International Criminal Court - Developments in the Case Law on Genocide and Crimes against Humanity - Literature review Example

Running Head: INTERNATIONAL CRIMINAL COURT International Criminal Court Name Institution Date Table of Contents Table of Contents 2 International Criminal Court 3 Developments in the case law on genocide 3 A major boost to the developments of genocide law was the judgment against Jean Paul Akayesu who was a mayor in Rwanda. In this judgment the International Criminal Tribunal had the opinion that other sexual atrocities and rape constituted genocidal acts since they caused critical psychological and physical harm to the victim and their aim is to prevent births. Former Yugoslavia first ever International Criminal Tribunal was done in 2001. It commented on important points of what should be understood through the formulation ‘destruction part’ concerning the group that is protected. The crime of genocide is subsequently included in Rome Statute of the ICC that commenced its work on 1st July 2002. The widely acknowledged scholarship and case is law is that not only individuals can carry out crime of genocide but also states may be responsible as in the case of Bosnia Herzegovina v. Serbia 4 Genocide and crimes against humanity 4 Objective elements 5 The subjective elements 6 Crime of Genocide 7 The 1949 convention on genocide 8 Problematical aspects of genocide 10 Article 6 of the ICC statute and customary international law 11 References 13 International Criminal Court According to Ratner, & Abrams (2001), the international Criminal Court is permanent tribunal constituted to particularly prosecute individuals for crimes against humanity, genocide, crime of aggression and war crimes. The International Criminal Court creation comprises of the major reforms that were significant relating to international law since 1945. The 20th century has gone down in the books of history as the bloodiest where close to 174 million people were massacred in mass murders and genocides as the supervision of human rights violators, warlords and dictators. The international community did not give a listening year to the cries of accountability and justice to the causalities. Eventually owing to the prevalent blood shed years experienced previously; close to one hundred and fifty delegates from nations convened in Rome in Italy in 1998, July to create what came to be known as International Criminal Court or what is commonly known as the ICC (Trahan 2006). Developments in the case law on genocide The convection on the punishment and prevention of the crime of genocide came into operation in the beginning of 1951. Nevertheless, it was unable to develop any penal impact in the following years as an international penal jurisdiction that could have concentrated with likely crimes of genocide did not exist. The convection provided a reference point for the documentation of the gravity of state crimes against minorities. In penal code terms the convection commenced to gain in significance in the first half of the 1990s. In 1993 May the United Nation of Security Council put up the international Criminal tribunal for former Yugoslavia, and this was succeeded the international Criminal Tribunal for Rwanda in 1994. In the statute of these courts genocide is defined merely as a penal offence. The characteristics and forms of the crime are word for word adopted from articles II and II of the convection for punishment and prevention of genocide. In September 1998 the first conviction for the crime of genocide was delivered (Henham, 2007). A major boost to the developments of genocide law was the judgment against Jean Paul Akayesu who was a mayor in Rwanda. In this judgment the International Criminal Tribunal had the opinion that other sexual atrocities and rape constituted genocidal acts since they caused critical psychological and physical harm to the victim and their aim is to prevent births. Former Yugoslavia first ever International Criminal Tribunal was done in 2001. It commented on important points of what should be understood through the formulation ‘destruction part’ concerning the group that is protected. The crime of genocide is subsequently included in Rome Statute of the ICC that commenced its work on 1st July 2002. The widely acknowledged scholarship and case is law is that not only individuals can carry out crime of genocide but also states may be responsible as in the case of Bosnia Herzegovina v. Serbia Genocide and crimes against humanity Both the concepts of crime against humanity and genocide penetrated international law through the Nuremberg trial. Previously, this tied the two concepts to war but eventually the crimes have become very distinct from each other and from war through development. Crime against humanity consisted of the basis of prosecution for atrocities. Even in this context crimes against humanity belonged to crimes in international law on the basis that they happened in relation with war. The necessary connection between war and