THE ROLE OF INTERNATIONAL CRIMINAL COURT IN PROSECUTING

INDIVIDUALS FOR GENOCIDE

Fatima Javed

Roll No.4738

LLB Session 2019-24

College of Law, Government College University Faisalabad

Supervisor: Dr. Fozia Naseem

April 23rd, 2024

Introduction

Everyone agrees that genocide is a terrible crime and ranks high among the worst crimes ever perpetrated against humankind. In addition to

attacking humanity's collective conscience, the systematic and intentional annihilation of entire communities because of their race, religion,

nationality, or ethnicity also targets the individuals who will be most adversely impacted by the disaster. To ensure that the perpetrators of

the crime are held accountable and that the victims receive justice, numerous challenges have had to be surmounted. Things became worse

because there isn't an international criminal court. The formation of the International Criminal Court in 2002 was a watershed moment in the

annals of global justice. The emergence of a dedicated body with the authority to probe and punish atrocities like genocide, crimes against

humanity, and war crimes is a direct outcome of this occurrence. Only the International Criminal Court, as opposed to the more generalized

International Court of Justice, has the jurisdiction to investigate and prosecute persons accused of the gravest crimes perpetrated against

global communities, including genocide.

The court's formation was a direct response to the proliferation of ad hoc international courts since the 1990s. Both the former Yugoslavia

and Rwanda have tribunals set up to examine and punish individuals for atrocities committed in their countries. The court came into being

with the passage of the Rome Statute in July of 1998. The ICC officially opened for business in 2003 and began active the following year.

Since then, prosecution of cases resulting from investigations in Darfur (Sudan), Uganda, the Democratic Republic of the Congo, the Central

African Republic, and other regions has been marked by a rising public awareness of the need for accountability. This is mainly because of

the work that the ICC has been doing in these areas as part of its investigations. The current Assembly of Nations Parties, formerly known as

the Rome Statute of the International Criminal Court, has 123 member nations. A handful of cases deviate significantly from this norm. Due

in large part to the outspoken opposition from China and India, forty-one states chose not to ratify the treaty. Several countries signed the act

without having it ratified by their legislatures; they included the US, Russia, and Israel.

Cinquanti people have been publicly indicted by the International Criminal Court. Twenty are still facing legal action; five are currently on

trial, and fifteen are wanted for fugitives. Two people are currently serving their sentences, seven have completed their sentences, four have

been found not guilty, seven have had their charges dropped, four have had their charges withdrawn, and eight have died before their case

was decided out of 32 that have been settled.

The prosecution failed to present enough evidence to get convictions, leading to the court's dismal performance. Furthermore, the

International Criminal Court (ICC) has faced political and legal challenges, including a lack of support for the arrest procedure and

inadequate resources from member nations to handle the increasing number of cases. The court's mandate has grown in importance beyond

what its founders anticipated for as long as there are human rights issues connected to international crimes. It has also grown more

challenging to execute as a result of this.

Some have voiced their displeasure with the ICC because they believe it has a bias against African governments and fails to hold Western

authorities and their leaders accountable. When it comes to prosecuting some individuals, the International Criminal Court faces challenges,

especially when it comes to serving heads of state. Problems arise because of things like immunity and the offender's home country's

reluctance to cooperate.
The following are the aims of the research:

The study's overarching goal is to dissect the legal ramifications of the International Criminal Court's prosecution of persons accused of

genocide, while also investigating the practical challenges the court encounters in fulfilling its mandate. To add to the continuing

conversation about international criminal justice, this study will examine the historical context that led to the establishment of the

International Criminal Court (ICC), the legal basis for the ICC's authority to hear cases involving genocide, and the results of the ICC's

interventions.

Pursuant to its stated goal, this study will look into the legal ramifications of the International Criminal Court's prosecution of individuals

accused of genocide, as well as the practical challenges that the ICC encounters in carrying out its mandate. To add to the continuing

conversation about international criminal justice, this study will examine the historical context that led to the establishment of the

International Criminal Court (ICC), the legal basis for the ICC's authority to hear cases involving genocide, and the results of the ICC's

interventions. A thorough examination of the International Criminal Court's (ICC) structure and its performance in prosecuting war

criminals for crimes like genocide is required to reach that judgment.

Studying This Topic Thoroughly:

The International Criminal Court has set standards for international law, norms, and regimes for the last fifty years. The area of international

criminal law has also grown substantially, with the International Criminal Court (ICC) playing a pivotal role in formally establishing this

body of legislation. The findings of this study have far-reaching consequences for the area.

A Survey of the Existing Research:

If the International Criminal Court (ICC) has failed to successfully prosecute cases of genocide involving actual human beings, there are a

number of plausible justifications. Some academics argue that the International Criminal Court's (ICC) institutional framework influences its

prosecution of genocide, while others argue that the interests of powerful states and the views of nations about the ICC's legitimacy

influence its prosecution.

An examination of the shortcomings and possibilities of the International Criminal Court (ICC) to fulfill its fundamental principles is

presented by Mensa-Bonsu (2015).

There has been a lack of cooperation from governments in capturing and turning over indictees, possible bias against Africans, and delays in

getting prosecutions and verdicts, according to her, which has eroded the legitimacy of the International Criminal Court (ICC).

Both the institutional flaws and the underlying international systemic processes that gave birth to the International Criminal Court (ICC) are

major contributors to the court's track record of failure. Outside forces, including monetary politics and sovereignty issues, have cast doubt

on the ICC's credibility. Concepts of selective justice and the openly political stance of certain officials are two internal factors that have

harmed the institution's authority. The legitimacy of the institution has been further undermined by these features.

For Mensa-Bonsu (2015), the ICC has become "an instrument of the powerful for settling scores with political opponents and other

enemies." Since the ICC is based on power, states will only cooperate with it if doing so benefits the powerful. Apparently, world leaders

only cooperate with the ICC when it suits their agenda.

The capacity of the International Criminal Court (ICC) to exercise jurisdiction and bring persons to justice is impacted by the fact that it is

heavily reliant on governments, as stated by Clarke (2009). As a last resort when domestic authorities fail or refuse to take appropriate legal

action, the ICC steps in. One important factor that may explain why the International Criminal Court (ICC) can confirm charges in some

cases but not others could be its dependence on nations. Due to issues with state participation, the International Criminal Court cannot hold

hearings to confirm allegations. As one example, consider Sudan's reluctance to extradite important officials.

