International Criminal Law on Genocide - Essay Example

INTERNATIONAL CRIMINAL LAW ON GENOCIDE Introduction Traditionally, perpetrators of any crime seldom paid for their offenses within their individual countries1. Unfortunately for them, they could not remain above the law for too long. The international community could not stomach their atrocious acts any longer. This resulted in the creation of the international criminal law under which every criminal act that destroyed human rights based on race, nationality, ethnicity and religion was punished2.­ International criminal law is a division of public international law which governs the activities of states and how these activities affect the individual citizens of these countries3. It is that body that prevents offenders from outrageous activities going against human rights and makes the perpetrators of crimes against humanity pay for those crimes. It consists of the integration of international law and the domestic criminal law. The international criminal law governs international crimes that include war crimes, crimes against humanity, genocide, and torture. However, it leaves out offenses such as piracy, illicit trafficking of drugs, and apartheid4. The international law under the Rome Statute of the International Criminal Court Article 7 defines crimes against humanity as acts that are carried out at a fraction of the widespread or organized attack of any civilian populace. They include murder, extermination, enslavement, forcible transfer of population, imprisonment, torture, rape and forced pregnancy, persecution due to being in a certain target group and inhumane acts that cause intensive suffering5. Article 8 of the statute describes war crimes as those that result in grave breaches of the Geneva Conventions of 12th August 1949, namely those acts against persons protected under the provisions of the Geneva Convention6. They include willful killing, torture, willfully causing suffering, extensive destruction of property, forcing or compelling prisoners of war to work in the military of the hostile power, willfully depriving prisoners of war fair trials, unlawful confinement and taking of hostages7. The international law depicts genocide as the crime of all crimes against humanity. This essay discusses the elements of a crime of genocide as an offense under international criminal law and provides several cases to give a detailed view of genocide as an international crime. Genocide Long before 1944, the term genocide had not been coined yet. Winston Churchill had even referred to it as a crime without a name8. The foundation of the prosecution of genocide started when the persecution of ethnic, national, or religious minority groups was not only morally despicable, but also a legal burden. The year 1944 was when Raphael Lambkin came up with the term genocide. He kicked off a world movement to outlaw genocide. He formed this term from two words genos, meaning race, nation or tribe, and caedere that is a Latin word for killing9. He suggested a quite comprehensive definition of genocide which was: "a synchronized plan of diverse actions aimed at the demolition of vital basis of the existence of national groups, with the goal of annihilating the groupings themselves." He added that genocidal crimes are directed against members who are members of a particular national group. His definition was; however, narrow in that it placed its focus solely on national groups other than groups in a broad-spectrum. In 1946, the United Nations General Assembly decreed that genocide was “a crime in which there was a denial of the existence of entire human groups”10. It also noted that genocide kills the conscience of humankind leading to extreme losses in terms of culture and other social contributions made by people. The Genocide Convention in the Article II of its statute finally developed a definition of genocide. Its defined genocide as any act that is devoted to the plan to annihilate, the whole or part of, a national, tribal, racial or religious group.11 Such activities according to Article II include killing the members of that group, inflicting serious bodily or mental torture the individuals of the particular group, deliberately inflicting on the group conditions of life calculated to bring about material damage to the in whole or part, imposing procedures aimed at preventing births within the group and forcibly transferring children of the group to another group12. Article 6 of the Rome Statute of the International Criminal Court describes genocide in the same manner. Article III of the statute by the convention added four extra types of punishable acts. These were conspiring to commit genocide, inciting people to commit genocide directly and in public, attempting to commit genocide and participation in the genocide.13 Article II remains to be the most acceptable definition of genocide. Conspiring to commit genocide, attempting it, inciting people to commit it, and participation in genocide remains to be a crime under the international criminal law. The Genocide Convention provided a basis for international criminal law. Elements of genocide that make it a crime according to international criminal law International criminal law is concerned with protecting humanity against crimes resulting in their torture, their wounding, killing, mistreatment and preventing their welfare in totality. It recognizes the following elements of genocide that make it a crime. They include the perpetrator of the genocide, the actus reus, the victims of genocide, the objectives comprising a component of mens rea, and complicity in genocide. The Perpetrator of Genocide Perpetrators of genocide can be non-state actors as well as states and government agencies. The Genocide Convention’s language suggests that criminal liability under the international law is confined solely to natural persons. This is the same case as the international law that is limited to individuals who play a part in a particular offense considered to be a crime under international law. The convention provides that persons committing genocide or