genocide in international law was not endured for long. Not any of the Nazis tried at Nuremberg were convicted for genocidal acts committed earlier than 1st September in the year 1939, on the day the war erupted. To many inclusive the jurist who coined the word genocide to them it was unacceptable. Leading powers feared liability under international crime since it threatened their sovereignty. Lobbying for independent genocide convection was led by Panama, Cuba and India. It was the third world and not great powers that gave the current convection. Crime against humanity like genocide entered into international law through the war link. As opposed to genocide, crime against humanity remained to war. Objective elements Currently International Criminal law requires the crimes under discussions comprising of systematic and widespread practice of unlawful attacks against the population. If the context exists then the following classes of offence make up crime against humanity that is: murder, extermination-large-scale killing, enslavement, deportation or transfer of population forcefully, imprisonment or other severe physical deprivation of liberty physically, torture-inflicting pain, sexual abuse, persecution, enforced disappearance of people and other inhuman acts of similar magnitude. Torture comprises of the following elements: (a) It comprises of infliction, by omission or act, of suffering or severe pain, be it mental or physical, (b) this omission or act should be intentional, (c) it must target at obtaining a confession or information, or at humiliating, intimidating, coercing or punishing of a third person or the victim or any act of discrimination, (d) it must be related to an armed conflict; (e) at least one of the individual caught up in the torture process should be a public official or should not act in non-private capacity. The subjective elements Rules of international law require two mental elements for any crime under discussion: (i) awareness of existing systematic or widespread practice, (ii) the mens rea proper underlying offence. Largely the first mental element is intent, which is the intention to occasion a certain result. In case an accused being an agent of a system doest not immediately and directly instigate the inhumane acts, it may not be necessary that he must anticipate all the specified consequence of his misconduct; it is only enough for him to be aware of the risk that his actions may result serious consequence s for the victim the victim, on the account of arbitrariness and the violence of the system to which of which the victim is delivered. The agent must be cognizant of the link between systematic or widespread and his conduct. Persecutory and discriminatory aminus is another mental element that is required. Henham (2007) argues that the mandate and the mission of the court were very precise; to make people accountable and ensure bringing to justice persons responsible for crimes such as crime against humanity, war crime and genocide. Presently about one hundred and ten countries have ratified the treaty of the court, and the court has substantially commenced taking on cases. The ICC gave teeth to two bodies of international law that dealt with treating of individuals: humanitarian law and human rights. The court came into full existence in July 1st in 2002-this is the day the founding treaty, that is, the Rome Statute of the International Criminal Court come into force. One hundred and fourteen States were members of this court by October 2010. More than thirty four countries have signed but not ratified the Rome Statute including Russia. Crime of Genocide According to Bassiouni (2008) the term ‘genocide’ was coined in 1944 to refer to a particular horrific and shocking crime of violence with hitherto had been believed could never happen again. According to the chambers dictionary genocide is the deliberate extermination of a religious, ethnic and racial groups. The acts of genocides include imposing measures targeting to prevent births within a group, killing members of the group, intentionally inflicting on the group life conditions aimed at bringing about physical destruction either as a whole or as a part, forcibly transferring children of the group to another group, and causing critical mental or bodily harm to members of the target group (Boas & Schabas, 2003). Some critics have argued that the Rome Statute has a very broad definition of crime and sometimes it is vague. A large number of states have advocated for the court to be allowed to exercise universal jurisdiction. This request was turned down owing to strong opposition from the United States of America. Assembly of State Parties governs the International Criminal Court. It is composed of the Judicial Divisions, the Presidency, the Registry and the office of the prosecutor. The legislative body and the management oversight of the court, the Assembly of States Parties contribute one representative from each state party. Every party state has a single vote and efforts