Jordan Paust (2010) asserts that the institution's capacity to prosecute offenders is affected by its limited jurisdiction. This confirms what

was said before. According to Paust (2010), the Prosecutor has little political clout, so it's crucial to be selective about which matters to look

into.

Some scholars contend that power dynamics and internal political concerns significantly impact the International Criminal Court's (ICC)

ability to achieve its goals. Researchers Okafor and Ngwaba looked into how Moreno Ocampo used the ICC to exert control against weaker

nations, namely Russia, China, and the US, and their 2015 publication delves into the topic.

As per Prorok (2017), when the likelihood of domestic punishment is low, the presence of the International Criminal Court (ICC) will

impact leaders' incentives to address their difficulties. The outcome will be a drastically diminished chance of the battle being resolved. At

first glance, this seems to go against every logic and reason. Conversely, authorities will pay more attention to the grave danger of domestic

punishment when it is likely to occur. As a result, they will continue to make strategic decisions unaffected by the investigations carried out

by the International Criminal Court.

Many of the "self-referrals" were actually issued by the leaders to destroy their political opponents and protect their positions of power,

according to Ssekandi and Tesfay (2017). This goes against what the International Criminal Court has said, which is that most of the cases

were brought up by the defendants themselves.

Many academics believe that the biases of specific states are to blame for the obstacles that the International Criminal Court (ICC)

encounters when trying cases. Research on the efficacy of the Supreme Court by Janine Clark (2011) found, for example, that people believe

the Court is partial and biased. She also did a more thorough analysis, during which she looked at the Court's strengths and weaknesses as a

tool for peace and justice. She went on to say that the ICC will most likely be very selective in its prosecutions due to practical

considerations including its small budget and inconsistent enforcement capabilities. Since it cannot carry out its mission without the

assistance of states, the International Criminal Court lacks the authority to request such cooperation from countries.

Fields of Study:

Although there is a wealth of useful and helpful information in the current body of literature, there are still many major questions that need

answering. For example, while there is a big body of literature discussing how well the International Criminal Court (ICC) works, a

comparison of successful and unsuccessful trials is noticeably missing. In terms of studying the specific factors that impact case outcomes,

there is a notable lack of research. The difficulties of prosecuting genocide victims may be better understood as a result of the fresh

information that this study may yield.

Few studies have examined the difficulties the International Criminal Court (ICC) faces in prosecuting cases of genocide, particularly in

regard to the difficulty of establishing genocidal intent. More investigation is needed to determine if actions show genocidal intent and if

genocide has occurred because the judicial procedures and decisions are clouded by the complexities of these legal issues.
The lack of comprehensive case studies examining particular situations where the International Criminal Court (ICC) faced difficulties in

prosecuting individuals for genocide is another important area where research is lacking. The Palestinian genocide is a prime example of an

ongoing genocide in which this is particularly true. To comprehend the complex interplay between political demands, complex legal issues,

and the overall influence on the efficacy of the court, comprehensive analyses of these instances are essential.

Research Questions That Need Answering:

1. Specifically, what are the most significant obstacles to the ICC's ability to investigate and prosecute cases of genocide?

2. How do these operational issues impact the International Criminal Court's capacity to effectively and efficiently address cases of

genocide?

methodology: This study thoroughly examines the function of the International Criminal Court (ICC) in pursuing cases of genocide through

the use of a qualitative research approach. Using this approach allows for a thorough examination of complex issues by considering all

relevant contextual factors and collecting viewpoints from all parties involved in the instances under consideration. How the investigation

was carried out, how long it lasted, and whether or not the genocide perpetrator was located are among the many factors that are considered,

as are the reasons for the involvement of the International Criminal Court in the legal systems of the participating nations. This study also

delves into the measures employed by the International Criminal Court (ICC) to penalize individuals accused of genocide. In light of the

data collected, suggestions were made to help the International Criminal Court maintain its track record of effective prosecutions.
Chapter 1

Legal Framework of the ICC

1.1. Nature and Jurisdiction of ICC:

The Rome Statute established and regulates the International Criminal Court (ICC), a permanent international body with criminal

jurisdiction over serious international crimes.

In Article 5 of the Rome Statute, the offenses that the ICC has the authority to investigate and bring to justice are detailed. State parties or

the ICC Prosecutor may refer matters to it, and it may accept them if certain conditions are satisfied. Its primary area of authority is the

prosecution of crimes referred to it by the United Nations Security Council. No one is immune from the ICC's personal jurisdiction; it does

not matter if they are a member of the military or not. Its stated goal is to serve as a "complementary" system to existing national court

systems, not a replacement for them. The limited authority of the ICC should allow the prosecutor to focus on appropriate and sufficiently

serious cases, which is a positive development.

International Criminal Tribunals for the Former Yugoslavia and the International Criminal Tribunals for Rwanda were established by the

United Nations Security Council. These tribunals have general obligations to cooperate with their respective trial chambers and to obey

specific orders from those chambers. Be careful not to confuse these statutes with the ICC Statute. So, the International Criminal Court

should not be feared for the sake of national sovereignty. Its original intent was to serve as an alternate legal system to be utilized only when

domestic prosecutions were fruitless. Its purpose is to bolster national courts rather than to supplant them. It will take jurisdiction over cases

involving the most heinous international crimes where national courts refuse or are unable to do so.

Compared to the original suggestions made by the International Law Commission, the complementarity clauses were different. Similarly,

the offenses that are within the jurisdiction of the ICC are defined somewhat more precisely in the Statute. Just listing the crimes that are

within the Court's jurisdiction was sufficient for the International Law Commission. The original proposal was revised in response to

proposals made by the Ad Hoc Committee, which was established in 1994 by the UN General Assembly to aid with the establishment of a

Court. Similar to the International Criminal Tribunals for Rwanda and the Former Yugoslavia, the International Law Commission's original

version of the Statute had proposed a court with principal jurisdiction. It is not possible for domestic courts to initiate prosecutions

independently if the prosecutor from the Court decides to proceed with a case against a person. However, the outcome that was ultimately

determined in Rome differed significantly from this.

