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QUESTIONS ARISING
When is an armed conflict of an international character?
When is non-international violence an armed conflict?
When is an armed conflict not of an international character?
When is an armed conflict of an international character?
Prosecutor v. tadic
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International CRIMES
Serious crimes that are committed by the State or are State sponsored such as genocide,
torture etc are shocking
Sometimes we seek the origins of such heinous crimes by examining the pathological
personality of the perpetrator/the inherent evil in that particular political system
There are also times that claims are made that crimes like the holocaust are inherently
unclassifiable
This is because, according to the proponents of such ideas, such crimes portray a unique,
incomparable and largely incomprehensible event
Take the argument of Hans Magnus Enzensberger for example:
He claims that those who term Adolf Hitler a common criminal, render him apparently
harmless, mistransforming his crimes into something comprehensible.
This particular assertion actually has some merit if you consider the nature and extent of the
crimes that were committed during the holocaust
And there were justifications for the Holocaust!
Heinrich Himmler (4th October, 1943) I am now talking about the evacuation of Jews,
the extermination of the Jewish people . This is clear, it is part of our party program,
elimination of the Jews. This is a glorious chapter in our history that has never been written
and never shall be written .
There are various International Crimes that are recognized
Genocide
Crimes Against Humanity
War Crimes
genocide
Historical background
Genocide is sometimes referred to as the crime of crimes
Although there is some fear in so doing, few words bring out human emotions as the G-
word does
The word genocide however did not exist until 1944
A lawyer named Raphael Lemkin, coined the word
He was a Polish Jew, who fled the German invasion at the beginning of World War II; and
ended up in the United States of America
He thus throughout his exile struggled to draw the attention of the world to a crime which
had no name at the time
The ancient Greek word for tribe is Genos
Whereas cide is a suffix which connotes killing; and is derives from the Latin word
cidium i.e. act of killing
Lemkin thus formed the word genocide to indicate that this crime was not simply the
destruction of humans generally, but it was the destruction of entire peoples!
He had, earlier in his career labelled the crime barbarism; and had urged the League of
Nations to outlaw that crime
This name did not however catch on, and thus failed but he was not perturbed
He tried again, and finally he was succesful
Although Lemkins word was new, the crime it described was not
This is because in the Hebrew Bible, Saul and David are said to have received divine
commands to wipe out the Amalekites!
Now go and strike Amalek and devote to destruction all that they have. Do not spare them,
but kill both man and woman, child and infant, ox and sheep, camel and donkey. 1 Samuel
15:2-3
There are several instances of genocide or genocidal attacks throughout the history of the
world
In the 16th Century, French Catholics slaughtered about 100,000 Protestant Huguenots
However, the first 20th century genocide occurred in the colonial war between the Germans
and the rebellious Herero people in Southwest Africa (Namibia)
General Lothar von Trotha extermination order:
Within the German borders, every Herero, whether armed or unarmed, with or without
cattle, will be shot.
Under this order, it is estimated that the German forces killed about 65,000 Hereros (about
three-fourths of their entire population between 1904 and 1907!)
The Turkish destruction of the Ottoman Empires Armenian minority in World War I, with an
estimated death toll of 1.5 million Armenians is another example
In 1921 however, a young Armenian by name Soghoman Tehlirian, shot dead Talaat Pasha
(one of the chief organizers of the Armenian massacre) on a street in Berlin
Tehlirian was however acquitted
The foundation of our present day conception of the crime known as genocide is the
Convention on the Prevention and Punishment of the Crimes of Genocide
It is often referred to as the Genocide Convention
It was drafted under the auspices of the UN; and entered into force on January 12th 1951
Article I
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 to punish.
Article II
In the present Convention, 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.
Article III of the Genocide Convention made the following acts punishable:
Genocide
Conspiracy to commit genocide
Direct and public incitement to commit genocide
Attempt to commit genocide
Complicity in genocide
ESSENTIAL ELEMENTS
with intent to destroy a group
to destroy a group, as such
in whole or in part
The protected groups
Genocide cases
PROSECUTOR v. AKAYESU (Case No. ICTR-96-4-T September 2nd 1998)
PROSECUTOR v. KRSTIC (Case No. IT-98-33-A April 19th 2004)
PROSECUTOR v. AL BASHIR (Case No. ICC-02/05-01/09 arrest warrant)
Akayesu case
Jean Paul Akayesu was the bourgmestre of Taba commune in Rwanda
He was accused of having done nothing to protect Tutsis in his community from the
genocide; and of participating in the genocide himself
He was convicted of genocide, direct and public incitement to genocide; but was acquitted of
complicity in genocide
In the opinion of the chamber, it is particularly important to respect the intention of the
drafters of the Genocide Convention, which according to the travaux preparatoires, was
patently to ensure the protection of any stable and permanent group With regard to the
crime of genocide, the offender is culpable only when he has committed one of the offences
charged under Article 2(2) of the Statute with the clear intent to destroy, in whole or in part, a
particular group. The offender is culpable because he knew or should have known that the act
committed would destroy, in whole or in part, a group.
