A critical evaluation of the development of the prohibition of genocide by the International Court of Justice

Nyongesa, Cynthia Nafula

A critical evaluation of the development of the prohibition of genocide by the International Court of Justice

Thesis / Dissertation

2025

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

This research critically examines the International Court of Justice's jurisprudential development of the prohibition of genocide over the past seventy years. Through a mixed doctrinal and socio-legal methodology, the study offers a comprehensive analysis of how the Court's interpretations stemming from its seminal 1951 Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide have impacted and continue to influence key doctrinal understandings. The 1951 Opinion adopted an object and purpose-driven approach toward interpreting the 1948 Genocide Convention. It demonstrated that the heinous nature of the crime of genocide demands a flexible interpretation of applicable legal texts. An evaluation of later judgments, such as Bosnia and Herzegovina versus Serbia and Montenegro; and Croatia versus Serbia, tended toward a more restrictive reading of legal provisions and constructs. An in-depth examination of these cases reveals how shifts in jurisprudence impacted core issues like state responsibility for genocide, evidence to prove genocide had been committed, and prohibition efforts. By critically engaging with the Court's rulings and associated scholarly analyses over several decades, the study interrogates whether these doctrinal evolutions have unduly constrained the original spirit and potential of the prohibition of genocide under international law. Analysis of recent cases, namely: - South Africa versus Israel; and Gambia versus Myanmar reveals that the Court is grappling with key tests such as the plausibility of asserted rights, at preliminary stages and affirmation of any state party's capacity to institute legal proceedings under principles of jus cogens and erga omnes. This research provides novel and timely insights into assessing whether the Court's overall jurisprudence has succeeded in strengthening or weakening the prohibition of genocide in practice. It proposes recommendations for reconciling legal doctrine with the Convention's original objects and purpose of preventing and punishing the crime. The research promises significant contributions for international lawyers, scholars, judges, and policymakers engaged in genocide response and advancing the international rule of law.

Keywords

Genocide

International Court of Justice

Reference:

Collections

Masters

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