A Rome Statute system for genocide awareness and prevention

Genocide Awareness and Prevention Month is an important time to reflect on the growth of international justice and its role in preventing genocide. Let’s take a quick look back at how the crime of genocide came to be included under the jurisdiction of the world’s first permanent International Criminal Court (ICC) to better understand how states, civil society and every member of the international community can maximize the Rome Statute as a key tool in ending genocide.

Defining genocide

It was not until after the end of World War II (WWII) that the international community became fully aware of the scope of the mass atrocities that occurred at the hands of the Nazis. At the time, the elements of these crimes, including the way in which they were committed, did not quite fit what was described by any existing definition of international crimes.  

To better describe and comprehend what was happening at the hands of the Nazis during WWII, as well as to address earlier episodes of mass killings, Polish-Jewish lawyer and activist Raphael Lemkin coined the concept of “genocide.” The concept reflected a key difference in patterns of mass killings by setting apart the intent to systematically destroy a specific national, racial or religious group.  

Lemkin’s advocacy helped jumpstart discussions that would culminate in the 1948 United Nations (UN) Genocide Convention, which created an international legal culture recognizing the commission of genocide as a crime beyond any justification. Half-a-century later, and in large part responding to the ongoing perpetration of such heinous atrocities during conflicts in Rwanda and the former Yugoslavia, the 1998 Rome Statute provided the tool that could finally make a shared international commitment against genocide possible in practice.

Genocide before the Rome Statute system

Despite the resolve of the international community in the immediate aftermath of WWII, the promise of “never again” soon dissolved with several instances of what did or could amount to genocide during the second-half of the 20th century.

Much of this can be traced to difficulties in grasping the complex nature of genocide and identifying it as it is happening. Denial by governments directly linked to widely recognized instances of genocide has similarly muddied the waters.

Beyond resistance to the definition itself, there has been a tendency to treat genocide as a politically-charged term given the Genocide Convention’s call for international action, and sometimes military intervention, in response. For years, policymakers avoided committing themselves and their militaries to prevent or intervene in situations of genocide. Situations for which temporary UN and hybrid tribunals have been given jurisdiction over genocide occurred during this period of inaction, including the Cambodian Genocide, the Rwandan Genocide and the Bosnian Genocide.

It became clear from the patterns and frequency of genocide after WWII that a different set of tools was needed by the international community for an effective, shared response that could make genocide the “never again” crime that early advocates envisioned.

Genocide in the Rome Statute system

The 1998 Rome Statute and the ICC offer a permanent framework for states to investigate and prosecute genocide committed since 2002. If incorporated in its entirety into states' national laws, the Rome Statute provides a number of tools to ensure justice and accountability for genocide do not fall through the cracks. 

As a court of last resort, the ICC gives its member states the lead in investigating and prosecuting core crimes, including genocide. Only when states are unwilling or unable to do so will the ICC actively step in. Without an enforcement arm of its own, the Court at that point relies on the Statute’s cooperation model to maintain states’ central role in responding to and preventing genocide.

The Rome Statute also provides an avenue to accountability through the UN Security Council (UNSC), but whether such an avenue is used to advance an end to impunity for genocide will depend on states’ political will. If the UNSC finds a situation in a non-ICC member state’s territory involves crimes defined in the Statute, the UNSC can give the ICC jurisdiction over the situation. It is similarly within the sphere of the UN’s work to assist with funding and cooperation in the situations it refers, but it has yet to do so.

Jurisdiction for the 2010 ICC arrest warrant against Sudan's president, Omar al-Bashir, which gave the ICC its first genocide charges, comes from UNSC Resolution 1593. The March 2005 resolution, in referring a situation in the Darfur region of non-ICC member state Sudan to the ICC for investigation, cites the role of accountability in promoting healing, reconciliation and lasting peace after the Sudanese civil war.

The three counts of genocide alleged against al-Bashir? (1) Genocide by killing. (2) Genocide by causing serious bodily or mental harm. (3) Genocide by deliberately inflicting on each target group – here the perceived pro-rebel Fur, Masalit and Zaghawa groups – conditions of life calculated to bring about the group’s physical destruction.

In 2016 the ICC Prosecutor announced a preliminary examination of a post-electoral situation in Gabon, based on a referral from the government alleging incitement to genocide. Preliminary examinations, as well as pubic statements by the Prosecutor on crimes taking place within the Rome Statute system, have emerged as powerful tools in putting states on notice that consequences will follow if such situations are not dealt with in a way that includes genuine accountability.

Fighting genocide today

Despite extraordinary progress through the Rome Statute system, much work remains to be done. Inaction by a number of ICC member states with opportunities to arrest al-Bashir in recent years ultimately highlights the ownership that the Rome Statute gives – and expects from – the entire international community, including the UNSC, in the fight against genocide.

And civil society has its own role to play making sure states succeed in this important mission for their, and ultimately all people.

Civil society groups have been important advocates for effective cooperation between the ICC, states and the UNSC to eradicate any lingering culture of impunity around genocide. Access to Sudan remains largely blocked for international actors, and political forces shield sitting heads-of-state from accountability. But whether by tracking al-Bashir's travels through states’ territories, or holding diaspora rallies in the United States capital, groups like the International Justice Project and the Darfur Women Action Group are reminding states that they must carry the mantle in delivering justice and peace to victims of atrocities in Darfur.

The atrocity that is genocide might be comprehended through the history of its definition, describing what until the end of WWII – and in the period after – many could not, or still would not, name. Or perhaps the realities of genocide can only be appreciated through the recognized ongoing experiences of the Yazidis in Iraq, or the former UN chief's open concern for South Sudan at the end of his tenure.

To make good on our shared promise that this would never happen again, we must begin holding our governments to account for inaction in the Rome Statute system, often the only hope for survivors and would-be victims of genocide in a world held back by impunity.