Prosecuting genocide

The idea of genocide only came about after the Second World War when, after a long campaign by the Polish-Jewish jurist Raphael Lemkin, a treaty to prevent and punish genocide was agreed: the 1948 Genocide Convention.  The treaty contains a definition of genocide, and permits disputes about its application or interpretation to be decided by the UN’s main judicial body: the International Court of Justice (ICJ). 

To be classed as genocide, the targeted group must be defined by nationality, ethnicity, race or religion. This excludes, for example, cultural groups or political groups.  The Convention also requires thata genocidal act must be shown to have been committed with the “intent to destroy, in whole or in part”, a protected group. This is known as “special” or “specific” intent.

It is not enough to show that a particular alleged genocidal killing was carried out intentionally. For it to be genocide, the intentional killing of someone has to be because the victim belongs to a protected group that the perpetrator intends to destroy, in whole or in part. The Nazis kept meticulous records. The defendants at the Nuremberg trials did not deny their participation in the “final solution”. It was quite clear that the Nazis had intended, not just to kill each victim that entered the gas chambers, but to wipe out the European Jews (and others). This explains why special intent became a crucial part of the genocide definition adopted in 1948. But it has become one of the biggest barriers both to holding individuals and states responsible for genocide.

The International Criminal Court (ICC) is independent of both the UN and the ICJ and is the only court with jurisdiction to prosecute international war crimes including genocide.

In 1992 half-a-million men, women and children were butchered in genocidal slaughter by rival tribes in Rwanda. In 1994, the UN Security Council created the ad hoc tribunal to bring responsible leaders to trial; the International Criminal Tribunal for Rwanda (ICTR).

Bosnia-Herzegovina and Croatia both brought cases against Serbia, alleging genocide by the Bosnian Serbs in the breakup of the former Yugoslavia during the Balkan War in the early 1990s. The ICJ ruled that in the absence of written proof or clear testimony, the special intent of the Bosnian Serb leadership would have to be the “only reasonable inference” to be drawn from the known facts.  Applying this very strict standard, it found that, for the vast majority of the atrocities carried out by the Bosnian Serb forces, the intent could have been to forcibly displace targeted communities rather than to “destroy” them. Genocide was only established in relation to the 1995 events in the town of Srebrenica, where 8,000 Bosnian Muslim men and boys were killed over a few days. The ICJ also failed to hold Serbia itself responsible for the Bosnian Serb forces. In a very contentious ruling the ICJ held that Serbia, instead, had not put enough political pressure on the Bosnian Serbs to hold back from genocide.

The International Criminal Court (ICC) has issued arrest warrants for Israeli prime minister Benjamin Netanyahu and former defence minister Yoav Gallant for alleged war crimes and crimes against humanity during the war between Israel and Hamas (started in 2023). It has also issued a similar warrant for Hamas leader, Mohammed Deif.