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EXPLORING THE CHALLENGES IN HOLDING A STATE ACCOUNTABLE UNDER GENOCIDE CONVENTION: A COMPARATIVE ANALYSIS
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EXPLORING THE CHALLENGES IN HOLDING
A STATE ACCOUNTABLE UNDER GENOCIDE CONVENTION: A COMPARATIVE ANALYSIS
AUTHORED BY - SUKHADA
DHOTE
Abstract-
The researcher has endeavoured to
explore various prospects in attributing state responsibility for the
humanitarian crime of ‘genocide’ under the genocide convention and the Rome
Statute of ICC. The theory of sovereignty of a state provides immunity to the
state which is used as a defence by heads of the state to escape their
liability. However, when charges against international humanitarian crimes are
imposed, the state has a legal obligation to cooperate with the enforcement
machinery of the international community. The researcher has addressed the challenges in
holding the state of Sudan responsible for the crime of genocide with the
reference to the case study of Omar Al- Bashir, who was the first ever to be
charged with the crime of genocide while he was the president of Sudan in the
context of Darfur situation. Despite the fact that he was charged for the
offence of ‘genocide’ twice (4 March 2009 & 12 July 2010) by the
International Criminal Court (ICC), Al-Bashir successfully managed to escape
the arrest for a prolonged period of time and still managed to remain free
thereby highlighting the impediments involved in apprehending individuals of
this stature under the international law. The article analyses the case
of Omar Al -Bashir along with other similar case studies occurred after the
convention in highlighting the legal ambiguities in the enforcement machinery
of the international community. By examining these challenges in the context of
the Al-Bashir and other similar cases, this research contributes to a deeper
understanding of the complexities inherent in holding individuals responsible
that are been accused of heinous international crimes committed against
humanity.
Keywords- Genocide, Rome statute of ICC,
challenges, enforcement machinery.
INTRODUCTION-
Historical context:
During the World War-II (1939- 1945),
the nazi regime of Germany systematically killed the ethnic group of Jews and
thus it became necessary to codify the rules so that such acts may not be
repeated. The estimated deaths in the time period were around 1.47 million[1].
The United Nations prioritized the codification of genocide. In 1946, the
assembly in a resolution declared genocide which was defined as the “killing of
a group of human beings” is a crime under international law[2]. In
the subsequent year, the assembly reaffirmed the above resolution. The
convention on the Prevention and punishment og genocide was adopted on December
9, 1948 and it came into force on January 12, 1951. The main objective of the
convention was to prevent and punish the
genocide, whether committed at the time of war or peace[3].
The convention expressed the principles which had been recognised by the
charter of the international military tribunal set up at the Nuremburg trials
which held that, “crimes against international law are committed by men, not by
abstract entities, and only by punishing individuals who commit such crimes can
the provisions of international law can be enforced”.[4] At
the Nuremberg trial, for the first time ever, the administrative officials who
committed gruesome crimes were brought into the process of trial and were held
to be responsible in person irrespective of whether they had acted in their
official capacity or not[5].
The framers of the Genocide convention inherited the principle laid down in the
trial and formulated a mechanism to redress the accountability of the crime of
genocide; including the persons acting in official capacity or in personal
capacity. In order to contain the atrocities of the crime, they explicitly
mentioned that any international tribunal as agreed by the parties or competent
tribunal of the state having requisite jurisdiction will have jurisdiction for
the crime of genocide [6].
One unprecedented component of the convention which stands out from the other international
conventions is that it also holds responsible the officials who committed the
offences in the past when the statute was not in place.
State Responsibility & ICC
Statute-
The ICJ recognises the accountability
of an individual as well as the state when they are accused of an offence as
complex as that of genocide[7].
However, these two-fold forms of responsibilities set forth challenges in
genocide cases. In the case of genocide, officials from various degrees
contribute and carry out perplexing actions and omissions in the process of
committing it. According to the statute, genocide requires to have a
destructive intention to kill an ethnic or a racial group as a precondition to
prove a case of genocide[8].
This is a condition required to prove only in the cases of an individual and
not in the cases of responsibility of any state.
In the Genocide case[9],
Serbia put forth an argument that the evidence for a case of genocide shall be
constituting of a series of planned events. The court partially agreed to the
contention and held that the special intent shall be coupled with the presence
of special circumstances or by a plan. The court also added that such a plan
shall be of such a nature that the act of genocide should be construed as a
direct consequence of such plan. In the current case, the court held that the
presence of specific circumstances was not present and further held that, such
a pattern will have a decisive evidentiary value. Due to the absence of such a
plan, the court held that the act of genocide was not committed and ruled in
favour of Serbia.
