Representing Genocide: Crime, Rights and the Impact of Judicial Intervention

Abstract

As a consequence of recent decisions from the ICJ and the ICTR it is clear that genocide can be pursued through the international courts both in criminal liability and a rights responsibility legal paradigms. This paper suggests that the duality in possible judicial determinations, while being procedurally problematic, is in keeping with the human rights direction of international criminal justice. In addition, by opening the legal consideration of genocide to questions of individual liability and state-sponsored rights abuse, judges are now able to consider the more realistic complexity of genocide atrocity and thereby to address the diverse legitimate interests of victims. Particularly, by enabling juridical activation as the medium for legally enunciating the genocide convention, the determination of genocide and its consequences now has a far greater potential for certainty through the constitutional legality of the courts, the elaboration of judicial narrative and the accretion of argued and judicially deliberated jurisprudence in criminal and human rights jurisdictions.

Keywords: genocide, international court of justice, international criminal justice, judicial intervention

JEL Classification: K10, K14, K30, K33