania, Kosovo, and Serbia.”

For the people who have lived through the horrors of genocide, healing also comes from the international community’s ability to learn from the past to prevent genocide from happening in the future.

“Having a holistic, historical understanding of the mechanisms that lead to genocide and how they are still present and impacting the victims and survivors is essential,” said Kuradusenge-McLeod. “Justice, in part or whole, cannot be achieved if victims and survivors do not see themselves in the process. Consequently, the mandates given to the investigators must allow them to gather facts, remain neutral, work with local experts, and tell all the victim’s stories.”

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