Once ratified, the provisions of the Statute bind all citizens of that state. Problems persist, nevertheless, because the ICC cannot rule over the

residents of governments that have declined to ratify unless an offence takes place on the territory of a ratifying state. Therefore, the ICC

Statute's rules will apply to American military stationed on a State Party's soil for whatever reason, despite the United States' refusal to

ratify. The United governments has made arrangements with other governments to employ Article 98 of the International Criminal Court

Statute in response to this specific concern; this provision ensures that American service members serving on state territory will not be

handed over to the ICC. According to Article 98, the Court cannot order a state to comply with its obligations under international accords if

doing so would require it to act in a manner that is contrary to its commitments. The purpose of a State Party entering into such an

arrangement with the US is to constitute a recognized international obligation under Article 98.

When an issue is brought before the International Criminal Court (ICC), the Prosecutor is vested with particular duties and authority

pertaining to the probe. According to the Rome Statute, in order to establish criminal liability, the Prosecutor must examine all pertinent
facts and evidence. The Prosecutor may also request assistance from other jurisdictions in order to conduct thorough investigations and

prosecutions, as well as gather and evaluate evidence, interview offenders, witnesses, and victims.

Section 2 of the long and complicated ICC Statute contains the primary provisions pertaining to criminal jurisdiction. There are four

categories of international crimes that fall under the purview of the International Criminal Court: genocide, crimes against humanity, war

crimes, and the act of aggression, formerly called crimes against peace. The majority of individuals consider the first three to be the "core

crimes." The addition of the aggressiveness crime is just advisory; it will not be fully implemented until a consensus on its definition has

been reached. The Rome Conference failed miserably in its attempts to define aggression and much more miserably in its attempts to

determine the correct legal procedure for determining if an aggression crime had occurred. We should anticipate a delay in establishing a

consensus due to the polarizing nature of this issue. Despite the fact that they are not novel forms of international crime, the ICC Statute

explicitly states that they are the most grave concerns of the global community. In light of their dreadful nature, far-reaching consequences,

and danger to international stability, it is imperative that they be addressed.

If you need help understanding and implementing the ICC Statute's definitions of crimes, you might consult the "Elements of the Crimes"

document. These were formally adopted in September 2002 by the States Parties to the ICC Statute; they are changeable. The International

Criminal Court (ICC) bases its decisions on these principles, which are detailed in a fifty-page document. However, when interpreting and

applying the "Elements of the Crimes," it is imperative to adhere to the Statute. Their comprehensive rules on each offense raise the

possibility that they are an effort to restrict the Court's judicial power.

It is worth mentioning that the Statute clearly acknowledges gender-related crimes, including rape, forced prostitution, forced pregnancy,

and sexual enslavement, as crimes against humanity and war crimes perpetrated in global armed conflicts.

1.2. The International Criminal Court (ICC) is structured as follows: out of a group of eighteen current judges, three are elected to run the

ICC: a president and two vice presidents. Their terms are renewable every three years. Except for the Office of the Prosecutor (OTP), these

judges are in charge of the ICC's overall administration. A judge is appointed to a non-renewing nine-year term by the Assembly of States

Parties (ASP). The ICC Registry oversees the non-judicial operations of the Court and is thus an essential administrative entity of the Court.

Contributions assessed to the ICC's members provide funding, and the scale used is same to that used by the UN. The International Criminal

Court (ICC) may also solicit voluntary contributions from members and the United Nations to bolster its budget. The first head of the

International Criminal Court was the Canadian Philippe Kirsch.

To the exclusion of the Prosecutor's office, the responsibility for the efficient operation of the Court rests with the Presidency. Judges are

elected to the positions of President, First Vice President, and Second Vice President of the Court by an absolute majority of the eighteen

judges, as stated in the Statute. They both have three-year renewable terms. All of these judges are full-time employees.

Chapter 1.2.1: The Prosecutor's Office

According to Article 42 of the Rome Statute, the Office of the Prosecutor (OTP) is created as an independent and distinct entity inside the

International Criminal Court (ICC). Both the prosecutor and the deputy prosecutor are appointed by the ASP of the ICC to serve non-

renewable nine-year terms. The Rome Statute limits the OTP's operational independence, despite its establishment as an independent

organization. Multiple mechanisms for nations (including non-parties), the UN Security Council, and other ICC organs to challenge the
prosecutor's power are provided to achieve this goal. One area where the prosecutor's powers to strike a balance between independence and

accountability shine through is in their proprio motu investigative authority.

The prosecutor's authority to initiate an investigation is limited by the provisions of Article 15. The prosecutor must request authorization

from the Pre-Trial Chamber in order to initiate an investigation in the absence of a referral from a state party or the United Nations Security

Council. This can only be accomplished if the prosecutor can prove that the matter appears to fall within the court's authority and that there

is compelling cause to maintain the inquiry. Once an inquiry has been authorized, the prosecutor must inform all involved states as well as

any additional state that could typically have authority over the infraction. Given the existence of an ongoing federal inquiry, these states

may request that the prosecutor delay the probe based on the principle of complementarity. The prosecutor is obligated to comply with this

request unless they obtain authorization from the Pre-Trial Chamber to continue the inquiry.

In accordance with article 16 of the Rome Statute, the United Nations Security Council has the authority to direct the suspension of

investigations or prosecutions for up to one year. The ICC procedures could be indefinitely delayed if the deferral authority is extended. No

one has made advantage of the deferral power thus far.

The Office of the Prosecutor of the ICC does preliminary investigations whenever a case is referred to the International Criminal Court

(ICC) or when it receives information indicating the commission of crimes that are within the court's jurisdiction. Public updates are made

available throughout these investigations, which may continue for years.

The Pre-Trial Chamber is located in chamber 1.2.2.

The Pre-Trial Chamber is widely considered to be one of the ICC's most innovative structural developments. The three-judge panel is seen

as the guardian angel of the Supreme Court, with extensive power over all matters pertaining to trials, investigations, and the process by

which they are conducted. Approving investigations initiated by prosecutors, establishing the Court's jurisdiction, and evaluating the

prosecutor's decision to withdraw a case brought to the OTP are all responsibilities of the Pre-Trial Chamber.

After the accusations have been confirmed, cases are heard by the three-judge Trial Chamber. The Appeals Chamber follows suit. To secure

a conviction, the prosecution must convince the judges of the accused's guilt beyond a reasonable doubt. The maximum penalty for this

crime is thirty years in jail, with the possibility of a life sentence in extreme cases. As part of the punishment, the court may order the

offender to compensate the victims.

