Authored by Pratyush Bhattacharjee, V Year Student at the Symbiosis Law School, Noida
Introduction
In the aftermath of the Holocaust, the Convention on the Prevention and Punishment of the Crime of Genocide (1948) was adopted by the United Nations General Assembly, solidifying Genocide as a crime under customary international law. When compared to other crimes under international law, genocide is considerably more difficult to prove. This is primarily due to two reasons; First, the gravity of the crime causes it to be accompanied by a higher standard of proof compared to others which solely require the establishment of mens rea. Second, direct evidence is rarely found in such cases requiring the Court to rely on patterns of conduct and circumstantial evidence. However, numerous additional challenges also exist arising out of the various procedural and structural issues that applicant states have faced time and again during genocide proceedings before the International Court of Justice (ICJ). This blog is an attempt to highlight these issues while also discussing them in the context of the ongoing genocide case against Israel.
Ineffectiveness in enforcing the Genocide Convention
The primary legislative intent behind enacting the Convention on Genocide was to prevent history from repeating itself after the events that occurred in Nazi Germany during World War II. However, the World Court does not have a promising track record when it comes to fulfilling the primary purpose of the convention i.e. the prevention of genocide.
Bosnia v. Serbia was the first case of genocide adjudicated by the ICJ. Interestingly, the case is also marked as the Court’s greatest failure in dealing with genocide. In 1993, during the ongoing Bosnian War, Bosnia and Herzegovina filed an application before the ICJ alleging that Yugoslavia (presently Serbia and Montenegro) had violated the Genocide Convention due to the atrocities committed by the Serbian forces in many Bosnian regions. Despite the severity and urgency of the Situation in Bosnia, it took the Court twelve years to arrive at the merits of the case. However, by this time the region of Srebrenica had already witnessed the massacre of more than 8,000 Bosniak men and children. Similarly, in the subsequent case of Croatia v. Serbia, the Court required fourteen years to arrive at the merits of the case. Therefore, it is safe to assume that the present proceedings will not see any rapid developments anytime soon.
During an ongoing crisis, the slow pace of the case is perhaps the biggest impediment as the atrocities against the affected community keep rising, even when the Court has ordered provisional measures. The number of Palestinians killed in Gaza since October 7th has exceeded 44,000 and this number will be much higher by the time the case reaches its climax. The glacial pace of the ICJ makes the proceedings redundant in cases such as the present where the ultimate goal is to prevent the further loss of lives and minimize the atrocities. This in turn means that the Court’s role automatically gets limited to one of penalizing the state responsible in the aftermath of genocide, instead of being able to prevent it.
The Seemingly Unattainable Standard of Proof
An act or a series of acts would fall within the meaning of Genocide under Article II of the Genocide Convention if they were committed with the intention to completely, or substantially destroy the members of a particular community. Additionally, the ICJ in Bosnia v. Serbia explained that even if the deaths of members of the group were intentionally caused with discriminatory intent, it would still be insufficient to constitute genocide. This means that the perpetrator should not only possess the mens rea to commit the acts themselves but should possess an additional mental element known as ‘specific intent’ or ‘dolus specialis’, meaning that the acts should be committed in furtherance of a wider objective of ensuring complete or partial destruction of the group. This additional element is referred to as ‘specific intent’ or ‘dolus specialis’ and it is also the distinguishing factor between genocide and other crimes under international law such as war crimes and crimes against humanity. The specific intent is the element that sets genocide apart from crimes against humanity and war crimes.
However, ascertaining the existence of genocidal intent proves to be incredibly tricky since it usually has to be referred from the patterns reflected through the actions of the accused parties, and the chances of finding evidence that directly reveals the existence of such intent are rare. Furthermore, the Court in Bosnia pointed out that when genocidal intent is to be inferred from a pattern of conduct, it must only point to the existence of such intent and no other inference should be a possibility. This brings the standard very close to the ‘beyond any reasonable doubt standard’ in the realm of criminal law.
ICJ’s application of this standard of proof in genocide cases has been criticized for setting the threshold so high that it becomes nearly impossible to meet it, except in cases where direct and unambiguous evidence of genocide can be found, which is rare in itself. Furthermore, Judge Cançado Trindade in his dissenting opinion in the case of Croatia v. Serbia, stated that the ICJ in Bosnia had set the standard of proof at such a high point which made it inconsistent with the standard previously established by international tribunals, while also disregarding the value of circumstantial evidence in cases where direct evidence could not be obtained.