After the ICJ passed its judgement in
the favour of Serbia in the aforementioned case, the court mainly relied on the
element of complicity of Genocide. It recognised that providing instructions to
anyone in order to commit crime is considered to be a complex action to prove
the explicit commission of the offence and not for the complicity. The court
opined that only when it is shown that the officials below the rank of the
commanding officer were substantially involved with the actions of the state,
and provided assistance to the state only then the state can be held liable at
an international level.
In the general parlance, intent is
crucial when liability for an individual is to be decided but the offence of
genocide marks an exception. It is a necessity to prove the genocidal intent in
order to conclude that the state has committed the offence of genocide. The
question of whether the officials are to held accountable for the offence of genocide
was left unanswered by the court in the genocide case and held that such a
assertion only needs to be proven in the court when it is accomplished that the
officials had the knowledge of the intent of the principal commander, of which
the court was satisfied with earlier[10].
CHALLENGES WITH GENOCIDE
CONVENTION-
The efficacy of the genocide
convention should be examined with a thorough analysis of the genocide cases
been witnessed by the international community. The same can be done by
evaluating the time frames of past and present genocides, the magnitude of
killings and torture done by a state and the punitive measures taken by the
legal mechanism to contain the atrocities of such a state action as effectively
stated in the genocide convention. One must acknowledge that the fundamental
failure of the convention can be sited with the cases that occurred after the
codification of the convention which was aimed to be prevented by the existence
of the convention. By analysing the genocide cases happened after the inception
of the convention as well as the contemporary case of Myanmar, let us implore
the fallacies in the operation of the international enforcement machinery
alongside the convention in addressing the issues related to mass genocide. By
critically examining the cases, the discourse shall provide for more clear
understanding regarding the lacunae in tackling the global issue of genocide.
The Darfur Crises-
Since 2003, Darfur, a region in Sudan
is suffering atrocities and violence. The military has systematically killed
around thousands of civilians and has displaced a million of them. It is
apparent that the government in place and the president of Sudan, Omar Al
Bashir has apparently proven to be involved in the cases as he has prevented
the initiatives taken by the enforcement machinery of international community
to contain the violence. Endeavours of the International Criminal Court (ICC)
have failed in achieving peace in the region by prosecuting the president[11].
But few years after the investigation conducted by the court, the prosecutor
for the case filed in a motion for a search warrant at the U.N. Security
Council[12]
was later issued in March 2009.[13]
This was followed by severe criticism by the Sudanese government which was firm
on its stand that the ICC has no jurisdiction and the government does not
recognise its authority. The ICC, in spite of its issues with the recognition
of its jurisdiction and the immunity which the state has because these concerns
can be resolved by the security council’s resolution and the immunity shall not
be applicable to the cases wherein the gravity of the offences is such that the
magnitude of the action is felt on an international level. The issue with
jurisdiction gives rise to two separate issues in this current case, that
according to the Rome statute of the International Criminal Court, ICC has
limited jurisdiction.[14]
Even after multiple instances wherein the security council has issued a motion
to ICC to consider the matter of Darfur, Omar Al- Bashir does not accept the
jurisdiction, the reason being that Sudan is not a party to the Rome statute,
the statute which has created the ICC. ICC is not a body which can function
without the involvement of the party states, it is dependent upon the states
for their cooperation in order to enforce its authority. In the current case,
this issue can be magnified into denying justice to millions. The prosecution
of this state leader can also be restricted by the usage of the customary law
that ensures the immunity from any proceedings against the head of the state
done in their official capacity. Even though, the Rome Statute explicitly
mentions that the jurisdiction of ICC can override this immunity.[15]
The security council being an
important entity in the treaty, has the authority to put forward or terminate
any prosecutions. [16] The government of sudan has undeniably has
been submissive to the security council henceforth, the prosecution in the
current case shall rely on this recourse as a method to exercise the ICC’s
jurisdiction over Sudan.
Ultimately, the state immunity in
international law has enfeebled to the instance where the principle in any case
refrain ICC to prosecute the Sudanese president.
