The ICJ’s Scrutiny of Third-State-Determined Evidence of Genocide: The Sudan Genocide Case in Perspective

[Quazi Omar Foysal is a Bangladeshi-qualified international lawyer, currently pursuing a PhD at La Trobe University, Australia]

While deliberating on the Provisional Measures
Order in the Sudan
Genocide case, the International Court of Justice (“ICJ” or “Court”)
devoted most of its attention to the UAE’s reservation to Article IX of the Genocide
Convention. Although the Court’s finding of a manifest lack of jurisdiction relieved it from examining Sudan’s allegations of genocide, doubts remain as to the
appropriateness of Sudan’s allegation within the framework of the Genocide
Convention. This issue resurfaces in the evidence of genocide furnished by
Sudan in its Provisional Measures
Request and during
the oral hearings.

It is worth noting that Sudan relied, among others, on the statements of
the then US Secretary of State Antony Blinken and the then US Ambassador to the
United Nations Linda Thomas-Greenfield to demonstrate the existence of genocide
in West Darfur. While the Court’s omission in examining the plausibility of the
subject-matter of this case did not lead to its scrutiny of
third-State-determined evidence, the recurrence of similar incidents in recent
times, together with the confirmation of the erga omnes
partes nature of
the Genocide Convention obligations, warrants an investigation of this issue,
taking the Sudan Genocide case as a case study.

The Third-State Determination of Genocide in International Law: From Darfur to Ukraine and Back to Darfur

The Darfur atrocities of 2003-05, though
never brought before the ICJ, remain a useful case study for understanding the appropriateness
of third-State-determined evidence of genocide. At the onset of the atrocities, the then US Secretary
of State Colin Powell
alleged that there had
been the commission of genocide in Darfur. He based his conclusion on
investigations conducted in refugee camps in Chad jointly by the US government,
the American Bar Association, and the Coalition for International Justice.
Invoking Article VIII of the Genocide Convention, Colin Powell urged the US
government to propose that the Security Council investigate violations of
humanitarian and human rights law in Darfur. However, the UNSC-established Commission of Inquiry on Darfur concluded that the
Sudanese government had not pursued a genocidal policy, even on the relatively low “reasonable
grounds to believe” standard. The report recommended that the UNSC refer the Darfur
situation to the ICC, which it did by dint of Resolution 1593 (2005).

Interestingly, the then ICC Prosecutor
Luis Moreno-Ocampo requested an arrest warrant
against President Omar Al Bashir for genocide, among other crimes. Though
the ICC Pre-Trial Chamber I declined to include a charge of
genocide in his arrest warrant for not meeting the evidentiary threshold, the
Appeals Chamber later reversed the decision, finding that the PTC I
had erroneously applied a higher evidentiary standard than that warranted for
the present purpose. Although Omar Al Bashir has yet to face trial before the
ICC, even after his deposition in 2019, it remains highly likely that the
genocide charge, particularly the dolus
specialis element, may not be supported by “beyond reasonable doubt”
standard at the trial stage, as already indicated by the Pre-Trial Chamber I.

The invocation of the term “genocide” has undergone
several twists in the Russo-Ukrainian conflict. Russian President Vladimir
Putin, in his Kremlin address of 24 February 2022, invoked the prevention of genocide
in the Donbas as a justification for his invasion. In fact, Russian officials echoed this allegation before and after
the invasion. This casus belli led Ukraine to institute proceedings
before the ICJ against Russia just two days after the said invasion. While
Ukraine obtained a provisional measures order indicating the suspension of
Russian military operations, it failed to sustain the admissibility of such a claim at the preliminary objections
stage. The Court, after the admission of Russia’s counter-claims, will address in the merits stage both
Ukraine’s claims that Ukraine did not commit genocide and Russia’s
counter-claims that Ukraine breached several Genocide Convention obligations.