Post the October 7th attacks on Israel, it is very unlikely that the Court will consider the annihilation of Palestinians in Gaza as the only possible inference from Israel’s actions, due to the destruction of Hamas in the exercise of self-defense being another possible inference of motive.
The Court’s inability to enforce its decisions
Even if South Africa manages to obtain a favorable judgment from the Court, they would be awaited by the subsequent stage of the battle i.e. ensuring Israel’s compliance with the judgment.
On paper, the ICJ’s decisions are binding on the parties. In practice, however, they don’t amount to much due to the Court lacking an inherent enforcement mechanism. The power to enforce the Court’s decisions lies with the United Nations Security Council (UNSC) under Article 94(2) of the UN charter. However, this power is at the mercy of the politics operating within the permanent members of the Security Council. A classic instance of this was the US ignoring the ICJ’s ruling in the Nicaragua case wherein the Court held that the US had violated the principle of non-intervention by supporting the paramilitary activities in Nicaragua and was ordered by the Court to put an end to their operations. Subsequently, the US used its veto power to thwart the two UN Security Council resolutions passed against it to put an end to their operations in Nicaragua.
This becomes even more relevant when considering that the US is Israel’s strongest ally and that using its veto power against any ruling against Israel is not out of the question, especially when looking at how the US recently used its veto power to block a UNSC draft resolution demanding an immediate ceasefire between Israel and Hamas.
Furthermore, the ICJ in all of the cases pertaining to genocide brought before it, including the present case, has ordered provisional measures within a few months after the cases being instituted. However, the measures haven’t been able to create any substantial or lasting impact in improving the situation in the ongoing cases of genocide. In Gambia v. Myanmar, the Court ordered provisional measures requiring Myanmar to take all necessary measures to prevent the commission of genocidal acts against the Rohingya population. However, the order merely reiterated existing state obligations under the genocide convention and did not result in any noteworthy improvements in the situation of the Rohingyas. Similarly, despite the order of provisional measures in Russia v. Ukraine mandating Russia to immediately discontinue its military operations in Ukraine, the war continues to escalate. This pattern continues with the provisional measures ordered on the 28th Match of this year, which have not been able to bring a hiatus to the deaths of Palestinians in Gaza.
The Need of the Hour
After witnessing all of the preceding genocide cases showcasing the same flaws over and over again, it becomes clear that certain reforms have to be introduced to the mechanisms pertaining to the procedure as well as the enforcement of decisions in genocide proceedings.
The first step should ideally be to address the glaring flaws in the present system for enforcing the decisions of the Court. The ICJ does not have any power to give effect to its own decisions since the same lies with the UN Security Council under Article 94(2) of the UN Charter. The power under Article 94(2) is purely discretionary in nature and even in situations where the Council decides to act, it would still be subject to the veto power of the permanent members. Unfortunately, this has resulted in the absence of any positive initiative by the Security Council under Article 94(2) to this day. Since the Security Council is a political body instead of a judicial one, it would be reasonable to make the ICJ the body to which applications against non-compliance should be made and the role of the Security Council should be limited to giving effect to the decisions using measures available under Chapter VI of the UN Charter. Furthermore, the veto power of the permanent members should be curtailed from being used against ICJ Judgments in the face of mass atrocities. This can be achieved through a General Assembly resolution, which although non-binding, could act as a deterrent and a much needed first step.
Another reform is necessary with respect to the grant of extension of time limits which has time and again resulted in preventing the Court from arriving at a decision without undue delay. The primary cause of delay in proceedings before the ICJ has usually been the multiple extensions requested by the parties. The Northern Cameroons Case took 916 days to decide, out of which 380 days comprised of extensions. In contrast, the Corfu Channel Case, where no extensions were granted, required only 513 days in total. In cases such as Genocide where time is of the essence, a limit should be placed on the number of extensions that can be granted to each party which would greatly prevent cases from taking over a decade to arrive at a decision.
Conclusion
If South Africa succeeds in proving their allegations, it will be the first case before the ICJ wherein a State is held responsible for committing genocide, unlike the Bosnian case where Serbia was only held responsible for failing to prevent genocide in Srebrenica. However, even after meeting the challenge of satisfying the high evidentiary standard, South Africa’s victory would largely stand diluted as the case would take close to a decade to be decided, and even then, there remains every possibility of the Court’s decision not being enforced. It becomes clear that the applicant states in genocide cases have been and continue to remain at a disadvantageous position and there is an imminent need for reform in the ICJ as well as in the UN Security Council to allow the applicant states to have a fair opportunity. Furthermore, it would allow the Court to prevent further tragedies in the event that another conflict such as the present ever arises.
Picture Credit: NPR