The Record:

The registrar, who is also the chief administrative officer of the court, is responsible for running the registry and making sure everything that

has nothing to do with the courts is under control. By secret ballot, the registrar is elected for a five-year term by an overwhelming majority

of the judges. The first registrar of the Court was appointed, a Frenchman named Mr. Bruno Cathala, in June 2003. Aside from the usual fare

of administrative tasks performed by international organizations, such as budgeting, translating, managing facilities, purchasing, and

staffing, he also oversees legal aid, court operations, victim and witness affairs, defense attorneys, the detention unit, and defense counsel. In

addition to receiving, obtaining, and providing information, the registrar is responsible for establishing communication channels with states

and mediating communications between the Court and states, IGs, and NGOs in compliance with the ICC's evidence and procedure rules.
Chapter 2

Definition of Genocide

2.1. The International Law of Genocide:

The International Criminal Court Statute does not establish a genuine hierarchy of crimes based on their severity. But among the crimes that

fall within the purview of the Court, genocide is now considered the gravest. The media and other commentators often use the term

"genocide," but the term has a very particular meaning under international law, and it seems that not everyone is familiar with its main

points. Genocide is the intentional and systematic culling of a people or a whole ethnic group on the basis of their ethnicity or religious

affiliation. This crime has parallel origins in international law to crimes against humanity as a result of the atrocities committed by the Axis

powers during WWII. The concept of genocide evolved from a grouping of crimes against humanity into its own distinct crime. A specific

international agreement was believed to be necessary to provide a legal definition of the crime of seeking to wipe out an entire nation or

ethnic group after World War II.

The Nuremberg Trials, which took place in post-war Germany to punish Nazi war criminals, dealt with three types of offenses: crimes

against humanity, war crimes, and crimes against peace. Out of the twenty-four Nazi commanders tried, nineteen were found guilty, and

twelve were handed the death penalty. Criticisms of the Tribunal's narrow definition of crimes against humanity and the imposition of the

death penalty sparked heated debate, with the Allies viewing the decision as prejudiced. More thorough legal frameworks are needed

because of this limited interpretation, which led to the need for a separate convention dealing with genocide. Claims of retroactive

criminality have arisen due to the fact that the charter of the International Military Tribunal was passed after the crimes had already been

committed. Nevertheless, these assertions were dismissed by the tribunal, who cited prior responsibilities under international treaties. The

tribunal chose not to indict specific war criminals after hearing testimony of similar conduct by Allied soldiers. This decision is notable. The

first session of the United Nations General Assembly began just as the International Military Tribunal at Nuremberg was drawing to a close.

The Convention for the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly on

December 9, 1948. Upon ratification by twenty states, it entered into force two years later, on January 11, 1951. As a result, genocide

became its own separate crime. Throughout the drafting process, states had strong disagreements over the character and extent of the

offense. The requirement that states prohibit and penalize such conduct in Article I was one of the convention's more controversial

provisions. The General Assembly's Sixth (Legal) Committee added this responsibility in response to suggestions from Iran and Belgium.

Unlike the convention's provisions dealing with punishment, none of the relevant disputes have addressed the scope and consequences of the

duty to avoid genocide.

December 9, 1948 was the date on which the Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the

United Nations General Assembly. After twenty countries approved it, genocide became a distinct crime on January 11, 1951. There was a

lot of back and forth about the crime's definition and scope while the states were crafting it. Particularly divisive was the first article of the
convention, which establishes a responsibility on the part of governments to both prevent and punish genocide. This requirement was

imposed during the General Assembly's Sixth (Legal) Committee, following suggestions from Iran and Belgium. In sharp contrast to the

clauses addressing punishment, however, the discussions fail to clarify the extent and consequences of the duty to avoid genocide.

Investigating genocide was a priority for the International Law Commission as it drafted norms and regulations. They considered changing

the term in 1954, but chose to keep it the same as it was already extensively used all across the world. Article 6 of the International Criminal

Court's Rome Statute, the statutes for the International Criminal Tribunals for Yugoslavia and Rwanda, and the original term provided in the

treaty all attest to the continued applicability of this concept.

Genocide is defined as the systematic and intentional destruction of a people group because of their race, religion, nationality, or ethnicity.

Article 6 of the Statute defines this term. Strong nations intentionally restricted the concept of genocide as it was being drafted, making it

impossible to prove. What makes a crime serious is the deliberate aim to wipe out an entire group; negligent or accidental acts that cause

destruction are not included. Victims are chosen exclusively based on their group membership—no other factors are considered—and one of

the established groups must be the object of the devastation.

Without clear definitions for the four protected categories, the Genocide Convention suffers from a major flaw. Examining the rulings of the

international tribunals in the cases of Rwanda and Yugoslavia is necessary for understanding the concept of a "group." The stringent criteria

of genocide under the ICC Statute and the convention may fail to account for severe cases, as the Khmer Rouge regime's targeting of a

demographic group based on their political beliefs or social status in Cambodia.

Genocide can happen when any of the listed crimes are done with the right kind of mind; it's not required that a group be totally wiped out

by the act. Genocide can be proven through statements or speeches that hint at the intention to carry it out, as was the case in Rwanda. In

such a case, the prosecution will highlight the crime's context, behavior, and wide-ranging nature to show that a certain group was

intentionally and systematically targeted out of anger. War crimes and crimes against humanity can exist in the absence of the extreme intent

necessary to be deemed genocide. Whether the case is being handled domestically or abroad, proof of the act and purpose of a crime, like

genocide, must be shown. Although it is not necessary, prosecutions often are asked to present evidence of a specific strategy or planned

policy. In addition, the killing of a specific number of people does not constitute genocide. However, as the number of casualties increases,

the likelihood of a coordinated effort to wipe out a group increases as well. The 1995 massacre of Muslim men in the Srebrenica region was

deemed genocide by the International Criminal Tribunal for the former Yugoslavia, even though women and children were allowed to

evacuate. As far as the Muslim population of Bosnia was concerned, this targeted killing of specific individuals in a small region amounted

to genocide.

