THE PENAL RESPONSIBILITY AND SANCTIONS FOR VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW
CHAPTER TWO
CRIMES/BREACHES UNDER INTERNATIONAL HUMANITARIANS
LAW
2.0 INTRODUCTION
A historical excursion into the origins or the law of warfare1, will reveal that one of the fundamental questions which agitated the minds of the early lawmakers in this field of study was: “why, in fact, should there be legal limitations to belligerent actions aimed at destroying a foreign foe?” 2 Primarily, one might be tempted to question the rationale of constraints, as it appears to defeat the very purpose of warfare and therefore devoid of any value to the combatants who are to resist an armed attack or who wish to wage war against a foe.
There are mutual benefits to be derived by both parties from observing the rules of constraints in the art of warfare. These rules seek to limit the suffering and damage inflicted not only upon the victims of the other party but also on one’s own soldiers, civilians, environment and properties of historical and cultural value. Thus this hitherto classic question no longer agitate the minds of political and military leaders to whom the body of international humanitarian law has become a widely accepted, though not always respected framework for the conduct of hostilities.
The question, now, is not whether or not there should be legal restraints to warfare, but rather how effectively can these restrictions be enforced and applied against the perpetrators.
It is against this background that the defining crime under international law, war crimes and the prosecution of war criminals has become so important or vital. It therefore becomes pertinent that the general scheme of repression codified in the four Geneva conventions of August 12, 1949, and in Additional protocol 1, of 1977, which are generally the same, (their point of departure being only in the nature of breaches to be punished) be examined. The text made a distinction between grave breaches and other” breaches” the only provision in the international regulations concerning the enforcement of other breaches” is that states should take measures necessary for their prevention and repression3.
An examination of the classification of crimes and breaches under international humanitarian law contained in the Statute of International Criminal Tribunal for former Yugoslavia 4, and the International Criminal Tribunal for Rwanda 5. And the definition of crimes such as genocide, crimes against humanity, war crimes with a view to determining the parameter of the constituents of the offence is countenanced, and finally the landmark development in international criminal justice and administration which the adoption of the Rome statute of the International Criminal Court (ICC) has occasioned. The statute was adopted in Rome on July, 17 1998. A revolutionary institution which has punctured the myth of state sovereignty and subjects state nationals to an international criminal jurisdiction. The Rome Status came into force on 1st July 2002 with sixty states ratification amidst mixed feelings especially by the United state6. The substantive features of the Rome statute includes a definition of crimes falling within its jurisdiction which is more specific than existing international law.
2.1 THE CONCEPT OF CRIME UNDER INTERNATIONAL LAW
If “a crime is a human conduct which the state decides to prevent by threat of punishment liability of which is determined by a legal proceedings of a special kind”7 then a crime under international law or rather international crime is a human conduct, which the community of nations decides to prevent by threat of penal responsibility and sanctions for its breaches; which is determined by special legal proceedings.
The Osborn’s concise law Dictionary defines a crime as an act, default or conduct prejudicial to the community, the commission of which by law renders the person responsible liable to punishment by fine or imprisonment in special proceedings . . . “8 The philosophy of the law of Geneva being the protection of individuals, ensures that those who have been placed hors de combat or who do not take part in hostilities are treated humanely, while the law of Hague restricts the freedom of belligerents to choose weapons and methods of warfare by proscribing method of warfare that causes superfluous damage to man and his environment. These laws prescribes punishment for individuals violates them.
Bringing those individuals who contravene the norms of international law to justice, has a long, albeit inconsistent history. The fact that individuals were not responsible under international law compounded issues. But development in this field ensured that individuals are now answerable under international law and can be prosecuted for war crimes.
Arguably the first international war crimes trial was the prosecution of Peter Von Hagenbach in 1474 for the atrocities committed during an attempt to compel Breisach to submit to Burgandian rule by a tribunal comprising judges drawn from different states and principalities9. Article 227 of the 1919 Treaty of Versailles provided that German Emperor William II should be tried by an international court to answer charges for “flagrant offence against international morality and the sacred authority of treaties”. But since the Netherlands refused to give up the accused, the trial never took place, and Wilhelm II died in exile in Holland in 1941. Articles 228 and 229 of the Treaty providing for the prosecution of the war criminals were applied in a disappointing way in the Leipzig trail. The Nuremberg and Tokyo trial after the second world war undeniably represented progress towards the creation of a body with truly international criminal jurisdiction but they were greatly influenced by their origins and in effect applied the law and justice of the victor rather than those of universal community of states.10 The International Military Tribunal in Nuremberg11 and the International Military Tribunal for the far East in Tokyo12, were set up in 1945 to persecute and punish major Axis war criminals in Europe and Japan. The Military Tribunal at Nuremberg asserted that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced 13” Thus by recognizing individual responsibility under international law, it is an important milestone in the development of international criminal justice.
Today the rules governing the prosecution of offenders are principally to be found in the 1949 Geneva conventions, which oblige states to try to extradite individuals responsible for committing or having committed “grave breaches” of the conventions14, and in Article 85 of Additional protocol I.
It should be emphasized that international humanitarian law cannot impose criminal sanctions in the case of an internal armed conflict as “grave breaches” defined in the Geneva conventions and protocol 1 can only occur in international armed conflict.
Developments in international humanitarian law in recent years have radically changed the situation. Atrocities committed in internal armed conflicts are today punishable as a result of a new approach taken to such acts and the broader definition given to international crimes15.
The Statute of the International Criminal Tribunal for the former Yugoslavia16, and the International Criminal Tribunal for Rwanda17. The statute of International Criminal Tribunal for the former Yugoslavia expressly gives the tribunal jurisdiction over crimes against humanity “when committed in armed conflict, whether international or internal in character, and directed against any civilian population18. Thus the Appeal chamber of the Tribunal in the case of Prosecutor V: Tadic: observed that “it is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed . . . customary international law may not require a connection between crimes against humanity and any conflict at all“19. Thus the appeal chamber held on the basis of state practice, that the provision on the statute of the Tribunal dealing with the violations of the laws and customs of war applied to both internal and international armed conflict. 20
Under International Law after the Nuremberg trials, by creating two criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), the Security Council took a leap and established beyond any doubt that individuals may now, in respect of international humanitarian law, appear as subject bound by certain legal obligation directly under international law. They can be held individually responsible before an international forum for the violations of these obligations. This is a remarkable development in international law with far reaching implications for inter alia, the concept of state sovereignty.
Subsequently, the International Law Commissions 1996 Draft code of crimes against the peace and security of mankind accepts that certain acts committed in the violation of the laws and customs of war, acts prohibited under common Article 3 of the four Geneva conventions and Protocol II; and severe damage to the natural environment unjustified by military necessity constitute war crimes when committed in internal armed conflict.
