International Criminal Law and Genocide - Essay Example

Genocide Introduction The term genocide is often used in a colloquial manner without adhering to its actual meaning in the legal perspective. In the context of international law, the crime of genocide is outlined in the Convention on the Prevention and Punishment of Genocide that is commonly known as Genocide Convention of 1948. Articles two and three of the Convention elaborate on the definition of the crime of genocide by outlining all the legal provision that encompass commissioning genocide as a crime. According to Article two of the Genocide Convention, genocide is the murder or conspiracy to kill members of a particular group with the aim of eradicating that group in totality.1 For genocide to qualify as a crime it must have two elements namely; the physical element and the mental component. The physical component involves committing five acts that are stipulates in Article two of the Convention that include; forcibly transferring children of a particular group to another one, killing members of a certain group, imposing measures or rather sanctions that are of the intent of hindering births within a particular group and causing mental and bodily torture to members of a group. The mental element is primarily based on the intent to destroy partly or in whole a religious, national, ethnic or racial setting. 2 In order for a crime to be regarded as genocide, it has to satisfy the provision of the two elements to make the perpetrators culpable under the internal criminal law. Both factors are crucial in forming the premise of genocide as a crime since none of them is independent, and thus they have to be satisfied to substantiate the crime. 3 Article three of the Genocide Convention outlines five distinct acts that are punishable in the context of the crime of genocide. These acts are as follows; complicating in genocide, attempt to commit genocide, genocide, direct and public incitement to commit genocide. When the actions outlined in this article are combined with the actual acts described in Article two of the Convention the result is the crime of genocide. Under the Convention of Genocide, the law protects four particular groups whose execution should amount to genocide. A religious group involves one whose members share common religious practices and beliefs. An ethnic group is that whose members can be identified by a common language or any other cultural identities. A racial group is primarily people who can be defined by standard physical characteristics for instance; skin colour. A national group is composed of individuals in a common nation or rather who share nationality. 4 Elements of Genocide The crime of genocide has two distinct items that have to be in place for the perpetrators to be legally culpable. The items in genocide are mental and physical elements. 5 The mental element involves the intent to commit the crime but in reality the actual offence is not committed. Under the mental elements are acts such as; complicity in genocide, attempt to commit genocide and direct and public incitement to commit genocide. All these actions do not involve the actual commissioning of the offence, but they are preparatory attacks that aids or rather facilitate the real crime later on. 6 Conspiracy and Incitement in Genocide Conspiracy is an agreement between two or more people to commit an act that is prohibited by law. On the other hand, incitement is where an individual puts pressure or rather encourages other people to participate in committing a crime. It may include giving a hand out to people to motivate them to commit the offence in question or coercing them by use of force into commissioning the crime. Conspiracy and Incitement are preparatory crimes and are penalized with the aim of preventing the occurrence of the actual offence. Article 3 (d) of the Genocide Convention has provisions for punishing any attempt to commit genocide. 7 All these are classified as preparatory crimes that are punished with the intention of preventing genocide from taking place. 8 Under Article 3 (e) complicity is a culpable offence in the context of genocide as a crime. Complicity is a situation whereby an individual assist the primary perpetrator in accomplishing his/her intentions of commissioning the crime. Complicity can take various forms whereby the accomplice may different roles including; aiding, facilitating, preparing, planning, instigating or inducing actions that would lead to the actual commissioning of the crime. However, it is crucial for an accomplice to having had knowledge of the intentions of the primary perpetrator and thus is fully aware that his/her actions will lead to the crime being committed. Ideally, genocide cannot be perpetrated by a single person. Article 3 (e) of the Genocide Convention emphasizes the collective nature of this crime and thus it focusses in prosecuting all individuals who are directly responsible for commission the crime as well as those who the ones that facilitated and instigated the crime to be executed. 9 Cases Rwanda Case In the year, 1990 civil war broke out in Rwanda a situation that created massive tension between the Hutu, who are the majority in the country against the Tutsi minority. The pressure remained in place until 1994 when the then President Juvenal Habyarima plane was shot down killing him thus sparking a series of organized campaign aimed at the Tutsi minority. The violence was well coordinated by prominent leaders and military personnel and at the end of the genocide eight hundred thousand people had been killed making it one of the most bizarre massacres in the history of the world. The deaths in Rwanda received international attention and interventions from various global bodies intervened to ensure justice for the victims of the genocide. The scenario in Rwanda led the international criminal court to constitute a special tribunal dubbed the International Court of Justice based in Uganda to try and prosecute the masterminds of the genocide as well as the actual perpetrators of the crime. 