International actors have
acknowledged the security council’s authority in this aspect forcing it to
intrude in the proceeding of Al- Bashir.[17]
Bashir, himself has interacted with the heads of neighbouring countries to ask
them to assist in this procedure as that of Turkey, which is a not a permanent
member of the security council.[18]
In furtherance of it, the council has
a general power pertaining to the international concerns. The U.N. Charter
provides the security council with the faculty to authorize over international
disputes, provide for sanctions[19],
and widespread powers to ensure peace and stability by whatever way possible[20].
Notwithstanding the fact that, Sudan
is not a signatory to the Rome statute but it is a party to the Security
council, which indeed obligates Sudan to its decisions. A staunch argument can
be provided in favour of Sudan that if one has to invoke the council’s powers
then it will act as a threat to Sudan’s sovereignty as an individual state. The
government of Sudan finds this solution equivalent to attacking its identity as
a state. According to the settled principles of international law State can
very well execute its sovereign functions and duties henceforth can invoke
their immunity[21] however
the objective of this essential power of statehood is to provide with the right
to the states to carry out tehri functions in a flexible manner and to secure
them from being governed according to the laws of any other country. The
current case is a blunt misuse of the liberties been provided to the states and
therefore the intrusion of the security council is justified. It will be well
within the ambit and jurisdiction of the security council to oversee the
situation because as provided earlier, the council has the powers to bring in
peace and security according to the U.N. Charter. The situation is very
different from any other threat, and even if the sovereignty of the government
is compromised, the same should be meted against the interests of humanity. The
Sudanese government will not conduct the trial in its own criminal court. The
government claims to punish its former president, Ali Kushayb but there is no
evidence for the same and the government refuses to hand him over to the ICC[22].
In furtherance of it, there is no proof of the matter that the trial is indeed
happening in Sudan. Taking an account of this precedent, it is highly
improbable that Sudan will investigate the matter in its own country.
The ICC had issued a warrant against Bashir,
there is no assurance that the court will be ever be able to physically bring
him into its jurisdiction. Even if Al-Bashir travels to a different country,
the court can request the country state to extradite him however, this solution
doesn’t seem very promising especially when the country has maintained cordial
relations with Sudan. This problem provides a major challenge to the ICC’s authority,
even if the trial takes place ex-parte, there will not be any justice
served.
Rwandan Genocide-
Rwanda is a small country with having
a population of around 13 million. It has a long-standing history of
monarchical rule, which resulted in a failure because of the troubles caused by
the Hutu ethnic group in 1962. This led to create an ethnic tussle in the
nation and resulted in conflicts that came to an end in the ongoing civil war
and genocide of 1994. After analysing Rwandan history, one can arrive at a
conclusion that that the nation had a hierarchical system which was centralized
at the time, and the watertight distinction between the two social groups were
not prevalent. The colonial powers manipulated the ethnicities and this was a
major reason for the rising tension at the end of the colonial rule. This was
followed by a series of violence amongst the ethnic groups. In 1959, a
revolution led by the Hutu community compelled over 300,000 Tutsis to leave the
country. By 1961, the Hutus had forced the tutsi emperor and established a
republic. The pinnacle of the tussle between hutus and the tutsis was in the
year 1994, which ended in a bloody massacre, that lasted 100 days and killed
over 800,000 people. The official start of the genocide can be marked in a
plane that carried both Habyarimana and
Burundi’s president Ntyaryamira. The president was shot down in the airspace of
capital city of Kigali on their way to a negotiation with Tutsi rebels. The
people responsible for the incident were never known, however the hutu militia
groups started blocking the roads and setting up barricades and slaughtering
the Tutsis. The very first victim of the massacre was the Hutu prime minister,
which created a political void which was subsequently filled an extremist Hutu
leader who ensured that the mass killings were continued.[23]
The genocide lasted from 6 April 1994 to 19 July 1994, and as a result 800,000
people dies, inclusive of Rwandans, Hutus and people from Tutsi community.
In spite of the presence of ICTY, the
Rwandan genocide was carried out in an unauthorized manner and the
international instruments took a negligible action towards it. The
international criminal Tribunal for Rwanda (ICTR) was set up to look into the
matter of the Rwandan genocide and other violations committed in the
neighbouring states. The ICTR was consisting of three organs- the chambers, the
office of the prosecutor and the registry.[24]
The tribunal, aided in narrowing down the meaning of the genocidal intent,
however not very clearly, but by touching upon the component of intent in an
unprecedented manner. The tribunal also settled the principle that in cases
where a confession from the accused is not brought, his intent can be precluded
from various presumptions of fact. Although, even after progressive steps of
explaining the requirement of intent, the ICTY & ICTR have miserable failed
to ascertain the pre-requisites for the offence of genocide. Moreover, the
tribunal did not have a very long serving purpose for the Rwandans as a lot of
them wasn’t even aware that the tribunal existed. This happened because the
tribunal was located in the northern
Tanzania, which was away from the focal point of the region which needed the
help.