The above development has dispensed with the distinction between international and internal armed conflicts for the purpose of what constitutes war crimes and the punishment of offenders. The statute of the permanent International Criminal Court, provisions in Article 8, may be considered retrogressive in the light of the existing law as it make a clear distinction between international and internal armed conflicts.
Nevertheless, the adoption of the Statutes for an International Criminal Court has been widely welcomed as an important milestone in entrenching international accountability. Now that the statute has received the necessary 60 states ratification and has entered into force,21 it is the first time the world has a permanent mechanism for prosecuting genocide, crimes against humanity and war crimes
The preamble to the Statutes of International Criminal Court eloquently captures what may be referred to as the concept of international crime in these words.
“The state parties to this statute, conscious that all people are united by common bonds, their cultures pierced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time and mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity; recognizing that such grave crimes threaten the area, security and well being of the world, affirming that the most serious crimes of concern to the international community as a whole must not go unpunished, and that their effective prosecution must be ensured by taking measure at the national level and by enhancing international cooperation, determined to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes, recalling that it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes, re-affirming the purposes and principles of the charter of the United Nations, and in particular that all states shall refrain from the threat of use of force against the territorial integrity of political independence of any state, or in any other manner inconsistent with the purpose of the United Nations, emphasizing in this connection that nothing in the statutes shall be taken as authorizing any state party to intervene in an armed conflict or in the internal affairs of any state, Determined to these ends and for the sake of present and future generations, to establish an independent permanent international criminal court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole .
. . . “22
Article 5, of the statute limits the jurisdiction of the court to the most serious crimes of concern to the international community as a whole. Which are the crimes of genocide, crimes against humanity, war crimes and the crime of aggression when the exact parameter has been agreed upon in accordance with the provision of Articles 121 and 123 of the statute.
2.2.1 INTERNATIONAL CRIMES
Considering that jurisdiction of the International Criminal Tribunal for former Yugoslavia23 (ICTY) and the International Criminal
Tribunal for Rwanda (ICTR) 24 were established on 11 February 1993 and 8 November 1994 respectively by the Security Council to prosecute persons responsible for flagrant violations of international humanitarian law, the aim of the Security Council is to put an end to such violations and to contribute to the restoration and maintenance of peace and the establishment of ad hoc tribunals as a signal to the perpetrators and to the victims that such conduct will not be tolerated.
The conferment of jurisdiction on ICTY over the following crimes: (a) grave breaches of the Geneva conventions of 1949; (b) violations of the laws or customs of war; (c) genocide, and (d) crimes against humanity. While the ICTR has jurisdiction over: (a) genocide (b) crimes against humanity; and (c) violations of Article 3 common to the 1949 Geneva conventions and of Additional protocols 1. Coupled with the fact that the Rome Statute of the International Criminal Court (ICC) 25 with jurisdiction over all serious violations of the law of war, in civil conflicts and international engagement as well as crimes of genocide.26 even when they occur outside a state of war. In essence, the ICC will be a permanent institution, with automatic jurisdiction over the crimes of genocide, crimes against humanity, war crimes and aggression (once it is defined)27
It is proposed to attempt a definition of the crimes against humanity, war crimes, the exact parameter of the crime of genocide and the crime of aggression.
2.2.2 CRIMES AGAINST HUMANITY
When establishing the Yugoslavia Tribunal, one view expressed by the secretary General was that ‘the application of the principles nullem Crimen Sine lege required that the international tribunal apply rules of international humanitarian law which are beyond any doubt part of customary law”. 29 Therefore, although the ICTY has jurisdiction to prosecute crimes against humanity, which are generally recognized as being covered by customary international law, the question is whether the definition adopted in the statute of ICTY and in that of the Rwanda Tribunal (ICTR) reflects customary international law.
Unlike grave breaches of the 1949 Geneva conventions on genocide, crimes against humanity have not been defined in a treaty, and throughout the relatively short history of the use of the term “crimes against humanity” the definition has developed inconsistently. It is therefore difficult to substantiate any claim that the definition reflects customary international law. This will be illustrated by looking at the development of the concept with particular emphasis on the Nuremberg Trials, Control Council law No. 10 (CCL), the International Law Commission’s attempt at codification, national decisions and the statute of the ICTR and ICTY.
Concept of crimes against humanity before world war 11
The term “crimes against humanity” and cognate expression received little attention prior to World War II. The 1868 St. Peters burg Declaration limited the use in times of war, certain explosives or incendiary projectiles, since they were declared to be contrary to the laws of humanity. In 1907, the well known martens clause, provided as follows: Until a more complete code of the laws of war has been issued,…the inhabitant and the belligerents remain under the protection and the rule of the principles of the law of nations as they result from usage among civilized peoples, from the laws of humanity and the dictates of public conscience.30
The expression “ crimes against humanity” was used in the 1915 Declaration by the governments of France, Great Britain and Russia denouncing the massacre of Armenians taking place in Turkey.
“ Crime against humanity and civilization for which the members of the Turkish Government will be held responsible together with the agents implicated in the massacres”. 31 But in the 1919 report of the Commission on the Responsibilities of the Authors of war and on Enforcement of penalties for violations of laws and customs of war.32 The majority of the members concluded that the German empire and its allies carried out the war “by barbarous or illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity” and “all persons belonging to enemy countries… who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable for criminal prosecution”.33
Concept of Crimes against Humanity Following World War II
The most important developments regarding the concept of crimes against humanity have taken place since World War II. A number of declarations were made during the war, by several allied governments expressing the desire to investigate, try and punish not only war criminals in the narrow sense, i.e.
perpetrators of the violations of the laws and customs of war on allied territory or against allied citizens, but also those responsible for the atrocities committed on Axis territory against nationals of non-allied countries.34
On 8 August 1945, the four allied powers (France, Great Britain, the USSR and the United States) concluded the London Agreement. Annexed to it was the Charter of the International Military Tribunal for the prosecution and punishment of the major criminals of the European Axis, article 6 of which provides that the tribunal had the power
“… to try and punish who, acting in the interest of the European Axis Countries, whether as individuals or as members of organisation, committed any of the following crimes:
b. War crimes: namely, violations of the laws and customs of war. Such violations shall include, but not be limited to, murder, illtreatment or deportation or slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or of persons of the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
c. Crimes against humanity; namely murder, extermination, enslavement, deportation or other inhuman acts committed against any civilian population 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”.
As a result, the Nuremberg Tribunal on charges of crimes against humanity pronounced convictions. Nonetheless the concept of crimes against humanity remained vague, often overlapping with that of war crimes. The former was used as an accessory crime and almost exclusively to protect inhabitants of a foreign country from the authorities of the occupying power. The tribunal interpreted article 6(c) in such a way that these crimes fall under the definition of crimes against humanity only when they are committed in execution of, or in connection, with a crime against peace or a war crime. 35 This does not mean that any crime committed before 1939 could not come under the category of crimes against humanity but rather that link (casual nexus) had to be found between one of the acts enumerated in article 6(c) and the war. Thus, the tribunal considered not only the nationality of the victims and the country where the crimes were perpetrated, but also the connection with crimes against peace or traditional war crimes, to be essential element.
