Do the ICC and ICJ (UN) have different definitions or different standards for burden of proof on Genocide?

Question

There are two international,

• ICC: International Criminal Court
• ICJ (UN): International Court of Justice

These two courts both claim global jurisdiction over charges of genocide. Regardless of one lacking enforcement, do they both accept the same definition and require the same burden of proof for the charge of genocide?

Answer 1

These two courts both claim global jurisdiction over charges of genocide.

That's not really accurate. The ICJ hears disputes between states, not "charges." The ICC does hear actual criminal charges against individuals and not cases against states. ICJ jurisdiction in interstate cases is based on the consent of the states involved or on a treaty that consents to ICJ jurisdiction. The Genocide Convention does authorize ICJ jurisdiction, but only over states that are party to the Convention (44 states are not parties).

ICC jurisdiction is also restricted. The ICC has jurisdiction over actions that occur on the territory of a member state, actions that are done by a national of a member state, or actions that were the subject of a referral by the UN Security Council. Actions done by nonmembers in the territory of nonmembers are generally not under ICC jurisdiction.

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Regardless of one lacking enforcement, do they both accept the same definition and require the same burden of proof for the charge of genocide?

The Rome Statute and the Genocide Convention use word-for-word the same definition:

(In the present Convention/For the purposes of this Statute), genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

As a criminal court hearing charges against individuals, the ICC requires proof of individual responsibility beyond a reasonable doubt, and the prosecution has the burden of proof.

The ICJ doesn't have nearly as well-defined a notion of "burden of proof." The party asserting a fact has to establish it, but the standard can vary. In the Bosnian genocide case, the ICJ held that evidence of a grave allegation like genocide needs to be "fully conclusive" and that it needs to be "fully convinced" of the truth of the claims. For allegations that a country failed to prevent or punish genocide, the ICJ would need "proof at a high level of certainty." The Serbian government (who was accused of genocide) claimed that "[t]he proofs should be such as to leave no room for reasonable doubt," but the ICJ did not adopt that exact phrasing.

Because the ICJ doesn't hear criminal cases against individuals, they don't need to firmly establish that any specific person was personally responsible for a genocide. They can hear arguments that a state failed to prevent a genocide or adopted it as state policy.