THE EVIDENTIARY ROLE OF HISTORICAL FACTS IN ESTABLISHING GENOCIDAL INTENT BY COURTS: A LEGAL ANALYSIS OF ICTR, ICTY, AND ICJ CASE-LAW

Abstract

Introduction. Based on a comprehensive analysis of the case-law of the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Court of Justice (ICJ), it has been established that the historical and socio-historical context of intergroup relations plays a significant, although subsidiary, role in proving the crime of genocide.

Summary of the main results of the study. The historical context enables the identification of the multidimensional prerequisites for the formation of genocidal ideology, which primarily includes the dehumanization of the targeted group and large-scale propaganda that manipulates and distorts historical narratives to mobilize hatred and legitimize violence. This strategy contributes to the creation of an ideological foundation upon which systemic political and social mechanisms are built, facilitating the commission of the crime of genocide. Historical examples, notably the Hutu genocide against the Tutsi in Rwanda, the ethnic war in Bosnia and Herzegovina, and the centuries-long imperial practices of the Russian Federation towards Ukraine, demonstrate that genocide is a prolonged process involving not only the physical killing of individuals but also the systematic enslavement and oppression of members of a particular group, including the destruction of culture and language. In the case of Russian-Ukrainian relations, a consistent policy aimed at the eradication of Ukrainian linguistic, cultural, and state identity has been documented, creating a compelling evidentiary basis for qualifying these actions as genocide. However, according to existing international practice and the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, the socio-historical context is not considered independent evidence but serves as a contextual factor that reinforces other evidence, particularly concerning the existence of dolus specialis to destroy the group. The research findings underscore the necessity of methodological clarity in the use of historical facts in judicial proceedings, as well as the advisability of the international community revising the contemporary definition of genocide to include aspects such as cultural genocide and linguicide, in accordance with Rafael Lemkin’s concept. In our opinion, this would contribute to more effective proof and prevention of the crime of genocide in the future.

Conclusion. The socio-historical context of intergroup relations constitutes a formative element of genocidal policy but does not constitute independent evidence of the special intent required for the crime of genocide and must be accompanied by direct evidence. For full legal recognition of cultural genocide and linguicide, there is an urgent need to expand the conventional concept of "genocide" to encompass these two categories.