Control Council Law No. 10
Control Council Law No. 10 (CCL) was enacted on 10 December 1945 by the acting legislative body for all Germany (the Allied Control Council for Germany) consisting of the commanders of the four zones.36 The law was created for the punishment of persons guilty of war crimes, crimes against humanity, crimes against peace. Each zone commander was responsible for its
implementation. Although the London charter was made an integral part of the CCL, the definition of crimes against humanity are defined in the following terms:
“Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial or religious groups, whether or not in violation of the domestic laws of the country were perpetrated”.
The differences from article 6(c) of the London charter are noticeable:
1. The expression “atrocities and offences, including but not limited to”, under the CCL the list of atrocities and offences is inclusive rather than exclusive as it was under article 6(c);
2. The addition to the list of offences and atrocities of “imprisonment”, “torture” and “rape”;37 the removal of the necessary connection
between the specific crimes listed in Article II (c) and crimes against peace and war crimes; and (3) the CCL does not include the words “before or during the war”.
Accordingly, in interpreting the CCL, the tribunal were nor restricted to the narrow interpretation which evolved from he jurisprudence of the Nuremberg proceedings. For example, in the Einsatzgruppen case the tribunal specifically declared that it was no longer limited by the nexus requirement with, or link between, crimes against peace and war crimes, neither was it restricted by the nationality of the victim or of the accused, nor for the location where the crimes were committed. 38
In the British zone of control in Germany, the German regular courts were given jurisdiction over crimes against humanity committed by persons of German nationality against persons of German nationality or stateless persons. In the French zone of control, crimes against humanity were defined as “Crimes committed against any civilian population of whatever nationality, including persecutions on political, racial or religious grounds”.
More comprehensive than article 6, the CCL is of a different character than the charter. The CCL is primarily a national instrument, with an internal scope. Thus, the binding nature of the definition and interpretation of crimes against humanity of the CCL is more limited.39 Nevertheless, it certainly contributed to the subsequent expansion of the concept of crimes against humanity.
Important National Decisions
a. Eichmann Case.40 This case was the first attempt by a non-World War II belligerent state to exercise its universal jurisdiction to punish perpetrators of war crimes and crimes against humanity. Eichmann was charged under Israel’s 1951 Nazi and Nazi collaborators for the following offences:
i. Crimes against the Jewish people; ii. Crimes against humanity; iii. War crimes and iv. Membership of a hostile organisation.
Crimes against humanity were punishable if “done during the period of the Nazi regime, in an enemy territory” and were defined as “any of the following acts: murder, ill-treatment, or the deportation to forced labour or for any other purpose, of civilian population of or in the occupied territory, murder, or ill-treatment of prisoners of war, of persons on the seas; killing of hostages; plunder of public or private property; wanton destruction of property, cities, towns or villages; and devastation not justified by military necessity”.
Thus, the definition under Israeli law was also different from that of the Nuremberg charter: no nexus was required between the commission of crime against humanity and any of the other crimes (war crimes or crimes against peace). The definition only required the former to have been committed during the NAZI regime.
b. French trial of Claus Barbie
In the case of Claus Barbie, the German head of the Gestapo in Lyon, the French Court of Cassation ruled that crimes against humanity were imprescriptible and could be prosecuted in France “whatever the date and place of their commission”.
Whereas what constitute crimes imprescriptible against humanity, within the sense of Article 6(c) of the charter of the International
Military Tribunal of Nuremberg annexed to the London Agreement Accord of August 8, 1945, even though they could also be characterized as war crimes according to Article 6(b) of the same text, are the inhumane acts and persecutions which, in the name of a state practicing a hegemonic political ideology, have been committed in a systematic fashion, not only against persons because they belong to a racial or religious group, but also against the adversaries of this (state) policy, whatever the form of their opposition”. 41
The Court of Cassation adds here a new requirement for crimes against humanity, the perpetrator must carry out his crime on behalf of the “state practicing a hegemonic political ideology” and “in execution of a common plan”. Any group or state not practicing this hegemonic policy would therefore not be included in the definition.
c. Demjanjuk Vs. Petrovski
The case of Demjanjuk Vs Petrovski42 is interesting not so much for its contribution to the definition of crimes against humanity43, but rather for the recognition that crimes against humanity are offences for which there is universal jurisdiction. The US Circuit Court of Appeal ruled that, based on the right to exercise universal jurisdiction over offences against the law of nations and against humanity, the United States could extradite an alleged Nazi concentration camp guard to Israel or any other nation. The court recognized that acts committed by Nazis and Nazi collaborators are “crimes universally recognized and Condemned by the Community of Nations” and that these “crimes are offences against the law of nations and against humanity the prosecuting nations is acting for all nations”. The court thereby recognized the principle of universality for crimes against humanity.
The work of the International Law Commission.
In 1947, the International Law Commission (ILC) was given two tasks by the United nations General Assembly:
a. To formulate the principles of international law recognised by the charter of the Nuremberg Tribunal and Judgement of the Tribunal; and
b. To prepare a code of offences against peace and security of mankind. The ILC worked on the draft code up to 1986, although it had to suspend its work for many years owing to the problem of defining aggression. Accordingly, at its forty-eight season (1996) it adopted the text of and commentaries to, draft articles 1 to 20. As stated in its report, the draft code was adopted with a view to reaching a consensus. Thus the commission has considerably reduced the scope of the last version of the draft code, in an effort to obtain the support of states. The definition here is noticeably different from the above definitions. Crimes against humanity are defined in the following
terms”
“A crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organisation or group:
Murder;
Extermination;
Torture;
Institutionalised discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedom and resulting in seriously disadvantaging a part of the population;
Persecutions on political, racial, religious or ethnic grounds;
Arbitrary deportation or forcible transfer of population;
Arbitrary imprisonment;
Forced disappearance of persons;
Rape, enforced prostitution and other forms of sexual abuse;
Other inhuman acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm”.
The list of prohibited acts is more exhaustive than in other definitions we have looked at so far. In addition, we find the requirement that the acts be instigated or directed by a government or by any organisation or group.
ICTY and ICTR’s Statutes on Crimes Against Humanity. Discrepancies in the definition of crimes against humanity can also be found between the statutes of the Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR). Article 5 of the ICTY statute provides as follows:
“The International Tribunal shall have power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
a. Murder;
b. Extermination;
c. Enslavement’s;
d. Deportation;
e. Imprisonment;
f. Torture;
g. Rape;
h. Prosecutions on political, racial and religious grounds;
i. Other inhuman acts”
The ICTR statute, on the other hand, provides the same list of crimes although the threshold is different. Whereas the ICTR statute does not require crimes to be committed in an armed conflict, each of the crimes listed in the ICTR statute must be committed “as part of a widespread or systematic attack against any civilian population on national, political, racial or religious grounds”.