10 Based on the provisions of the Genocide Convention of 1948 the Rwandan case involved two classes of suspects. The prominent personalities represented one of the classes as they instigated and planned the crime as well as the accomplices who were utilized to commit the actual acts of murder and forceful transfer of people. The International Criminal Tribunal for Rwanda arraigned some prominent personalities from Rwanda to answer to charges of a genocides and crimes against humanity. Most of the people who were made culpable of the offence are mainly the sponsors or rather the primary perpetrators of the crimes who provided resources and other logistics that facilitated the commissioning of the heinous acts. Given the fact that the magnitude of the offence committed was so big the tribunal was limited to bringing to book only the primary perpetrators of the crimes and some actual perpetrators or rather accomplices who performed the actual crimes. The principal authors were deemed to have had the greatest responsibility for the crimes committed since they are the one that came up with the intent to genocide and thus instigated the rest to accomplish commissioning the crime. 11 Additionally, genocide is under the international customary law and thus the international criminal court can proceed to prosecute perpetrators of the crimes in the event the judicial system of the country in question has failed to pursue justice for the victims. It is from that premise that the International Court of Justice constituted a special tribunal to handle the Rwanda genocide case to dispense justice to the victims of the eight hundred thousand people that were murdered. Prior to the commencement of the case, first the killings in Rwanda had to be substantiated to ensure they meet the threshold of genocide as provided by the Genocide Act. 12 In that light, they had to fulfil both the physical and mental elements of the crimes committed would be regarded as genocide. Based on the mental component, the acts in Rwanda were planned with intent to Genocide since the primary perpetrators had already committed the preparatory crimes of complicity in genocide as well as conspiring and incident to genocide long before the actual murders took place. The killings that occurred in Rwanda were not spontaneous but were organized with the intent of killing the minority Tutsi community. Conversely, the Rwandan case fulfilled the physical element since apart from mass murdering of people from the Tutsi community, there were forceful deportation of people from the minority group as well as inflicting body and mental torture to individual who came from the Tutsi community. It is from that premise that the entire situation was classified as genocide and thus prompted the constitution of the International Criminal Tribunal for Rwanda to handle the cases. 13 Bosnian case In 1991, the country of Yugoslavia started dividing itself along ethnic lines. Soon after Herzegovina and the Republic of Bosnia became independent the region turned out to be a battlefield where intense fighting took place. The Serbs targeted the Bosniak or rather the Muslim Bosnians and the Croatian in areas that they controlled acts that were perceived to be aimed at conducting ethnic cleansing. The war claimed the war claimed the lives of close to one hundred thousand people. In the case of Serbia vs. Bosnia and Herzegovina, the Republic of Serbia was accused of attempted to execute the Bosnian people in both Bosnia and Herzegovina. The International Court of Justice came up with a special tribunal the ICTY to handle the case. The International Court of Justice asserted that the Srebrenica massacre was indeed a crime of genocide since the acts that were committed fell within the provisions of Article 2 (a) and (b) of the Genocide Convention of 1948. The acts were committed with the intent of destroying in part the Muslims of Herzegovina and Bosnia thus qualifying to be classified as genocide. 14 Relatively, the court found that Serbia a nation was not involved either directly in committing the crime or complice in doing the acts. However, the court found Serbia to have breached some provisions of the Genocide Convention in that since it is party to the Convention it failed to act in a manner that would have prevented the genocide from taking place. Additionally, it failed to comply with ICTY to facilitate the prosecution of individuals who were directly involved with the genocide, for instance, General Ratco Mladic.15 Similarly, the Bosnian case satisfied the two elements of the Genocide Convention before the International Court of Justice would come up with the decision to form a special tribunal that would handle the case. Based on the mental element, in the case of Bosnia, the Serbs had the intent of eliminating part of the Muslims of Bosnia and Herzegovina. Additionally, the physical element was satisfied by the fact that the Serbs indeed performed the actual acts of killing, causing body and mental torture to the Bosniak as well as transferring members of the Bosniak group from the areas that were under their control. In that light, the death of one hundred thousand people during the massacre was indeed a genocide case. It is evident that for any act of mass murder to be considered as a crime of genocide it has to have satisfied the two elements. In the case of Serbia vs. Bosnia and Herzegovina, despite the acts meeting the Genocide Convention’s threshold for a crime of genocide Serbia was not found culpable of committing actual genocide, conspiring to commit genocide or complicity in genocide. The evidence that was brought forth was not substantial enough to prove the criminal acts implicated against that party. 16 References Boczek, B. A. (2005). International law: A dictionary. Lanham, Mar: Scarecrow Press. Gaeta, P. (2009). The UN Genocide Convention: A commentary. Oxford: Oxford University Press. Herik, L. J. (2005). The contribution of the Rwanda Tribunal to the development of international law. Leiden [u.a.: Nijhoff. Inazumi, M. (2005). Universal jurisdiction in modern international law: expansion of national jurisdiction for prosecuting serious crimes under international law. Antwerpen [u.a.: Intersentia. Mugwanya, G. W., & International Criminal Tribunal for Rwanda. (2007). The crime of genocide in international law: Appraising the contribution of the UN tribunal for Rwanda. London: Cameron May. Nersessian, D. L. (2010). Genocide and political groups. Oxford: Oxford University Press. Quigley, J. B. (2006). The Genocide convention: An international law analysis. Aldershot: Ashgate. Schabas, W. (2000). Genocide in international law: The crime of crimes. New York: Cambridge University Press. Read More