any act contained in its prohibitions shall be punished. Persons under the juridical concept include both juristic and natural persons. However, the article refers to people such as responsible rulers, public officials and private individuals as the people who are punishable. The Genocide Convention is meant to be restricted only to those who have things in common with responsible rulers, public officials, and private individuals. These are natural persons with the exemption of juristic people as well as the state as a corporate body with legal bias. The duty of the state parties to the convention is to prevent and to punish genocide as a crime under the international law.14 Criminal Liability of Natural Persons Several cases have showed the criminal responsibility of individuals. In Kadic v. Kardzic15, the court held that rape, torture and other executions that were committed by an individual as part of genocide are actionable as “violations of the law of nations” under the Alien Tort Claims Act, “without regard to state action”.16 The court also affirmed that the liability of private persons for war crimes was an important part of international law. Criminal liability of states States can be held liable for their wrongful actions by international law. Remedies endorsed by international law include both reimbursement and disciplinary elements. The corporate liability of states has previously been identified since the war crimes carried out by Germany during World War I and II. Previous judgments have been made by the international courts that have emphasized the need for the state to be criminally responsible. In Prosecutor v, AntoFurundzija, the International Criminal Tribunal for the former Yugoslavia stated that under the current humanitarian law, the state must take responsibility for the acts of state officials against humanity, such as torture or failing to prevent torture.17 He added that torture was a massive breach of the international obligation to safeguard the welfare of humankind thus triggering state responsibility18. The international court of justice in Bosnia and Herzegovina v. Yugoslavia19 Rejected the respondents submission that the state’s responsibility was limited only to preventing and punishing acts of genocide according to the Genocide Convention. The tribunal established that the lingo of the Genocide Convention did not preclude any state responsibility. It continued to state that although it included acts of genocide by rules, it did not exclude the liability of a country for the actions of its organs. Concerning the International Criminal Court, states are not subject to the court’s jurisdiction. Juristic persons are also left out when it comes to those who are under the tribunals jurisdiction. The courts jurisdiction is only confined to natural individuals who are above 18 years of age20. Actus Reus The intentions of genocide are realized after acts such as killing, causing bodily or mental harm, deliberately inflicting certain conditions of life on a target group, taking measures to prevent births within a certain group and forcibly transferring children of that particular from that group. The sole purpose of these acts is usually to eliminate a particular target group. These acts can be of a wide range, unique to the nation where they happen. An example is the case of Bosnia & others v. Yugoslavia.21 The acts of genocide that were brought forward included murder, summary executions, torture, rape, mayhem, ‘ethnic cleansing, the gratuitous destruction of villages, towns and cities, starvation of inhabitants, interfering with the humanitarian relief supplies to the residents by the international community and the detention of civilians. In Prosecutor v. Jean-Paul Akayesu, the International Criminal Tribunal for Rwanda evaluated the case for the different features of actusreus.22 There was the killing of members of a victim group, the Tutsi. The tribunal realized that the murders would have either been intentional or unintentional. Killing within the definition of genocide would have to prove that the homicide was committed with the objective to cause death. In the Attorney General of the Government of Israel v. Eichmann trial23, the District Court of Jerusalem made an observation that serious bodily and mental harm to members of a group could have been caused various factors. These included enslavement, starvation, deportation and persecution of the groups members. Also, their detention in camps in deplorable conditions that were likely to result in their degradation and deprivation of human rights besides torture and suffering would result in bodily and mental harm. The International Criminal Tribunal for Rwanda used that exposition of the law to conclude that serious bodily injury includes but is not limited to acts of torture, inhumane treatment and persecution. Inflicting on the target group conditions of life that were meant to bring about its physical destruction in whole or in part would be manifested in a couple of ways. This would include forcing the group to adopt a particular subsistent diet, the organized eviction from their homes, and reduction of their medical services below the required level.24 Imposing measures to prevent births within a victim group is also another form of actusreus. Such acts include sexual mutilation, forced birth control and sterilization and banning of marriages as presented by the Prosecutor v. Jean-Paul Akayesu case.25 The tribunal pointed out the fathers group determined the example of men from a particular group raping women of the target group so as to eliminate the mothers group since a childs identity. This was in the case of patriarchal civilizations. Forcefully transferring children of the target group to a different group may go to the extent of using threats and violence to move children from their groups to other groups. This is brought about by the Prosecutor v. Jean-Paul Akayesucase.26 The Victims of Genocide Genocide is inflicted against a particular victim group and not an individual per se. As stated in the Prosecutor v. Jean-Paul Akayesu case, the person