have to be made to arrive at decisions by means of consensus. The presiding of the court is done by the president assisted by two of his vice-president who are duly elected for three year term by the member states. The Assembly convenes each year in The Hague or New York, and may sometime hold special sessions if circumstances demand so. The sessions are open to non-governmental organization and observer states (Henham, 2007). The 1949 convention on genocide The Convection in to a number of section, section one included a short title. An Act to approve of the ratification by Australia of the convection on the prevention and punishment of the crime of genocide, and other purposes, section two cited commencement, the Act was to come into operation on the day it receives the Royal Assent. Section three contains definition; in this Act the genocide convection means the means the convection on the prevention and punishment of the of the crime of genocide approved by the general assembly of the united nations at the Paris on the ninth day of the December, one thousand nine hundred and forty eight, the text which convection in the English language is set out in the schedule to this Act (Klip & Sluiter 2005). Section four dealt with approval of ratification; it states that approval is given to the depositing with secretary general of the united nations of an instrument of the ratification of the genocide convection by Australia. Section five spelt out approval of extension to territories. Approval is given to the depositing with the secretary general of the United Nations of a notification by Australia, in accordance with article twelve of the Genocide Convection, extending the application of the genocide convection to all the territories for the conduct of whose foreign relations Australia is responsible. The list thing in this convection content was the schedule of events detailing how the events had to be carried out. Vera Gowlland-Debbas (1999) asserts that currently the court has started investigations into situations in Democratic Republic of Congo, Darfur (Sudan), Republic of Kenya and Northern Uganda. The constituting of a tribunal to prosecute political leaders accused of war crimes initially surfaced at the time of the Paris Conference in the year 1919 fronted by commission for responsibilities. The issue also came up in Geneva in a conference in the auspices of the League of Nations in November 1937. General Assembly of the United Nations recognized the need for a long term international court following the Second World War in the year 1948. This preceded the Tokyo and Nuremberg Tribunals. General Assembly request saw the drafting of two statutes by the International Law Commission in the early 1950s but this were halted as the Cold War made the establishing of an international criminal court unrealistic (Totten & Bartrop 2008). Following negotiations for years, the general assembly held a conference in June 1998 in Rome with the main goal of finalizing a treaty. On 17th July the same year the Rome Statute of the International Criminal Court was adopted with an overwhelming vote of 120 to 7. A total of twenty one countries ended up abstaining. Countries that included; Iraq, China, Libya, Israel, Yemen, United States and Qatar were against the treaty. The Rome Statute eventually became a binding treaty in April on the 11th in 2002 after the countries that ratified the statute become sixty. The Rome Statute came into force legally on 1st July 2002. The International Criminal Court can only open investigation and prosecute cases that occurred after this date. The first ever bench of eighteen judges was successfully elected by an Assembly of States Parties in 2003 in February. They were sworn in at an inaugural session of the international criminal court on 1st March 2003. Problematical aspects of genocide One of crucial matter in international criminal law is whether a genocidal plan or policy is an element of the crime of genocide. Genocide can be committed by a lone genocidaire. Some scholars are against the imagination that genocide can be organized and planned by state. The majority takes a definitive position concerning recurring debate whether the genocidal policy or element is merely a jurisdictional requirement to the exercise of the Court of jurisdiction or is a formal element of the crime. The prosecution would have to prove that the defendant either had intention of his conduct being part of larger genocidal policy or plan or at least he knew that his conduct was part of that policy or plan. On contrary if it was merely a jurisdictional plan requirement, the prosecution will only prove the existence of genocidal policy or plan. It shall not prove a nexus between policy and plan and the act of the defendant. It is problematic to prove the connection. The identification of protected groups is an issue because in different circumstances it is not issue. The identification of genocidal intent is another challenge since it is not straight forward. Much