The Punishment and Prevention of Genocide: The International Criminal Court as a Benchmark of Progress and Need

By Chung, Christine H. | Case Western Reserve Journal of International Law, Spring 2008 | Go to article overview

The Punishment and Prevention of Genocide: The International Criminal Court as a Benchmark of Progress and Need


Chung, Christine H., Case Western Reserve Journal of International Law


INTRODUCTION

Sixty years ago, the drafters of the Genocide Convention envisioned the creation of an "international judicial organ" that would be available to try individuals accused of committing genocide and other crimes under international law. (1) Article VI of the Convention itself specified the possibility that persons charged with genocide be tried by such "international penal tribunal as may have jurisdiction" by agreement of contracting States. (2) Today, following decades of a difficult "birthing" process, the permanent international criminal tribunal anticipated by the drafters of that Convention--the International Criminal Court (ICC)--has been in operation for nearly five years. (3) The ICC has issued eleven arrest warrants relating to war crimes and crimes against humanity committed during three of the gravest ongoing conflicts in the world: in the Darfur region of the Sudan, in northern Uganda, and in the Democratic Republic of Congo (DRC). Its first trial, of an alleged DRC warlord, is scheduled to begin in June 2008.

A handful of years are a slim record upon which to begin reaching any conclusions. Still, in the spirit of commemorating the negotiation and adoption of the Genocide Convention, this article offers observations on the manner in which the earliest operations of the "international judicial organ" foreseen by the Convention drafters demonstrate and underscore: (1) progress in the mission of punishing and preventing genocide and other crimes of international concern, and (2) the difficulties and next challenges in accomplishing the Genocide Convention's objectives.

PROGRESS

On the progress front, the ICC has begun fulfilling at least three core aims of the Genocide Convention drafters.

A. Strengthening of the International Rule of Law

Most fundamentally, the ICC represents and fosters international consensus supporting a rule of law that defines genocide and other mass atrocities as crimes condemned by the civilized world. The Genocide Convention expressed an agreement among States that genocide is a crime under international law and obligated ratifying States to adopt domestic legislation criminalizing genocide, as defined in the Convention. (4) Nearly fifty years after the adoption of the Convention, in signing the treaty at Rome that created the ICC, States again reached consensus that genocide is a crime, under the same definition set forth in the Convention. (5) The signatory States also placed war crimes and crimes against humanity within the ICC's jurisdiction, judging that these crimes, like genocide, were among "the most serious crimes of concern to the international community as a whole." (6) The growing number of countries that continue to ratify the Rome Statute--at latest count, 106 countries (7)--represents the continuing commitment to a rule of law that criminalizes genocide, as well as an expanded consensus that war crimes and crimes against humanity are also crimes of international concern. As with the Genocide Convention, ICC ratification serves as a catalyst for harmonizing domestic standards to an international rule of law, because States that ratify the Rome Statute often also adopt ICC definitions of crimes in their domestic legislation.

The building of the consensus expressed by the Genocide Convention grows in at least three dimensions via the ICC ratification process. First, there is the fact that through joining the ICC, additional countries have accepted the norm that genocide and other mass atrocities are indeed crimes deserving of international judgment and denunciation. Japan, which recently joined the ICC, is one of eighteen countries that never ratified the Genocide Convention, but have elected to ratify the Rome Statute. (8)

Second, through ratification of the Rome Statute, States bind themselves to enforce the international rule of law within their own borders and agree that, if they fail, the ICC may intervene. …

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