The interpretation of the ICTY statute by the ICTY Appeals Chamber is however, revealing. In the decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Tadic case), the Appeals Chamber confirmed the findings of the Trial Chamber, and considered that by requiring proof of an armed conflict, the statute had narrowed the customary concept of crimes against humanity. 44 Hence it stated that since the judgement at Nuremberg, the concept of crimes against humanity need no longer establish a link with crimes against peace or war crimes.
In the light of the above definitions of crimes against humanity as developed in the Nuremberg charter and judgement, the CCL, subsequent attempts at codification by the ILC, key national decisions on crimes against humanity and the statutes of the Tribunals for former Yugoslavia and Rwanda, it is obvious that there is yet to be a clear, substantive and uniform definition of crimes against humanity. There is undoubtedly a consensus that crimes against humanity are crimes under international law, recognised under the general principles of law, giving rise to universal jurisdiction. Yet the exact parameters of such crimes remain unclear.
The Rome Statute of International Criminal Court
Article 7 of the statute gives a precise definition of crime against humanity enumerated in the ICC statute as “any of the foregoing acts when committed as part of widespread or systematic attack against any civilian population with knowledge of the act”, followed by the enumeration of the various sub-classes of acts amounting to such a crime. It is worthy of note, that unlike the charter provisions of the Nuremberg Tribunal and the ICTY relating to crimes against humanity, the relevant article of the ICTR statute, Article 7 of the ICC statute does not require that crimes against humanity be committed in connection with an armed conflict. This seems to reflect current international law.
Regarding the class of crimes against humanity enumerated in the ICC statute, offences such as enforced prostitution, forced pregnancy and enforced disappearance of persons are now included. These practices, often associated with “ethnic cleansing” as in the case of disappearances, the pursuit of power by terror and elimination of political opposition properly belong in any modern description of crimes against humanity by virtue of the role they play in policies of repression against civilian populations.
The definition of crimes against humanity in ICC status is more specific. This principle of specificity is evident in the sub-class of crimes against humanity termed “other inhuman acts”. This broad class is narrowed down in the statute because it is specified that they must be “of a similar character (to that of the other subclasses and) intentionally causing great suffering, or serious injury to body or to mental or physical health”.
2.2.3 GENOCIDE
Unlike crimes against humanity, genocide has been codified and its definition is not generally subject to debate. The statutes of the ad hoc tribunals for the former Yugoslavia and for Rwanda adopted verbatim the definition of genocide found in Article 2 of the 1948 convention on the prevention and punishment of the crime of genocide:
“Genocide means any of the following acts committed with the intent to destroy, in whole or part, a national, ethical, racial or religious group, as such:
a. Killing members of the group;
b. Causing serious body or mental harm to member 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;
The following acts shall be punished:
a. Genocide;
b. Conspiracy to commit genocide;
c. Direct and public incitement to commit genocide;
d. Attempt to commit genocide;
e. Complicity in genocide”.
Historical Background
The Genocide Convention was among the first conventions of the United Nations to address humanitarian issues. It was adopted in 1948 in response to Nazi atrocities committed during World War II and following General Assembly Resolution 180 (II) of 21 December 1947 in which the UN recognized that “Genocide is an international crime, which entails the national and international responsibility of individual persons and states.” Under Article 1 “the contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish”.
The International Court of Justice (ICJ) noted in the reservation to the convention on Genocide as follows
“The origins of the convention show that it was the intention of the United Nations to condemn and punish Genocide as a crime under international law … involving a denial of the right of existence of entire human group, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96) of the General Assembly, December 11, 1946). The first consequence arising from this conception is that the principles underlying the convention are principles, which were recognized by civilized nations as binding on states, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the cooperation required in order to liberate mankind from such an obvious scourge (preamble to the convention).” 45
In the Barcelona case (second phase), the ICJ recognized the outlawing of acts of genocide as obligations erga omnes for which, due to the importance of the rights involved, all the states can be held to have legal interest in their protection.46
When breaking down the definition, three essential elements are required:
An identifiable national, ethical, racial or religious group;
The intent to destroy such a group in whole or in part (mens rea); and
The commission of any of the listed acts in conjunction with the identifiable group (actus reus)
The first requirement implies that acts of genocide can only be committed against the listed types of groups, i.e. an identifiable national, ethical, racial or religious groups. The intent to destroy, for example, a political or social group would therefore not fall under the definition of genocide. Political and cultural groups were excluded from the original General Assembly draft of the convention because of strong opposition to their inclusion.
The second element of the definition of genocide certainly, represents a challenge for the prosecutor, who will be obliged to establish the requisite state of mind (mens rea) of the accused, i.e. the specific criminal intent to destroy one of the enumerated groups. The ILC, in commenting on its draft code of crimes against the peace and security of mankind, stated in this regard:
“… a general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such act with respect to the immediate victim or victims is not sufficient for the crime of genocide. The definition of this crime requires a specific intent with respect to the overall consequences of the prohibited acts”.
47
Therefore the killing of one individual with such intent is genocide, but the killing of a thousand without the intent would only be homicide.48 The former type was however, distinguished from the latter by the General Assembly in 1948 when it drafted the convention genocide is the “denial of the right of existence of entire human group” homicide is the “denial of the right to life of individual human beings”. The ultimate target is the group itself. Hence the actus reus (prohibited act) may be restricted to one human being, but the mens rea or mental element must be directed against the life of the group”. 49 In other words, “genocide occurs when the intent is to eradicate the individuals for no other reason than that they are a member of the specified group.”50
Some light as to specific intent required may also be found in the Karadsic and Mladic case, in which the ICTY suggested that the specific intent may also be inferred from the circumstances:
“Genocide requires that the acts be perpetrated against a group with an aggravated criminal intent, namely that of destroying the group in whole or in part. The degree to which the group was destroyed in whole or in part is not necessary to conclude that genocide has occurred. That one of the acts enumerated in the definition was perpetrated with a specific intent suffices (…).
The intent, peculiar to the crime of genocide, need not be clearly expressed. (…) The intent may be inferred from a certain number of facts such as the general political doctrine which gave rise to the acts possibly covered by the definition in Article 4 (of the statue), or the repetition of destructive and discriminatory acts. The intent may also be inferred from the perpetration of acts which violate, or which the perpetrators themselves consider to violate, the very foundation of the group acts which are not in themselves covered in the list in Article 4 (2) which are committed as part of the same pattern of conduct”. 51
The third element of the definition of genocide requires that the crime be among the listed acts. The exact scope remains, however, vague i.e. “causing serious bodily or mental harm to members of the group” or “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” for the former, it is not clear what is covered by “mental harm”. It has been described by commentators as a psychological damage which would lead to the destruction of the group, 52 or bodily harm “which involves some type of impairment of mental faculties”.53 Nor is it clear what is considered to be ‘calculated’ to bring about the physical destruction in whole or in part of the group.