The concept of genocide does not encompass cultural genocide, which includes the eradication of languages and cultures. But, an attempt to

wipe out a people can be signaled by attacks on its religious or cultural property. Genocide can be more easily shown through actions that

inflict severe suffering without actually murdering someone, or by creating an environment where a group cannot survive.

Torture, rape, sexual assault, and cruel treatment are all listed in the "Elements of the Crimes" that could constitute genocide. Genocide

includes rape, according to the Rwanda Tribunal. Although this goes against the very definition of genocide, it is perfectly acceptable if

these acts are carried out with the deliberate aim of wiping out a particular group.
Chapter 3 - Case Study

The Darfur Genocide

The situation in Darfur is among the most devastating humanitarian disasters that the world has ever seen. Hundreds of thousands of people

were murdered, raped, and forcibly relocated because members of the Sudanese government, including the present president, were complicit

in plotting this atrocity. To understand this tragedy, one must look at the conflict's political, social, and historical context.

Where it all began:

The Darfur Genocide refers to the systematic and prolonged genocide in Darfur, a region in northern Sudan, where the Sudanese

government and its militia, the Janjaweed, (meaning "Devils on Horseback" in Arabic), have murdered an estimated 200,000 Fur, Zaghawa,

and Masalit members. The year 2003 was the beginning.

An Arab dictatorship based in Khartoum governed the multiethnic nation of Sudan at the outset of the genocide. Disagreements over land

and power imbalances exacerbated the tensions in the Darfur region in the years leading up to the genocide. The government's focus on the

capital city and its environs made the Darfuri people feel ignored and marginalized.

Residents of Darfur's Fur, Zaghawa, and Masalit communities formed the Sudan Liberation Army (SLA) in 2003 and, in April of the same

year, assaulted a military airbase in a bid for greater autonomy. In due course, the Justice and Equality Movement (JEM) became an affiliate

of the SLA.

Fur, Zaghawa, and Masalit were targeted in a series of attacks by the Janjaweed, a violent semi-professional militia that the Sudanese

government armed and trained from within the local population. The deadly attacks began after the government bombarded the villages.

Their goal was to erode support for the SLA and JEM and to secure resources and territories in Fur, Zaghawa, and Masalit for the

government.

The years 2003–2005 saw the decimation of thousands of communities as well as the sexual assault, murder, and assaults on their

inhabitants. The government cut off food, water, and relief supplies after the first assaults, forcing survivors to flee to Chad or attempt to

survive in the desert. In all, almost 2.5 million people were rendered homeless, and over 200,000 lost their lives.

Since its inception in 2003 and with continued government backing, the Janjaweed's persecution of Black Africans in the Darfur region has

resulted in the displacement of around 2.7 million people. In 2010, Sudan's president Omar al-Bashir was charged with three charges of

genocide by the International Criminal Court.

In 2013, the UN estimated that 300,000 people may have been killed in the genocide. The Sudanese authorities strongly refuted this,

claiming the figure was exaggerated. According to 2015 estimates, the death toll ranged from 100,000 to 400,000.

Even in 2016, allegations surfaced that the government had used chemical weapons on the Darfuri people, and the bloodshed continued. The

conflict has a devastating effect on more than three million lives and has pushed millions to evacuate their homes.

Around the World Reaction:

In response to the unfolding catastrophe, the international community was slow to act. Foreign observers and humanitarian agencies were

first denied access as the Sudanese government played down the gravity of the crisis. The United Nations proclaimed the situation to be the

greatest humanitarian catastrophe in history as news of extensive atrocities began to circulate.

In 2004, the US government officially recognized the situation in Darfur as genocide. The categorization was based on evidence of

intentional attacks aimed at destroying specific ethnic groups. Global geopolitics and the complexities of international law prevented a swift

and strong reaction despite the United Nations and other international organizations' denunciations of the violence.

Chapter 3.2. Task Force on Darfur:

Genocide, war crimes, and crimes against humanity allegedly perpetrated in Darfur, Sudan, from July 1, 2002, forward, are the primary foci

of the ICC's investigations into the region.

After reviewing the report from the International Commission of Inquiry on human rights and international humanitarian law violations in

Darfur (S/2005/60), the United Nations Security Council decided that "the situation in Sudan continues to constitute a threat to international

peace and security" and sent the case to the International Criminal Court (ICC) in March 2005.. The Commission was created by the UN

Secretary-General "to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to

determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that

those responsible are held accountable." The Commission began with two facts: "First, according to United Nations estimates there are 1.65

million internally displaced persons in Darfur, and more than 200,000 refugees from Darfur in neighbouring Chad. Secondly, there has been

large-scale destruction of villages throughout the three States of Darfur."

The International Criminal Court (ICC) investigation began in June 2005 and has so far produced multiple cases involving charges including

the following crimes, with individuals ranging from Sudanese government officials, Militia/Janjaweed leaders, and Resistance Front leaders:

genocide: killing people, inflicting severe physical or mental pain, and intentionally subjecting each target group to living conditions meant

to cause their physical destruction;

the following are examples of war crimes: murder, assaults on civilians, property destruction, rape, pillaging, and outrage upon human

dignity; violence against life and person; maliciously targeting peacekeeping people, installations, materiel, units, or vehicles; and

murder, persecution, forceful population transfer, rape, inhumane actions, incarceration or severe deprivation of liberty, torture,

extermination, and torture are all crimes against humanity.

The International Criminal Court (ICC) continued its work to enforce justice and put an end to impunity in the face of threats. It accused

President Bashir of war crimes and crimes against humanity and issued an arrest warrant for him on March 4, 2009. The government of

Sudan responded by calling a meeting of humanitarian organizations and telling them to either leave the country or drastically scale down

their operations. He is the ambassador of Sudan to the United Nations. rejected to help with the ICC's prosecution and accused it of trying to

bring about a regime change.

U.N. officials were repeatedly pressed by the Sudanese government...... To stop any inquiry or prosecution, the Security Council might

invoke Article 16 of the Rome Treaty. For the first time ever, the Council was presented with this decision. The five permanent members of

the Council wanted to wait to see if Sudan would change its behavior before deciding to defer prosecution, so they issued the arrest warrant.

The release of the warrant, however, has sparked suspicion that the US, Britain, or France may block any attempt to delay prosecution.
An unprecedented number of firsts occurred in Darfur: the first-ever referral to the International Criminal Court (ICC) by the UN Security

Council and the first-ever investigation by the ICC into the territory of a non-State Party to the Rome Statute. Relating to charges of

genocide, it was the inaugural ICC inquiry.

