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Published: Fri, 02 Feb 2018
Genocide war crimes and crimes against humanity
According to dictionary genocide is a systematic and widespread extermination or attempted extermination of an entire national, racial, religious, or ethnic group.
Raphael lemkin says that the genocide should be recognized therein as a conspiracy to exterminate national, religious or racial groups. The overt acts of such a conspiracy may consist of attacks against life, liberty or property of members of such groups merely because of their affiliation with such groups. The formulation of the crime may be as follows: “Whoever, while participating in a conspiracy to destroy a national, racial or religious group, undertakes an attack against life, liberty or property of members of such groups is guilty of the crime of genocide. Or we can say that Lemkin simply defined genocide as “a composite of different acts of persecution or destruction”.
Frank Chalk And Kurt Johansson defined Genocide as a form of one-sided mass killing in which a state or other authority intends to destroy a group, as that group and membership in it are defined by the perpetrator’
Genocide recognized by UN as crime in international law in 1946. And in1948 Genocide Convention was adopted by UN. According to genocide convention 1948 genocide is an “Acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.
By ‘genocide’ we mean the destruction of an ethnic group . . . . Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.
Genocide also is a deliberate destruction of a specific group. Destruction because of their birth, their existence, their being Not because of their views, opinions or actions.
Case study : Rwanda 1992-1994
There are three Ethnic Communities Hutu, Tutsi and Twa .they were all united prior to German(1885-1916) and Belgium (1919-1962) arrival. they lived in communal harmony.
Racial discrimination policy was adopted by both the colonizers which created division among the tribal groups. Tutsis due to their light skinned were made to feel superior and with their assistance ruled the country until 1962. Tutsis had mainly been the privileged and ruling class (imposed by imperialism) while Hutus were usually the working class. In 1962 the Hutus led Guerilla resistance won independence from Belgium. The Hutus purged the Tutsis from their government and military positions. Systematically discriminated against them. Ethnic massacre occurred in 1963, 1966 and 1973.
Open Civil war began in October 1990 when the Tutsis Rwanda Patriotic Front (RPF) launched an invasion of Northern Rwanda from southern Uganda. The RPF invasion threatened the ruling Habyarimana Government. Soon the RPF was in direct confrontation with the Hutu Forces Armee Rwandaises (FAR) which was supported by the French Government.
In 1992 the Organization for African Unity (OAU) broke a ceasefire and for the time being made a settlement. On 4th August 1993 both sides signed a shaky peace agreement in Arusha (Tanzania). On 5th October 1993 the UN Security authorize a peace keeping force known as the UN Assistance Mission for Rwanda (UNAMIR). The violence broke out and the “Hutu Power” elites armed youth militias called Interahamwe (“Those Who Stand Together”) was formed.
The government and Hutu Power businessmen provided the militias with over 500,000 machetes and other arms and set up camps to train them to “protect their villages” by exterminating every Tutsi In 1994. By the first week the casualties were around 20,000. And 200,000 by the first month. By the end of ten week Genocide some 800,000 Tutsis and moderate Hutus had been slaughtered
The term “war crimes” encompass crimes such as concentration camps, ethnic cleansing, execution of prisoners, rape, and bombardment of cities. War crimes are those violations of the laws of war—or international humanitarian law (IHL)—that incur individual criminal responsibility. By World War I, States had accepted that certain violations of the laws of war—much of which had been codified in the Hague Conventions of 1899 and 1907—were crimes. The 1945 Charter of the International Military Tribunal at Nuremberg defined war crimes as “violations of the laws or customs of war,” including murder, ill-treatment, or deportation of civilians in occupied territory; murder or ill-treatment of prisoners of war; killing of hostages; plunder of public or private property; wanton destruction of municipalities; and devastation not militarily necessary.
War crimes include grave breaches of the Geneva Conventions and other serious violations of the laws and customs that can be applied in international armed conflict, and in armed conflict “not of an international character”, as listed in the Statute, when they are committed as part of a plan or policy or on a large scale
The 1949 Geneva Conventions, which codified IHL after World War II, also marked the first inclusion in a humanitarian law treaty of a set of war crimes—the grave breaches of the conventions. Each of the four Geneva Conventions (on wounded and sick on land, wounded and sick at sea, prisoners of war, and civilians) contains its own list of grave breaches. The list in its totality is: willful killing; torture or inhuman treatment (including medical experiments); willfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or civilian to serve in the forces of the hostile power; willfully depriving a prisoner of war or protected civilian of the rights of a fair and regular trial; unlawful deportation or transfer of a protected civilian; unlawful confinement of a protected civilian; and taking of hostages.