becomes a victim due to his nationality, ethnicity, race or religion.27The International Court of Justice identified nationality as "a legal bond having its basis in a societal actuality of a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.28 The tribunal concluded that a national group was made up of people who shared a common bond due to common citizenship and the reciprocity of civil rights and duties. Persons of similar ethnicity share a language or customs. Racial groups are comprised of individuals genetic traits identified with a particular geographic region. Religious groups share denominations and methods of worship. Other groups can only not be classified under any of the four classifications. This is as in the case of Prosecutor v. Jean-Paul Akayesu where the Hutus and Tutsis both shared the same nationality, race, religion, language and culture.29 Such groups may be made based on social class, sexual orientation, and femininity and masculinity. Mens Rea30 For a crime to be genocide, it has to be committed to a variety of specific intents. It must be dedicated to the plan to wipe out, in whole or part, a national, ethnic, racial or religious group. Intent can be classified as direct intent where the perpetrator had foreseen the undesirable consequences. It may also be indirect intent in which some wrongful consequences that were not foreseen by the perpetrator happen besides to those he had desired.31 Legal intention involves the perpetrator foreseeing his undesired consequences as having a possibility of occurring but still goes ahead with the act. Anyone committing any act becomes responsible for all the adverse effects that are bred from the act. In this case, the actions are viewed as crimes by international criminal law. Proving intent is always quite a task. In Prosecutor v. Karadzic & Mladic32, the International Criminal Tribunal for the former Yugoslavia noted that particular intent to commit genocide could be hindered with by several factors such as "the general political doctrine which reproduced the acts of the repetition of destructive acts, the carrying out of actions which infringe or which the perpetrators themselves consider to violate, the very base of the group, and acts which are not in the themselves included in the definition of genocide but are committed to the same pattern of conduct.33” Complicity in Genocide Article III makes complicity a crime under the international criminal law. Complicity occurs in genocide when a group of individuals referred to as accomplices come together to perpetrate the genocide34. Participating may take the form of planning, making preparations, funding, assisting, committing or triggering the crime. The participant must be aware of the intention of the perpetrator and know that the consequences of helping the offender would facilitate the crime. In Prosecutor v. Tadic, the International Criminal Court for the Former Yugoslavia held that assisting and supporting included all acts of assistance that lend encouragement or support provided that the requisite intent were present. The presence alone is not sufficient if it is unwilling or ignorant. Genocide is a collective fault, and the international law intends to punish all that took part in the crime. Conclusion In conclusion, international law protects the victims of international crimes from the biased laws of their countries that tend to favor those in state positions. These include crimes of war, genocide and all crimes against humanity. Genocide is a crime that results in the most despicable and outrageous treatment of human beings. Lives are lost in the process, people crippled and most of all the emotional scars remain for eternity. An example is Rwanda lost about 250000 victims to genocide35. Due to the recurrence of this injustice around the world, it became apparent that an international law system was needed. The International Criminal Courts and Tribunals have helped to solve a myriad of genocide cases. All this due to the Genocide Convention provided a basis for genocide to be both preventable and punishable and provided a whole new light to international criminal law. References Amann, D. M. (2001). Genocide in International Law: The Crimes of Crimes. By William A. Schabas. AJIL, 95, 739-997. Bantekas, I., & Mylonaki, E. (Eds.). (2014). Criminological Approaches to International Criminal Law. Cambridge University Press. Bantekas, I., & Nash, S. (2009). International criminal law. Routledge. Bantekas, I., & Oette, L. (2013). International human rights law and practice. Cambridge University Press. Bassiouni, M. C. (Ed.). (2008). International Criminal Law, Volume 2 Multilateral and Bilateral Enforcement Mechanisms. Brill. Connolly, S. M., Sakai, C. E., &Oas, P. (2010). Treatment of PTSD in Rwandan child genocide survivors using thought field therapy. International Journal of Emergency Mental Health, 12(1), 41-50. Henham, R., & Behrens, P. (2007). The criminal law of genocide. Burlington, VT: Ashgate Pub. Co. Kittichaisaree, K. (2001). International criminal law. Oxford University Press. Rothe, D. L., & Mullins, C. W. (2010). Beyond the Juristic Orientation of International Criminal Justice: The Relevance of Criminological Insight to International Criminal Law and its Control A Commentary. International Criminal Law Review, 10(1), 97-110. Schabas, W. A. (2007). The Genocide Convention, An International Law Analysis By John Quigley [Ashgate, Aldershot, 2006, xvii+ 301pp, ISBN 978-0754647300]. International and Comparative Law Quarterly, 56(04), 960-962. Trahan, J. (2009). A Digest of the Case Law of the International Criminal Tribunal for Rwanda. GENOCIDE, WAR CRIMES AND CRIMES AGAINST HUMANITY, 9, 522. Retrieved from http://www.hrw.org/sites/default/files/reports/ictr0110webwcover.pdf Van der Vyver, J. (1999). Prosecution and Punishment of the Crime of Genocide. Fordham International Law Journal, 23, 286. Waller, J. (2002). Becoming Evil: How Ordinary people commit genocide and mass killing (p. 240). Oxford: Oxford University Press. Wilt, H. (2012). The genocide convention. Leiden: M. Nijhoff Pub. Read More