In addition to becoming the first person to be charged with the crime of genocide by the ICC, former Sudanese president Omar Al Bashir is

also the first sitting president to be wanted by the court. He is not in the custody of the court and neither of the two arrest warrants against

him have been executed.

Problems that have arisen for the ICC:

Not Working Together Enough:

One major hurdle that the ICC has encountered in its pursuit of those accountable for the Darfur genocide is the non-cooperation of the

Sudanese government. Despite the UNSC referral and its legal requirements, Sudan refused to turn over President Bashir and other suspects.

Problems with logistics and politics:

The International Criminal Court has also faced substantial political and practical obstacles. Many countries, primarily in Africa, have

voiced their disapproval of the International Criminal Court (ICC) for what they see as its bias in prosecuting African leaders while ignoring

Western nations' role in international crimes. This impression has led to a lack of support and cooperation, which has hindered the Court's

efforts.

Safety Issues:

Security issues in Darfur have impeded the ICC's functioning. The continuous violence and instability in the region has made it difficult for

ICC investigators to acquire evidence and for witnesses to testify in a safe manner.

New Information:

International Criminal Court (ICC) Prosecutor Karim Khan released the findings of his office's most recent inquiry into recent attacks in

Darfur on July 13, in light of the current violence in Sudan that started on April 15, 2023. The announcement of a new investigation is a

significant step toward accountability, even though it is still in its early stages. This is especially true in light of the international

community's lacklustre reaction to the abuses that have been happening in the region since the beginning of the latest conflict.

The investigation into any person found guilty of genocide, crimes against humanity, or war crimes committed within their jurisdiction will

continue as long as the crimes are within their authority, according to Khan.

The rapid support forces (RSF) and the Sudanese Armed Forces (SAF) started fighting in Khartoum on April 15, 2023. Given the atrocities

perpetrated there twenty years ago, the focus of observers swiftly shifted to Darfur, where they feared the worst. One of the biggest ethnic

non-Arab populations in the area, the Masalit community, has been targeted by the RSF and Arab militias together with other non-Arab

communities. These heinous crimes have mostly taken place in West Darfur. Since the end of April 2023, tens of thousands of people have

supposedly perished in West Darfur. The homes of the displaced people have also been set on fire by the attackers. The United Nations

estimates that 280,000 of the approximately 2 million displaced Sudanese have gone to West Darfur, while another 150,000 have sought

refuge in Chad.
Coinciding with the recent commencement of an inquiry by the ICC, these troubling reports from West Darfur have surfaced. According to

the present UNSC referral, which limits the inquiry to events in Darfur commencing in April 2023, the jurisdiction of the ICC does not

extend to crimes committed in neighboring cities like Khartoum. For as long as the International Criminal Court has been involved in

Sudan, getting local authorities to cooperate has been a problem. For instance, Bashir vehemently rejected the ICC's authority in 2008 when

it issued arrest warrants for him and two accomplices. Indeed, according to Article 86 of the Rome Statute, state parties must cooperate with

the ICC in investigating and prosecuting crimes that fall within its jurisdiction. Domestic actors must work together, according to the UNSC

resolution that brought the Darfur issue to court.

Sudan does not ratify the Rome Statute, which formed the International Criminal Court, even though it was signed in 2000. The previous

Sudanese transitional administration, which was founded after Bashir's fall in 2019, has promised to deepen ties with The Hague. As part of

its justice framework, a Darfur peace deal from 2020 explicitly established the mechanism for cooperation with the ICC. While in Khartoum

in January 2021, ICC prosecutor Khan reached an agreement to enhance collaboration with the Sudanese government. Ratification of the

Rome Statute was announced in August 2021 by the interim administration; however, the state's agenda was altered due to the military coup

that occurred on October 25, 2021, and the ratification of the statute has not yet occurred.

According to reports, Sudan's improvement was slow and inadequate. While the ICC was still hearing cases, the previous transitional

authorities were also thinking about potential collaboration arrangements. While reiterating the significance of cooperating with the

International Criminal Court (ICC), Sudan's attorney general intimated on June 16, 2020, that proceedings may have to be held in Sudan.

The proposed solution brought to light the challenges that Sudan's national prosecutorial and judicial system presently encounters in

guaranteeing efficient proceedings or maintaining fair trials, especially in the absence of more tangible measures. One reason for this is that

Sudanese laws do not include the idea of command responsibility, which is essential in criminal law since it allows courts to hold

commanders liable for crimes, not simply the individuals directly involved who were following out their orders. There were also a number

of crucial requirements that were missing, such as those concerning witness protection. Moreover, the definitions provided under the

Criminal Act of 1991 (as amended in 2009) are inadequate, despite the fact that the phrases encompass genocide, war crimes, and crimes

against humanity. When compared to international law, the definition of genocide is more limited, and phrases like "sexual slavery,"

"inhumane treatment," "sexual violence," and "denial of a fair trial" are either omitted or inadequate.

A chance to move justice forward was lost with the military takeover in October 2021. Nearly one year following the coup, in August 2022,

Khan boarded a plane to Khartoum for a second visit. While in Darfur, he met with displaced populations and signed an MOU with coup

leaders to pave the way for more collaboration on the Kosheib trial. A pact to cooperate with the prosecution was reiterated by the coup

leaders.

Yet again, the promises given by the Sudanese government never came to fruition. In January 2023, Khan addressed the United Nations

Security Council, stating that Sudan had failed to meet even the most basic requirements for cooperation, including the denial of access to

witnesses and records and the rejection of requests for authorization and support.

Despite the fact that the new investigations are still authorized by the current UNSC referral under Chapter VII, there is little evidence to

suggest that enforcement would be any simpler this time around. The ICC's efforts will require more regional and international support,

including the provision of much-needed funding and the political will to push for improved cooperation in light of the possible conclusions

of the investigation. The International Criminal Court (ICC) will be operating in a hostile environment once again; however, unlike before,

the world will not be closely monitoring the situation in Darfur.