Finally, the creation of a body of law criminalizing certain violations of the laws of war does not mean that war criminals will actually be prosecuted. This remains a matter for States and, increasingly the United Nations and other international organizations. The Geneva Conventions require all parties to search for and either extradite or try all persons suspected of having committed grave breaches. And international law gives all States the legal right to prosecute war criminals under the theory of universal jurisdiction. While States have at times prosecuted war criminals (e.g., the U.S. trial of the My Lai offenders), the more pervasive pattern, despite the obligations of the Geneva Conventions, is either mere administrative punishment or impunity. The ad hoc tribunals for Yugoslavia and Rwanda have jurisdiction over both grave breaches of the Geneva Conventions and other crimes committed in these particular conflicts, and the ICC, as noted, has jurisdiction over most war crimes.
Crime Against Humanity
The term crimes against humanity has come to mean anything atrocious committed on a large scale. This is not, however, the original meaning nor the technical one. The term originated in the 1907 Hague Convention preamble, which codified the customary law of armed conflict. This codification was based on existing State practices that derived from those values and principles deemed to constitute the “laws of humanity,” as reflected throughout history in different cultures.
In the 1907 Hague Convention Preamble which codified the customary law of armed conflict
Treaty of Versailles in 1919 established a Commission to investigate war crimes that relied on the Hague Convention as the applicable Law. In 1945, the United States and its allies developed the Agreement for the for the Prosecution of the International Military Tribunal (IMT) sitting in Nuremberg contained the definition of crimes against humanity in Article 6(c): “Crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations, before or during the war; or persecutions on political, racial or religious grounds in execution of or In connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”
After World War I, the Allies, in connection with the Treaty of Versailles, established in 1919 a commission to investigate war crimes that relied on the 1907 Hague Convention as the applicable law. In addition to war crimes committed by the Germans, the commission also found that Turkish officials committed “crimes against the laws of humanity” for killing Armenian nationals and residents during the period of the war. The United States and Japan strongly opposed the criminalization of such conduct on the grounds that crimes against the laws of humanity were violations of moral and not positive law.
“Crimes against humanity: murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”
Crimes against humanity have existed in customary international law for over half a century and are also evidenced in prosecutions before some national courts. The most notable of these trials include those of Paul Touvier, Klaus Barbie, and Maurice Papon in France, and Imre Finta in Canada. But crimes against humanity are also deemed to be part of jus cogens—the highest standing in international legal norms. Thus, they constitute a non-derogable rule of international law. The implication of this standing is that they are subject to universal jurisdiction, meaning that all States can exercise their jurisdiction in prosecuting a perpetrator irrespective of where the crime was committed. It also means that all States have the duty to prosecute or extradite, that no person charged with that crime can claim the “political offense exception” to extradition, and that States have the duty to assist each other in securing evidence needed to prosecute. But of greater importance is the fact that no perpetrator can claim the “defense of obedience to superior orders” and that no statute of limitation contained in the laws of any State can apply. Lastly, no one is immune from prosecution for such crimes, even a head of State.
The international criminal court (ICC)
The International Criminal Court was established by the Rome Statute of the International Criminal Court, so called because it was adopted in Rome, Italy on 17 July 1998 by the
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court. Entered into force 1 July 2002. The Head quarter of ICC is in Hague, Netherlands. 110 states has the Membership of the ICC as of October 2009.
The International Criminal Court (French: Cour Pénale Internationale; commonly referred to as the ICC or ICCt) is a permanent independent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression (although it cannot currently exercise jurisdiction over the crime of aggression
In 1945, two monumental tribunals arose out of the ashes of World War II: The International Military Tribunals at Nuremberg, Germany and Tokyo, Japan. Both were established by the victorious nations of the war in order to provide swift justice for the victims of atrocities and punishment for the perpetrators of them.In the decades after the War, several ad hoc tribunals were established to deal with various state-sponsored crimes, including those tribunals set up in Bosnia and Rwanda in the 1990’s. An all-encompassing tool of justice, though, had yet to be organized.
The Court may exercise jurisdiction over genocide, crimes against humanity and war crimes. These crimes are defined in detail in the Rome Statute. In addition, a supplementary text of the “Elements of Crimes” provides a breakdown of the elements of each crime.
The Court has jurisdiction over individuals accused of these crimes. This includes those directly responsible for committing the crimes as well as others who may be liable for the crimes, for example by aiding, abetting or otherwise assisting in the commission of a crime.
The Court does not have universal jurisdiction. The Court may only exercise jurisdiction if:
The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court; The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or The United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime
The Court’s jurisdiction is further limited to events taking place since 1 July 2002
Additionally, if a State joins the Court after 1 July 2002, the Court only has jurisdiction after the Statute entered into force for that State. Such a State may nonetheless accept the jurisdiction of the Court for the period before the Statute’s entry into force. However, in no case can the Court exercise jurisdiction over events before 1 July 2002. The Court is an independent institution. The Court is not part of the United Nations, but it maintains a cooperative relationship with the U.N.
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