2.2.4 WAR CRIMES
The jurisdiction of the Rome statute of the international criminal court embraces four categories of crimes genocide, crimes against humanity, war crimes and aggression. It is intended to define what constitute war crimes albeit summarily within the context of the ICC statute.
The statute sets out, in Article 8, the various instances of war crimes and defines each war crime in a specific and detailed manner. Furthermore the most striking feature of Article 8 is that it lays emphasis on war crimes which are “ committed as a part of a plan or policy or a part of a large scale commission of such crimes”. At both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda, this would have been a useful qualification to avoid prosecutions of isolated atrocities which do not pose a threat to international order as much as atrocities which are committed as part of a plan or, policy or on a large scale. 54
It should however be noted that the requirement that war crimes be committed as part of a plan or policy or a large scale practice only relate, to the court’s jurisdiction and must not affect the existing notion of war crimes. 55 In other words the fact that the court shall only pronounce upon war crimes that form part of a plan or policy does not mean that the definition of war crimes under international law is hereby narrowed so as to cover only large scale war crimes. It should be added that another commendable feature of the Rome statute lies in its extending the class of war crimes to serious violations of international humanitarian law perpetrated in internal armed conflicts. This is in line with the pronouncement of the ICTY, judgements, in the Tadic (Interlocutory Appeal on Jurisdiction) Decision, 55 and subsequent ICTY judgements, notably in the Delalic et al. 56 However, an even better approach, would have been simply to establish one body of law applicable to all armed conflicts – internal or international without distinctions.57
2.2.5 CRIME OF AGGRESSION
Article 5 (I) (d) of the statute of International Criminal Court (ICC) states that the crime of aggression is within the jurisdiction of the court, although Article 5 (2) provides that such jurisdiction will not exist until a definition and conditions for exercising jurisdiction are adopted in accordance with Articles, 121 and 123, which means ‘amending’ the statute.
Aggression is to a large extent the worst of all crimes bothering menaces international society. Once war is unleashed, all the horrors and miseries of war are let loose. At Nuremberg it was regarded as the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”58
Aggression is a crime for which a definition (in its form as a state’s wrongful act) has not yet been achieved, despite United Nations discussions lasting many decades and culminating in the disappointing General Assembly Resolution 3314 (xxix) adopted by consensus on 14 December 1974. As it is well known, the definition laid down in that resolution is not exhaustive as stated in Article 4 of the resolution, which states further that “the security council may determine that other acts (than those listed in Articles 2 and 3 as amounting to aggression) constitute aggression under the provisions of the Charter”. That the definition was deliberately left incomplete is quite understandable; To define aggression also means, among other things, to decide whether so-called pre-emptive self defence is lawful under the charter or must instead be regarded as a form of aggression. There may be other reasons. Understandably, an exhaustive list of instances of aggression might leave gaps which could encourage manipulation by potential aggressors. Any definition of aggression probably should leave a margin for discretion and therefore makes an exhaustive definition impossible.58
It seems most probable that the definition of this crime, to be adopted under Article 5 (2) of the statute in accordance with Articles 121 and 123, will not be agreed upon, at least, not in the near future.
Nevertheless the fact that Article 5 (1) (d) provides that the crime of aggression is within the jurisdiction of the court does create, at least, the expectation that the states parties will strive to find an acceptable definition, creating an impetus which would be altogether absent if Article 5 (2) did not exist. It is also important that if a definition of aggression is ever agreed upon, the “conditions under which the court shall exercise jurisdiction with respect to this crime” remain to be agreed, and the statute does not exclude the possibility that, in addition to the security council, the prosecutor, or state, might one day be allowed to initiate investigations into whether aggression has been committed. This eventually would be a welcome development in as much as it would break the security council’s stronghold on the notion of aggression.54 Judicial review of aggression might prove a useful counter-balance to the monopolizing power of the security council.
It is submitted that the above survey of the Nuremberg judgement, the trials under the CCL, the work of the ILC, and the statute of the ad hoc tribunals for the former Yugoslavia and Rwanda confirm that the exact parameters of the crimes against humanity which are crucial in criminal proceedings, despite the element of specificity introduced by the ICC are not clear. Inconsistency seems to be the rule. As for the crime of genocide, the ambiguity does not rest so much in the exact parameters of the definition, since the 1948 Genocide Convention provides for it; but rather in the difficulty in criminal proceedings to prove the required element of the crime. The recognition and codification of war crimes applicable to both internal and international armed conflicts by Article 8 (2) (b) and (e) of the Rome statute is a welcome development in the prosecution of war crimes. Equally commendable is the recognition and the conferment of jurisdiction on ICC by Article 5 of the Rome statute over the crime of aggression though such jurisdiction will not exist until a definition is agreed upon by the states parties.
2.3 GRAVE BREACHES UNDER IHL
The legal framework and definition of breaches, which are punishable under international humanitarian law is contained in the Geneva conventions of 194955 and the provisions of additional protocol 1 of 1977.
The Geneva conventions of 1949 provides that
“The High contracting parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed, any of the grave breaches of the present convention defined in the following Article”
The provisions of Articles 50 and 51 of the 1st and 2nd conventions
which provisions are paramateria provide that;
“Grave breaches to which the proceeding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the convention. Willful killing, torture or in-human treatment, including biological experiments willful causing great suffering or injury to body or health, and extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly”
Article 130 of the third Geneva Convention Defines grave breaches in these word:
“Grave breaches to which the proceeding Article relates shall be those involving any of the following acts if committed against persons or property protected by the convention: Wilful killing, torture or inhuman treatments including biological experiments wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the force of the hostile power, or wilfully depriving a prisoner of war of the right of fair and regular trail prescribed is this convention.
The concluding part of the article is worthy of note as it refers to the rights of a prisoner of war, which is the theme of the third Geneva Convention. And punishes any act which compels a prisoner of war to serve in the forces of a hostile power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed on this convention.
Article 147 of the fourth Geneva Convention defines grave breaches to mean
“Grave breaches to which the preceding Article relates to shall be those involving any of the following act, if committed against persons or property protected by the present Convention willful killing torture or inhuman treatment, including biological experiments, willful causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile power or willfully denying a protected person of the right of fair and regular trail prescribed in the present convention, taking of hostages and extensive destruction and appropriation of property not justified by military necessity, and carried out unlawfully and wantonly”
It is only acts, which are contrary to the provision of these conventions which are regarded as grave breaches that are specifically mentioned.