The shortcomings of the convention
are endless, weighted against the atrocities carried out by the Hutu extremist
leaders. The convention has failed, miserably in the two case studies which we
have analysed now, that states the inefficacy of the convention and its
enforcement. The case study which we will be discussing is of a recent context
and is currently ongoing. However, it still provides for a ray of hope in our
spirited minds that atleast the convention will stay true to its promise of “never
ever” and will be committed in providing assurance to the victims, if not
absolute justice.
Application of the Convention in
Myanmar-
Myanmar, formerly known as Burma, is
an ethnically Buddhist state. Rohingyas are a minority Muslim community and
they reside in the Rakhine province. They were discriminated on many counts and
were excluded from the citizenship rights of Myanmar. Myanmar military and
security forces in the month of October, 2016 began widespread and systemic
‘clearance operation’ against of the Rohingya groups during the course which
they committed mass murder, rape and other forms of violence, often with
inhabitants locked inside burning houses with the intention to destroy the
Rohingya as a group in whole or in part. Such acts were continued from August
2017 with the resumption of ‘clearance operation’ on a more massive and
geographical scale. Rohingyas started fleeing to the neighbouring Bangladesh
and other South Eastern states in search of shelter. The massive exodus added
new grief to their lives, such as health concerns and low standard of living.
Gambia, a majority Muslim nation with
the help of organisation of Islamic cooperation filed a suit on 11 November,
2019 in front of the international court of Justice alleging the minority
Muslims community and it has been violative of the convention on the prevention
and Punishment of Genocide of 1948. It requested to the court to adjudge and
declare that Myanmar has violated the obligations it had towards the
convention. Gambia also requested to the court to in its application for
indication of certain provisional measures to take with immediate effect to
prevent further genocide of the Rohingya groups. The court in the case, Gambia
v Myanmar [25]observed
that it cannot be ruled out that disproportionate force was used by members of
the defence services of Myanmar in disregard of the international humanitarian
law. It was observed further that there may also have been failures to prevent
civilians from destroying property. In the view of fundamental values sought to
be protected from the Genocide Convention the court considered that the other
acts threatening their existence as a group, are of such a nature that
prejudice to them is capable of causing irreversible harm.
On 23rd January 2020, the
court ordered provisional measures pending its final decision which Myanmar is
obligated to take within its powers to prevent the commission of all acts
within the scope of genocide convention. The provisional measures are
considered to be equivalent to the injunctions and are ordered when there is an
ongoing legal violation from which it or the situation continues to suffer harm
whilst the court considers underlying claims. The court added that, Myanmar
shall take care that its military and armed forces should not commit or attempt
to commit the offence of genocide. The order of ICJ are obligatory on Myanmar
and moreover these decisions are considered to be historic and unanimous by the
international community. On a brighter note, the compliance with these
provisions were observed even at the time when the world went into a pandemic
due to the outbreak of COVID-19. There
is an ardent need for the collective efforts of the international community
jointly to call for the accountability of Myanmar against the atrocities
committed by Myanmar. This ICJ case was just a step closer towards obtaining
justice but as illustrated by the analysis of the history of Myanmar and the
Gambia, prompt accountability is crucial to address the genocide being
committed by Myanmar. The case requires a great amount of global attention and
action in order to set the precedents by the international legal organizations.
CONCLUSION-
In general parlance, international
law is attributed as a weak law, with certain authoritative legislative and
executive powers. The international community therefore requitres a sincere
commitment to justice. Humans are indeed prone to flaws and pain is in human
nature but the torture does not need to be one. After tracing the evolution of
the genocide cases from the period of the World War- II, we have implored
several limitations in the genocide convention that has in a way aided the
state actors in escaping their liability and commitment towards the
convention. The convention has been
scrutinized for decades now and as it requitres a reformative effort in order
to offer justice to the victims which it intended to provide protection. It is
essential that the convention should be elevated to the status of an authority
that will be inclusive of the right of modifying its own definitions of crime,
ensure awareness about genocide, and most importantly, prosecute crimes while
the crimes are being committed. In order to ensure justice and democracy,
collective efforts of the international machinery is required and indeed it
will require effort, hard work and constant dedication towards punishing the
actors behind such a gruesome crime and the global community owes it to the
lives which have been lost to remorseful hatred.
