The definition of genocide outlined in a 1948 UN convention is quite vague and the crime is extremely hard to prove in the international courts.
The convention sets the bar for genocide as “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.
The statement that intending to destroy a people “in part” can qualify as genocide gives the initial impression of quite a low bar – especially as the means of destruction do not necessarily have to be slaughter in order to qualify. They can also be bodily or mental harm, the creation of unliveable conditions for a population, acts to prevent births or the transfer of children across territories.
However, the way the international courts have interpreted the convention in practice has taken the opposite track, setting the standard of proof so high when it comes to showing intent to commit genocide that some legal scholars have warned of the risk of turning the convention into a dead letter.
Only three cases have so far met the standard set by international courts for genocide: the Cambodian Khmer Rouge’s slaughter of Cham and ethnic Vietnamese people in the 1970s, the 1994 mass killing of Tutsis in Rwanda and the 1995 Srebrenica massacre of Bosnian Muslim men and boys around the town of Srebrenica.
Those findings were by ad-hoc tribunals against individuals. The permanent courts in The Hague have yet to deliver a genocide verdict at all. The international criminal court has issued an arrest warrant for genocide against Sudan’s former president Omar al-Bashir, but there has been no trial because he is not in custody, and so no genocide conviction.
The international court of justice (ICJ) has yet to rule against any country for committing genocide, and in particular caused widespread consternation by deciding that neither Croatia nor Bosnia had proved Serbia had committed genocide against them in the Balkan wars of the 1990s.
In ruling on genocide, the ICJ has demanded there has to be “fully conclusive” evidence that the state as a whole has had the “special intent” to commit genocide.
In practice, that standard has required documentary evidence setting out the genocidal intent of a government explicitly, rather than just inflammatory rhetoric. It has also required that there can be no competing motive for atrocities such as mass killing or ethnic cleansing. Such acts could well be crimes against humanity but by the ICJ’s standard they are not “fully conclusive” evidence of genocidal intent if there are other feasible motives, such as counter-insurgency or territorial acquisition.
There are pressures on the ICJ from some states for it to soften this standard by taking a holistic assessment of the underlying aims of government policies. But until such change is adopted, proving genocide remains arguably the highest legal mountain to climb in the international legal arena.