On the other hand, Russia has also confronted
allegations of genocide. These originated from a speech by the then US President
Joe Biden at a local
gathering in Iowa on 12 April 2022. Several State organs and officials, including those of Ukraine subsequently
made similar allegations. However, no State spelled out the evidential basis in
support of such claims. Interestingly, the issue of third-State-determined
evidence of genocide could have arisen in this case through the Russian
counter-claims. In reality, Russia chose a different path, namely, to allege
that Ukraine committed genocide. Had Russia decided to allege that Ukraine had
falsely accused Russia of committing genocide in Ukraine, the issues of
third-State-determined evidence of genocide could have come before the ICJ’s
judicial scrutiny for the first time in the Court’s history.

Returning to Darfur, Sudan, in the context of the 2023 civil war between the Rapid Support Forces
(RSF) and Sudan, instituted proceedings against the UAE, alleging the latter’s complicity
in genocide committed by the RSF against the Masalit group. In the Application
instituting proceedings, Sudan focused principally on facts establishing complicity between the
UAE and the RSF, making virtually no effort to provide evidence for genocide.
In its Provisional Measures
Request, Sudan
supported its claim of genocide with the statements of the US officials.

At the provisional measures hearings, Sudan placed heavy reliance on the US-determined evidence of
genocide, especially from the statements of Marco Rubio, Antony Blinken, and Linda
Thomas-Greenfield. Unsurprisingly,
the UAE raised concerns about this point during its oral
deliberations. At this point, it is pertinent to note that neither Antony
Blinken nor Linda Thomas-Greenfield disclosed the methodology of such
determinations, although the latter commented that the former had made such a
determination “after careful review of the facts and a comprehensive legal
analysis.” Although the Court excused itself from evaluating Sudan’s allegation
of genocide and the determinations made by US officials, there remains the
question about the probative value of such determinations of genocide.

Third-State Determination of Genocide and Evidentiary Standards of the ICJ

The ICJ has consistently reiterated that it requires proof with a “high
degree of certainty” while dealing with “allegations of exceptional gravity”.
While the exact contours of “high degree of certainty” remain doubtful, its application in the Bosnian Genocide and Croatian
Genocide cases makes it clear that allegations of this kind must be proved
with a very high degree of evidentiary certainty. Although the ICJ used “fully
convinced” and “proof at a high level of certainty” in relation to obligations
not to commit genocide, and obligations to prevent and prosecute genocide,
respectively, without furnishing any explanation, the genocide-related cases
currently before the docket of the ICJ may resurrect these issues, especially
given the lack of court-determined evidence, unlike the earlier two cases.

In recent times, there has been significant
development regarding evidence adduced from third-party fact-finding bodies established
by international organisations. It is worth mentioning that the ICJ has responded positively (and liberally) to the finding of these
fact-finding bodies in the provisional measures stage. However, their probative
value in the merits stage of cases involving allegations of exceptional gravity
warrants further re-evaluation. For instance, in the Rohingya Genocide
case, the Court relied on the reports of the UN
Fact-Finding Mission on Myanmar to determine the existence of genocide on the
“plausible” standard. It remains to be seen how the Court will deal with such
evidence at the merits stage. Furthermore, the UN Gaza Genocide Report, though it came into being after
the Provisional Measures Orders in the Gaza Genocide case, its finding
on genocide will most likely be subject to scrutiny before the ICJ in the merits stage. Arguably, the rationale for accepting (or not
accepting) the determination of the third-party fact-finding bodies may provide
some guidelines while dealing with the determination of evidence by a third State.

Moving to the third-State determination of genocide,
the ICJ missed the opportunity to shed light on a rather increasingly common
issue in the Sudan Genocide case, namely, the frequent allegations of
genocide made by third States. If we scrutinise the US allegations of genocide
levelled in the Darfur and Ukraine contexts, the methodology was spelled out
only on the first occasion. Despite this revelation, the US determination did
not coincide with the UN Commission of Inquiry, and it may not meet the trial
stage evidentiary standard of the ICC. In the case of the recent Darfur
conflict, where US leaders did not reveal any methodological issues, the UN
Fact-Finding Mission for Sudan did not find genocide on the basis of the “reasonable grounds to believe”
standard.