3.3. The Need for ICC in Darfur:

The Sudanese government has failed to hold individuals accountable for crimes committed in Darfur, making the International Criminal

Court (ICC) an essential player in this situation. According to the Rome Statute's emphasis on "complementarity," domestic prosecutions

should be handled by nations unless they expressly indicate otherwise. When domestic courts fail to resolve a case, the ICC steps in. While

the specifics of how domestic courts should be used to achieve justice in cases referred to by the United Nations Security Council remain

murky, the overarching goal is to minimize the necessity for extraterritorial prosecutions.

3.4. Concluding Remarks on the Darfur ICC Persecutions:

An important step towards holding those responsible for the Darfur genocide to account has been the involvement of the International

Criminal Court (ICC) in their prosecution. International efforts to investigate and prosecute crimes committed in war-torn countries like

Darfur have been reaffirmed by the United Nations Security Council's Resolution 1593, which referred the case to the International Criminal

Court.

The ICC's will to bring those responsible to justice is shown by the issuing of warrants for persons including Janjaweed leader Ali Kushayb

and government minister Ahmad Harun.

But it's still not easy to get the accused brought to justice and enforce these orders. It is concerning that the International Criminal Court is

not effective in cases where national governments are unwilling to collaborate, as demonstrated by Sudan's non-cooperation and even

promotion of charged persons like Ahmad Harun. This is despite the ICC's best efforts.

Chapter 4 Case Study

The Palestinian Genocide

The Palestinian Genocide originated with the Nakba, or catastrophe, which led to the violent displacement and expulsion of the Palestinian

people and the destruction of their civilization, identity, culture, politics, and national dreams. The 1948 Palestine War was the catalyst for

the coining of the word "Nakba," which describes the persistent Israeli oppression and displacement of Palestinians across all Palestinian

lands. As the Palestinian population was further pushed out, more Palestinian towns and villages were destroyed and replaced by Israeli

settlements.

At the height of the Nakba in 1948, when many killings targeted Arabs, some 400 towns and villages with an Arab majority were evacuated.

The destruction or repopulation of these cities and villages by Jewish people, who gave them new Hebrew names, occurred in several cases.

Approximately 750,000 Arabs, or over half of Palestine's inhabitants, were forcibly or otherwise expelled from their homes by Zionist

militias and subsequently the Israeli army.

Conspiracy to commit mass murder in Sabra and Shatila:

During the Lebanese Civil War in September 1982, the Sabra neighborhood and the adjacent Shatila refugee camp in Beirut were the sites of

the deaths of between 460 and 3,500 civilians, mostly Palestinians and Lebanese Shia Muslims. The Lebanese Forces, a prominent Christian

militia in Lebanon during that period, was held accountable for the murders. Between the evening of September 16 and the early hours of

September 18, the Israeli Defense Forces (IDF) had surrounded the Palestinian camp, but the killings were carried out by the Lebanese

militia. Part of a bigger Israeli operation into western Beirut, the IDF had instructed the militia to expel PLO fighters from Sabra and Shatila.

Even though it was notified about the massacre's atrocities, the IDF did nothing to stop them.
The United Nations General Assembly condemned the massacres at Sabra and Shatila on December 16, 1982, and declared them to be acts

of genocide.

Four out of six members of the independent commission headed by Seán MacBride concluded that: "The deliberate destruction of the

national and cultural rights and identity of the Palestinian people amount[ed] to genocide" in the same year that it investigated claims of

Israeli breaches of international law.

Israeli authorities, with the support of Egypt's government, erected barriers in 2005 and 2007 to prevent the free movement of people and

products into and out of the Gaza Strip, marking the beginning of the modern era. In reaction to the widespread condemnation of the

blockade by demonstrators throughout the world, Venezuelan President Hugo Chavez called a meeting of the country's ambassadors to

Israel and used the term "genocide" to describe Israel's attacks. A Jewish historian named Ilan Pappé has stated that "the only appropriate

way to describe what the Israeli army is doing in the Gaza Strip is genocide." By the way, in Ten Myths About Israel, published in 2017,

Pappé states, "Israel maintains that its actions since 2006 have been a part of a self-defence against terror." I'll even go so far as to say that

the Gazan people are being "gradually annihilated." Writing for the International Journal of Human Rights in 2023, Mohammed Nijim stated

his belief "that Israeli policies that were enacted after the introduction of the Blockade of the Gaza Strip amount[ed] to slow-motion

genocide." According to this declaration, Israel's actions toward the Palestinians constitute "slow-motion genocide."

Gaza War of 2008

During the three-week-long 2008 Gaza War, which also went by the names "Operation Cast Lead" and the "Gaza Massacre"[85], Israeli

Defense Forces and Palestinian paramilitary organizations based in the Gaza Strip exchanged gunfire. It began on December 27, 2008, and

ended with a unilateral ceasefire on January 18, 2009. As a result of the conflict, 1,166-1,417 Palestinians and thirteen Israelis were killed.

Over 100,000 people in Gaza now lack a safe place to call home after the destruction of over 46,000 homes.

Israeli aggression against Gaza during the 2008 war is considered genocide by historian Ilan Pappé and American human rights lawyer

Francis Boyle. See Pappé (2011) and Boyle (2013).

Syria-Gaza War of 2014 Operation Israeli military operations known as Protective Edge, or the 2014 Gaza War, started in the Gaza Strip on

July 8, 2014. Palestinian human rights group Al-Haq concluded in a 2014 report that Israel's assault on Gaza involved serious violations of

international law. In a joint filing with other Palestinian human rights organizations, including Addameer, the Palestinian Center for Human

Rights, and Al Mezan Center for Human Rights, the group alleged that Israel committed war crimes and crimes against humanity during its

2014 Gaza offensive. The group urged the International Criminal Court to investigate and prosecute those responsible. Genocide was

brought up by these organizations as an Israeli crime. Hundreds of Holocaust survivors' descendants and dozens of Holocaust survivors

themselves have accused Israel of "genocide" in relation to the 2014 Gaza War, which killed more than 2,000 Palestinians. In a speech he

delivered to the United Nations in September, Palestinian President Mahmoud Abbas characterized the war as a genocidal crime.