An exhaustive list of acts which are equally regarded as grave breaches are provided in Article 85 of protocol 1 additional to the Geneva convention.
1. The provision of the conventions relating to the repression of breaches and grave beaches, supplement by this section, shall apply to the repression of breaches and grave breaches of this protocol
2. Acts described as grave breaches in the conventions are grave breaches of this protocol if committed against persons in the power of an adverse party protected by Articles 44, 45 and 73 of this protocol or against the wounded, sick and shipwrecked of the adverse party who are protected by this protocol, or against those medical or religious personnel, medical units or medical transports which are under the control of the adverse party and are protected by this protocol
3. In addition to the grave breaches defined in Article 11, the following acts shall be regarded as grave breaches of this protocol, when committed willfully, in violation of the relevant provision of this protocol, and causing death or serious injury to body or health.
(a) Launching an indiscriminate attack affecting objects in the knowledge that such attack will cause excessive loss of life, injuring to civilians or damage to civilian objective as defined in Article 57, Paragraph 2 (a) (iii);
(b) Launching an attack against works or installation containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilian or damage to civilian objective as defined in Article 57, Paragraph 2 (a) (iii);
(c) Launching an attack against work or installation containing dangerous forces in the knowledge that such will cause excessive loss of life, injury to civilian or damage to civilian objects as defined in Articles 57 paragraph (2 (a) (iii);
(d) Making non-defined localities and demilitarized zones the object of attack
(e) Making a person the object of attack in the knowledge that he is hors de combat
(f) Perfidious use in violation of Article 37, of the destructive emblem of the red cross, red crescent, red
lion and sun or of other protective signs recognized by the conventions or this protocol
4. In addition to the grave breaches defined in the proceeding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed willfully and in violation of the Conventions or the Protocol.
(a) The transfer on the Occupying Power of part of its own civilians population into the territory it occupies, or the deportation or transfer of all or part of the population of the occupied territory in violation of Article 49 of the fourth convention
(b) Unjustifiable delay in the repatriation of prisoners of war or civilians;
(c) Practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on racial discrimination
(d) Making the clearly recognized historic monuments, works of art, places of worship which constitute the cultural or spiritual heritage of people and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization. The object of attack causing extensive destruction thereof where these is no evidence of violation by the adverse party of Article 53, sub-paragraph, and when such historic monuments works of art and places of worship are not located on the immediate proximity of military objectives
(e) Depriving a person protected by the Conventions or referred to in paragraphs 2 of this Article of the right of fair and regular trial
5. Without prejudice to the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes.
The above breaches are regarded as grave breaches and termed war crimes a term which is not defined in the text but which can be understood to mean those unimaginable atrocities that shock the conscience of humanity and threaten the peace, security, and well being of the world and of concern to the international community as a whole which must not go unpunished Grave breaches because of non clarity of definition is difficult to place (pigeon hole), hence the Conventions and the Protocol 1 enumerate them but not exclusively. The class of acts or omissions, which constitute grave breaches is not closed but left open subject to universal jurisdiction as are those expressly enumerated under customary international law or other treaties.
The repression, of grave breaches is so important to the international community that the Conventions and the Protocol 1 expressly makes it incumbent on the states parties to enact legislation necessary to provide penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present conventions” 56
“Each High contracting party shall be under the obligation to search for persons alleged to have committed, or to have ordered to have committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own court. It may also if it prefers and in accordance with the provisions of its own legislation hand such persons over for trial to another High Contracting party concerned, provided such High contracting party has made out a
prima facie case”57
The Conventions and the Additional Protocol did not establish any machinery for the enforcement of the penal sanctions for violations of its norms but mandates the High contracting parties the responsibility of establishing such machinery for enforcement. This accounts for treason why enforcement of the provision has breached many more times than it has been obeyed.
2.3.1 MINOR BREACHES
Minor breaches are not specifically enumerated in the Conventions and the additional Protocol 1 but are merely referred to as all acts contrary to the provisions of the present Convention thus: “Each High contracting party shall take measure necessary for the suppression of all acts contrary to the
provision of the present convention other than the grave breaches defined in the following Article”
Thus minor breaches may be referred to as those violations of international humanitarian law but not of such fundamental character as deserving of international jurisdiction. The High contracting parties are only expected to take measure necessary for their suppression.
2.4 TYPES OF BREACHES OF IHL
The most recent typification of breaches of international humanitarian law is contained in the statutes of the International Criminal Court58, which provided as follow:
2.4.1 SEROUIS VIOLATIONS OF THE LAW AND CUSTOMS
APPLICABLE IN INTERNATIONAL ARMED CONFLICT
Article 6; Genocide
“For the purpose of this statute genocide means any of the following acts committed with intent to destroy. In whole or in part, a national ethical, racial or religious groups, such as:
a. Killing 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
Article 7: Crimes against humanity
1. For the purpose of this statute, “crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack:
a. Murder;
b. Extermination;
c. Enslavement
d. Deportation or forcible transfer of population;
e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
f. Torture;
g. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity
h. Persecution against any identifiable group or collectivity on political, racial national ethical cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the court
i. Enforced disappearance of persons;
j. The crime of apartheid;
k. Other inhuman acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health
Article 8: War crime
2. For the purpose of this statutes “war crimes” means
a. Grave breaches of the Geneva conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Conventions:
i. Torture or inhuman treatment, including biological experiments
ii. Willfully causing great suffering, or serous injury to body or health,
iii. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly
iv. Compelling a prisoner of war or other protected person to serve in the forces of a hostile power,
v. Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial,
vi. Unlawful deportation or transfer or unlawful confinement
vii. Taking of hostages viii.
2.4.2 OTHER SERIOUS VIOLATIONS OF THE LAWS AND CUSTOMS APPLICABLE IN INTERNATIONAL ARMED CONFLICT
“Other serious violations of the law and customs applicable in international armed conflict within the established framework of international law, namely any of the following act:
i. Intentionally directing attacks against individual civilians not taking direct part in hostilities;
ii. Intentionally directing attacks against civilian objective, that is, objects which are not military objectives’
iii. Intentionally directing attack against personnel installations, materials, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;
iv. Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects, or widespread, long term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated
v. Attacking or bombarding, by whatever means, towns, village dwellings or buildings which are undefended and which are not military objectives.