In respect of assessing the probative value of third-party fact-finding reports, the ICJ in the Bosnian Genocide case identified three relevant factors: (i) the source of the evidence, (ii) the process by which it was generated, and (iii) the quality or character of the material. These criteria equally serve as useful guidelines for evaluating the probative value of third-State determinations before the Court. In the Armed Activities case, the ICJ further suggested that it:

“will treat with caution evidentiary materials specially prepared for this case and also materials emanating from a single source”.

Given that third States, unlike UN organs, cannot be regarded as “disinterested witnesses,” their determinations, which may be driven more by political considerations than by legal analysis, are likely to be approached by the Court with the highest degree of caution. Moreover, the absence of any mechanism of the ICJ for discovery of evidence from third States, unlike in domestic courts, further undermines the reliability and probative value of such materials.

In that context, given the very high evidentiary
standards required for establishing allegations of genocide, third-State
determinations of genocide without articulated methodologies, evidentiary
standards, or details of the evidence relied upon may hardly hold any ground
before ICJ proceedings. Thus, even if the ICJ decided to move to the
determination of genocide in the Sudan Genocide case, keeping the
jurisdictional question aside, there was a high probability that such a claim
would not have met the plausibility test. However, if the sole objective of
Sudan’s institution of the case before the ICJ was to attract international
attention, which is not uncommon in the history of the ICJ, that should be treated separately,
not within the legal domain.

Third-State Determination of Genocide and the Risk of ICJ Proceedings

While it is understandable for States to attempt to
determine genocide as part of their obligation erga omnes partes to prevent genocide and/or their
objectives of imposing unilateral sanctions, the omission of revealing the methodological
issues or supporting evidence may lead to the assumption of political use or divulge
a lack of legal utility before international courts and tribunals. As
illustrated by the Ukrainian Genocide Allegations case, an unsubstantiated
determination of genocide by a third State and/or its (mis)use to justify other
actions of that State may lead to proceedings before the Court. Additionally,
the practice of imposing unilateral sanctions on the basis of a third-State
determination of genocide may, as roughly exemplified by the Arrest Warrant case (which dealt with war crimes and crimes against
humanity, not genocide), expose such determinations to judicial scrutiny before
the ICJ, where both the validity of the genocide determination and the legality
of the unilateral sanctions could be disputed.

It is not uncommon in the current state of
international affairs for many States to adopt certain international lawfare
strategies aimed at naming and shaming their adversary States. In recent
years, some States have used the UN Racial Discrimination Convention as a conduit to bring apparently
defamatory proceedings before the ICJ as part of such strategies. The Genocide
Convention appears to be enlisted as another popular lawfare conduit. In that
respect, the State parties to the Genocide Convention without a reservation to
Article IX may face legal proceedings before the ICJ due to an unsubstantiated
determination of genocide. Understandably, the US, the State that determined
genocide in the three situations mentioned above, is precluded from this threat
due to its reservation to Article IX, but the same may not hold true for 136 States without such a reservation.

Concluding Remarks

The allegation of genocide is almost as grave as the
gravity of the crime itself, and so are the consequences of such
determinations. Thus, States intending to determine the commission of genocide
in a third State should follow proper methodological procedures and disclose
them appropriately. Though there is no concrete example on the treatment of
such evidence by the ICJ, the review of the third-State-determined evidence of
genocide by other investigative bodies raised legitimate concerns about their acceptability
and probative value. Similarly, the States willing to base their dispute solely
or principally on the third-State-determined evidence should be more cautious,
paying adequate attention to its probative value and methodological questions,
with a view to ensuring the judicial economy of the ICJ and avoiding any
judicial embarrassment at the international plane, as illustrated by the Sudan
Genocide case.