The Israel-Palestine Conflict of 2021

During the Israel-Palestine crisis of 2021, a video surfaced on social media showing Israelis celebrating at the Western Wall while a tree

near the Al-Aqsa Mosque was burned in the backdrop. March 10th, a large congregation of Israeli Jews gathered outside the mosque and

began shouting yimakh shemam, a Hebrew curse word meaning "may their names be erased." If Not Now co-founder and director of

B'Tselem USA Simone Zimmerman slammed them for showing "genocidal animosity towards Palestinians — emboldened and unfiltered."
The film was described as "unsettling" and an example of "ultranationalist frenzy" by The Intercept. In a statement, Knesset member Ayman

Odeh used the word "shocking" to characterize the footage.

Current State of Affairs in Gaza

In the sixty-six months since the 1948 Nakba, the Palestinian people have never seen such bloodshed and destruction. On either side of the

Green Line, Israeli forces persist in violating the inherent rights of the Palestinian people. Among its many atrocities, it has perpetrated

crimes against humanity, genocide, persecution, and apartheid, among other human rights violations and major international crimes.

Israeli declaration of a "complete siege on Gaza" on October 9, 2023, brought the situation in the Occupied Palestinian Territory (OPT) to

an all-time low. Palestinians in Gaza are being killed, tortured, starved, and their access to humanitarian supplies is severely limited by

Israeli occupation forces. They are also forcibly displacing large numbers of people and bombarding them with bombs. Increasing land

control and displacement are consequences of Israel's expansion of illegal settlements in the West Bank and East Jerusalem. The use of

lethal force and the murder of Palestinians by the Israeli Occupying Forces persists without repercussions. Another issue that continues is

the prevalence of violence against settler communities.

Due to food shortages in Gaza, the population is becoming more malnourished and terribly hungry, putting millions of people at urgent risk

of death. Since October 2023, more than 32,000 Palestinians have perished, and many more are still missing. Nearly every structure and

dwelling in the Gaza Strip has been leveled. Despite a legally binding resolution from the UN Security Council requiring an immediate

cessation of hostilities, Israel continued to oppose the peace discussions spearheaded by Egypt, Qatar, and the US in early April 2024. More

than half of Gaza's population has been compelled to evacuate their homes as a result of Israeli military operations, which began with

bombings in Rafah on March 26 and 27 that killed at least 31 people, including 14 children.

International Criminal Court Probes the Palestinian Predicament

As part of its mandate to investigate Israeli-Palestinian crimes, the International Criminal Court (ICC) first focused on the occupied

Palestinian territories (OPT), which comprise East Jerusalem, Gaza, and the West Bank. The goal of these checks was to find out if there

was a solid basis to continue with a comprehensive examination.

After receiving a request from the State of Palestine—which had previously consented to the ICC's jurisdiction—the International Criminal

Court (ICC) initiated its preliminary inquiry into the situation in Palestine in January 2015. Alleged war crimes and crimes against humanity

perpetrated during the 2014 Gaza battle, as well as settlement activity in the West Bank and treatment of Palestinian detainees were the

primary foci of the inquiry (ICC, 2015).

Investigative Process: On March 3, 2021, ICC Prosecutor Fatou Bensouda announced that an investigative process into the situation in

Palestine had commenced. Following a lengthy preliminary inquiry, the ICC's Pre-Trial Chamber decided to uphold the Court's territorial

jurisdiction over the OPT, including Gaza (ICC, 2021).

Genocides and Concealed Crimes

A number of critical areas of suspected crimes are investigated by the ICC:

Wars in Gaza:
Operation Protective Edge (2014) and other military operations in Gaza are under investigation by the International Criminal Court. Because

of this operation, a lot of innocent people died and a lot of stuff was destroyed. According to human rights groups, Israeli soldiers have

randomly attacked civilian infrastructure, used excessive force, and targeted civilians (Amnesty International, 2014).

Activities related to settlement:

The expansion and construction of Israeli settlements in the West Bank has been a major source of dispute. International law forbids these

measures because they involve the transfer of civilians from an occupying power into occupied territory. Human Rights Watch states that

the ICC is currently investigating whether or not these actions constitute war crimes (2020).

Concerning allegations of torture and mistreatment of Palestinian detainees by Israeli authorities, the International Criminal Court is

conducting an investigation. There have been allegations of brutal interrogation techniques, physical abuse, and lengthy detention without

charge or trial involving detainees, including kids (B'Tselem, 2018).

Obstacles and Remarks

Multiple major obstacles stand in the way of the ICC's investigations into the Palestinian genocide:

Potential Prosecutor Bias:

Prosecutor Karim Khan and the International Criminal Court (ICC) have taken a lot of heat for allegedly doing nothing to bring those

responsible for the Gaza atrocity to justice. A quick stop in Ramallah during Khan's December visit to Israel allowed him to meet with

victims of Israeli misdeeds. After that, he made a vague remark regarding looking into "allegations of crimes" that made no mention of the

growing body of evidence suggesting genocide in Gaza.

Cases Concerning Jurisdiction: Since Israel is not a signatory to the Rome Statute, it challenges the ICC's authority to hear cases involving

the OPT. Israel argues that the ICC should not have jurisdiction over Palestine because the Palestinians do not have the status of a sovereign

state. This legal and political issue is complicating the operation of the Court (ICC, 2021).

Cooperation and Access: The effectiveness of the ICC relies on the cooperation of states. Limitations on access to the OPT and the

possibility of non-cooperation from Israeli authorities make it very difficult to conduct investigations and gather evidence on the ground

(Human Rights Watch, 2021).

An important part of the international justice system's effort to punish the worst crimes has been the International Criminal Court's (ICC)

failure to confront the Palestinian genocide. Jurisdictional issues, a lack of cooperation, political pressure, and limited resources are just a

few of the obstacles that have hampered the ICC's operations. The International Criminal Court's (ICC) capacity to bring those accountable

for the purported genocide against Palestinians has been severely weakened by these hurdles. More international backing, state

collaboration, and adequate funding are necessary for the ICC to carry out its mandate and put an end to the continuing Palestinian

Genocide.

An important step toward achieving global justice is the International Criminal Court's prosecution of genocidal crimes. After more than two

decades in operation, the International Criminal Court (ICC) has become an important and divisive part of international law. Despite its

flaws, the Court has shown that a permanent international criminal justice system may be beneficial, and it has been a respectable

counterpart to previous international courts. However, there are other challenges that the ICC must overcome as it enters its third decade of

operation. The most significant of them is the fact that the heinous crimes that prompted its establishment continue to exist.