vi. Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
vii. Making improper use of a flag of truce or of the flag or of the military insignia and uniform of the enemy or of the united Nations, as well as of the distinctive emblems of the Geneva
Conventions, resulting in death or serious personal injury; viii. The transfer directly or indirectly of the Occupying Power of part of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
ix. Intentionally directing attacks against building dedicated to religion, education, art, science, or charitable purposes, historic monuments, hospitals and places where the sick and the wounded are collected, provided they are not military objective;
x. Subjecting persons who are in the power of adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest and which cause death to or seriously endanger the health of such person or persons;
xi. Killing or wounding treacherously individuals belonging to hostile nation or army;
xii. Declaring that no quarter will be given;
xiii. Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;
xiv. Declaring abolished, suspended or inadmissible in any court of law the right and actions of the nationals of the hostile party
xv. Compelling the nationals of the hostile party to take part in the operation of war directed against their own country even if they were in the belligerents service before the commencement of the war;
xvi. Pillaging a town or place, even when taken by assault, xvii. Employing poison or poisoned weapons,
xviii. Employing asphyxiating, poisonous or other gases, and all analogous liquid, materials, or devices;
xix. Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelop which does not entirely cover the core or is pierced with incisions;
xx. Employing weapons, projectiles and materials and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and materials and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this statute, by an amendment in accordance with the relevant provision set forth in Article 121 and 123;
xxi. Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
xxii. Committing rape sexual slavery, enforced, prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f) enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva conventions;
xxiii. Utilizing the presence of a civilian or other protected person to render certain points areas or military forces immune from military operations
xxiv. Intentionally directing attacks against buildings, materials, medical units and transport, and personnel using the distinctive emblems of the Geneva conventions in conformity with international law;
xxv. Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival including willfully impeding relief supplies as provided for under the Geneva conventions;
xxvi. Conscripting or enlisting children under the age of fifteen into the national armed forces or using them to participate actively in hostilities
2.4.5 SEROUS VIOLATIONS IN CASE OF ARMED CONFLICT NOT OF AN
INTERNATIONAL CHARACTER
(c) In the case of an armed conflict not of an international character, serious violations of articles 3 common to the four Geneva conventions of 12 August 1949, namely any of the following acts committed against persons taking no active part in the hostilities including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds detention or any other cause:
i. Violence to life and person, in particular murder of all kinds, mutilation cruel treatment and torture
ii. Committing outrage upon personal dignity, in particular humiliating and degrading treatment
iii. Taking of hostages
iv. The passing of sentence and the carrying out of executions without previous judgment pronounced by a regularly
constituted court, affording all judicial guarantees which are generally recognized as indispensable
2.4.6 OTHER SERIOUS VIOLATIOUS OF THE LAWS AND CUSTOMS
APPLICABLE IN INTERNAL ARMED CONFLICT
(d) other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
i. Intentionally directing attack against the civilian population as such or against individual civilians not taking direct part in
hostilities.
ii. Intentionally directly attacks against buildings materials, medical units and transport, and personnel using the distinctive emblem of the Geneva Conventions in conformity with international law;
iii. Intentionally directing attacks against personnel installation, materials units, or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the charter of the United Nations as long as they are entitled to the protection given to civilians or civilian objective under the international law of armed conflict
iv. Intentionally directly attacks against buildings dedicated to religion, education, art, science charitable purpose, historic movement, hospitals and places where the sick and wounded are collected provided they are not military objective
v. Plaguing a town or place, even when taken by assault; vi. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in articles 7, paragraph 2 (f) enforced sterilization and any other form of sexual violence also constituting a serious violation of article 3 common to the four
Geneva conventions; vii. Conscripting or enlisting children under the age of fifteen into armed forces or groups or using them to participate actively in hostilities
viii. Ordering the displacement of the civilian population for reasons related to the conflict unless the security of the
civilians involved or imperative military reasons so demands;
ix. Killing or wounding treacherously a combatant adversary;
x. Declaring that no quarter be given;
xi. Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental, or hospital treatment of the person concerned nor carried out in his or her interest and which cause death to
or seriously endanger the health of such person or persons;
xii. Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the
necessities of the conflict;
NOTES AND REFERENCE TO CHAPTER TWO
1. Form Sun Tzu, The art of war (5th Century B.C) through Hugo Grotius, De Jure Bellis at Pacis Libre Tres. (1825) to Clausewitz, on war (1832) quoted in
Harhoff Frederik “The Rwanda Tribunal A Presentation of some legal
Aspect” published in international Review of the Red Cross (ICRC) 1997 P1
2. Ibid. P. I
3. Article 53, 50, 129 and 146 of the 1st , 2nd, 3rd and 4th Geneva Conventions of
August 12, 1949.
4. Resolution 827 (1993), 3217 meeting May 25 1993 5. Resolution 955 ( 1994) 3453 Meeting, November 8, 1994.
6. Cable New Network (CNN) News July 1,2002.
7. Gledhill, Allen, The Penal Codes of Northern Nigeria and the Sudan” 1963 (London) quoted in Chukkol, Kharisu Sufiyan, Law of Crime in Nigeria” Ahmadu Bello University Press Zaria, 1988 P. 2
8. Osborn’s conscise law Dictionary, Seventh Edition by Roger Bird, Sweet & maxwell, 1983 P. 102
9. See Mc Cormack, T. L H; and Simpson, G. J, (eds) The Law of War Crimes: National and International, the Hague/London/Boston, 1997 P. 37 referred to by Dugard, John, in “Bridging the Gap between human right and humanitarian Law. The Punishment of Offenders Published in International Review of the Red Cross, September 1998, No 324 PP. 445-446
10. Tavernier Paul; “The experience of the International Criminal Tribunal for the former Yugoslavia and for Rwanda” Published by (I.C.R.C) P.I
11. See Hans-Henrich Jesclieck “Nuremberg Trail” in Rudof Bernhadt (ed) Encyclopedia of Public International Law, Vol. 4 North Holland Publishing
Company Amsterdam/New York /Oxford 1982, P. 50
12. See Bert V.A Roling, “Tokyo Trial” op. cit. (Note 10a), P. 242
13. See the Proceeding of the International Military Tribunal at Nuremberg,
Germany, Part 22, London, 1950 P. 447
14. Articles 49 – 50, 50 –51, 129-130 and 146-147 of the first, second, third and fourth Geneva Convention
15 See Dugard, John, op. cit. (Note 9) P. 447 Article 5.
16. U.N Resolutions 808 and 827 of 22nd February and 25 May 1993
17. UN. Security Council Resolution 955 of 8 November 1994
18. Decision of 2 October 1995, Case No IT-94-1-AR 72, Para. 141. See
International Legal Materials, Vol. 35, 1996 P. 35
19. Supra (note 14) P. 71 Para. 137
20. Report of the International Law Commission 48th Session, UN Doc.
A/CN. 4/L. 522, 31 May 1996, Article 20 (e) – (g).
21. The statute entered into force on 1st July 2002 after the reification of
the both slate
22. See the preamble of the statute of international criminal court
23. Established by the UN security council resolution 827 (1993), 3217th
meeting, 25, May 1993.
