Almost sixty years have passed since the Genocide Convention was opened for signature. Its symbolic importance and customary status are firmly established. We may think that we know what the Convention stands tot and what genocide means, but an examination of recent interpretations reveals that the law of genocide is uncertain. There are a number of unresolved questions about this so-called "crime of crimes."
In this presentation, I will look at how four international courts--the ICJ, the ad-hoc tribunals, and the ICC--have grappled with defining this crime. I will focus on the issue of genocidal intent and the nature of the protected group.
Why does this uncertainty matter? In the criminal justice context, such uncertainty violates the fundamental legal principle: no crime can be committed, and no punishment meted out, without a violation of law as it existed at the time. The criminal liability must be foreseeable and the law providing for that liability must be accessible. In the peace and security context, genocide can trigger a positive duty for states to act, including military intervention. This will be ever more difficult to achieve if states are unsure about the crime's parameters.
It also matters because judging genocide is a matter of urgent attention for international justice. It is a depressing fact that the crime of genocide is currently at the forefront of our concerns and on the dockets of our international courts.
INTERNATIONAL COURTS AND THE DEVELOPMENT OF INTERNATIONAL LAW
Two phenomena form the backdrop to this presentation. First, there has been a dramatic increase in the number of independent institutions charged with applying international law. The second phenomenon is that of international judicial lawmaking. The traditional view is that it is states, not courts, that create and develop the norms of international law. But, in practice, what international judges say is of major significance. Although only a small percentage of disputes are settled by international courts, their decisions have a powerful influence on how the world community understands international law.
GENOCIDE AND THE INTERNATIONAL COURTS
Of all the aspects of the law of genocide, the test for mens rea--"the intent to destroy in whole or in part a national, ethnical, racial or religious group, as such"--is the site of the most confusion.
First, different streams of reasoning can be identified in the judgments of the International...