[1] Stone L. Quantifying the
Holocaust: Hyperintense kill rates during the Nazi genocide. Sci Adv. 2019 Jan
2;5(1):eaau7292. doi: 10.1126/sciadv.aau7292. PMID: 30613773; PMCID: PMC6314819
[2] General Assembly resolution 96(1)
of December 11, 1946
[3] Article I. The Statute of the
International Criminal Court.
[4] See., The judgment of the
Nuremberg Tribunal [www.yale.edu/lawweb/ avalon/imt/proc/judcont.htm]
[5] Article VII. Statute of Nuremberg
Tribunal
[6] Art. VI of the Convention on
prevention and Punishment of the crime of Genocide states that ‘[p]ersons
charged with genocide or any of the other acts enumerated in article III shall
be tried … by such international penal tribunal as may have jurisdiction with
respect to those Contracting Parties which shall have accepted its
jurisdiction’.
[7] See Application of
Convention on Prevention and Punishment of Crime of Genocide (Croat v Serb.),
Judgement, 2015 I.C.J. Rep. 3, 129 (Feb 3)
[8] Art. II of the Convention on prevention and Punishment of the crime of Genocide.
[9] Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Serbia and Montenegro)
[10] State Responsibility for
Complicity in Genocide: The Requirement of Mens Rea, Erika Josefsson
[11] See, e.g., Rep. of the
Int’l Criminal Court, 34, U.N. Doc. A/63/323 (Aug. 22, 2008) [hereinafter ICC
Report]. The International Criminal Court (ICC) has made two indictments in the
case of Darfur, but neither individual has been surrendered to the Court, and
one still serves a political position in al-Bashir's administration. See id.; Q
& A: Crisis in Darfur, HUM. RTS. WATCH [hereinafter Crisis in Darfur],
http://www.hrw.org/ english/docs/2004/05/05/darfur8536.htm (last updated Apr.
25, 2008)
[12] The United Nations first referred
the situation in Darfur to the ICC in 2005 through UN Security Council
Resolution 1593. S.C. Res. 1593, available at U.N. Doc. S/RES/1593 (Mar. 31,
2005).
[13] Prosecutor v. Al Bashir, Case No.
ICC-02/05-01/09, Warrant of Arrest, at 8 (Mar. 4, 2009).
[14] Rome Statute of the International
Criminal Court arts. 12-13,July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome
Statute].
[15] Id. Art. 27
[16] Rome Statute, supra note 14, arts.
13, 16.
[17] See Laura Trevelyan, UN Urged to
Suspend Sudan Case, BBC NEWS (Feb. 16, 2009), http://news.bbc.co.uk/1/hi/world/africa/7892063.stm.
[18] See Zeynep Gurcanli, Sudan Seeks
Turkey's Support in UN Security Council to Save al Bashir, HORRrvET DAiLY NEWS
& ECON. REv. (Feb. 4, 2009), http://www.hurriyet.com.tr/
english/world/10927100.asp?gid=244; see also Al-Bashir Seeks Egypt's Help on
Darfur Warrant, NEWSVINE.COM (Feb. 22, 2009),
http://www.newsvine.com/-news/2009/02/22/2464187-
al-bashir-seeks-egypts-help-on-darfur-warrant.
[19] U.N. Charter arts. 36-37.
[20] U.N. Charter arts. 39-51.
[21] RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW § 206(a) (1987)
[22] See Nick Wadhams, Indicted Over
Darfur, Sudan's President Feints and Punches Back, TIME (Oct. 21, 2008),
http://www.time.com/time/world/article/0,8599,1852448,00.html.
[23] “Rwandan Genocide.” HISTORY, 2022.
[24] United Nations. “Statute of the
International Criminal Tribunal for Rwanda.” UN Audiovisual Library of
International Law. 2012.
[25] “Application of the Convention on
the Prevention and Punishment of the Crime of Genocide” p3
Article Information
EXPLORING THE CHALLENGES IN HOLDING A STATE ACCOUNTABLE UNDER GENOCIDE CONVENTION: A COMPARATIVE ANALYSIS
Authors: SUKHADA DHOTE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/19
- Issue 7
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International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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