Three differences
Whereas genocide is a specific intent offence, crimes against humanity require only
knowledge and general intent
Genocide requires an attack on some specific protected groups; whilst crimes against
humanity require an attack against civilian populations (even if they are not one such
protected group)
Genocide involves the intent to destroy the protected group as such, whilst crimes against
humanity places no such emphasis on groups as such!
The hague conventions of 1899 and 1907
These Conventions represented important multilateral treaties establishing the laws and
regulations that were to govern warfare
They both stated in their preambles, words to the effect that:
both civilians and belligerents would remain protected by the laws of humanity
The Hague Conventions however fell short of defining of stating specifically what the laws
of humanity were and what constituted its violation
Also, after the Turkish massacre of Armenians, the Allied powers (France, Britain & Russia)
denounced Turkey for crimes against humanity and civilization
They proposed trying the Turkish leadership for these crimes but the US objected
The Nuremberg Charter finally defined what the so-called crimes against humanity were
However, the best way of understanding the nature and scope of crimes against humanity is
by an examination of how the Nuremberg Charters definition has evolved
So it is instructive to examine various definitions of this crime, by the ICTR; the ICTY; and
the ICC.
Article 6(c) of the nuremberg charter
Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other
inhumane 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 domestic law of the country where
perpetrated.
Under the Nuremberg Charter:
1. The crimes are committed against any civilian population.
2. Two types of crimes against humanity
(a) murder-type crimes
(b) persecution-type crimes
3. These are international crimes because they are criminalized even if there is no domestic law in
the state where is occurs
4. The crimes are connected with war.
It suffices to note that for both type of crimes, the victim must be a member of a group
With respect to the murder-type crimes, that group is any civilian population
Whereas with respect to the persecution-type crimes, that group must also be racial, religious
or political
Control council law no. 10
Crimes against humanity. 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 persecution on political, racial or religious grounds
whether or not in violation of the domestic laws of the country where perpetrated.
Article 5 of the icty statute
The International Tribunal shall have the 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
(d) Deportation
(e) Imprisonment
(f) Torture
(g) Rape
(h) Persecutions on political, racial, and religious grounds;
(i) Other inhumane acts.
Article 3 of the ictr statute
The International Tribunal for Rwanda shall have the power to prosecute persons responsible for
the following crimes when committed as part of a widespread or systematic attack against any
civilian population on national, political, ethnic, racial or religious grounds ..
Article 7 of the rome statute of the icc
For the purposes 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
(i) Enforced disappearance of persons
(j) The crime of apartheid
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury
to body or to mental or physical health.
THINGS TO NOTE
Crimes against humanity can comprise isolated acts, if done within the context of a
widespread or systematic attack against a civilian population
The requisite mens rea requirements are intent and knowledge
Persecution can consist of the deprivation of a wide variety of rights; and need not be
explicitly prohibited under Article 5 or elsewhere in the ICTY Statute
Persecution is defined as:
the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in
international customary or treaty law, reaching the same level of gravity as the other acts
prohibited in Article 5
THE RIGHT TO FREE SPEECH & OPINION/ HUMAN RIGHTS & THE CRIMINAL
JUSTICE SYSTEM
Article 11 of the French Declaration 1789 states that the free communication of ideas and
opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak,
write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be
defined by law
Section 208Publication of False news with Intent to Cause fear and Alarm to Public.
(1) Any person who publishes or reproduces any statement, rumour or report which is likely to
cause fear and alarm to the public or to disturb the public peace knowing or having reason to
believe that the statement, rumour or report is false is guilty of a misdemeanour.
(2) It is no defence to a charge under subsection (1) that the person charged did not know or did
not have reason to believe that the statement, rumour or report was false unless he proves that,
prior to publication, he took reasonable measures to verify the accuracy of the statement, rumour
or report.
Justice Oliver Wendell Holmes Jnr in Schenck v United States (1919) stated the most stringent
protection of free speech would not protect a man falsely shouting fire in a theater and causing a
panic. ... The question in every case is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.
Contempt of Court
Blacks Law Dictionary defines it as any act which is calculated to embarrass, hinder, or
obstruct court in administration of justice, or which is calculated to lessen its authority or its
dignity.
Republic v Mensa-Bonsu and others; Ex parte Attorney-General [1995-96] 1 GLR 377 - 531