trouble is taken before a clear identity is arrived at. Article 6 of the ICC statute and customary international law The International Criminal Court statute includes international provision setting out setting out an overall definition of the subjective element of the international crimes: this is found in article 30. Article of the ICC Statute elaborates in detail the crime of genocide. Genocide by killing contains the following elements: the perpetrator k8illed one or more persons, such an individual or individuals belonged to a particular ethnical, national, religious or racial group, the perpetrator intended to destroy, in whole or part, that national, racial, ethnical or religious group, or such. The conduct took place in the circumstance of a visible pattern of similar conduct directed against that group it could itself cause the destructions (Lauterpacht, 1982). Article 6 part (b) explains genocide by the causing serious bodily or mental harm. It says the perpetrators caused serious bodily or mental harm to more or one person. The persons belonged to a particular ethnical, religious, racial or national group, as such. The perpetrators intended to destroy in whole or in part, that racial, religious, ethnical or national group and lastly the conduct took place in the context of a manifest pattern of similar conduct direct against such a group or the behavior which would cause such destruction (Mugwanya, (2007). Part (c) details genocide by deliberately inflicting conditions of life upon one or more individuals. The element says the perpetrators inflicted certain conditions of the life upon one or more persons, such persons belonged to a particular ethnical, religious, national or racial group. The perpetrators had intentions, in part or whole, that national, racial, religious, or ethnical as such. The conditions of life were calculated to bring about the physical destruction of the group, in part or whole. The conduct also took place in the context of a manifest pattern of the similar conduct directed against that group or was conduct that would itself cause destruction (Bassiouni, 2008). Part 6 (d) talks about genocide by imposing measures with the intention to prevent births, the perpetrators upon persons or one person, such persons belonged to a particular national, racial, ethnical, or religious group. The perpetrators had intention to destroy, in part or whole, that national, racial, religious or ethnical group. The measures imposed intended to prevent births within that group, the conduct took place in the context of a manifest pattern of similar conduct directed against that group or that it could itself cause destruction. Part (e) of article 6 gives details of genocide through forcibly transferring children. It goes on to expound such persons or person belonged to a particular ethnical, religious, racial or national group. The perpetrators had intention to destroy, in part or whole, that racial, ethnical, religious or national group. The transfer should have been from that group to another. The persons or person was under years of age, the perpetrators knew, ort should have known, and that the persons were under the age of 18years of age. Finally the conduct took place in the context of a pattern of similar behavior directed against that group or was conduct that could itself cause destruction. References Ratner, S. R. & Abrams, J. S. (2001). Accountability for human rights atrocities in international law: beyond the Nuremberg legacy. Oxford: Oxford University Press, 2001 Bassiouni, M. C. (2008). International Criminal Law: International enforcement. New York: BRILL, 2008. Vera Gowlland-Debbas. (1999). Collective responses to illegal acts in international law: United Nations action in the question of Southern Rhodesia. Melbourne: Martinus Nijhoff Publishers. Dörmann, K. (2003) Elements of war crimes under the Rome Statute of the International Criminal Court: sources and commentary. Cambridge: Cambridge University Press. Knoops. G. (2008). Defenses in contemporary international criminal law. PublisherBRILL, 2008 Klip A. & Sluiter G. (2005). Annotated leading cases of International Criminal Tribunals: The International Criminal Tribunal for the former Yugoslavia 2001-2002. New Jersey: Intersentia nv. Henham, R. J. (2007). The criminal law of genocide: international, comparative and contextual aspects. London: Ashgate Publishing, Ltd. Boas G. & Schabas W. (2003). International criminal law developments in the case law of the ICTYSheffield: Martinus Nijhoff Publishers. Trahan J. (2006). Genocide,war crimes, crimes against humanity. New York: Human Rights Watch. Mugwanya, G. W. (2007). Crime of genocide in international law: appraising the contribution of the UN tribunal for Rwanda. Yaoundé: Cameron May, 2007. Totten S. & Bartrop P. R. (2008). Dictionary of Genocide: A-L. Melbourne: Greenwood Publishing Group. Lauterpacht, H. (1982).The Development of International Law by the International Court. Cambridge: Cambridge University Press. Read More