Genocide- The Crime of Crimes: William Schabas on the Legacy and Limits of the Genocide Convention

A Definition Frozen in Time

Adopted in 1948, the GC was the first treaty to define an international crime applicable in both war and peace. While it was groundbreaking then, its definition of genocide has barely changed throughout the years. Unlike war crimes or crimes against humanity, which saw evolution by way of case law and new treaties, genocide remains quite rigid and narrow. 

For decades, genocide was seen as a crime of the past, a crime associated with the Holocaust. While social scientists developed broader definitions, lawyers remained bound by the GC’s strict criteria. The limited case law, like Bosnia v. Yugoslavia, only reinforced this conservatism, even as mass atrocities continued.

Legal Inertia to Legal Momentum

From its adoption until the 1990s, the litigation based on the GC was rare. Even landmark cases like Bosnia v. Serbia and Croatia v. Serbia resulted in narrow rulings. In 2014, when Schabas represented Serbia, the ICJ again declined to find responsibility for genocide. It avoided evidentiary hearings and reinforced its image as a court reluctant to adjudicate such claims.

But the tide has shifted. Schabas described the current period as one of ‘dynamism’, with five cases currently pending at the ICJ. States are increasingly turning to the Convention, not always to win cases, but to frame their political narratives in legal terms.

Genocide as a Legal Strategy

In Ukraine v. Russia, Ukraine argued that Russia’s claims of genocide could not justify its invasion. Russia countered by accusing Ukraine of genocide. Neither country has accepted the general jurisdiction of the ICJ, but both are bound by Article 9 of the GC.

Similarly, in The Gambia v. Myanmar, and more recently Sudan v. UAE, applicants have framed their claims to fall within the scope of the Convention, solely to bring the case before the Court. According to Schabas, this legal strategy reflects a broader trend. Genocide is now ‘used in all directions’, both as a legal charge and a political weapon.

The Rise of Third-Party Interventions

One of the most striking developments is the growing number of state interventions. Before 2022, these were rare. Since then, over 50 interventions have been filed; 13 in support of Ukraine, and 13 more in the South Africa v. Israel case, including Palestine. In The Gambia v. Myanmar, six Western states urged the ICJ to adopt a broader view of genocide, to include forced displacement and the targeting of children.

These interventions which are technically based on ‘a legal interest’, often serve political purposes. Some states may not realise, Schabas warned, that their arguments could strengthen legal claims in other politically uncomfortable cases, such as South Africa’s case against Israel.

Prevention, Complicity, and the Burden of Proof

Schabas identified three enduring legal challenges under the GC:

1. Prevention vs Punishment:
   Although Article 1 talks about both prevention and punishment, the GC mainly addresses the latter. The ICJ’s 2007 Bosnia judgment confirmed that states have a duty to prevent genocide beyond their borders, depending on their ability to influence events. As Schabas suggested, this obligation could extend to powerful states like the U.S. in Palestine, where there’s a serious risk of genocide.
2. Complicity and Incitement:
   The GC also criminalises conspiracy, complicity, and direct, public incitement to genocide, which includes even an incomplete act. Statements by Israeli leaders threatening starvation may qualify, but proving incitement remains difficult. Similar rhetoric in other cases has not met the threshold, including in the South Africa proceedings.
3. Proving Genocide:
   Genocide requires dolus specialis, which implies the specific intent to destroy a group. In the Holocaust, intent was clear from direct evidence. Cases today, like Myanmar, rely on circumstantial evidence, which must exclude any other plausible explanation. This evidentiary burden makes convictions rare and politically controversial.

Courts as Political Arenas

Schabas emphasised that while international courts are legal institutions, they are increasingly used to perform political functions. When other international bodies like the UN Security Council are deadlocked, states turn to the ICJ to express political positions in legal terms. This isn’t always about ‘winning’, but also about advancing global narratives.

The ICJ, although not a human rights court, now handles many human rights-related cases. Many of its judges come from human rights backgrounds, and the Court is increasingly asked to respond to moral outrage as well as legal argument. Schabas suggested this evolution echoes proposals from as far back as the 1940s, when Australia called for a dedicated international human rights court.

The Role of the ICC and the Future

Schabas also discussed the relationship between the ICJ and the International Criminal Court (ICC), noting that both are handling overlapping cases on Ukraine, Gaza, and other conflicts. Although separate in function, they now operate in parallel. The ICC, unlike the ICJ, is empowered to issue arrest warrants and conduct criminal trials. However, its impact is shaped by geopolitical realities. Schabas speculated that figures like Donald Trump, if found complicit in crimes in Gaza, could theoretically face ICC prosecution.

Looking ahead, a new Crimes Against Humanity Treaty is being negotiated, but it won’t be in effect before 2030. In the meantime, the GC remains central, legally rigid, politically powerful, and symbolically potent.

As Schabas reflected, the Convention which was once dismissed as too narrow or outdated, has re-emerged as a key site of international legal contestation. Its future may remain uncertain, but for now, it is very much back in use.

Post by: Azfar Pirzada, MSc student (2024-25) at the Centre for Criminology, University of Oxford