24. United Nations Security Council Resolution 955 (1994), 3453rd meeting, 8, November 1994.
25. UN Doc. A/Conf. 183/9 (17 July 1998).
26. Articles 5, 6, and 8.
27. Ibid, Article 7.
28. See generally Roberge, Marie – Claude, “Jurisdiction of the ad hoc tribunals for the former Yugoslavia and Rwanda over Crimes against humanity and genocide--” international Review of the Red Cross (IRRC) 1997 p. I- 11
29. See report of the Secretary General Pursuant to paragraph 5 of Security Council Resolution 955 (1994), 5/1995/134).
30. Preamble, Hague Convention No. IV respecting the laws and customs of war on land 1907.
31. Cited in Schwelb, E. “Crimes against humanity”, British Year Book of International Law. Vol. 23, No. 8 1949, p. 181.
32. The commission was established to inquire into the responsibilities of the German empire and its Allies under international law for acts committed during World War 1.
33. However, as a result of certain objections no mention was made of
the laws of humanity in Peace Treaties of Versailles, St- German-en-Laye, Trianon and Neally-sur-scine; only acts committed in violation of the laws and customs of war were referred to.
34. Schwelb, E. Op. Cit. (note 24) p. 183.
35. Soon after the signature of the London Charter an agreement was
Concluded by the four Governments in Berlin to clarify the text of Article 6(c) and resolve the discrepancies found between the equally authentic Russian, English and French texts. Accordingly, alterations were made to the two former texts, to change the intentions of these Governments to the effect that the meaning of crimes against humanity in the charter was limited to such crimes committed in connection with any crimes within the jurisdiction of the tribunal.
36. No further trials were to be conducted by the international military tribunal and the task of prosecuting and punishing the remaining suspected war criminals was left to each occupying power. Howards, Levie; “Terrorism in war: the law of war crimes, Oceania Publications, New York 1993, p. 71.
37. However, these differences could arguably have been absorbed by the expression “or other inhumane acts” in the charter.
38. United States Vs Ohlendoof et al, case No 9, IV CCL Trials (1947), p.
49, same decision in Unites States Vs. Affoselter et al (Justice case) case No. 3, III CCL Trails (1947), p. 974. However, such an interpretation was not unanimously applied; see founding in United States Vs. Vonweizsaecker et al. (Ministries case), case No. II, XIII CCL trials (1948), p.112.
39. The legal status of the CCL, whether considered international, national, or even hybrid law, has been on discussed by a number of authors as well as in the justice case. Bassiouni clearly expresses this ambiguity in the following terms: “ The inconsistancy is obvious, since it (the CCL) was purported to be a national law, and it formulation and enactment was by the victorious Allies acting pursuant to their supreme authority over Germany by virtue of that country’s unconditional surrender” C. Bassiouni, crimes against humanity in international criminal law, Martinus Nijhoff publishers, Dordrecht, 1992, P. 36 see also Schwelb E, Loc. cit. (At note 27), P. 218.
40. District Court of Jerusalem, Attorney-General of the Government of
Israel Vs Eichmann, in Israel law Review, vol. 36 no 5, 1961 for a more complete discussion of the Eichmann case see Baade “The Eichmann trial. Some legal aspects” Duke law Journal, 1961. P. 400.
41. Judgement of 20 December 1985, published in journal de driot international, 1986 PP 129-142, cited in L. X. Wexlar, “ The interpretation of the Nuremberg principles by the French Court of Cassation: From Touvier to Barbie and back again” Columbia journal of international law, vol. 32, 1994, P. 3 42.
42. Danjanjuk Vs Petrovsky, 776 F. 2nd 571 (6th Crc. 1985 cert. Denied, 475 US. 1016 (1986).
43. The Court of Appeal addressed the definition of crimes crime against humanity only as defined in 1950 Israel statute, the Nazis or Nazi collaborators (punishment) Act. This was done in order to satisfy the requirement of double criminality. The court concluded that although the crime was not described in the same way in both countries – since in US the act of unlawfully killing one or more persons with the requisite malice is punishable as murder, not as a crime against humanity or mass murder – it was enough that the particular act for which extradition was sought be criminal in both.
44. Decision on the Defence Motion for Interlocutory Appeal on jurisdiction, prosecutor Vs. Dusko Tadic, case No. IT-94-1-AR72, 2 October 1995, Para. 141.
45. Reservation to the convention on Genocide case (Advisory Opinion), ICJ Report, Vol. 15, 1951, p.23.
46. Barcelona Traction Case (Belgium Vs. Spain) ICJ Report, Vol.3, 1970, paras. 33 and 34.
47. 1996 ILC Report, UN doc A/51/10, p. 88.
48. “… thus, one has to ask whether it is logical to have a legal scheme whereby international killing of a single person can be genocide and the killing of a million persons without intent to destroy the protected group on whole or part is not an international crime? Yet that is the present situation”. C. Bassiouni, loc. Cit (note 32) p. 473.
49. Bassiouni, C; International Criminal Law: A draft International Criminal Code, Sijthoff and Noordhoff, Alphen aan den Rijn, 1980, p. 73.
50. Webb, J., “Genocide Treaty – Ethnic cleansing; substantive and procedural hurdles in the application of the Genocide Convention to alleged crimes in the former Yugoslavia” Georgia Journal of International and Comparative Law No. 377, 1993, p. 391.
51. Prosecutor Vs Mladic and Karasdic, review of the indictments pursuant to rule 61 of the rules of procedure and evidence, case No. IT-95-5-R61, 11 July 1996, paras. 92 and 94.
52. Webb J., Loc Cit (note 43), p. 393.
53. 1996 ILC report, p.91.
54. It is mainly the leaders and organizers of such plans or policies who threaten international public order and who should therefore be prosecuted by an international court. See the ICTY Martic Rule 61 of 6 March 1996, para. 21; “The Tribunal has particularly valid grounds for exercising its jurisdiction over persons who, through their position of political or military authority, are able to order the commission of crimes falling within its competence ration material or
who knowingly refrain from preventing or punishing the perpetrators of such crimes.
55. Cassese, Antonio, “The Statute of the International Criminal Court; Some Preliminary Reflections” published on European Journal of International \law, Vol. 10 (1999) No.1 P. 149.
56. See Decision of 2 October 1995 at 68-71 paras 128-137.
57. Judgement, 16 November 1998, paras 202 and 314.
58. See Article 8 (2) (b) and (e) which deals respectively with war crimes in international armed conflicts and war crimes in non international war crimes.
59. See trial of major war criminals before the international criminal tribunal; Nuremberg 1947 vol. 1 at 186.
60. Cassese, Antonio; op cit. (note 48) p. 147.
61. Ibid at p. 147.
62. See Articles 49,50,129 and 146 of 1st, 2nd, 3rd and 4th Geneva Conventions
of 1949
63. ibid.
64. ibid.
65. Rome Statute of International Criminal Court UN Doc. A/CONF. 183/9 (17 July 1988). Published at http/www.un.org/icc (hereinafter ICC
statute).