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GENOCIDE AND CRIMES AGAINST HUMANITY

Dr . Maja Munivrana Vajda 2013/2014. GENOCIDE AND CRIMES AGAINST HUMANITY. OUTLINE:. A) Origins and development of the notion / crime of genocide Elements of genocide in international jurisprudence B) Disputable issues and practical challenges Importance of conviction for genocide?!

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GENOCIDE AND CRIMES AGAINST HUMANITY

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  1. Dr. Maja Munivrana Vajda 2013/2014 GENOCIDE AND CRIMES AGAINST HUMANITY

  2. OUTLINE: A) Origins and development of the notion/crime of genocide Elements of genocide ininternational jurisprudence B)Disputable issues and practical challenges Importanceofconviction for genocide?! C) Crimes against humanity State or organizationalpolicy?!

  3. Kamenica (Srebrenica) – mass grave

  4. Manjača concentration camp, August 1992.

  5. Mapof B&H

  6. ORIGINS AND DEVELOPMENT OF THE CRIME OF GENOCIDE: • Lemkin, “Axis Rule in Occupied Europe”, 1944., genos + occidere • 1946. UN General Assembly Resolution 96(I) • 1948. Convention on the Prevention and Punishment of the Crime of Genocide • Art. 4. ICTY Statute, Art. 2. ICTR Statute, Art. 6. Rome Statute of the ICC • Prohibition of genocide – international customary law (iuscogens) status (ICJ, 1951.)

  7. Art. 2. GENOCIDE CONVENTION “ 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: • Killing members of the group; • Causing serious bodily or mental harm to members of the group; • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; • Imposing measures intended to prevent births within the group; • Forcibly transferring children of the group to another group.”

  8. ELEMENTS OF GENOCIDE:

  9. OPEN ISSUES: • 1 or more victims? • Lone genocidaire v. geocidal policy or plan? • How to define protected groups? • What constitutes a(sufficiently relevant) part of a group? • What is meant by destruction? • Can ethnic cleansing constitute genocide? • Dolusspecialis (purpose v. knowledge)

  10. GENOCIDAL ACTSa) “killingmembersofthe group” • One or more victims? • Use of plural in the crime definition (killing members of the group, causing harm to…members…, inflicting on the group conditions of life…) • Elements of Crimes, describing each genocidal act specify “one or more persons”, and the same view is shared by ad hoc tribunals (e.g. Akayesu TC judgment, para. 521., Krstić TC judgment, para. 685)

  11. b) “causing serious bodily or mental harm to members of the group” • “acts of bodily or mental torture, inhuman or degrading treatment, rape, sexual violence, and persecution” (para. 51 TC Rutaganda) • Need not entail permanent or irremediable harm, but must result in grave and long term disadvantage to a person’s ability to lead a normal and constructive life • “In some circumstances, forcible transfer can be an underlying act that causes serious bodily or mental harm” (Popović et al. TC para. 813)

  12. c) “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” • Methods of slow death • Deliberatedeprivation of resources indispensable for survival, such as food and medical services, or systematic expulsion from homes (EOC, art. 6) • Rape, excessive work, physical exertion (Kayishema&Ruzindana, TC, para. 115-116) • Encircling civilians of the protected group in villages/towns, shelling those areas, cutting off all supplies, destruction of historical, religious and cultural property?

  13. d) “imposing measures intended to prevent birhts within the group” • sexual mutilation, enforced sterilization, forced birth control, forced separation of males and females and prohibition of marriages (Rutaganda, TC, par. 53) • Not only physical but also mental measures • Population transfer? • “the physical destruction of the men therefore had severe procreative implications for the Srebrenica Muslim community, potentially consigning the community to extinction” (Krstić, AC, para. 28)

  14. e) “ Forcibly transferring children of the group to another group” • Not only direct acts of forcible physical transfer, but also any acts of threats or trauma which would lead to forcible transfer • What is meant by ‘children’? – children under 18? Under 15? Only newborns? • Form of cultural genocide? Biological genocide – consequences for the future viability of a group?

  15. GENOCIDAL PLAN OR POLICY? • Jelisić, AC, para. 48. “ the existence of a plan or policy is not a legal ingredient of genocide” (although it may facilitate proof of the crime) • EOC attached to art. 6. of the Rome Statute: “The conduct took place in the context of a manifest pattern of similar conduct directed against that group (or was conduct that could itself effect such destruction.”)

  16. PROTECTED GROUPS • National(“a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties”) • Ethnical(“a group whose members share a common language or culture”) • Racial (“a group based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors. ”) • Religious (“a group whose members share the same religion, denomination or mode of worship. ”) • Akayesu, par. 516. – “permanent and stable groups” • Objective or subjective approach

  17. GENOCIDAL INTENT • Dolusspecialis – intent to destroy a group (purpose) • Destruction – “Despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group” (Krstić, para. 580.)

  18. GENOCIDAL INTENT • PARTIAL DESTRUCTION : • A part of the group that has an impact on a group as a whole (the intent, thus, basically to destroy the entire group) • Substantial part - numerical • Significant part – qualitative approach • Geographically limited part of the group (local genocide)

  19. The importance of genocide – crime of all crimes? - Stigma of Conviction - Demands of Justice (Victims) - Jurisdiction of the ICJ (dual responsibility)

  20. CRIMES AGAINST HUMANITYArt. 6 c. Charterof IMT • CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutionson 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.

  21. Art. 5. ofthe 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

  22. Art. 7. Rome Statute ofthe ICC • For the purpose of this Statute, "crime 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

  23. (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, ethnic, 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 inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.  

  24. 2.         For the purpose of paragraph 1:   (a)     "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;      (g)     "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

  25. Q& A: • Whatare themaindifferencesbetween genocide and CAH? • Couldyoudefendassertionthatcrimescommittedin Srebrenica shouldbequalified as crimesagainsthumanityandnot genocide?

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